Court File and Parties
COURT FILE NO.: 12-3556 DATE: 2017-03-24 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN K. McGilly, for the Federal Crown Applicant
- and -
RUSHEED MARTINE DUDHI J. Filiberto, for the Rusheed Martine Dudhi Respondent
HEARD: January 26, 2017 The Honourable Mr. Justice H.S. Arrell
JUDGMENT ON SENTENCE
INTRODUCTION
[1] The accused was convicted on September 29, 2016 of possession of cocaine for the purpose of trafficking, and, possession of proceeds of crime under $5000.00 after trial by jury. He is before me for sentencing.
FACTS
[2] On January 6, 2011, the police entered the back door of 881 King St. E., Apt. 4 in the City of Hamilton. At the same time Mr. Dudhi ran out the front door, without his shoes, where he was promptly arrested by police waiting in that location. Inside the home the police found 112 grams of cocaine and $2000.00 in cash in Mr. Dudhi’s pockets and 2 cell phones. In the apartment were scales, baggies, chargers for phones and monitored surveillance cameras. Mr. Dudhi had keys to the apartment on him when arrested and his coat, bag, jacket, shoes, and wallet were found in the apartment.
[3] The evidence of Mr. Dudhi was that his cousin Jordan Brown, whom the police knew as Jay and was listed on the search warrant, lived in this apartment and he had visited him earlier in the day. That while visiting he became quite unwell and left suddenly, forgetting his wallet and bag in his cousin’s apartment at 881 King St. E. He later discovered he had left his wallet at his cousins and he phoned Mr. Brown to retrieve it. Mr. Brown told him to come to another apartment unit in the building as he was visiting a friend. Mr. Dudhi testified that that was exactly what he did and was given the keys by Mr. Brown to his apartment to retrieve his bag and wallet.
[4] Mr. Dudhi went to the apartment and took off his shoes which he says he always does when entering someone’s home. He had an urgent bathroom call so he also took off his coat. While washing his hands, after using the facilities, he said he heard a loud noise at the rear of the apartment, was scared by the shock of the noise and flash, and ran out the front door of the apartment and out the front door of the building without his shoes or coat. Once out the front door he saw a very excited German shepherd snarling and growling on the sidewalk so he took off in the opposite direction until he heard it was the police and he then stopped and was arrested. The police confirm he was co-operative. Mr. Dudhi confirmed the evidence of the police that the entry into the apartment was with a battering ram and flash bang devices which were very loud and disorienting. He testified that he didn’t know what was happening and was terrified. He wanted out of the apartment as quickly as possible so he simply took off without shoes or coat. He also confirmed the police evidence that the police dog was snarling, barking and very excited which he told the jury terrified him even more once he was out the front door.
[5] The jury did not accept his evidence and returned a verdict of guilty on both counts.
POSITION OF THE PARTIES:
[6] The Crown submits that Mr. Dudhi should be sentenced to a penitentiary term of 2 years along with a mandatory section 109 weapons prohibition (10 years), a section 490 forfeiture order relating to the currency as the Crown alleges it was the proceeds of crime (drug sales) and a DNA Order (secondary designated offence).
[7] The Crown argues that denunciation and deterrence are of higher priority in this particular case given the amount of drugs involved and that the trafficking was in a residential neighborhood and cites R. v. Woolcock, [2002] O.J. No. 4927 (OCA) in support of that proposition. That case however, quite clearly pointed out that rehabilitation cannot be overlooked and indeed the Court of Appeal reduced the trial judge’s sentence of 2 years for that very reason. The court also stated that the range of sentence for that type of offence was 6 months to 2 years less a day.
[8] The Defence suggests that a conditional sentence of 2 years less a day is more appropriate under all the circumstances, with strict house arrest for 18 months.
CIRCUMSTANCES OF MR. DUDHI:
[9] Mr. Dudhi is 28 years of age. He has been married for 8 years and he and his wife have 3 children between 2 months and 5 years. He has a daughter aged 8 from a previous relationship and his wife has a son aged 10 from a previous relationship. Four of the children live with Mr. Dudhi and his wife. Mr. Dudhi sees his 8 year old regularly and pays support for her, according to the pre-sentence report.
[10] Mr. Dudhi has no previous criminal record.
