WEDNESDAY, FEBRUARY 17, 2016
R E A S O N S F O R S E N T E N C E
HILL J. (Orally):
After a trial, Peter Ukwuaba was found guilty of unlawfully importing heroin into Canada, conspiracy to import heroin and possession of heroin for the purpose of trafficking.
It falls to be determined what a fit sentence is for these crimes.
FACTS OF THE OFFENCES
Because the court’s earlier reasons, 2015 ONSC 2953, describe the factual background in some detail, only a brief summary is warranted:
(1) the offender knew Amesh Gupta no longer lived as a tenant at 43 Holyoake Crescent in Etobicoke – by July 2011, Gupta had not resided at the address for about a year;
(2) the offender who had moved out of the Holyoake address some months prior to July 2011, to his girlfriend’s residence, continued to use the Holyoake address as his mailing address and attended there routinely to pick up mail;
(3) together with one or more persons, including an unidentified person in India, the offender entered into an agreement to facilitate the importation of heroin into Canada;
(4) on July 15, 2011, a text message originating from a phone in India, 918750159453, was sent to a Motorola cell phone used by the offender – the text read “ET138626565IN”;
(5) on July 18, 2011, a Canada Post facility processed a parcel received from Chennai, India addressed to Amesh Gupta at 43 Holyoake Crescent and bearing the tracking number “ET138626565IN”.
(6) a Canada Post/RCMP investigation revealed the parcel to contain a number of pneumatic air valve joints containing heroin;
(7) the 1,168 grams of 45 percent pure heroin were removed and a small quantity of heroin was inserted in the reassembled valves for the purposes of the controlled delivery – if sold at gram level, the imported heroin had a value exceeding a quarter of a million dollars;
(8) a party can access a Canada Post website and by searching a tracking number for a parcel, follow the progress of that parcel, including when it had been assigned as “out for delivery”;
(9) on July 25, 2011, at 9:31 a.m., the date of the scheduled controlled delivery, a telephone call came to the Motorola phone from the phone number in India, 918750159453. The call lasted about one minute and twelve seconds – a call, which the court concluded involved a discussion between conspirators about the pending delivery of the heroin;
(10) in the hour preceding the 11:20 a.m. controlled delivery, the offender engaged in counter surveillance activity on Holyoake Crescent and eventually dropped his wife’s car some distance away and walked to 43 Holyoake Crescent – this was not a short pop-in to the residence to pick up mail on this date, the offender was awaiting an expected delivery;
(11) the offender, fully aware of its contents and waiting by the residence door, accepted the parcel for Gupta from the undercover officer posing as a Canada Post delivery employee – the offender appeared nervous – as the offender was using the departed Amesh Gupta as a straw man he could sign his own name as Gupta was not expecting a parcel and Canada Post would consider its delivery completed;
(12) after taking the package into 43 Holyoake Crescent, the offender walked to retrieve his wife’s car in order to return to the residence where he put the parcel in the trunk and drove away;
(13) the offender drove to Value Village and on emerging from his vehicle had the exterior wrapping from the parcel in his hand - the wrapper which contained the information of the sender’s address in India, the name Amesh Gupta at 43 Holyoake Crescent, and the Canada Post tracking number – the court concluded that when the offender was arrested in the parking lot, he was moments from discarding the evidence represented by the wrapper;
(14) incident to arrest police seized the Motorola phone from the vehicle glovebox and the unopened and wrapper-less box from the vehicle trunk, which had been sent in the controlled delivery.
THE OFFENDER
The offender is currently 48 years of age. His parents reside in Nigeria, where he was born. The offender has university level training in Nigeria, including in the petroleum engineering field.
In 2002, the offender claimed refugee status in Canada. He currently has permanent resident status in this country.
Blessing Ojie is the offender’s common-law spouse. The couple have a young son who is autistic, for whom the offender has been a primary caregiver.
The presentence report states at page 5:
The subject presented to be co-operative for the purposes of this report. However, when asked about his current address he initially stated 43 Holyoake Crescent. He then changed this, stating 3 Rowntree Road. He then provided a driver’s licence that identified 605 Aspen Road, Pickering, and when asked by this writer for this to copy as proof of identification he changed identification cards and provided his OHIP card with no address identified. When asked for details in certain circumstances, the subject would state that he “had nothing else to say” or would refer to his common-law spouse to answer.
The offender provided one familial and/or social source of information for this report, his current common-law spouse. He stated that she is currently acting as his surety for his bail. When asked about the specifics of his bail conditions, the subject stated that he “forgot”. When asked about specifics concerning his relationship with Ms. Ojie he stated uncertainty. He also stated he was unsure when they met, how long they had been together, the particulars of her schooling and the particulars of his son’s childcare needs.
On November 7, 2015, the offender was arrested in Toronto, including on a charge of importation of heroin. He was denied bail and the judicial interim release order on the charges before this court was revoked pursuant to s. 524 of the Criminal Code.
