FACTUAL BACKGROUND

[1] On 8 March 2020 at approximately 12:33 a.m., police were called out to investigate a reported incident of robbery with a firearm taking place at Ionview Public School Park parking lot. The call to dispatch provided information that the incident was taking place in a black Honda Civic and identified the victim as wearing a red hat.

[2] When they arrived at the parking lot, police turned on their emergency lights. They observed a black Honda Civic bearing the licence plate referenced in the report and parked in front of that vehicle. As they did so, the driver put the car into reverse and made to leave the scene before being ordered to stop.

[3] Police exited their vehicle, drew their firearms and ordered the car’s occupants to raise their hands and remain seated.

[4] There were three men in the Civic: Rajamudesh Amuthan, who was sitting in the driver’s seat, Arun Nagaratnam, found in the front passenger seat, and another male, Tristan Tenn who was situated in the rear of the car. All were removed from the car.

[5] Subsequently, police discovered two vacuum sealed packages containing cocaine: One, containing 236.81 g of the drug was found behind the Mr. Amuthan’s seat, and the second, 234.39 g of cocaine, was located under Mr. Nagaratnam’s seat. The total weight of the cocaine amounted to 471.20 grams. The police also discovered $5,890 in open view in the driver’s side pocket of the door of the Civic.

[6] Police seized a further $540 from Mr. Amuthan and $2,700 from Mr. Nagaratnam.

[7] The street value of the cocaine ranged between $22,560 and $24,910 if sold wholesale, and between $42,417 and $51,845 if sold by the gram.

[8] After trial, Mr. Amuthan and Mr. Nagaratnam were convicted of one joint count of possession for the purpose of trafficking. Mr. Amuthan was also convicted of possession of proceeds of crime over $5000, whilst I found Mr. Nagaratnam guilty of possession of proceeds of crime under $5000.

[9] They now stand to be sentenced.

[10] The Crown submits a sentence of 4 years would be appropriate for Mr. Amuthan and 4-5 years for Mr. Nagaratnam.

[11] Counsel for Mr. Amuthan asks the court to impose a conditional sentence order for 24 months or, in the alternative, a prison term of 8-9 months to be followed by a period of probation. Counsel for Mr. Nagaratnam submits that an 8-12 month sentence either in the form of a conditional sentence or prison term to be followed by probation is appropriate.

LEGAL PRINCIPLES

Section 718.1 of the Criminal Code

[12] According to s. 718 of the Criminal Code, the "fundamental purpose" of sentencing is to contribute to "respect for the law and the maintenance of a just, peaceful, and safe society" by imposing "just sanctions" that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and others from committing offences; (c) to separate offenders from society where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.

[13] Moreover, s. 718.1 requires that a sentence be proportionate to the gravity of the offence and responsibility of the offender. Section 718.2 also requires parity to be recognised when sentencing those who carry out similar criminal activity, and that an offender not needless be deprived of liberty.

[14] Section 718.2 of the Code also dictates that in imposing a sentence, the court must also take into account a number of principles, including the following:

A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,
All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[15] Finally, s. 10(1) of the Controlled Drugs and Substances Act states:

10 (1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

[16] The caselaw, in general terms, supports the principle that those convicted of commercially trafficking dangerous drugs should expect a lengthy prison sentence.

The Jurisprudence

[17] The Crown relies on the following cases in its sentencing position:

R. v. Bryan, 2011 ONCA 273, [2011] O.J. No. 1581 (Ont. C.A.) at paras. 1-2, the court noted that "normally" sentences ranging from five to eight years imprisonment "would reflect the proper range" of sentence "for someone, without a record, convicted of possession for the purpose of trafficking in slightly more than a pound of cocaine."
R. v. Woolcock, [2002] O.J. No. 4927 (Ont. C.A.), at para. 8, the Court indicated that the emphasis in commercial drug trafficking should be on denunciation and deterrence.
In R. v. Bajada, 2003 15687 (ON CA), [2003] O.J. No. 721 (Ont. C.A.), the court said, at para. 13, 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.”
R. v. Andrews, 2016 ONSC 5475 A 35-year-old offender was found with a variety of drugs in his truck and storage locker. Those drugs included 231 grams of marijuana, 118 grams of cocaine, and 56 grams of psilocybin. Total value of the drugs seized was between $32,000 and $39,300. The offender had a dated unrelated criminal record and support within the community and family. Like Mr. Amuthan, he was responsible for primary care to one of his parents. He received a four-year sentence.
R. v. Ovid, 2016 ONSC 2974: The offender was aged 46. When police executed a search warrant at his home, they found 304 grams of powder and crack cocaine in his bedroom. The offender had a prior related criminal record, and the court held him to be a mid-level street dealer. He had a consistent employment history and support within family and community. He was also responsible for helping care for his infirm mother. He received a four-and-a-half-year sentence.
R. v. Rebelo, 2017 ONSC 1036: The offender was aged 33 and had no criminal record. When the police executed a search warrant on his home, they located 407.82 grams of cocaine and 717.73 grams of marijuana. Additional cash was discovered and seized. The court found that he had good rehabilitation prospects and imposed a sentence of 3 years and 9 months.