[11] There were 2 previous mistrials with regard to this matter. As such Mr. Dudhi has been on rather strict bail conditions for 6 years with no breaches. The accused narrowed the issues for trial to a simple proposition of whether the cocaine was in his possession with all other criteria admitted.
[12] I have received a number of letters of support for Mr. Dudhi being from his sister-in-law, sister, the longstanding girlfriend of Mr. Dudhi’s brother, Mr. Dudhi’s wife, brother-in-law, and mother-in-law. They all speak very highly of the accused, his deep Christian beliefs, his supportive nature to all, and the love he has for his wife and all his children. They all find this crime completely out of character for the man they have known for many years. I have no reason to doubt their sincerity or what they tell me.
[13] I accept that this was a large amount of drugs and that, although the underlying charges were ultimately dropped, the accused was on bail at the time of this offence. He has pleaded guilty to that breach once convicted of this charge.
[14] I have reviewed the presentence report which is generally positive, although Mr. Dudhi did not provide contact information for any of his siblings and no explanation for this was shared with me. The Crown points out this left the author of the report with limited sources and that I should discount the reliability of the report as a result. I disagree as much of what is said in the report has been confirmed by the letters of support received and other sources available to the probation officer.
[15] Mr. Dudhi had a positive childhood. He has had a reasonable work history until this event and has supported his family. Surprisingly, he admitted to the probation officer a 6 month period of trafficking in 2008 but stopped and denied being involved in drugs ever since, either by way of selling, or consuming. The Crown argues that there is lack of remorse to the probation officer after conviction and that this should be problematic to the court. I disagree. One would hardly expect an accused who pleaded not guilty to suddenly admit his wrongdoing after conviction if sincere about his not guilty plea. I accept the comments to the probation officer that he is fearful as to the repercussions financially and emotionally to his young family if incarcerated.
ANALYSIS
[16] Section 718 of the Criminal Code of Canada sets out the purpose and principles of sentencing. I have reviewed those principles and I am bound by them.
[17] It is trite law to indicate that "a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." See s.718.1 C.C.C.
[18] This Court has taken into account the principle of totality of sentence, the need to protect society from this offender, denunciation of this crime and deterrence to Mr. Dudhi and others that this Court will not sanction trafficking in cocaine, especially for the sole purpose of financial gain usually by exploiting weaker members of society. The court has also considered the rehabilitation of Mr. Dudhi, along with denunciation and deterrence. I am mindful of the comments of Justice Rosenberg in R. v. Borde (2003), 172 C.C.C. (3d) 225 (OCA) where he stated: “Where, as here the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives.” See also R. v. Priest, [1996] O.J. No. 3369.
[19] This offence occurred prior to the implementation of the Safe Streets Act and as such there is no minimum penalty. A conditional sentence is available to the accused if the test in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 is satisfied. As was recently stated by Hill J. in R. v. A.A., 2014 ONSC 1405 at para.49:
As a general rule, a sentencing submission that a statutory harshening of the penalties for a particular crime should inform present-time sentencing for an offence committed under a prior, and more lenient, sentencing regime, is unhelpful in deliberating the fitness of sentence. Indeed, such an argument, in my view, threatens the spirit, if not the letter, of s. 11(i) of the Charter.
[20] The Supreme Court of Canada in R. v. Proulx set out the criteria I must consider before imposing a conditional sentence at paras. 46 and 47 as follows:
(1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.
47 In my view, the first three criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is appropriate. This decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. I will discuss each of these elements in turn.
[21] It is agreed that there is no minimum penalty so the first criteria has been met. I am also satisfied that given all the circumstances of this case and the background of the offender, including his lack of a criminal record, that a sentence of something less than two years in prison would be appropriate. As such the second criteria has been met.
[22] I am also satisfied given the background of Mr. Dudhi, his family support, strong references, lack of a criminal record and the length of time he has been on bail without a breach, that the likelihood of him re-offending while serving his sentence in the community and endangering the safety of the community is remote, especially with terms of strict house arrest being imposed. I conclude therefore that the third criteria has been met.
[23] The real question for this court is whether a conditional sentence is appropriate under criteria four as set out in R. v. Proulx. The Crown argues this is not an appropriate case given the offender’s age, location of the drug house in a residential area used for trafficking, the obvious indicia that this was a well-established trafficking operation, on a retail level, and the relatively large amount of cocaine involved. The defence, of course, argues that this is indeed an appropriate case for a conditional sentence given the positive pre-sentence report, the facts of the incident, the lack of a criminal record, the lengthy time the offender has been on bail without any breaches, and the substantial support he appears to have within his family.
