COURT FILE NO.: CRIMJ(F) 600/17
DATE: 20200303
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
M. Park, for the Crown
- and -
DEXTER GRIFFITH
M. Rieger, for the defence
HEARD: November 25, 2019 at Brampton
REASONS FOR SENTENCE
André J.
[1] A jury convicted Mr. Dexter Griffith on September 25, 2019, of the offence of possession of a Schedule I controlled substance, cocaine, for the purpose of trafficking. The Crown seeks a term of imprisonment in the range of 4 to 5 years while the defence seeks a two year term of imprisonment.
BACKGROUND FACTS
[2] On October 6, 2015, members of the Toronto Police Services (“TPS”) executed a search warrant on an apartment in Toronto. Mr. Griffith was located in a bedroom where 424 grams of cocaine and 28 grams of crack cocaine were located in a dresser along with some identification documents belonging to him. A number of scales were found in the apartment. The police subsequently charged Mr. Griffith with the offence for which he was convicted by the jury.
ANALYSIS
[3] Section 718.1 provides that a sentence should be proportionate to the gravity of the offence and the personal circumstances of the offender. This provision underscores the overarching sentencing principle that sentencing is an individualized process which must be tailored to reflect the circumstances of both the offence and the offender.
[4] The imperatives of s. 718.1 necessarily dictate that in the determination of a proportionate sentence, both the aggravating and mitigating factors must be considered. The former includes the following:
(1) The drug involved is very dangerous and has wreaked untold havoc in the community;
(2) The quantity of the drugs found;
(3) The drug paraphernalia recovered, including the presence of scales and cell phones, suggest that Mr. Griffith was engaged in a commercial enterprise.
[5] The mitigating factors include the following:
(1) Mr. Griffith does not have a criminal record;
(2) Mr. Griffith has ten children;
(3) Mr. Griffith has a number of medical issues arising from a motor vehicle accident on November 22, 2017;
(4) Mr. Griffith enjoys some support in the community evidenced by letters of support received on his behalf from three persons who have known him for a long period;
(5) Mr. Griffith served 8 days in pretrial custody.
[6] Both Crown and defence rely on a number of cases to support their respective positions. The Crown relies on R. v. Bajada, 2003 CanLII 15687 (ON CA), [2003] O.J. No. 721 (Ont. C.A.), at para. 13 for the proposition that “sentences of five to five and one half years are not uncommon for possession of a substantial amount of cocaine for the purposes of trafficking following an accused’s plea of guilty or where the accused has no prior record” (citations omitted). In R. v. Graham, 2018 ONSC 6817, [2018] O.J. No. 5993 (OSC), at para. 47, the court noted approvingly the following passage from R. v. McGill, 2016 ONCJ 138, [2016] O.J. No. 1346, at para. 54:
The Court of Appeal has, in effect, created graduated weight- or amount-based categories of cocaine trafficking and sentencing ranges for each of these categories. It is undoubtedly true, as recently said by K.L. Campbell J. in R. v. Barraeiras, (2015) ONSC 7196, at para. 39, that, “[l]engthy penitentiary terms of imprisonment are regularly imposed upon offenders that [sic] possess substantial amount of cocaine for the purposes of trafficking”. Indeed, the Court of Appeal has several times expressed the view that five to eight years is the “proper range” for adult offenders found in possession of approximately a half-kilogram (slightly more than a pound) of cocaine for the purpose of trafficking: R. v. Bajada (2003), 2003 CanLII 15687 (ON CA), 173 C.C.C. (3d) 255; R. v. Bryan, 2011 ONCA 273, [2011] O.J. No. 1581 (C.A.); and R. v. Haye, supra; affd. [2014] O.J. No. 6575 (C.A.). Higher amounts are not infrequently dealt with by way of penitentiary sentences of greater than ten years: see, for example, the detailed survey of the approach taken by the Court of Appeal to multi-kilo cases, especially where aggravated by the element of importation, in R. v. Duncan et al, 2016 ONSC 1319, at paras. 25-37. As regards cases involving much more moderate amounts of the drug, R. v. Woolcock, [2002] O.J. No. 4927 (C.A.) is generally recognized as fixing the sentencing envelope for constructive possession of an ounce or less of cocaine at “6 months to 2 years less a day”. Intermediate amounts (as is the immediate case) tend to attract sentences in an intermediate range of two to four- or five-years.
