COURT FILE NO.: 18-9-200
DATE: 20190110
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. George Katsoulis
BEFORE: Koehnen J.
COUNSEL: H. Solin, for the Crown
M Martin, for Mr. Katsoulis
HEARD: December 18, 2018
sentencing ENDORSEMENT
(Reasons Delivered Orally)
[1] Mr. Katsoulis, as you know, I convicted you of possession for the purposes of trafficking of 27.84 g of cocaine, 52.56 g of MDMA and 85.12 g of marijuana after a trial before me alone. In addition I issued forfeiture orders relating to cash in the amount of less than $5,000.
Positions of the Crown and the Defence
[2] The Crown asks me to imprison you for 3 to 3 ½ years. Its submissions focused on a sentence for trafficking cocaine. The maximum sentence for trafficking cocaine is life imprisonment which gives you an idea of how seriously society views it.
[3] Your lawyer submits that a sentence of 12 months imprisonment reduced by a further three months to take into account the terms of your bail is appropriate.
[4] In determining the appropriate sentence, the law requires me to take into account a number of factors including: the circumstances of the offence, your own personal circumstances, any aggravating or mitigating factors, what sentences other courts have given for similar offences, the need to denounce and deter crime and your prospects for rehabilitation. I will review these factors one by one.
Circumstances of the Offence
[5] After police received an anonymous Crime Stoppers tip to the effect that you were trafficking powder cocaine and storing it at your home, they conducted surveillance over a five-day period. During the surveillance they observed you meeting with a number of parties in various parking lots for relatively short interactions. Police obtained a search warrant on the strength of the investigation and the Crime Stoppers tip. They found the drugs referred to in paragraph 1 above while executing a search warrant on your personal residence.
[6] The trial focused on an application to set aside the search warrant. After I declined that application, the trial proceeded by way of an agreed statement of facts. Once the search warrant application was disposed of, the trial took only a few minutes and essentially consisted of reading the agreed statement of facts into the record.
[7] The Crown and your lawyer agree that your drug trafficking was a commercial enterprise in which you engaged purely for the pursuit of profit and not as a result of any personal addiction or dependency.
Circumstances of the Offender
[8] You are 25 years old and have a high school education. You appear to have had a difficult childhood. Both your mother and father were troubled individuals with serious drug addictions. Neither provided any meaningful parenting. As an infant, you appear to have been ignored by your parents. The lack of attention evolved into quasi-abandonment which prompted relatives to step in to care for you when you were approximately seven or eight years old. Your childhood appears to have been marked by considerable uncertainty with several changes of primary caregivers varying between your grandparents, an aunt and a cousin.
[9] You have no criminal record.
[10] Despite your difficult beginnings, you started a moving business at the age of 23. I understand you have a number of employees and earn approximately $100,000 per year from the business. Among your clients are a well-known courier company for whom your business delivered parcels during the recent peak holiday season.
[11] Since being charged you have been free on your own recognizance but subject to a curfew. There are no reports of breaches of recognizance.
[12] You have filed 17 letters of support from friends, family and your girlfriend whom I gather you have been seeing for seven years. The consistent thread in these letters is that you are committed to helping others in need, are a social leader within your peer group, you inspire great loyalty and demonstrate great resilience.
Aggravating Factors
[13] Aggravating factors are essentially factors that should lead to a heavier sentence.
[14] The Crown points to a number of aggravating factors arising out of the commercial nature of your trafficking. The commercial nature of the enterprise means it was engaged in purely for profit, not as a result of addiction or dependency. Multiple drugs were found at your home.
[15] The period of time at issue also figures as an aggravating factor. The Crime Stoppers’ complaint was received in the latter half of 2016. Police surveillance occurred in February 2017. As a result, the activities span at least a couple of months rather than being limited to one or two transactions.
[16] In addition, the Crown submits that the history of your parents as addicts is an aggravating factor. The Crown submits that you had personal experience with the devastating impact of drugs yet still chose to traffic.
Mitigating Factors
[17] Mitigating factors are essentially factors that should lead to a lighter sentence.
[18] The Crown concedes that your age and status as a first-time offender are mitigating factors.
[19] Your lawyer submits that the addiction history of your parents is a mitigating factor, not an aggravating one as the Crown submits. I tend to agree.
[20] You were deprived of meaningful parental role models by both your mother and father. Your father spent time in jail, your mother appears to have abandoned you entirely. You were removed from the care of your parents at a young age. As a result, you could not be expected to have much in the way of first-hand experience of the ravages of drug addiction. The effect of your parents’ addictions was not to expose you to the dangers of addiction as such but rather to produce an infancy without the support and love most infants enjoy and to expose you to a childhood of instability with three different although apparently good and well-meaning caregivers.