POSITIONS OF THE PARTIES
THE CROWN
On behalf of the Crown, Mr. Leising submitted that the evidence supported the conclusion that Mr. Ukwuaba “was a principal in a heroin importing scheme and a person likely to profit significantly from its domestic distribution.”
Counsel emphasized the serious danger presented by heroin. It was submitted that the importation of this narcotic, in a weight of about one kilogram, more or less, normally attracts a sentence in the range of 9 to 12 years’ imprisonment, in the absence of exceptional or extenuating circumstances, which do not exist here.
Similar dispositions, it was submitted, should be imposed on the other counts given the prevailing precedents. Mr. Leising submitted that a global sentence toward the upper end of the 9-to-12-year range is appropriate in all the circumstances.
THE DEFENCE
On behalf of Mr. Ukwuaba, Ms. von Achten acknowledged the seriousness of the crimes for which the offender has been convicted. Counsel however emphasized that Mr. Ukwuaba is a first offender. He has been gainfully employed, an active member of the local Nigerian community and his church, and has played a crucial role in his son’s life. It was argued that the offender has good rehabilitative prospects upon release.
Ms. von Achten submitted that a global sentence of nine years would be a fit sentence in all of the circumstances – nine years for the conspiracy charge and concurrent sentences of eight years for the importing and six years for the possession for the purpose of trafficking conviction.
In addition, counsel sought at least 1.5:1 credit for the offender’s pre-sentence custody since November 7, 2015 with a request for 2:1 credit to be considered given conditions at the Toronto South Detention Centre.
In R. v. Lacasse, 2015 SCC 64, at paras. 12 and 53, Justice Wagner stated:
...proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender.
Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2(a) and (b) of the Criminal Code.
In Smith v. The Queen, [1987] S.C.R. 1045, the Court stated that the importers of hard drugs should “be sentenced to and actually serve long periods of penal servitude.”
In R. v. Hamilton and Mason (2004), 2004 CanLII 5549 (ON CA), 186 C.C.C. (3d), 129 (Ont. C.A.), at paras. 90 to 91 and 103, Justice Doherty observed:
The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence. For example, in drug importation cases, the nature and quantity of the drug involved will impact on the gravity of the offence. Some of the factors which increase the gravity of the offence are set out in s. 718.2(a).
The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence -- especially the fault component -- and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime. In drug importation cases, the offender's role in the importation scheme will be an important consideration in assessing the offender's personal responsibility.
If the offence is particularly serious in that it causes or threatens significant harm to an individual or segment of the community, the objectives of denunciation and general deterrence will usually dominate the other objectives identified in s. 718.
General deterrence and denunciation factors are the paramount sentencing considerations in heroin importation cases. Heroin is a Schedule I CDSA prohibited substance. The crime, punishable by a maximum of life imprisonment, is a grave offence threatening public safety. In this regard, these factors are relevant:
(1) heroin is “a very dangerous drug” (R. v. Burchell, 2014 ONCA 242, at para. 4) with pernicious and devastating effects (R. v. Chan (2003), 2003 CanLII 52165 (ON CA), 178 C.C.C. (3d) 269 (Ont. C.A.) at para. 76) – indeed the substance “is the most addictive, the most destructive and the most dangerous” (R. v. Sidhu, 2009 ONCA 81, at para. 12);
(2) given the risk to public safety from this non-indigenous narcotic, and the implications for collateral criminality associated with its distribution, it is “necessary to protect our country and our citizens from the ravages of it.” Sidhu, at para. 15;
(3) considering, as disclosed by the expert evidence at trial, that a single heroin use can be a “point” or one-tenth of a gram, the quantity imported in this case, 1168 grams, or over two pounds eight ounces, could not only have impacted significantly upon the community but also stood to reap serious financial gain for the involved conspirators – put differently, the quantity here is “substantial” as is reflected by reference to the relevant jurisprudence: R. v. DiBenedetto, 2016 ONCA 116, at para. 2 (410 grams of heroin described as “a large commercial quantity of heroin”); R. v. Bains and Pannu, 2015 ONCA 677, at para. 193 (one kilogram described as “a substantial amount of a highly addictive drug”);
(4) the conspiracy crime had a trans-national character with the involvement of one or more co-conspirators in India – in R. v. Kusi, 2015 ONCA 638, at para. 14, the court stated, “the sentencing judge specifically referenced this court’s discussion in R. v. Sidhu, 2009 ONCA 81, at paras. 14 and 20, about the relevance of the quantity of the drug involved to the sentencing process. In that case, at para. 14, this court held that first offender couriers who import large amounts of high-grade heroin into Canada for personal gain should expect to receive jail sentences in the 12-to-17-year range” – the court went on to say that lesser amounts will often attract similar if slightly lower penalties – the examples of such lower penalties, given at para. 20 in Sidhu disclose that in the case of a courier (emphasis added) even a quantity of about one kilogram of heroin could attract a sentence in the 9-to-11-year range.
Other appellant authorities identify a 9-to-12 year range for heroin importation in the one kilogram range.
