COURT FILE NO.: 35/18 DATE: 2018 11 23

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – INNOCENT N. ANNIH

A. Jodouin, for the Crown C. White, for the Accused

HEARD: November 23, 2018

CONLAN J.

REASONS FOR SENTENCE

I. INTRODUCTION

[1] Innocent Annih (“Annih”) was tried before this Court, without a jury, and found guilty of three criminal offences: (i) conspiracy to import heroin between May 11 and November 7, 2016, (ii) attempted possession of heroin for the purpose of trafficking on October 27, 2016, and (iii) attempted possession of heroin for the purpose of trafficking between November 4 and November 7, 2016.

[2] It is now this Court’s task to impose a sentence on the offender.

[3] Sentencing is a highly individualized and discretionary exercise. The ultimate objective is to impose upon Annih a sentence that is fit and that is commensurate with the degree of his moral blameworthiness, taking into account the facts and the circumstances of the offender.

II. THE FACTS

[4] On May 11, 2016, a woman who identified herself as Sharon Kaye rented a mailbox at a store (“Envoy”) in Port Perry, Ontario. On September 24, 2016, a woman who identified herself as Doris Makie Beacroft rented a mailbox at a store (“UPS”) in Georgetown, Ontario.

[5] In October 2016, three importations of heroin were intercepted by the Canadian authorities. In particular, there were 591 grams of heroin from Malaysia on October 9th, destined for Sharon Kaye at Envoy, plus 100 grams of heroin from India on October 10th, destined for Doris Beacroft at UPS, plus 299 grams of heroin from Malaysia on October 16th, destined for Sharon Kaye at Envoy.

[6] Once the police became involved, they prepared controlled deliveries to Envoy and UPS. The attempts were unsuccessful as nobody tried to pick up the packages.

[7] After the controlled deliveries were terminated, however, Annih did attend at both stores. He went to Envoy on October 27th. On that date, he opened up the mailbox in question with a key and enquired with the store’s owner about packages for that mailbox. He went to UPS on November 4th and on November 7th. On November 4th, Annih used a key to open the mailbox in question and gave a parcel notice to the store clerk. He was arrested by the police at UPS on November 7, 2016.

[8] After his arrest, a police search of Annih’s motor vehicle revealed incriminating evidence.

[9] The heroin shipped to Envoy on October 9, 2016 was concealed among toys contained in a courier package. The heroin sent to UPS on October 10, 2016 was concealed in purses that were contained in a package. And the heroin that was shipped to Envoy on October 16, 2016 was concealed in the lids of watch boxes and in the cardboard flaps of the parcel itself.

[10] The total value of all of the heroin contained in the three parcels that were intercepted by the Canadian authorities is estimated at somewhere between $122,500.00 and $396,000.00.

[11] Annih is not the person who set-up the two mailboxes. His involvement in the criminal enterprise may be summarized as follows.

[12] He knew a man named Nna Obiora (“Obiora”) in 2016. Obiora is one of the members of the conspiracy to import heroin into Canada. In particular, Obiora is the person who sent the heroin packages to Canada.

[13] Eventually, Annih, in Ontario, received from Obiora, in Nigeria, tracking numbers for the heroin packages.

[14] Annih was provided with keys to the mailboxes by a woman whom he met in Ontario.

[15] Annih’s attendances at the two stores were for the purpose of obtaining packages that had been shipped to Canada from outside the country and which Annih thought contained heroin, and Annih intended to traffic in that heroin. Annih’s conduct was in furtherance of an agreement between him and the shipper, Obiora, and likely others to import the three shipments of heroin into Canada.

III. THE OFFENDER

[16] This Court has the benefit of a Presentence Report. Annih is a 49 year-old man with no prior criminal record. Born in Nigeria, he came to Canada as a refugee in June 1998. He is now a Canadian citizen. He is married. His current wife and their child live in Nigeria. His former wife and their three children live in Canada.

[17] Annih had stable employment as a truck driver between 2007 and the time of his arrest in 2016. He is currently in receipt of social assistance.

[18] Annih does not suffer from any addictions problems, and he has no known health issues besides some back pain.

[19] Collateral contacts describe Annih as being a charitable man, active in his church and devoted to his community.

[20] The Presentence Report is unclear on the issue of whether Annih is remorseful for what happened. On the one hand, the author writes that “[t]he subject accepts responsibility for his actions, and appears remorseful”, while it is also noted that “[h]e claims that he was under the impression that the package was a gift for someone” (page 4). Those two comments are inconsistent with one another, but then of course Annih is entitled to maintain his innocence and must not be punished for doing so.

[21] In any event, I accept Annih’s comments today. He has admitted his guilt. He has apologized for his criminal actions.

IV. THE POSITIONS OF THE PARTIES

[22] The position of the Crown is as follows: 12 years’ imprisonment, a firearms and weapons prohibition Order for ten years and life, according to clauses (a) and (b) of subsection 109(2) of the Criminal Code, and a Secondary DNA Order.

[23] The Crown has filed some jurisprudence which may be summarized as follows.

[24] In R. v. Godwin, 2018 ONCA 419, Mr. Godwin appealed the results after a jury trial in the Superior Court of Justice. He was convicted of conspiracy to import heroin and possession of heroin (1 kilogram) for the purpose of trafficking. He was 46 years old, without any prior criminal record, and had come to Canada in 1994. After credit for presentence custody, he was sentenced to a prison term of 11 years, 3.5 months. The Appeal was dismissed.