[7] The court in Graham concluded at para. 48 that for a “mid-level” trafficker of cocaine, two to five years incarceration “is the appropriate range”.
[8] In R. v. Woolcock, [2002] O.J. No. 4927, the Court of Appeal reduced the sentence of the appellant who had been convicted of possession of 5.3 grams of crack cocaine for the purpose of trafficking, from 2 years less a day in custody, to 15 months imprisonment. The Court of Appeal noted at para. 15 that the “range of sentence for this type of offence appears to be 6 months to 2 years less a day (see R. v. Madeiros, [2001] O.J. No. 5664 (Ont. S.C.J.) and the decision in R. v. Radassao, 1994 CanLII 779 (ON CA), [1994] O.J. No. 1990 (Ont. C.A.).”
[9] The defence similarly relies on a number of cases in support of its position, including the following: In R. v. Nguyen, 2016 ONSC 1286, the accused who was convicted of four offences, including trafficking and possession of 182 grams of cocaine for the purpose of trafficking, received a custodial sentence of two years less a day. In R. v. Ceballos, 2015 ONSC 720, the 40-year-old first offender who was found guilty of possession of 326 grams of cocaine for the purpose of trafficking was sentenced to a term of imprisonment of 2 ½ years.
[10] In R. v. Tulloch, 2016 ONSC 5997, Emery J. sentenced the accused who had been convicted by a jury of one count of possession of 260 grams of cocaine for the purpose of trafficking, to a custodial sentence of 2 years less a day and two years probation. Mr. Tulloch was convicted for a similar offence in 2010 and had been arrested a mere three months upon completion of that sentence.
[11] Finally, in R. v. Rebelo, 2017 ONSC 1036, the court convicted an accused who had been found to have had 407.82 grams of cocaine and 717.73 grams of marijuana in a garage in his home. After finding Mr. Rebelo guilty following a trial, Mr. Rebelo was sentenced to 45 months in custody less credit for four days in pretrial custody and being subject to restrictive bail conditions for 40 ½ months.
What is the appropriate sentence, based on the aggravating factors, mitigating factors and the applicable jurisprudence?
[12] Bajada and McGill appear to justify the sentence range of four to five and a half years in jail. Similarly, Ceballos and Tulloch suggest that the appropriate sentence in this case should exceed a range of sentence of two years less a day to two and a half years imprisonment given that the amount of cocaine in the possession of the accused in both cases was significantly less than the quantum of drugs found in Mr. Griffith’s possession.
[13] In my view, the facts in Rebelo are similar to the facts in this case. Mr. Rebelo received a 45 month sentence after being convicted of being in possession of 407.82 grams of cocaine and 717.73 grams of marijuana. While there was no marijuana found in Mr. Griffith’ residence, the amount of cocaine found within it exceeds the amount recovered in Mr. Rebelo’s garage. Both accused were also subject to restrictive bail conditions for a considerable amount of time.
[14] A presentence report indicates that the 47-year-old Mr. Griffith was born in Guyana and migrated to Canada in 1998. He has ten children with five women. He has been employed intermittently and has been on social assistance. He enrolled in a paralegal program in 2017 but did not complete it as a result of a car accident. Mr. Griffith was diagnosed with major depression and is currently under the care of a neurologist. As noted earlier, Mr. Griffith enjoys the support of members of the community, who describe him as industrious, hardworking and ambitious.
[15] Having regard to the circumstances of the offence, including the nature and quantity of the drugs recovered and the mitigating factors including the lack of a criminal record, the restrictive bail to which Mr. Griffith was subject to for a lengthy period, his medical issues, the support he enjoys in the community, and the pretrial custody he has served, the appropriate sentence is a period of incarceration of 3 ½ years imprisonment.
ANCILLARY ORDERS
(1) DNA Order, (secondary designated offence);
(2) s. 109(2)(a) Order for 10 years; and
(3) Order of forfeiture.
André J.
Released: March 3, 2020
COURT FILE NO.: CRIMJ(F) 600/17
DATE: 20200303
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
DEXTER GRIFFITH
REASONS FOR SENTENCE
André J.
Released: March 3, 2020