Introduction

[1] On September 30, 2016, I found Mr. Rebelo guilty, following a trial, of possession of cocaine for the purpose of trafficking, possession of marijuana for the purpose of trafficking, and possession of proceeds of crime.

Circumstances of the Offences

[2] On September 28, 2013, police executed a search warrant on Mr. Rebelo’s home and seized a total of 407.82 grams of cocaine, 717.73 grams of marijuana, and $7,225 in Canadian currency. The drugs, other than a small amount of marijuana, were discovered in the garage of the home. The cash was discovered in Mr. Rebelo’s bedroom. Police also discovered a debt list, digital scales and numerous small Ziploc baggies in the garage.

[3] Two days prior to the execution of the warrant, police observed Mr. Rebelo engaging in three hand-to-hand drug transactions; two on the street and one in his garage.

[4] The cocaine was worth between $18,733 and $44,440, depending on how it was sold. The value of the marijuana was between $2,720 and $7,260 depending on how it was sold.

Positions of the Parties

[5] Mr. Nisker submits that a total sentence of 5 or 5½ years in prison is the fit disposition in this case. He also seeks a weapons prohibition order, an order forfeiting the currency and items seized from Mr. Rebelo, and a DNA order.

[6] Mr. Dos Santos, on behalf of Mr. Rebelo, submits that a sentence between two and three years is the appropriate disposition. He does not dispute the ancillary orders sought by Mr. Nisker other than to submit that the court could find that some of the cash discovered in Mr. Rebelo’s bedroom was earnings from Mr. Rebelo’s lawful employment.

Principles of Sentencing

[7] In determining the fit sentence, I am required to consider the sentencing principles set out in s. 718 of the Criminal Code. In part, s. 718 provides that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing sanctions that have one or more of six objectives. The most relevant objectives in this case are denunciation, deterrence, and rehabilitation.

[8] The sentence I impose must be proportionate to the gravity of the offence and the responsibility of the offender: s. 718.1 of the Criminal Code.

Circumstances of the Offender

[9] Mr. Rebelo will be 33 years old next week. He has no criminal record. He is employed in the construction industry. He has worked as an iron worker and heavy equipment operator. Since March 1, 2016, he has been employed on a full-time basis as a foreman in charge of five journey men. A letter from his employer indicates that the company is willing to re-employ Mr. Rebelo upon his release from prison.

[10] Mr. Rebelo lives with his parents, both of whom are retired. He assists his parents around the house and contributes financially to the mortgage and expenses of the household. He also provides financial assistance to his sister, who is a single mother of two children, both of whom are Mr. Rebelo’s godchildren. Letters written by his mother and sister have been filed as exhibits and speak to the contribution Mr. Rebelo makes, emotionally and financially, to his family.

Aggravating and Mitigating Circumstances

[11] I am required to take into account the aggravating and mitigating circumstances of the case in determining the appropriate sentence.

[12] The most aggravating features of this case are the nature and quantity of the drugs Mr. Rebelo possessed. Cocaine is a serious drug that causes untold damage to the fabric of our society. It is a poison that wreaks havoc on the lives of addicts, their families, and the community at large. Mr. Rebelo possessed a large and valuable quantity of cocaine, slightly less than a pound, with a potential street value of almost $45,000. He was also in possession of about 1½ pounds of marijuana with a potential street value of more than $7,000.

[13] In addition, Mr. Rebelo was engaged in the illicit drug trade for profit. He was not a drug addict in business to support his habit. He was selling drugs to supplement his employment income.

[14] The drugs were stored in the garage of Mr. Rebelo’s home, a place used by his parents, siblings, nieces and nephews. Some of the cocaine was stored in a refrigerator that was also used to store soft drinks and water. Children’s bicycles were stored in the garage. Mr. Rebelo was observed to sell drugs in his garage. Illicit drug operations attract violence, in the form of robberies and home invasions, because of the valuable nature of the product. Mr. Rebelo put members of his family at risk.

[15] There are also mitigating features of this case to be taken into account. Mr. Rebelo is a first offender. He is a skilled worker able to maintain gainful employment. Letters filed from two employers indicate that Mr. Rebelo has work available to him once he is released.

[16] Mr. Rebelo is obviously a member of a close-knit family. He provides support for his retired parents and sister, and he, in turn, has their support, as evidenced by the two letters filed on his behalf.

[17] All of the right circumstances are in place to assist Mr. Rebelo in his rehabilitation.

Sentences Imposed in Other Cases

[18] To determine the appropriate disposition, I must consider sentences imposed on similar offenders for similar offences in similar circumstances.

[19] Mr. Nisker and Mr. Dos Santos have helpfully prepared charts setting out the salient facts and sentences imposed in a number of cases. Although no two cases are exactly the same, prior decisions assist in defining the principles that I must apply, and in determining the appropriate range of sentence and the factors that place Mr. Rebelo within that range. Sentencing is not an exact science. It is a process that is driven by the unique facts of every offence and the unique characteristics of every offender. The circumstances of any case can be readily distinguished from any other case.

[20] The decisions make it clear that people who possess substantial quantities of cocaine for the purpose of trafficking can expect to receive lengthy prison sentences. This is to achieve the sentencing objectives of denunciation and deterrence, which are paramount in this case.

[21] Mr. Nisker relies on two decisions of the Ontario Court of Appeal in support of his position that five to 5½ years is the fit disposition in this case.

