Court File and Parties
Court File No.: 101/17 Date: 2018 10 05 Ontario Superior Court of Justice
Between: Her Majesty the Queen And: Jacek Mucha
Counsel: Mark Miller, for the Crown Richard Litkowski, for the Accused
Heard: October 5, 2018
Endorsement on Sentencing
Before: Conlan J.
I. Introduction
[1] On September 14, 2018, at Milton, Jacek Mucha (“Mucha”) entered a guilty plea to and was found guilty of one count of possession of cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act.
[2] He is before the Court today to be sentenced.
II. The Facts
[3] On January 25, 2017, police, under Warrant, searched Mucha’s residence in Oakville. The day prior, police had observed what they believed to be drug-related activity occurring at the said home.
[4] During the search, in a basement closet, the police discovered a package that contained 533 grams of powder cocaine.
III. The Offender
[5] Mucha has a related prior criminal record:
- March 2000, Toronto, conspiracy to import a Schedule I substance – 30 months in custody.
- Mucha has other prior convictions on his record but not anything related to narcotics.
- Post-January 2017, Mucha was convicted of a related narcotics offence. In July 2018, in Halifax, he was convicted of conspiracy to traffic in cocaine. That offence date was between October 2015 and February 2017. Thus, it commenced before the police found the cocaine in Oakville for which Mucha is to be sentenced by this Court, but it ended after our offence date.
- On the conviction in Halifax, Mucha received a sentence of seven years in custody, less time already served, for a balance of 1787 days (just shy of five years).
[6] Obviously, today, Mucha is serving that sentence that was imposed in Halifax. He is incarcerated at the federal correctional facility in Springhill, Nova Scotia.
IV. The Positions of the Crown and the Defence
[7] The Crown suggests the following sentence: two years in custody, consecutive to the sentence being served currently (that is, the one imposed in Halifax).
[8] The Defence recommends a sentence of two years in custody, concurrent with the sentence now being served.
[9] Counsel are in agreement on other ancillary Orders.
V. The Law
[10] Counsel filed some authorities dealing with concurrent versus consecutive sentences. I will summarize only a few of those filings.
[11] In R. v. M.E., 2012 ONSC 1078, Hill J. of the Ontario Superior Court of Justice reminded us that the decision to impose a consecutive or a concurrent sentence is a discretionary one. And it is not necessarily an easy decision to make. The court should employ a flexible approach.
[12] In Clayton Ruby’s textbook, Sentencing, the author points out that, whatever test is used by the sentencing court, “it becomes a fact-specific inquiry whether the connection between two offences is sufficiently or insufficiently close to merit either consecutive or concurrent sentences” (section 14.15). Further, where consecutive sentences are imposed, “there is a danger that the overall sentence will be too great. In such cases, careful resort must be had to the totality principle” (section 14.9).
[13] In R. v. C.A.M., 1996 SCC 230, [1996] 1 S.C.R. 500, the Supreme Court of Canada held as follows: “[i]n the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the ‘totality principle’. The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender” (paragraph 42).
VI. The Legal Parameters
[14] Under section 5(3)(a) of the Controlled Drugs and Substances Act, Mucha faces a maximum penalty of life imprisonment. There is no minimum punishment in play.
VII. Decision
[15] First, the ancillary matters that are not disputed. A section 109 Criminal Code firearms and weapons prohibition Order is imposed, for life. A Secondary DNA Order is issued. A Forfeiture Order has been signed for, among other things, $1340.00 in cash that was seized by police from the Oakville residence.
[16] Second, what about the custodial aspect of the sentencing?
[17] In my view, a court should adopt a three-step process in these circumstances:
(i) determine the appropriate length of imprisonment for the sentence to be imposed; and then (ii) determine whether the custodial sentence to be imposed ought to run consecutive to or concurrent with the sentence already being served; and then (iii) if it is decided that the sentence to be imposed ought to run consecutive, determine whether the totality principle requires any adjustment in the length of the sentence to be imposed.
[18] In my view, in light of the prevailing authorities since the Court of Appeal for Ontario decided R. v. Bajada, 2003 ONCA 15687, the two years in custody suggested by both sides falls within the range of a fit sentence for this offender on these facts. It is certainly at the extreme low end of the range, however, it is justified given the mitigating factors that are present.
[19] Mucha is almost 49 years old and has two teenage sons. There is a significant gap in his criminal history between March 2000 and October 2015 (the start of the offence period on the matter out of Halifax). Well in advance of pretrial applications, Mucha entered a guilty plea to the offence before this Court. He did so in the face of very triable issues surrounding the search of his Oakville home.
[20] On whether the sentence of two years in custody ought to run consecutive to or concurrent with the sentence that Mucha is now serving, this is a close call. In the end, I agree with the Defence.
[21] I have concluded that the sentence imposed by this Court today ought to run concurrent with the Halifax sentence, for these reasons.
[22] First, the count on the Information that was before the Provincial Court of Nova Scotia explicitly referred to Oakville as one of the places where that offence occurred.
[23] Second, the count on the said Information explicitly referred to an offence period that overlaps with our offence date in January 2017.
[24] Third, the substance is the same in both jurisdictions, cocaine.
[25] Fourth, the essence of both offences is the same – an intention to traffic cocaine.
[26] Fifth, the police investigation of the offence before this Court included specific reference to the matter in Atlantic Canada. In fact, the Information to Obtain the Warrant to search the Oakville residence explicitly referred to the RCMP investigation in the Maritimes.
[27] Sixth, the agreed statement of facts before the Court in Halifax explicitly referred to Mucha’s travel between Ontario and Nova Scotia (see paragraph 11, for example).
[28] Seventh, that agreed statement of facts implied that at least some of the cocaine that was the subject of the conspiracy to traffic came from Ontario. At paragraph 11, for example, it is indicated that two co-conspirators drove from Nova Scotia to Ontario to pick up Mucha because Mucha did not want to risk flying eastbound with the cocaine.
[29] Finally, that agreed statement of facts, at paragraph 15 for instance, explicitly referred to a fair amount of activity in Ontario, specifically at Mucha’s residence (albeit a condominium in Mississauga as opposed to the home in Oakville).
[30] In my view, in totality, the above constitutes a sufficiently close connection between the offence out of Halifax and the offence before this Court.
[31] Given this Court’s decision on whether the sentence to be imposed today ought to be consecutive or concurrent, it is unnecessary to consider whether the length of that custodial sentence ought to be reduced in consideration of the totality principle.
[32] Mucha is therefore sentenced to a period of imprisonment of two years, less 32 days’ time served credited at the rate of 1 to 1.5, which amounts to 48 days, for a net sentence of 682 days in custody.
[33] The sentence imposed today shall commence immediately and run concurrent with the sentence that Mucha is already serving.
[34] This Court would like to thank both counsel for their excellent submissions and their professionalism throughout this matter.
Conlan J. Released: October 5, 2018