Court File and Parties

COURT FILE NO.: CR-15-1065 DATE: 2019-04-11

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN O. Melnik, for the Federal Crown

- and -

OSITA NWEKE Not present

REASONS FOR SENTENCE

BARNES J.

1Mr. Osita Nweke was found guilty by a jury of possession of heroin for the purpose of trafficking, contrary to s. 6(1) of the Controlled Drugs and Substances Act (CDSA) and importation of heroin, contrary to s. 5(2) of the CDSA.

2Mr. Osita Nweke has absconded and pursuant to s. 475(1)(b)(i) of the Criminal Code (Code) he shall be sentenced in absentia. At her request, his counsel has been removed as counsel of record.

BACKGROUND FACTS

3On May 14, 2014, officers of Canada Border and Services Agency and Royal Canadian Mounted Police seized a package that arrived at Toronto Pearson International Airport on board a UPS flight from Kentucky, USA.

4The package was addressed to Enzo Niro, Suite 166-71 Old Kingston Road, Ajax, Ontario. This was the address of Envoy Business Services, a printing, mail box and courier business. A notation on the package indicated that it was sent by Mrs. Anjali Mishra, 1 Haroon Manzil, Mumbai, India.

5The package contained two roller blade type rollers. 97 grams of heroin was concealed in them. The police removed the heroin, leaving 0.5grams of heroin in the package. The police reconstructed the package back to its original appearance for the purpose of a controlled delivery to Envoy Business Services.

6On May 14th 2014, police placed a notice of package delivery in mailbox 166. The notice slip was removed overnight between May 15th and 16th, 2014. No efforts had been made to pick up the package. On May 16, 2014, in the morning, Constable Morton Ng posed as an Envoy Business Services employee working behind the desk. Police officers kept the business premises under observation while Constable Ng worked as an undercover officer.

7At approximately 10:27 am a male, later identified as Nwene Ikenna, entered the business premises. He went directly to mailbox 166, retrieved a key from his pocket and opened the mail box. He went to the desk and signed for the package under the name “Rios Maleaux.”

8Constable Ng gave the package to Mr. Nwene Ikenna who left the premises with it. He entered a Grey Volkswagen Touareg and travelled west on Old Kingston Road. The police followed the vehicle but lost surveillance on it.

9Later that day the police observed Mr. Ikenna driving a black Honda vehicle. They saw him meet Mr. Osita Nweke at 26 Underhill Drive in Toronto. After that meeting, Mr. Ikenna was arrested, at 1.40pm.

10The police arrested Osita Nweke on May 16, 2014. Mr. Osita Nweke had been under police surveillance that day. After his arrest, the police searched his apartment. In a hallway closet, police found his clothes, documentation and $20,000, in $20 denominations, concealed on a shelf. In Harry Rosen garment bags police found digital scales and 684.8 grams of heroin concealed in a Harry Rosen garment bag.

11On October 23, 2018, the jury found Mr. Nweke guilty of importing 97 grams of heroin and possessing 684.8 grams of heroin for the purpose of trafficking. He was remanded to January 22, 2019 for sentencing. On that date, he did not attend and at his lawyer’s request she was removed as counsel of record. The case was adjourned to February 25, 2019 for sentencing.

12On February 25, 2019, sentencing was adjourned to March 29, 2019, to enable police to continue efforts to locate Mr. Nweke. On February 25, 2019, police checked Mr. Nweke’s banking records. Social service records were checked on March 6, 2019. Police checked Mr. Nweke’s last known address on 3 occasions. The last check was on March 8, 2019. On March 19, 2019, police checked their databases. On March 20, 2019 Mr. Nweke’s last place of employment and the address of his former surety was checked. All of these police efforts failed to locate Mr. Nweke.

13On March 29, 2019, I concluded that Mr. Nweke had absconded and a sentencing hearing was held. Sentencing was adjourned to April 5, 2019 and because of an unrelated ongoing trial further adjourned to April 9, 2019.

POSITION OF THE PARTIES

14Sentencing proceeds pursuant to s. 475(1)(b)(i) of the Code. Mr. Nweke has absconded. The Crown seeks a sentence of 12 years for the importation of 684.8 grams of heroin, to be served concurrently to a sentence of 6 years for possession of heroin for the purpose of trafficking; a DNA order and a fine of $20,000 in lieu of forfeiture. The Crown also seeks an order noting Mr. Nweke’s bail in estreat.