[25] In R. v. Brown, 2016 ONSC 2997, Justice Goldstein of the Superior Court of Justice sentenced Mr. Brown to 9 years in the penitentiary, before credit for presentence custody. The offender had been convicted after a trial of possession of heroin for the purpose of trafficking. The amount of heroin was 1.133 kilograms, worth between $90,000.00 and $566,650.00, depending on whether it was sold in very small or very large units. Mr. Brown was 34 years old and had a criminal record including one prior drug conviction for possession of cocaine.

[26] In R. v. Ukwuaba, 2016 ONSC 3109, Justice Hill of the Superior Court of Justice sentenced Mr. Ukwuaba to 11 years in the penitentiary, before credit for presentence custody. The offender had been convicted after a trial of importation of heroin, conspiracy to import heroin and possession of heroin for the purpose of trafficking. The amount of heroin was 1168 grams. The offender was 48 years old, from Nigeria, a permanent resident of Canada, and had no prior criminal record.

[27] In R. v. DiBenedetto, 2016 ONCA 116, Mr. DiBenedetto had been sentenced in the Ontario Court of Justice to 3 years’ imprisonment on convictions for possession of heroin (409.89 grams) for the purpose of trafficking and possession of proceeds of crime ($7600.00). The offender was relatively young and had an unrelated criminal record. The Crown appealed the sentence. The Appeal was allowed, and the sentence was varied to imprisonment for 6 years.

[28] In R. v. Umeadi, an oral decision delivered by Justice Mulligan of the Superior Court of Justice sitting in Barrie on October 25, 2018, Mr. Umeadi was sentenced after being convicted by a jury of importing heroin, possession of heroin for the purpose of trafficking and possession of proceeds of crime. The amount of heroin was 518 grams. The offender was 38 years old, from Nigeria, without any criminal record, and facing deportation from Canada. Before credit for presentence custody, the global penalty imposed was 12 years in the penitentiary.

[29] In R. v. Onyedinefu, 2018 ONCA 795, the offender appealed his convictions and sentence, after a trial, on importing heroin and possession of heroin (146 grams) for the purpose of trafficking. Imprisonment for 6 years had been imposed by the trial judge. The Appeal was dismissed.

[30] Finally, in R. v. Dhillon, 2018 ONCA 281, after a trial, Mr. Dhillon was convicted of trafficking heroin. He was sentenced to 7 years’ imprisonment. He was a 55 year-old first offender. The amount of heroin was about 100 grams. The offender appealed, but the Appeal was dismissed.

[31] The Defence suggests a sentence of between 6 and 8 years in prison.

[32] The Defence has also filed some jurisprudence. The major case being relied upon is the decision of Justice O’Connor of the Superior Court of Justice in R. v. Rodriguez, 2014 ONSC 2928. That offender was convicted, after a jury trial, of importing 1.5 kilograms of heroin. He was 69 years old, a citizen of Spain, without any criminal history, and suffering from colon cancer. He was sentenced to 6 years in custody, less some credit for time already served.

V. ANALYSIS

The Legal Parameters

[33] There is no minimum penalty facing Annih. The maximum punishment is life imprisonment.

The Sentencing Principles

[34] The importation of narcotics into Canada, particularly such a heinous, dangerous and highly addictive drug like heroin, is a scourge that must be dealt with harshly by the court system.

[35] The most important sentencing principle in this case is general deterrence. Denunciation, specific deterrence and rehabilitation are also very relevant.

The Aggravating and Mitigating Factors

[36] The fact that Annih was convicted after trial is neither an aggravating nor a mitigating factor. It is neutral.

[37] The chief aggravating factor in this case is that there were three shipments of heroin. Further, the importation scheme was quite sophisticated in that it involved, as just one example, two separate destinations. Third, we must remember that we are dealing with a sizeable quantity (about 1 kilogram, in total) of a most despicable narcotic, heroin.

[38] In mitigation, Annih is a first-time offender. In addition, as illustrated through the two support letters filed on his behalf, he has contributed in very positive ways to his church and the community that it serves.

A Fit Sentence for Annih

[39] In my view, the global sentence for Annih must fall somewhere between 9 and 12 years’ imprisonment. The repeated communications between Annih and Obiora over a period of months and the multiple attendances by Annih to the shipping stores take this case out of the scenario of a mere courier and away from the type of sentence imposed in the Rodriguez, supra decision.

[40] At the same time, however, I think that something less than the high end of that range, 12 years, is justified for Annih. He has, although belatedly, expressed what I consider to be genuine remorse for what he has done. I accept that he has been a positive influence on his church and on his community.

[41] In all of the circumstances, I am of the view that a fit sentence for this offender on these facts is something a little less than what the offender received in the Ukwuaba, supra decision. There was more heroin involved in that case, although not a lot more, and I am not certain that Mr. Ukwuaba had the same community reputation that Annih appears to enjoy.

[42] Mr. Ukwuaba received a global sentence of 11 years in the penitentiary. I have decided that Annih should be imprisoned for a period of 10.5 years.

VI. CONCLUSION

[43] On each of the three convictions, concurrent, Annih is sentenced to a period of imprisonment of 10.5 years. The section 109 and DNA Orders requested shall issue.

[44] Given Annih’s history of repeatedly breaching his bail, I decline to discount the sentence in light of the offender’s bail conditions.

Conlan J.

Released: November 23, 2018