Court File and Parties
Citation: R. v. Randeep Sandhu et al, 2016 ONSC 7946 Court File No.: 1-641541 Date: 2016-10-06 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Randeep Sandhu, Dimitri Alexiou, Waseem Iqbal and Ashok Sharma, Defendants
Counsel: Eric Gilman and David Morlog for the Crown (Public Prosecution Service of Canada) Melanie Webb for the Defendant, Randeep Sandhu Hussein Aly for the Defendant, Dimitri Alexiou Deepak Paradkar for the Defendant, Waseem Iqbal Yoni Rahamim for the Defendant, Ashok Sharma
Heard: November 24, 2016
Reasons for Sentence
J.D. McCombs, J.
[1] Mr. Sandhu, Mr. Alexiou, Mr. Iqbal, and Mr. Sharma are before me for sentencing today.
[2] They have been convicted for their part in a sophisticated, carefully orchestrated major criminal operation that led to the seizure of thirty-three kilograms of cocaine on May 6, and 10 kilograms of cocaine on May 8, 2013.
[3] A discussion of the evidence and the reasons for my conclusions are set out in detail in lengthy written reasons for judgment (see R. v. Sandhu [2016] O.J. No. 5810), and will not be repeated here unless relevant for sentencing purposes.
[4] Each offender played a different role, and as I will discuss later, their respective degrees of involvement and of moral blameworthiness also differ.
[5] This was a carefully planned major trafficking operation motivated by profit. The traffickers engaged in extensive counter-surveillance activity, using multiple methods and several motor vehicles in their efforts to avoid detection.
[6] It was only through a sophisticated, coordinated undercover surveillance operation that police were able to follow the drugs and observe the activities that have led to the convictions of the four men before the court.
[7] The value of the drugs on the illicit market is in the millions of dollars. Exhibit 1 is an agreed statement of fact concerning the value of powder cocaine on the illicit market. Powder cocaine is sold wholesale for between $45,000 & $50,000 per kilogram. By the ounce, it sells for between $1300 & $1600. And it is sold by the gram for between $80 & 110.
[8] On the evidence before me, the cocaine was being trafficked at the wholesale level. The wholesale value of the 33 kilos seized on May 6 was about $1.5 million. The wholesale value of the 10 kilos seized on May 8 was between $450,000 and $500,000. The retail value, when sold for between $80 and $110 per gram, was between $3.4 and $4.8 million.
[9] Determination of an appropriate sentence involves consideration of a number of guiding principles found in the governing legislation and in decisions of trial and appellate courts.
[10] The fundamental purpose of sentencing, in the words of s. 718 of the Criminal Code, is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions with one or more of a number of objectives, including denunciation of the conduct, deterrence of the offender and others, acknowledgement of the harm done to victims and to the community, and rehabilitation of the offender.
[11] In deciding on a just sentence, the most important guiding principle is that the sentence must be proportionate to the seriousness of the crime and the moral blameworthiness of the offender. The sentence must take into account both aggravating and mitigating circumstances.
[12] Other factors must be considered as well, such as the sentences imposed on others involved in the crimes. And where the court is imposing a first sentence of imprisonment, courts should not focus exclusively on principles of denunciation and deterrence and ignore mitigating factors such as the lack of a prior criminal record and evidence of prior good character.
[13] In this case, all four offenders had no prior criminal record, and the uncontradicted evidence before me supports the conclusion that they are of otherwise good character. On the evidence heard at trial, I cannot conclude that their crimes were an ongoing part of a larger criminal enterprise.
[14] I turn now to a brief discussion of the seriousness of the crimes. Commercial trafficking of large quantities of cocaine is a very serious criminal offence.
[15] Cocaine trafficking causes great harm to individuals and to society in general. People who traffic in large quantities of cocaine for pure profit, without regard to the devastating effects of their crimes, bear a very high degree of moral blameworthiness, because they place higher priority on personal profit than on the human misery their crimes cause.
[16] It is well-established that denunciation and deterrence are the paramount principles of sentencing in dealing with commercial trafficking of substantial quantities of cocaine. Only lengthy periods of imprisonment in penitentiary are appropriate for crimes of this nature, even where the offenders are persons with no prior criminal record and of otherwise good character.
[17] In the course of submissions, there was much discussion of the appropriate range of sentence in large commercial cocaine trafficking cases. I am satisfied that the respective positions of counsel for the parties fall within the high and low ends of the appropriate range.