[18] Both Mr. Amuthan and Mr. Nagaratnam rely on the following cases where more lenient sentences were imposed.

R. v. Bertrand, unreported, 28 December 2012, (S.C.J.): a 25-year-old first time offender was found with 253 grams of cocaine with a street value of $25,000, and 134.5 grams of marihuana along with $3,000 in cash. He pleaded guilty and received a sentence of 14 months imprisonment.
R. v. Mucha, 2018 ONSC 5975: the 49-year-old offender pleaded guilty to possession for the purpose of trafficking cocaine which was discovered after the police executed a search warrant at his residence. He had a related criminal record and received a sentence of 2 years imprisonment to run concurrently with a seven-year sentence being served in Nova Scotia.
R. v. Tenn, 1999 O.J. No. 882 (Gen. Div.): the offender pleaded guilty to trafficking half a kilogram of cocaine. The pre-sentence report was very favourable, and he had taken great efforts to rehabilitate himself. The court found that notwithstanding the commendable pre-sentence report, favourable testimony from the accused's employer and the guilty plea, a period of incarceration was mandated in order for there to be an appropriate denunciation of his conduct and deterrence to others. A sentence of 18 months was imposed.
R. v. Thomas, [2008] O.J. No. 3650 (S.C.J.): the first-time offender, 38 years of age, was convicted of possession for the purpose of trafficking cocaine when found in possession of 431 g of the substance. He was the subject of a helpful pre-sentence report and was gainfully employed in the construction industry. The defence asked for a conditional sentence which was rejected by the sentencing judge who imposed a 23-month prison sentence.

[19] Mr. Amuthan’s Personal Circumstances

[20] Mr. Amuthan is currently 26 years old and has no prior record. The pre-sentence report prepared for this hearing presented him, for the most part, in a favourable light.

[21] His parents arrived from Sri Lanka in 1994 and had three children of which Mr. Amuthan is the middle child. He has a younger brother and an older sister. Mr. Amuthan’s parents divorced 8 years ago, although they have reconciled since and live together. His father has serious physical and mental health issues stemming from depression and alcoholism. Mr. Amuthan’s mother considers him to be his father’s primary caregiver.

[22] Mr. Amuthan resides with his family and pays rent of $1,000 per month. He also acts as a property manager for his parent’s rental property - a condominium unit that was purchased in 2021.

[23] Mr. Amuthan graduated high school and was accepted into university to study psychology but dropped out to take business insurance, in which he obtained a college certification.

[24] He has been working since he was 15 years of age in retail and restaurant establishments. He was employed both before and after his arrest for this offence as an insurance adviser having worked with the same insurance firm for four years. Mr. Amuthan left the firm to become a self-employed equity trader and earns, on average $800 a week working from home. In addition, he has a second job working for a trading firm, which began in May 2022. His income is commission-based, driving from profit splits.

[25] Mr. Amuthan has recently been offered a job as an insurance adviser which was scheduled to start on 7 September 2022. He has ambitions to start his own equity trading firm by the time he reaches 31 years of age.

Mr. Nagaratnam’s Personal Circumstances

[26] Arun Nagaratnum is 24 years old.

[27] His parents immigrated to Canada in the mid 1990s. He is the only child born to his parents. From the pre-sentence report, there are indications that he had a strict upbringing. He is currently in a three-year relationship with Cienna Cousley, whom he met during his High School years, and he has no children or dependents. His partner has expressed support for him. Mr. Nagaratnam currently resides in Markham with his parents and his aunt.

[28] He was apparently an academic student and was enrolled in a gifted programme from grades 5 to 8. He did well in high school, and achieved above average grades. Mr. Nagaratnam began working at 15 years of age in a coffee shop and then as a labourer for a construction company before starting his own company renovating homes. He currently owns his own business “Fine Homes Construction” which he started in February 2022.