[24] I accept that denunciation and deterrence both to the offender and the community at large are very important factors when dealing with the offence of trafficking cocaine which always affects the most vulnerable and often youngest in our society. However, given the particular circumstances of this offender, his age, family and lack of a criminal record, his rehabilitation is also a significant factor that this court must consider.
[25] I am guided in my deliberations by the following instructions from the Supreme Court in R. v. Proulx at paras. 99 and 100 as follows:
The conditional sentence facilitates the achievement of both of Parliament’s objectives. It affords the sentencing judge the opportunity to craft a sentence with appropriate conditions that can lead to the rehabilitation of the offender, reparations to the community, and the promotion of a sense of responsibility in ways that jail cannot. However, it is also a punitive sanction. Indeed, it is the punitive aspect of a conditional sentence that distinguishes it from probation. As discussed above, it was not Parliament’s intention that offenders who would otherwise have gone to jail for up to two years less a day now be given probation or some equivalent thereof.
Thus, a conditional sentence can achieve both punitive and restorative objectives. To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2(d) and (e), which militates in favour of alternatives to incarceration where appropriate in the circumstances.
[26] I have reviewed the numerous cases presented by both counsel. It is clear from a review of those cases that sentencing in these types of cases is very much based on the individual facts of each case and the unique circumstances of the offender. I have concluded that facts of several Court of Appeal cases are not dissimilar to the case at bar and they have concluded that a conditional sentence is an appropriate disposition. See: R. v. Veljkovic, [2006] O.J. No. 1327; R. v. Hayes, [2001] O.J. No. 684; R. v. Kerr, [2001] O.J. No. 5085; R. v. Kozma, [2000] B.C.J. No. 1595 (BCCA); R. v. Ploumis, [2001] O.J. No. 4731.
CONCLUSION:
[27] I have concluded, based on the unique circumstances of this case, and in particular the unique circumstances of this offender, that a reformatory term is appropriate and not penitentiary. I have also concluded this offender will not reoffend while serving his sentence in the community and is therefore not a threat to the safety of the community. I believe that denunciation and deterrence can be adequately addressed by a conditional sentence and that such a sentence is consistent with the fundamental principles of sentencing set out in the Criminal Code of Canada.
[28] Mr. Dudhi you are sentenced to a term of imprisonment of 2 years less a day which shall be served in the community, plus two years’ probation. The terms of conditional sentence will be as follows:
(1) keep the peace and be of good behaviour; (2) appear before the court when required to do so by the court; (3) report within five working days of today’s date in person to a supervisor and thereafter report when required by the supervisor and in the manner directed by the supervisor; (4) remain within the Province of Ontario unless written permission to go outside the province is obtained from the court or the supervisor; and (5) notify the supervisor in advance of any change of name or address and properly notify the supervisor of any change of employment or occupation.
[29] In addition to the statutory conditions, you will be bound by the following conditions:
(1) You will remain inside your residence, with your wife and children, for the first 18 months of this sentence at all times, except for the purpose of: a. meeting with you conditional sentence supervisor; b. attending at any counselling and/or random screening as your conditional sentence supervisor directs; c. attending at your place of employment for work or school; d. attending at medical or dental appointments for yourself, or your immediate family members; e. attending medical emergencies for yourself or your immediate family members; f. obtaining the necessaries of life for yourself or immediate family members, or for religious services, which shall be limited to 10 hours per week and arranged according to a schedule approved by your conditional sentence supervisor in writing in advance; g. attending necessary educational events on behalf of your children; h. for any other reason approved by your conditional sentence supervisor in writing in advance.
[30] These exceptions include direct travel to and from the applicable location.
[31] The terms of probation are that you will report as necessary to a probation officer; keep the peace and be of good behavior; be gainfully employed or in full time attendance at school; live at an address approved by your probation officer; take such counselling as recommended by your probation officer.
[32] There will be a s. 109 order for 10 years; and a DNA order. There will also be a forfeiture order for the funds and other items seized in the execution of the warrant.
[33] The victim surcharge is waived given the offenders current lack of employment and ongoing family responsibilities.
Arrell J. Released: March 24, 2017