[18] Mr. Iqbal and Mr. Sandhu stand convicted of trafficking in the 33 kilograms of cocaine seized on May 6, 2013, as well as the 10 kilograms of cocaine seized on May 8, 2013. Mr. Alexiou stands convicted of trafficking in the 33 kilograms of cocaine seized on May 6, 2013. And Mr. Sharma stands convicted for his part in the trafficking of the 10 kilograms of cocaine seized on May 8, 2013.
Positions of the Parties
[19] I turn now to identify the positions of the parties. In discussing the parties’ positions, I will not deal with them in the order they are listed on the indictment, but rather in relation to the offences they have been convicted of.
[20] For Mr. Iqbal, the Crown seeks 15 years imprisonment. The defence position is that the appropriate range is imprisonment for 10 to 12 years.
[21] For Mr. Sandhu, the Crown seeks 13 years imprisonment. The defence position is that a sentence in the range of 9 to 10 years is appropriate.
[22] For Mr. Alexiou, the Crown seeks a sentence of 12 years. The defence position is that a sentence in the range of eight to nine years is appropriate.
[23] For Mr. Sharma, the Crown seeks a sentence of 8 years. The defence position is that 5-6 years is an appropriate sentence.
Discussion and Conclusion
[24] I will deal first with Mr. Iqbal and Mr. Sandhu. They have both been convicted of trafficking in the 33 kilograms of cocaine on May 6 and the 10 kilograms of cocaine on May 8.
[25] Mr. Iqbal is 43 years old. He was born in Pakistan and came to Canada in 1994. He is a Canadian citizen with no prior criminal record. He is well-educated, married with three children aged five, eight and ten. Letters of reference filed on his behalf attest to his kind and caring nature. Some refer to his regret and remorse for his actions, and most mention the negative affect that his arrest and prosecution have had upon him and his family. Among the letters is a moving tribute from his 10 year old son, saying what a good father he is and attesting to his love for him. Mr. Iqbal has remained steadily employed as an airport shuttle driver and other driving jobs during the period he has been on bail.
[26] It is impossible to reconcile Mr. Iqbal’s prior good character with his very serious criminal misconduct. He knows he is facing a very substantial period of imprisonment and I do not doubt that he feels a deep regret that he will be unable to care for his family while he is incarcerated.
[27] However, among the four men before the court today, I am satisfied on the evidence that Mr. Iqbal was the directing mind. I hasten to point out, however, that the evidence shows that there very likely were others much higher up than Mr. Iqbal in a larger cocaine trafficking operation. Those individuals, as far as I am aware, have not been apprehended and held accountable. So, although Mr. Iqbal was the directing mind among the four men before the court, he is by no means the main player in the drug smuggling and trafficking operations. And on the evidence before me, I am unable to say that Mr. Iqbal was deeply entrenched in drug trafficking.
[28] However, Mr. Iqbal’s involvement displayed a high degree of planning, care, organization, and direction. He made a sustained effort to avoid dealing with the drugs directly, preferring to remain for the most part on the sidelines, but nevertheless directing the operations.
[29] The position taken by the Crown, seeking imprisonment for 15 years, is not unreasonable in the circumstances. The drugs seized on May 6 and May 8, 2013 had a wholesale value of about $2 million and a street value of millions more. The operation was sophisticated and organized.
[30] Notwithstanding Mr. Iqbal’s prior good character, denunciation and deterrence must be the paramount considerations.
[31] Taking all the factors into consideration, I have concluded that an appropriate and just sentence for Mr. Iqbal is imprisonment for 12 years to run concurrently on each charge.
[32] I turn now to Mr. Sandhu.
[33] Randeep Sandhu was 36 when these crimes were committed. He is now 40 years of age. He was born in the Punjab region of India and came to Canada in 1999. He became a Canadian citizen in 2004. He has been married almost 18 years and has two children, a son age 12 and a daughter aged 5. He is by all accounts a hard-working family man. He and his wife are well-educated, loving, devoted parents. The letters of support filed on his behalf from his wife, his parents and his parents-in-law, all attest to his good character and his commitment to his family. There is no reliable evidence that his involvement was part of a larger scheme. He is entitled to be sentenced on the basis that his crimes were out of character for him.
[34] Although as I have said, I am satisfied that Mr. Sandhu was working under the direction of Mr. Iqbal, the fact remains that he was fully committed and actively engaged throughout the entire period of the investigation. He was a very active participant in both transactions – on May 6 and on May 8, and he bears a very high degree of moral blameworthiness.