[22] In R. v. Bajada,[^1] the Court of Appeal noted that sentences of five to 5½ years were not uncommon in cases involving possession of substantial amounts of cocaine for the purpose of trafficking, even in cases where the offender pleaded guilty or had no prior criminal record. After referring to many of those cases, the court reduced Mr. Bajada’s eight-year sentence to six years. Following a trial, Mr. Bajada had been found guilty of possession of more than 500 grams of 74% pure cocaine for the purpose of trafficking. Mr. Bajada was 51 years of age and had a lengthy criminal record, including three prior convictions for trafficking in a narcotic. He had previously been sentenced to a total of 5½ years for trafficking in a narcotic and a related conviction for extortion. In my view, the circumstances of the offence and the offender in the Bajada case are much more aggravating than in Mr. Rebelo’s case.

[23] Similarly, in R. v. Bryan[^2] the Ontario Court of Appeal noted that the normal range of sentence for a first offender convicted of possession of slightly more than a pound of cocaine for the purpose of trafficking is between five and eight years.

[24] Sentences in the two to four-year range have been imposed recently on similar offenders in similar circumstances.

[25] I sentenced an offender to four years in prison in R. v. Andrews[^3] after finding him guilty of possession of 676.5 grams of cocaine, 813 grams of marijuana, and 56 grams of psilocybin, all for the purpose of trafficking. In addition, Mr. Andrews was in possession of two kilograms of cutting agent, a vacuum sealer, a digital scale and a significant amount of drug packaging paraphernalia. He had a dated and unrelated criminal record.

[26] In R. v. Ceballos,[^4] Justice MacDonnell sentenced a first offender found guilty of possessing 326 grams of cocaine to 2½ years.

[27] Justice Campbell imposed a sentence of 3½ years in R. v. Ovid,[^5] after giving the offender one year credit for pre-sentence detention. Mr. Ovid was found guilty of possession of 305 grams of cocaine in both powder and crack form. He had a significant criminal record, including convictions for trafficking in marijuana and possession of cocaine for the purpose of trafficking.

[28] Having carefully reviewed all of the cases provided by Mr. Nisker and Mr. Dos Santos, it appears that the range of sentences imposed on similar offenders for similar offences in similar circumstances extends below five years.

Determination of the Fit Sentence

[29] As I have already indicated, the paramount sentencing objectives in cases involving large amounts of cocaine must be denunciation and deterrence. Rehabilitation, however, must not be overlooked, particularly in the case of a first offender. Mr. Rebelo’s prospects for rehabilitation are excellent. He has employment and family support. He has complied with strict terms of judicial interim release since 2013, without incident.

[30] I consider Mr. Rebelo’s case to be slightly less serious than the case of Mr. Andrews, in which I imposed a sentence of four years. Mr. Andrews was conducting a more sophisticated drug trafficking business. In my view, in all of the circumstances of this case, before giving Mr. Rebelo credit for pre-sentence detention and restrictive bail conditions, a global sentence of 45 months in prison is the appropriate disposition. It is proportionate to the gravity of the offence, reflects the aggravating and mitigating circumstances of the case, and satisfies the objectives of denunciation and deterrence. It also reflects Mr. Rebelo’s excellent rehabilitative prospects.

[31] Mr. Rebelo is entitled to credit for the time he spent in pre-sentence detention[^6], and for the time he has been subject to restrictive bail conditions.[^7] He was arrested on September 28, 2013 and released on September 30, 2013 on strict house arrest conditions. He was not permitted to leave his home without one of his sureties. He could not work. In March 2014, his release order was varied to permit him to work. The other conditions, prohibiting him from being outside his home without one of his sureties, remained.

[32] Notwithstanding the variation in his conditions, Mr. Rebelo was stopped by the police on four occasions for being outside of his home without one of his sureties. On two of those occasions, he was detained in custody overnight, and released from court in the morning.

[33] Mr. Rebelo spent four days in pre-trial custody, and was subject to restrictive bail conditions amounting to house arrest for 40½ months. I am going to credit him 10 months for that. Accordingly, the sentence imposed today on Mr. Rebelo is 35 months in prison.

Ancillary Orders

[34] In addition, I make the following orders.

[35] First, pursuant to s. 109(1)(c) of the Criminal Code, I order that Mr. Rebelo be prohibited from possessing any weapon described in that section for ten years.

[36] Second, pursuant to s. 16(1)(b)(ii) of the Controlled Drugs and Substances Act, I order that all of the drugs and drug paraphernalia (i.e. scales, baggies, etc.) seized and detained in this case, be forfeited and disposed of in accordance with the law.

[37] Third, pursuant to s. 462.37 of the Criminal Code, I order that the $7,225 in Canadian funds seized from Mr. Rebelo be forfeited. I am satisfied on a balance of probabilities that it is the proceeds of crime, given the value of the drugs found in Mr. Rebelo’s possession, and the fact that he was observed engaging in hand-to-hand drug transactions.

[38] Finally, given that Mr. Rebelo has been convicted of a secondary designated offence, I make a DNA order pursuant to s. 487.051(3) authorizing the taking of a DNA sample.

Corrick J.

Released: February 13, 2017

COURT FILE NO.: CR15-90000052-0000

DATE: 20170213

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

and -

JEFFREY REBELO

REASONS FOR SENTENCE

Corrick J.

Released: February 13, 2017

[^1]: (2003) 2003 15687 (ON CA), 173 C.C.C. (3d) 255 at para. 13 [^2]: 2011 ONCA 273 [^3]: 2016 ONSC 5475 [^4]: 2015 ONSC 720 [^5]: 2016 ONSC 2974 [^6]: R. v. Summers 2014 SCC 26 [^7]: R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321 (C.A.)

R. v. Rebelo, 2017 ONSC 1036

Case Summary

Introduction

Circumstances of the Offences

Positions of the Parties

Principles of Sentencing

Circumstances of the Offender

Aggravating and Mitigating Circumstances

Sentences Imposed in Other Cases

Determination of the Fit Sentence

Ancillary Orders

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 6

Legislation 4