CITATION: R. v. Mediouni, 2017 ONSC 6365
COURT FILE NO.: CR-15-1094
DATE: 20171026
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
A. Aujla for the Crown
- and -
SAMI MEDIOUNI
R. Richardson for the Defence
HEARD: October 6, 2017
REASONS FOR SENTENCE
Baltman J.
Introduction
[1] On August 4, 2017, a jury found Mr. Mediouni guilty of conspiracy to export cocaine. He is now before me for sentencing.
Circumstances of the Offence
[2] In 2013 the RCMP was investigating a criminal group that used Canadian couriers to export cocaine from Canada into the United Kingdom. The primary target was Chrestopher Barrett, a domestic organizer who recruited couriers or relied on others to provide couriers.
[3] The offender, Sami Mediouni, was identified through physical surveillance and phone analysis to be affiliated with Barrett. In the fall of 2013 Mr. Mediouni introduced Jacqueline Simone to Mr. Barrett as a willing courier. Text messages between Ms. Simone and Mr. Mediouni, and then Mr. Mediouni to Mr. Barrett outlined what appeared to be an agreement for Ms. Simone to travel to the UK for payment.
[4] On the morning of November 7, 2013, Ms. Simone, accompanied by Mr. Barrett, checked a suitcase in at Pearson airport for a flight to London, UK. Mr. Barrett then left the airport and Ms. Simone proceeded through security. However, instead of boarding the plane, Ms. Simone cancelled her flight and then attempted – without success – to retrieve her bag, which unbeknownst to her had by then been seized by the police. She then left the airport.
[5] From the suitcase that had been seized at the airport police recovered 8.74 kilograms of cocaine, with an estimated street value of between $314,000 and $480,000. Later that day Simone and Barrett were arrested and charged with conspiracy to export and attempt to export. Mediouni was arrested and similarly charged on September 16, 2014.
[6] The charges against Ms. Simone remain outstanding. Mr. Barrett pleaded guilty to the attempt charge and, following a joint submission, was sentenced to eight years.
[7] Mr. Mediouni’s trial proceeded before me, with a jury. The key witness for the Crown was Ms. Simone. However, she testified that neither she nor Mr. Mediouni ever intended for her to get on the plane, or take anything out of the country. Instead, she and Mr. Mediouni agreed that while pretending to Barrett that she was going to board the plane, she would instead steal the suitcase at the airport and give it to Mediouni, because Barrett owed Mediouni money. All the arrangements she and Mediouni purported to make for the trip were just a trick to fool Barrett. The plan was foiled when Barrett accompanied Simone to the check in counter and she had no choice but to check in the bag.
[8] Mr. Mediouni did not testify. The jury found him guilty of conspiracy but not guilty of attempt.
Significance of the Verdicts to Sentencing
[9] Under the Criminal Code a court is obliged to sentence having regard to the jury’s verdict, and in particular to the jury’s express and implied findings of fact: s. 724(2)(a). Moreover, a court may find any other relevant fact that was disclosed by the evidence at trial to be proven: s. 724(2)(b).
[10] Counsel agree the jury’s verdicts carry the following factual implications:
a) Mr. Mediouni conspired to export cocaine to the UK, using a courier.
b) At some point before the scheduled departure from Canada, Mr. Mediouni changed his mind and never tried to send the cocaine out of Canada.
[11] In other words, while at some point there was an agreement to export cocaine, Mr. Mediouni soon resiled from it. It never got as far as an attempt. That this conclusion is implicit within the jury’s verdict is reinforced by the jury’s question during deliberations:
Q. If we believe that Mr. Mediouni had an agreement with Mr. Barrett but later changed his mind to steal the bag, would he still be guilty of conspiracy?
[12] In response, the jury was told that if they were satisfied beyond a reasonable doubt that the Crown had established all the essential elements of conspiracy to export cocaine, then Mr. Mediouni would be guilty of that offence, even if he later changed his mind.
[13] What is not apparent from the jury’s verdict, and defence counsel argues is relevant to sentencing, is the duration of the conspiracy. I agree with defence counsel that on the evidence, any agreement Mediouni made with Barrett was abandoned in less than a week. Their first discussion (by text) about Mediouni providing a courier was on October 22, 2013; on October 24, 2013 Mediouni confirmed to Barrett he had a candidate available (i.e. Simone); however, by October 28 it is apparent from the text messages between Simone and Mediouni that she was just pretending to take the trip in order to fool Barrett.
[14] I accept, therefore, that the conspiracy was relatively short lived. What impact that has on sentence will be addressed below.
Circumstances of the Offender
[15] Mr. Mediouni is 37 years old and is the eldest of two children. He grew up in Canada but his parents separated when he was very young. He has a close relationship with his mother and sister. His father was largely absent while he was growing up but they are now attempting to rebuild that relationship.
[16] Mr. Mediouni is single and has no children but has been in a committed relationship with a woman, Lisa Resaul, for seven years. Although she is very disturbed by his involvement in this crime she is determined to stand by him. They plan to eventually marry.
[17] After completing high school Mr. Mediouni studied computer networking at college, but did not find employment in that field. In 2001 he was convicted of possession of stolen property (under $5,000) and received a suspended sentence. He worked for several years as a forklift operator but lost that job when he was incarcerated in 2009 following several convictions for possession of firearms. Upon his release he worked again as a forklift operator, but left that job in 2011 because of injuries sustained in a car accident.