[35] As I indicated when discussing Mr. Iqbal, it is impossible to reconcile Mr. Sandhu’s prior good character with his very serious criminal misconduct. Like the others before the court, he knows he will be receiving a lengthy sentence of imprisonment today, and he knows the adverse effect that this will have on his wife, his children, and his parents and parents-in-law.
[36] Having taken into account all of the relevant factors, I conclude that the Crown recommendation of 13 years is too high, and the defence submission of imprisonment for 9 to 10 years is too low. To reflect the gravity of the crimes committed by Mr. Sandhu and the paramount consideration of denunciation and deterrence, I impose a sentence of imprisonment for 11 years to run concurrently on each charge.
[37] I turn now to Mr. Alexiou. He also has no prior criminal record. He is 40 years old, married with three children from his present marriage, and a 13 year-old daughter from his former marriage. He was employed as an electrician when he committed the offence before the court. He has been under house arrest during almost the entire time since his arrest, and he has had to wear an ankle bracelet at a cost to him of $700 per month. He has been unable to work, and his circumstances have caused financial ruin to his family and have put a significant strain on his relationship with his wife and his 13 year-old daughter. He has declared personal bankruptcy.
[38] On May 6, 2013, Mr. Alexiou flew into Toronto from Montreal. He was brought to Mississauga by a person named Gurshuran Singh to pick up three suitcases containing 33 kilograms of cocaine. He was in a taxi headed for a downtown upscale condominium unit when he was arrested and the drugs were seized. He was in possession of an entry card to the secure area of the downtown condominium development, and he was also in possession of a key to a unit where police later discovered a further large quantity of narcotics. Mr. Alexiou was charged with being in possession of the narcotics found in the condominium unit, but in my reasons for judgment, I concluded that the evidence did not establish that Alexiou was aware of their presence and he has been acquitted of the charges related to those narcotics.
[39] Nevertheless, Mr. Alexiou very clearly had a significant role to play in the receipt and delivery of the 33 kilograms of cocaine. It may be that he was acting as a mere courier, but his conduct carries a very high degree of moral blameworthiness. The evidence supports the conclusion that he was chosen for that role because he was considered to be someone who could be trusted with drugs of very high value that were to be transported to the condominium unit. He flew in from Montreal that very morning, likely for the sole purpose of ensuring that the drugs were delivered to the chosen location. He was entrusted with exclusive possession of a very large quantity of cocaine valued at about $1.5 million at the wholesale level, and he was also entrusted with an access card and key to the condominium unit.
[40] Mr. Gurshuran Singh, the person who brought Alexiou to Mississauga to pick up the drugs and bring them to the condominium unit, entered a plea of guilty before McMahon J. and received a sentence of nine years imprisonment. I have read the transcript of the proceedings before McMahon J. tendered as ex. 4 on this sentencing hearing and it does not assist me in determining the relative degree of culpability as between Gurshuran Singh and Mr. Alexiou.
[41] Mr. Singh brought Mr. Alexiou to Mississauga and it is not known who gave the access card and unit key to Mr. Alexiou. There are any number of scenarios that would explain Alexiou’s possession of the key and access card.
[42] Having read the transcript of the sentencing proceedings before McMahon J., I am unable to conclude that Mr. Alexiou is more culpable than Mr. Singh. At the time of sentencing, Mr. Singh was facing extradition to the United States on similar charges and in the transcript of proceedings before McMahon J. his counsel Mr. Butt indicated at page 11 that he had been in contact with Mr. Singh’s American counsel and there was an intent to resolve the American charges. I do not wish to be misunderstood to have assumed that Mr. Singh is guilty of the American allegations. I mention them in order to illustrate the fact that based on the record before me, I am unable to accept the Crown submission that Alexiou is more culpable than Singh.
[43] I conclude that the degree of culpability of Mr. Alexiou is roughly the same and perhaps slightly less than that of Mr. Singh. Singh received a reduced sentence of nine years imprisonment because of his plea of guilty and his expression of remorse.
