COURT FILE NO.: CR-18-979
DATE: 20201119
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
E. Taggert for the Crown
- and -
SHAQUAN GISCOMBE
P. Aubin for the Defence
HEARD: October 19, 2020
REASONS FOR SENTENCE
Baltman J.
Introduction
[1] On December 16, 2019, a jury found Mr. Giscombe guilty of importing nearly two kilos (1,889 grams) of heroin. He is now before me for sentencing[^1].
The Facts
(a) Circumstances of the Offence
[2] On April 1, 2017, Mr. Giscombe arrived at Pearson airport from Johannesburg, South Africa (via Ethiopa). He was referred for a secondary examination, where officers found a total of 1,889 grams of heroin concealed in three locations: the false bottom of his suitcase; the front and back covers of a children’s book; and four boxes of Dove soap. The combined heroin is estimated to have a maximum value of $755,600.
[3] At trial Mr. Giscombe claimed that he was an innocent dupe in this scheme. He testified that shortly after arriving in South Africa, his taxi driver, Tony, befriended him. Over the next several days they socialized frequently. Tony convinced him he needed a new suitcase and supplied it to him shortly before his departure for Canada, along with a shopping bag containing the children’s book and soap he had purchased during the week. He claimed that he was shocked when these items were discovered during the airport inspection.
[4] It is obvious from the jury’s verdict that they rejected this version.
(b) Circumstances of the Offender
[5] Mr. Giscombe is 26 years old and single. He was 23 at the time of this offence. He was born and raised in Toronto. His parents never married and he has numerous half-siblings. He spent most of his early childhood being raised by his maternal grandmother. Although he does not appear to have a significant ongoing relationship with either of his parents, he remains very close with his grandmother.
[6] After high school Mr. Giscombe briefly attended a trade school but then left to work for Bell Canada. He was fired after two months and thereafter worked at a series of “under the table” cash jobs, mainly as a labourer in the construction business or through employment agencies. He has no criminal record.
[7] Over the past several months, Mr. Giscombe has been volunteering at a food bank operated by a non-profit organization. To date he has contributed 143 hours and has been commended by the Director for his efforts and attitude.
[8] He has also undertaken counselling in order to better understand the reasons for his poor decisions and their consequences, and has shown remorse for his behaviour. The counselling agency reports significant growth in him.
Positions of Crown and Defence:
[9] The Crown asserts that the proper sentence for importations of this magnitude is in the range of 12-17 years imprisonment, and specified 13 years for this case. The Defence submits that this case warrants a sentence of 9 -11 years.
Submissions and Analysis
[10] In R. v. Sidhu, 2009 ONCA 81 our Court of Appeal held that first offender couriers who import large amounts of heroin into Canada for personal gain should expect to receive jail sentences in the range of 12 - 17 years. The court went on to say that lesser amounts of heroin will often attract similar, if slightly lower, penalties. Some examples, given at para. 20 of Sidhu, involve cases where couriers importing approximately 1 kg of heroin attracted sentences in the 9 - 10 year range.
[11] In more recent cases involving between one and two kilos of heroin, the Court of Appeal has upheld sentences ranging from 9 - 13 years, e.g. R. v. Godwin, 2018 ONCA 419 (11 years for approx. 1 kg); R. v. Osinfolarin, 2017 ONCA 787 (13 years for 1.98 kg); R. v. Kusi, 2015 ONCA 638 (10.5 years for 1.3 kg); and R. v. Mensah, (2003), 2003 CanLII 57419 (ON CA), 170 O.A.C. 244 (C.A.), (9 years for 1.03 kg).
[12] The Crown urged me to follow the Osinfolarin decision in particular (13 years), arguing that it provided a useful comparison because both cases involved nearly 2 kilos and the verdicts were delivered following a trial (rather than a guilty plea). However, the offender in that case was not a youthful offender, as here, and had a criminal record, albeit unrelated.
[13] I find a more useful comparison in R. v. Carrero, [2010] O.J. No. 6285 (Mossip J.), which also involved a 23-year-old offender with no criminal record, albeit for a somewhat lower volume of heroin (1.56 kg). Justice Mossip imposed a sentence of 11 years. Significantly, the case before me has some additional mitigating features not present in Carrero, notably the substantial community service and many months of personal counselling.
[14] Additionally, there are several examples of offenders with more aggravating circumstances who received higher sentences than what the defence is proposing here. For example, in R. v. Boateng, [2013] O.J. No. 3179 (S.C.J.), Durno J. imposed a sentence of 12 years upon a mature offender who imported 2.38 kg of heroin. R. v. Mohamed, 2017 QCCA 1643 saw a sentence of 12 years for 2.6 kg of heroin. And in R. v. Murororunkwere, 2016 ONSC 1039, upheld on appeal 2019 ONCA 463, the offender received a sentence of 12 years for 2.5 kg for importing heroin.
[15] This was undoubtedly a grievous act that demonstrated callous disregard for its impact upon others. Mr. Giscombe is responsible for bringing into Canada nearly two kilos of heroin, which had the potential to cause devastating harm to numerous families and individuals. These actions exploit those suffering from addiction and enable other profiteers in the drug industry.
[16] However, alongside this serious lapse are some mitigating features. Mr. Giscombe is relatively young. He has recently undergone counselling in order to gain insight into his behaviour and take more responsibility for his actions, and has made a significant contribution through community service work. He has been fully compliant with the terms of his bail and house arrest.
[17] After considering the competing factors in this case and having regard to the jurisprudence, in my view the appropriate sentence in this case is 10.5 years. He shall receive credit for the 8 days he has been in custody since his arrest, at the rate of 1.5 days for each day, for a total of 12 days credit. With the consent of the Crown I have rounded the credit up to 15 days, leaving him with 10 years and 5.5 months left to serve.
[18] In addition, he will be subject to collateral orders, pursuant to s. 109(2)(a) and 109(2)(b) for 10 years and life respectively, along with an order for a DNA sample.
Baltman J.
Released: November 19, 2020
COURT FILE NO.: CR-18-979
DATE: 20201119
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
SHAQUAN GISCOMBE
REASONS FOR SENTENCE
Baltman J.
Released: November 19, 2020
[^1]: The sentencing hearing was originally scheduled for April 6, 2020 but was adjourned due to Covid-19 restrictions.