[21] Your business and your devotion to it are also mitigating factors. You clearly have the skill set to make a positive contribution to society. Your strong support network evidenced in the many letters of support you filed also give grounds for optimism with respect to rehabilitation.
Credit for Terms of Bail
[22] Regardless of the sentence I impose, your lawyer submits that you should be given credit for the terms of your pre-trial release.
[23] After being arrested you were released on your own recognizance but subject to a curfew. Between February 2017 and July 2017 the curfew ran between 11 PM and 6 AM. In July 2017 the curfew was changed to run between 1 AM and 6 AM. Your lawyer submits that the curfew posed difficulties for you because your moving business gets started very early in the morning.
[24] Your lawyer has pointed me to a number of cases in which other courts have discussed the idea of giving credit when sentencing someone to take into account the restrictions imposed on them by their bail conditions.
[25] In Regina v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555 the Ontario Court of Appeal established the principle that terms of a pre-trial release may be taken into account in sentencing. In that case the court described credit for pre-trial bail conditions as applying in the presence of “stringent presentence bail conditions, especially house arrest”: at para. 37.
[26] In R. v. Daniels, [2010] O.J. No. 3370 Justice M. Green of the Ontario Court of Justice applied the concept to a 10 PM curfew for a 17 month period and granted a credit of roughly one day’s sentence to three days bail. A 17 month bail period therefore resulted in a five-month reduction in sentence.
[27] In R. v. White, 2016 ABQB 24, [2016] A.J. No. 32 Justice Graesser of the Alberta Court of Queen’s bench noted that a curfew is more than a minimally intrusive obligation imposed on a person presumed to be innocent. While a simple release on the condition that an accused keep the peace and be of good behaviour would not result in a credit, a curfew did warrant credit: at para. 61. In White, the curfew ran between 8 PM and 7 AM and resulted in a credit of .5 to 1 for the accused.
[28] Here, your lawyer proposes a credit of three months for 17 months of night time curfew 12 months of which involve the curfew between 1 AM and 6 AM or roughly a credit of one day’s sentence for three days curfew.
[29] In my view no credit for pre-trial bail conditions is appropriate here.
[30] While one of the letters that you have filed for sentencing refers in a general way to the difficulties the curfew posed for you, I cannot say that there is an evidentiary record to support this submission. There is no record of what you needed to do for your business before 6 AM, where you needed to be to do it, why whatever needed to be done could not have been done by phone, video or at a meeting at your home.
[31] Most of the hours between 1 AM and 6 AM are hours in which one would generally tend to be sleeping. Those who get an early start in the morning may be limited by the 6 AM limit, but probably by no more than an hour or two. The 1 AM limit may also have put limits on your social life as a young man. These limitations do not, however, on the record before me rise to the level of the “stringent” conditions the Court of Appeal referred to when giving credit for pre-trial bail conditions.
Sentencing Analysis
[32] Mr. Katsoulis, in this section of my reasons I will consider what sentences other courts have given for similar offences, the need to denounce and deter crime and your prospects for rehabilitation.
[33] In R. v. Woolcock, [2002] O.J. No. 4927, the Court of Appeal for Ontario set the range for these sorts of offences as 6 months to 2 years incarceration with the higher end of the range being reserved for harder drugs and trafficking while on probation. In R. v. Giroux 2006 CanLII 10736, the Ontario Court of Appeal affirmed this range and applied it to an accused found with two ounces of cocaine who was running a commercial operation. In Giroux, the accused was sentenced to 12 months. This is well under the 3 to 3.5 years the Crown seeks.
[34] The cases the Crown cites in support of its request for a sentence of 3 to 3.5 years are distinguishable. The Crown points to R. v. Bajada, 2003 CanLII 15687 (ON CA), [2003] O.J. No. 721 (Ont. C.A.) where the accused was sentenced to 6 years. There, however, the accused was found with .5 kilograms of cocaine compared to the 28 grams you had, Mr. Katsoulis. In addition, the accused in Bajada had a criminal record.
[35] In R. v. Datta, the accused received a sentence of 54 months after being found with 1 ounce of crack cocaine. There, however, the accused had a lengthy record of trafficking offences, weapons offences and breaches of recognizance. In addition, crack cocaine has been widely recognized as more addictive and therefore more dangerous than powder cocaine as a result of which it has been subject to longer sentences.