[18] A five year gap in employment ensued. It is during that period that Mr. Mediouni committed the offence before the court. Following his arrest, and eventual release on bail, Mr. Mediouni began working as a labourer with a scaffolding company. His supervisor reports that over the last three years Mr. Mediouni has been working full-time and is highly diligent and reliable. He has also performed over 1,000 hours of community service as a volunteer at the United Church. His close friend, Jagdesh Dolaram, states that over the last 36 months Mr. Mediouni made drastic changes to his lifestyle, including eschewing his former crowd and their negative habits and instead working hard at his job and in his personal relationships.
[19] Since his release on bail (in November 2014) Mr. Mediouni has been fully compliant with his bail conditions.
Positions of Crown and Defence:
[20] The Crown seeks a sentence of seven years imprisonment. The Defence submits that this case warrants a sentence of three years.
[21] Defence counsel did not dispute that I am entitled to consider the amount of cocaine identified in the attempt charge as indicative of the nature of the conspiracy to which Mr. Mediouni was a party: R. v. Adeleke 2017 ONCA 665, paras. 9-10. In other words, counsel agreed I am to sentence Mr. Mediouni on the basis that he conspired to export nearly 9 kilos of cocaine.
Submissions and Analysis
[22] In R. v. Cunningham 1996 CanLII 1311 (ON CA), [1996] O.J. No. 448 and R. v. Hamilton et al 2004 CanLII 5549 (ON CA), [2004] O.J. No. 3252 our Court of Appeal advocated six to eight years imprisonment for drug importers who smuggle “large amounts” of cocaine, absent exceptional circumstances. Those who export this dangerous drug to other countries should bear just as much responsibility, as Canada “is responsible for fulfilling its international treaty obligations to combat the illicit trade in narcotics on a global scale”: R. v. Holder 1998 CanLII 14962 (ON SC), [1998] O.J. No. 5102, para. 43.
[23] General deterrence is the primary sentencing consideration in drug trafficking cases, as these are offences “that ordinarily require some degree of planning” and therefore potential offenders may deliberate on the cost/benefit before committing the offence: R. v. C.N.H. 2002 CanLII 7751 (ON CA), [2002] O.J. No. 4918, para. 36.
[24] Defence counsel agrees that in most cases the range of six to eight years is appropriate for the volume of cocaine involved here. However, he proposes a three year sentence here, for two reasons. First, he points to several mitigating features. As noted above, Mr. Mediouni has a supportive family and fiancée and was fully compliant with the terms of his bail and house arrest. He has maintained steady employment for many years, performed community service, and has a relatively positive PSR.
[25] Second, and even more important from defence counsel’s perspective, the conspiracy in this case was abandoned shortly after its inception. Counsel argues this is the kind of unusual fact pattern that supports a “deviation from a sentencing range”, as discussed by the Supreme Court in R. v. Lacasse 2015 SCC 64, paras. 56-60.
[26] In my view both those arguments have some merit, but not to the degree advanced by counsel.
[27] The various mitigating features, particularly Mr. Mediouni’s steady employment in the last three years, justify a sentence at the lower end of the usual range. And I accept that in the distinctive circumstances of this case, where the only reasonable inference from the evidence (and verdicts) is that the conspiracy was not only unlikely to have been put into practice but was abandoned within a week of its inception, a further downward adjustment outside of the usual range is warranted along the lines articulated in Lacasse. See also R. v. Dixon, 2012 ONSC 4171, [2012] O.J. No. 3962, paras. 33-36.
[28] It must be remembered, however, that this is still a very serious offence. By participating in this conspiracy – even if only at the front end, and for a limited period of time - Mr. Mediouni contributed, directly or indirectly, to the insidious narcotics industry that preys on weak and vulnerable individuals. And while his involvement was at a lower level than Barrett, he was still there as an organizer, not a mere courier. Moreover, his withdrawal from the conspiracy was not for noble reasons, but rather to enrich himself with those same narcotics.
[29] Further, his engagement of Ms. Simone – purportedly a friend - is also an aggravating feature. Even if her role was restricted to the intended theft, for his own selfish reasons he entangled her in a dangerous plot; had the police not intervened, Barrett likely would have held Simone at least partly responsible for the disappearance of his valuable product.
[30] Finally, Mr. Mediouni has a record (albeit dated) with respect to firearms which, like narcotics, are inextricably linked to violence.
[31] In my view, given the very significant amount of drugs involved, Mr. Mediouni’s participation - in any manner - is very serious. Moreover, there was there no need or justification for this act. He was not young or naïve. Nor was he driven by addiction or poverty. He had the brains and the means to earn a decent living. Although he reportedly struggles with depression and back pain there is no evidence whatsoever of a causal link between his medical condition and his criminal behaviour.
[32] After considering all these factors, I have determined that the appropriate sentence in this case is 5.5 years. Mr. Mediouni shall receive credit for the nearly two months of pre-trial custody, at the rate of 1.5 days for each day, for a total of three months credit, plus a further three months credit for the restrictive house arrest he was under for approximately nine months, leaving him with five years left to serve.
[33] This sentence achieves reasonable parity with Barrett’s sentence of 8 years as, while Barrett was indisputably operating at a much higher level, he also pleaded guilty, a significant mitigating feature not available here: R. v. Spencer, 2004 CanLII 5550 (ON CA), [2004] O.J. No. 3262 (C.A.), paras. 38-9; R. v. O’Loughlin, 2017 ONCA 89, paras. 25-6.
[34] In addition, Mr. Mediouni will be subject to the following collateral orders, pursuant to s. 109(2)(a) and 109(2)(b) for 10 years and life respectively, along with an order for a DNA sample.
Baltman J.
Released: October 26, 2017
CITATION: R. v. Mediouni, 2017 ONSC 6365
COURT FILE NO.: CR-15-1094
DATE: 20171026
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
REASONS FOR SENTENCE
Baltman J.
Released: October 26, 2017