15I take judicial notice of the highly addictive, insidious, devastating, life altering and deadly impacts of heroin on the individual, family and society. It is now trite law that the importation or possession of heroin in the quantities described in this case, absent very exceptional circumstances, will attract a penitentiary sentence.

16In R. v. Pannu, 2015 ONCA 677 a sentence of 9 years imprisonment for possession of 1 kilogram of heroin for the purpose of trafficking was upheld on appeal. Mr. Pannu was found guilty after trial and had no criminal record. The Court of Appeal stated that the appropriate sentencing range for first time offenders, for possession for the purpose of trafficking in similar amounts of heroin, is 6 to 12 years. In such cases, deterrence and denunciation are the paramount sentencing objectives. The Court of Appeal referred to but did not overrule its prior decision in R v Shahnnawaz (2000), 149 C.C.C. (3d) 97 (Ont. C.A.) leave to appeal to the S.C.C. refused 153 C.C.C. (3d) vi, at para. 6, where the appropriate sentence was set at between 9 to 12 years. Thus, the appropriate range set by the appellate court is between 6 to 12 years.

17In R. v. Sidhu, [2008] O.J. No. 3479(C.J.), varied 2009 ONCA 81, 242 C.C.C (3d) 273 (C.A.), a trial sentence of 9 years was increased on appeal to 14 years and 9 months, in addition to 37 days of pretrial custody for importing 9.56 kilograms of heroin.

18In R. v Akintunde, 2013 ONSC 2766. Mr. Akintunde was sentenced after trial to 8 years for importing 398 grams of heroin and 4 years consecutive for possessing 280 grams of heroin for the purpose of trafficking for a total of 12 years. He had no criminal record.

19In R v Chung, [2000] O.J.No. 3360 S.C.J. Mr. Chung was found guilty after trial of possession of 92 grams of heroin for the purpose of trafficking. He had no prior criminal record. A sentence of 4 years was imposed.

20In R v DiBenedetto, 2016 ONCA 116 the accused was sentenced after trial to 3 years for possession of 409.89 grams of heroin for the purpose of trafficking. His sentence was raised to 6 years on appeal.

21Deterrence and denunciation are primary sentencing objectives in this case. See section 718 of the Code and s. 10 of the CDSA.

22Aggravating features in this case are: the deleterious effects of the drug; the large quantity, multigram; this was a commercial enterprise; the motive was purely for profit; Mr. Nweke has absconded.

23A mitigating factor is that Mr. Nweke does not have a criminal record.

24Considering the mitigating and aggravating factors, the appropriate sentence in this case, for importation of 97 grams of heroin is 6 years, and for possession for the purpose of trafficking of 684.8 grams of heroin is 8 years. If served consecutively, the total sentence is 14 years. Considering the totality principle, a 14 year sentence is excessive: see s. 718.2 of the Code. A total 12 year sentence is appropriate. Therefore, the sentence imposed is as follows: For possession of 684.8 grams of heroin – 7 years to be served consecutively to importation of 97 grams of heroin - 5 years.

25The $20,000 in $20 dollar denominations was found in Mr. Nweke’s clothes closet, among his belongings. 684.8 grams of heroin was found in the same closet, in garment bags. I am satisfied on a balance of probabilities that the $20,000 are proceeds of crime related to the index offences for which Mr. Nweke has been convicted: See s. 462.37(1) of the Code.

26Section 462.37(2.01) authorizes the court to make a forfeiture order under s.5 and 6 of the CDSA. The Crown has requested a forfeiture order but has explained that by court order the funds have been released to pay Mr. Nweke’s legal fees. In such circumstances where the property is unavailable, Section 462.37(3) authorizes the court to order a fine in lieu of forfeiture.

27Mr. Nweke is fined $20,000 in lieu of forfeiture, to be paid on or before the expiration of 12 months after the completion of his custodial sentence. Should he default, he shall serve a sentence of 12 months: s. 462.37(4)(a)(iii).

28There shall be a weapons prohibition pursuant to s. 109 of the Code for 10 years. Mr. Nweke’s bail is noted for estreat.

Barnes J.