[29] Mr. Nagaratnam has no previous convictions.

Aggravating and Mitigating Features: Mr. Amuthan

[30] The most aggravating feature of this offence is the amount of cocaine found in the car: almost half a kilogramme. Cocaine addiction wreaks havoc and not just amongst the addicted. It damages and destroys family and community relationships as well fuelling levels of crime as addicts seek ways to fund their addiction through criminal acts. Courts have held that in cases of dangerous drugs, the principles of denunciation and deterrence should be emphasised: Woolcock, at para. 8.

[31] In addition, the significant amount of money found in the car and upon the occupants in this case indicates a large volume of sales and profit above and beyond the normal street level type of drug dealing.

[32] In mitigation, Mr. Amuthan has no prior record. He has been gainfully employed and taken steps to further his career. It is to his shame that he would cast a shadow over those career prospects by engaging in the commercial operation of selling cocaine. As previously noted, this pre-sentence report presents a positive outlook in terms of his rehabilitation.

[33] I also find that Mr. Amuthan and Mr. Nagaratnam made efforts to ensure that the trial ran as efficiently as possible, co-operating with the Crown to ensure that all uncontroversial facts could be admitted into evidence without unnecessary waste of time.

[34] However, I disagree with his counsel that Mr. Amuthan has shown any remorse for his actions. Indeed, the submissions of his counsel - that he was “easily led” - implies the real instigator in this case was someone else, presumably Mr. Nagaratnam. This assertion belies the facts of this case; the drugs were found in Mr. Amuthan’s car, he was the driver, a large amount of money was found in the driver’s side door pocket where he was seated, and he sought to conceal the drugs by reclining his seat.

[35] A lack of remorse is not an aggravating factor in sentencing. However, by the same token, Mr. Amuthan cannot claim the significant discount in sentence that a remorseful offender would otherwise receive.

Aggravating and Mitigating Features for Mr. Nagaratnam

[36] The same aggravating factors referred to with respect to Mr. Amuthan also apply to Mr. Nagaratnam.

[37] In mitigation, like Mr. Amuthan, Mr. Nagaratnam does not have a criminal record and is a relatively young first-time offender. He also has a supportive partner, has been gainfully employed, and as noted, has an ambition to start up his own business.

[38] Turning to the caselaw, I find the cases put forward by the defence in seeking a conditional sentence are of little use in this case and can be distinguished.

[39] In all of the cases relied upon, the offenders pleaded guilty, and a conditional sentence was rejected. The plea factor is significant. As I have already referenced, whilst a plea of not guilty and the offender’s stance of innocence even after conviction is not an aggravating feature. However, an early plea is a significant mitigating factor that should result in a significant reduction in sentence.

The Appropriate Sentence

[40] In my view, the appropriate sentence in this case, based on the above factors, would be three and a half years imprisonment. I make no distinction between either of the parties as the facts in this case require parity in sentencing.

[41] Mr. Amuthan is sentenced to that period of time with a deduction of 14 days to take into account his 7 days spent in pre-trial custody (rounded up to 14 days) pursuant to R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575. His remaining sentence is there 3 years, 5 months and 2 weeks.

[42] With respect to Mr. Nagaratnam, I am prepared to reduce his sentence to take into account his pre-sentence custody of 3 weeks credit pursuant to, which would amount to a reduction of 4 and a half weeks. I also take into account the fact that he was subject to ankle bracelet monitoring for 8 months, and a curfew for nearly 2 years. I reduce his sentence a further 3 months as an acknowledgement of these restrictions pursuant to R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321. His remaining sentence is therefore 3 years and 1.5 months.

[43] There will also be a forfeiture order in respect of the drugs and the money found in the car. I also make a DNA order as the offence is a secondary designated offence under the Criminal Code.

S.A.Q. Akhtar J.

Released: 28 October 2022

COURT FILE NO.: CR-21-90000223-0000

DATE: 20221028

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

RAJAMUDESH AMUTHAN AND ARUN NAGARATNAM

REASONS FOR SENTENCE

S.A.Q. Akhtar J.

R. v. Amuthan, 2022 ONSC 6050

Case Summary

FACTUAL BACKGROUND

LEGAL PRINCIPLES

Section 718.1 of the Criminal Code

The Jurisprudence

Mr. Nagaratnam’s Personal Circumstances

Aggravating and Mitigating Features: Mr. Amuthan

Aggravating and Mitigating Features for Mr. Nagaratnam

The Appropriate Sentence

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 2

Legislation 1