In the DiBenedetto case, at para. 9, the court stated: “[t]he case law establishes a range of sentence from 6 to 12 years for offences involving trafficking of between approximately 0.5 to 1 kilograms of heroin.” For the expression of a similar range relating to possession for the purpose of trafficking heroin, see Bains, at paras. 185 and 192. Reference may also be made to these governing appellate authorities relating to heroin importation:
(1) Kusi – the offender was a principal actor who imported 1.37 kilograms of heroin. The offender pled guilty. A 10-and-a-half year sentence was upheld;
(2) R. v. Ifejika, 2013 ONCA 531 – a sentence of seven years was upheld for a 500-gram importation;
(3) R. v. Osei, 2004 CanLII 25984 (ON CA), [2004] O.J. No. 65 (C.A.) – an eight-year sentence was upheld respecting a courier who pled guilty after importing 911 grams of heroin. And lastly,
(4) R. v. Mensah, 2003 CanLII 57419 (ON CA), 2003 9 C.R. (6th) 339 (Ont. C.A.) (leave to appeal denied [2003] S.C.C.A. No. 207) – a nine-year sentence was upheld for a heroin courier who imported 1038 grams.
While it is not always possible respecting an offender to determine with precision “the actual level of involvement in the drug trade with any degree of certainty” (R. v. Shahnawaz (2000), 2000 CanLII 16973 (ON CA), 149 C.C.C. (3d) 97 (Ont. C.A.) at para. 17 (leave to appeal refused [2001] S.C.C.A. No. 24). As was summarized at paragraphs 132 and 133 of this court’s earlier reasons, the evidence supports the conclusion that Mr. Ukwuaba undertook a significant and essential role in the heroin importation scheme in terms of preparation, execution and attempted concealment. He was integrally involved in the conspiratorial planning. He is not entitled to the mitigation of sentence associated with a lesser role, such as a courier (see discussion in Kusi, at paras. 11 and 12).
On the whole of that evidence, it can reasonably be inferred that the offender committed the crimes of which he has been convicted for a commercial gain.
Mr. Ukwuaba is a mature offender. While not aggravating sentencing factors, the absence of guilty pleas and the offender’s lack of contrition or acceptance of responsibility impact upon the leniency which can be extended in sentencing and gives some indication of the prospects for rehabilitation.
Having regard to the decision of R. v. Summers, 2014 SCC 26, the appropriate credit in the circumstances for pre-sentence custody here is on the basis of 1.5:1. As to the request for further enhancement beyond the s. 719(3.1) cap, there is insufficient evidence in the record here to justify such credit. See R. v. Tulloch, 2014 ONSC 6120 relating to the subject of appropriate evidence in such an application.
The seriousness of the crimes committed and the moral blameworthiness of the offender require a severe sanction despite his first-offender status. While the three offences for which the offender has been convicted have distinguishing elements, they are closely related in terms of time and the common feature of the heroin brought to Canada. The imposition of sentences as concurrent or consecutive is a discretionary decision. R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948, at para. 46; R. v. Delchev, 2014 ONCA 448, at para. 34. In an instance of sentencing for multiple offences, the accepted approach is to first determine a global fit sentence and then assign sentences for each crime, designating as concurrent or consecutive: R. v. R.B., 2014 ONCA 840, at para. 8.
In all the circumstances of the case, considering the gravity of the offences and the operative sentencing principles, the offender is sentenced as follows: on count number one, importing, 11 years; count number two, conspiracy to import, 11 years; count number three, possession of heroin for the purpose of trafficking, 11 years. Those sentences will be concurrent and will be reduced by a period of five months to an effective sentence of 10 years and 7 months.
There will be a s. 109(2)(a) weapons prohibition for 10 years and a weapons prohibition pursuant to s. 109(2)(b) for life. In addition, with heroin importation and possession of heroin for the purpose of trafficking being secondary designated offences, as scheduled in s. 487.04 of the Code, there will be a DNA order pursuant to s. 487.051(3) as signed by the court on this date.
FORM 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Patti Keran, certify that this document is a true and accurate transcription of the recording of R. v. Ukwuaba, in the Superior Court of Justice held at 7755 Hurontario Street, Brampton, Ontario, taken from Recording No. 3199 406 20160217 092646 30 HILLCAS, which has been certified in Form 1.
(Date) (Signature of authorized person)
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
WITNESS
Exam. In-Ch.
Cr- Exam.
Re- Exam.
E X H I B I T S
EXHIBIT NO.
PAGE NO.
Reasons for Sentence 1
Transcript Ordered:................... April 13, 2016
Transcript Completed:................. May 15, 2016
Ordering Party Notified:............... May 16, 2016
Court File No. CR-12-2113
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
PETER IFEJUNA UKWUABA
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE HILL
on February 17, 2016, at BRAMPTON, Ontario.
APPEARANCES:
J. Leising Counsel for the Crown
S. von Achten Counsel for Peter Ukwuaba