[44] In all the circumstances, I have concluded that the appropriate sentence for Mr. Alexiou is imprisonment for 10 years. I accept the submissions of Mr. Aly that Mr. Alexiou should receive credit for pre-trial custody and restriction of liberty. He spent 11 days in jail before being released on bail. At a ratio of 1.5 days for each day of custody, he is entitled to credit for 18 days. He was on house arrest wearing an ankle bracelet at a cost to him of $700 per month and was unable to work, with devastating consequences for his and his family’s financial circumstances and for his relationship with his wife and daughter. In the exercise of my discretion I credit him with one day for every four days of his restriction of liberty of 1111 days. The calculations result in entitlement of pre-trial credit of 9.5 months and that will be reduced from the otherwise appropriate sentence of ten years. In the result, Mr. Alexiou is sentenced to an additional period of imprisonment of 9 years and 2.5 months.
[45] I turn finally to Mr. Sharma. He too is a first offender with no criminal record and of otherwise exemplary character. He is well-educated and a graduate of university in Delhi with a B. Comm. Degree. He has been married for 23 years and has a daughter at Queens University and a son at the University of Waterloo. He left a successful business in India with 20 employees to come to Canada in 2005 to give his children better opportunities in life. He became a Canadian citizen in 2012. Letters of support from his wife and friends attest to his otherwise good character and to his devotion to his family. His wife has medical problems and Mr. Sharma’s incarceration will work a very substantial hardship on her and the family.
[46] Mr. Sharma has been convicted only in relation to the 10 kilograms seized on May 8. The evidence showed that he used his car to drive Sandhu around and to pick up the 10 kilograms of cocaine. He is seen looking into the trunk of the Chrysler when Sandhu is examining the contents of the bag. He was either aware of or wilfully blind to the fact that the bag contained a very large quantity of cocaine. With all that said, however, Sharma is by far the least culpable of the four. Although his car was used, he was a relatively minor player in the operation. I am advised that the person who took delivery of the 10 kilograms of cocaine, Mr. Chung Fai Mok will be sentenced before McMahon J. and that there will be a joint submission for five years imprisonment less credit for time served.
[47] I appreciate that as a general principle, a supplier of drugs to a trafficker bears greater moral blameworthiness than the trafficker, but in the case of Mr. Sharma, because of his limited role and minor involvement, I consider his level of moral blameworthiness to be at the lower end of the range for a person convicted of trafficking in 10 kilograms of cocaine.
[48] The Crown submits that the appropriate sentence for Sharma is 8 yrs. If it were not for his relatively limited role in the offence on May 8, I would agree that is the appropriate sentence. However, the entirety of the evidence is consistent with Sharma playing a role that is significantly less morally blameworthy than the roles played by Iqbal, Sandhu and Alexiou. Like them, he has no prior criminal record and is of otherwise good character. I have concluded that the appropriate sentence for him is imprisonment for six years.
[49] There will be an order of forfeiture of Mr. Sharma’s Chrysler that was used in the commission of the offence of May 8. The automobile was used to transport the 10 kilograms of cocaine on May 8 and as such, it is offence-related property: R. v. Trac (2013) 2013 ONCA 246, 298 C.C.C. (3d) 360 (Ont. C.A.). Where application for forfeiture of offence-related property is made, the order is mandatory under s. 16(1) of the Controlled Drugs and Substances Act: R. v. Paziuk, (2007) 2007 SKCA 63, 221 C.C.C. (3d) 518 (Sask. C.A.). The Crown has prepared and filed the appropriate forfeiture documents and I have signed them.
[50] In addition to the periods of imprisonment I have imposed, and the forfeiture order in relation to Mr. Sharma’s Chrysler automobile, I make the following ancillary orders with respect to each of the four offenders. Each offender will be subject to a weapons prohibition order under s. 109 of the Criminal Code for 10 years. Each offender will be required to provide a sample of bodily substance for inclusion in the DNA data bank. And as the crime of drug trafficking is not a victimless crime, s. 737 applies to require a mandatory victim surcharge. The minimum as I understand it, is $200 for each crime. Therefore Mr. Iqbal and Mr. Sandhu will each be required to pay a victim surcharge of $400. Mr. Alexiou and Mr. Sharma will pay a victim surcharge of $200. They shall have one year to pay the surcharges.
[51] In summary, I have imposed the following sentences in addition to the ancillary orders I have just referred to.
[52] Mr. Iqbal, imprisonment for 12 years concurrent on both charges.
[53] Mr. Sandhu, imprisonment for 11 years concurrent on both charges.
[54] Mr. Alexiou, imprisonment for 10 years less pre-trial credit of 9.5 months for a remaining sentence of 9 years and 2.5 months.
[55] Mr. Sharma, imprisonment for six years.
[56] That is the disposition of the court.
J.D. McCombs J.
Released: December 16, 2016