[36] Finally the Crown relied on R. v. Paper where an accused received 23 months plus two years of probation after a guilty plea. In Paper, however, the court went out of its way to point out that the accused was running a drug boutique from her apartment: see para. 94. The significance of this was that buyers would come to her residence where they could choose between a wide variety of drugs. This had the effect of introducing users of non-addictive drugs to significantly more addictive, harder drugs. Even then the sentence was 23 months, still well short of the 3 to 3.5 years the Crown seeks.
[37] In its submissions the Crown focused heavily on the need for denunciation and deterrence when sentencing for offences involving dangerous drugs like cocaine.
[38] While denunciation and deterrence are important sentencing principles, I cannot lose sight of equally important principles such as rehabilitating offenders and treating like cases alike.
[39] In addition, sentencing is not simply a matter of determining the quantity of drugs involved and translating that into a sentence for a particular period of time. To do so would ignore the important individualized aspect of sentencing which takes into account the circumstances of the individual and the prospects of rehabilitation: R. v. McGill, 2016 ONCJ 138, [2016] O.J. No. 1346 (OCJ).
[40] There are ample cases involving an accused trafficking dangerous drugs in amounts similar to or larger than those found at your home Mr. Katsoulis, but who received sentences of significantly less than what the Crown wants me to impose on you.
[41] In R. v. Walton, an unreported decision of Justice M. Greene (OCJ October 17, 2017) the accused sold cocaine to undercover officers in the amounts of 28 g, 7 g and 3 g. The court noted that the general sentencing trend for transactions like this was over nine months. The court then noted a number of mitigating factors including the accused being highly successful while on release, was raised by his grandmother, had an unsettled childhood, had two children of his own whom he was raising alone as a result of which a six month sentence was the starting point which the court then reduced to 90 day served intermittently plus probation.
[42] In R. v. Clunis, 2018 ONCJ 194, [2018] O.J. No. 1627 the accused was found trafficking 5 ½ ounces of crack cocaine and was sentenced to 15 months, 160 hours of community service and 30 months probation. That was an amount five times higher than was found at your home.
[43] In R. v. Gerrard, [2017] O.J. No. 3905 (OCJ) a 26-year-old accused with no record was sentenced to 18 months when found in possession for the purposes of trafficking of 26.6 g of cocaine, 384 g of marijuana, 274 methamphetamine pills, 10.8 g of MDMA as well as a 12 gauge shotgun and two boxes of ammunition all in a residence that he shared with his children.
Sentence
[44] In my view the appropriate sentence for you is one that involves a shorter period of incarceration followed by a longer period of probation to ensure as best as I can that you are fully rehabilitated and integrated back into society.
[45] Mr. Katsoulis, your prospects for rehabilitation are excellent. You have a solid social and family network. You have the skills to have established a business and to have grown it successfully. The longer period of prison that the Crown asks me to impose on you would risk ruining your business and make starting a new business more difficult for you. Making rehabilitation more difficult for you is not in society’s interest.
[46] I have therefore decided to impose a sentence of 9 months in custody followed by 2 years probation.
[47] In addition the Crown seeks a 10 year weapons ban under section 109 of the Criminal Code. You have not opposed this.
[48] Finally the Crown seeks a DNA order. That is an order which would store your DNA in a data bank available to police to help investigate offences in the future. Your lawyer has opposed the DNA order. She says it is not appropriate in this case. Section 47.051 (3) of the Criminal Code gives me discretion to grant or decline such an order. In exercising that discretion, I am required to consider the criminal record of the accused, the nature of the offence, the circumstances of the offence and the impact such an order would have on your privacy and security.
[49] Neither Crown nor defence has provided me with any cases about DNA orders. I note however that in R. v. B(K), (2003) 2003 CanLII 13967 (ON CA), 179 CCC (3d) 413, the Ontario Court of Appeal stated that it was reasonable to assume that it was in the interests of justice to make a DNA order in the vast majority of criminal offences involving adults.
[50] In the absence of any specific grounds that would lead me to be concerned that a DNA order would harm your privacy and security, I am granting the DNA order.
Conclusion
[51] Mr. Katsoulis, in light of the reasons I have just given, the sentence I impose on you is as follows:
(i) On count one, the charge of possession of cannabis for the purpose of trafficking, imprisonment for 30 days to be served concurrently with count two.
(ii) On count two, the charge of possession of cocaine for the purpose of trafficking, imprisonment for 9 months followed by 2 years’ probation beginning as of the date of your release from jail.
(iii) On count three, the charge of possession of MDMA for the purpose of trafficking, imprisonment for 2 months to be served concurrently with count two.
(iv) On count six, the charge of possession of property under $5,000 knowing that the property was obtained directly or indirectly as a result of a crime, 2 months to be served concurrently with count two and an order that such property be forfeited.
Koehnen J.
Date: January 10, 2019