r v. MOHAMED Mubaraka, 2017 QCCQ 1398

R. c. Mohamed 2017 QCCQ 1398 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL «Criminal division» N°: 500-73-004113-144 DATE : MARCH 3, 2017 ______________________________________________________________________ BEFORE THE HONOURABLE MYRIAM LACHANCE, JCQ ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

MOHAMED Mubaraka Accused ______________________________________________________________________ JUDGMENT ON SENTENCE ______________________________________________________________________ [ 1 ] The accused, Mubaraka Mohamed, was found guilty of unlawfully importing heroin into Canada and its possession for the purpose of trafficking. [ 2 ] The Court is now called upon to pronounce the sentence. [ 3 ] On February 20, 2014, the accused flew to Montreal from Belgium.

When he entered Canada, 2.6 kilograms of heroin with a street value of 1 046 400 $ were found concealed inside the false bottom of his suitcase. [ 4 ] This amount of heroin represents 52 320 doses on the street. [ 5 ] Mr. Mohamed denies any knowledge of the content of his suitcase, claiming that it was a recent gift he received from a new acquaintance he met in Belgium. [ 6 ] From the evidence presented at trial, the Court rather concluded that Mr. Mohamed was wilfully blind as to the content of the suitcase offered as a present only a few hours before his departure flight. CONTEXT [ 7 ] Mr.

Mohamed moved from Holland to Belgium, where it would be easier to live with his wife and daughter, who live in Tanzania. [ 8 ] There he met a man who said he could help him go to Canada, where life is easier. [ 9 ] Quickly, that man bought him a flight ticket to Montreal where he could get a job. He also offered to pay for all his expenses. Then, they met at a train station in Belgium, a few hours before his flight to Montreal. [ 10 ] At this moment, the unknown man gave Mr.

Mohamed the suitcase saying it was a gift, told him that he should lie upon his arrival in regards to the purpose of his trip and added that somebody will recognize him at the Montreal airport and pick him up. [ 11 ] Mr. Mohamed checked if the suitcase was empty but did not ask any further question. Sentencing positions [ 12 ] The defence submits that a sentence of nine years in jail is appropriate, while admitting this suggestion is outside the sentencing

range. [ 13 ] The Crown suggests a sentence of 16 years in jail, less credit for time served in provisional detention. [ 14 ] The accused served three years on remand. [ 15 ] Both parties agree that Mr. Mohamed should receive the customary credit ratio of one and a half to one for the time served on remand, which will be deducted from the sentence the Court feels appropriate in this matter. ANALYSIS [ 16 ] The accused is 27 years old, married and is the father of one young child. [ 17 ] However, he does not play a very positive and essential role in their lives as their residence is in Tanzania. [ 18 ] Mr.

Mohamed is a citizen of Netherlands, having immigrated there from Burundi in 2002. He worked and studied in Holland until he decided to move to Belgium in 2014 trying to find better employment opportunities.

He worked part time at a pizzeria. [ 19 ] The range of sentences for trafficking and importing heroin is established by the Court of appeal of Quebec in the case of Yazdani [1] . [ 20 ] This range goes from 15 to 25 years [2] . [ 21 ] Judge Lori Renée Weitzman provides a good review of the jurisprudence in the case of Debo [3] , where she observes that sentences on the lower end include significant mitigating factors and a limited participation as a courier. This range goes from 12 to 25 years. [ 22 ] Heroin is a very powerful drug. It is the duty of the Court to deter people from importing it.

Deterrence is and remains the most important element in the sentencing process regarding the nature of this offence and it calls for a long term of imprisonment [4] . [ 23 ] Therefore, the Court must take into account any aggravating or mitigating circumstances related to the offence or the offender as well as sentences imposed in similar cases. Relevant factors [ 24 ] Mr. Mohamed did not address the Court on the issue of sentencing and no pre-sentence report was produced. [ 25 ] The evidence demonstrates that M.

Mohamed is a young man who has no criminal record even though this mitigating factor is reduced since it is known that criminal organizations target individuals with good reputation. [ 26 ] For the defence, this case reveals that the accused was nothing more than a courier and no evidence indicates that he planned the crime. [ 27 ] The defence suggests it is somewhat mitigating that Mr. Mohamed was blind to what was concealed inside the suitcase given his moral blameworthiness.

It is not the same level as for a courier who knows what he is carrying. [ 28 ] However, this cannot diminish the seriousness of his crime or detract the Court from imposing a sentence that adequately denounces his conduct and hopefully deters others from committing the same crime. Nor does it reduce his personal culpability. [ 29 ] In the case of Sidhu [5] , the Court of appeal of Ontario concluded that being willfully blind is not a mitigating factor. [ 30 ] Moreover, money is the main reason why he decided to import the suitcase without asking what it contained.

This can in no way constitute a mitigating factor. [ 31 ] At the end, a sentencing judge must outweigh the moral blameworthiness and the gravity of the offence so the sentence does not exceed what is just and appropriate [6] . [ 32 ] The first aggravating circumstance is the nature of the offence: importing 2.6 kilograms of heroin with a street value of 1 046 400 $. [ 33 ] Furthermore, life imprisonment, as the maximum penalty for importing heroin and its possession for the purpose of trafficking, reflects the objective seriousness of these offences. [ 34 ] Mr.

Mohamed is not a consumer of drugs and he engaged in this importation for profits ; greed and financial opportunity explain his actions. [ 35 ] The Crown underlines the attitude of the accused who shows no remorse for his crime and offered no collaboration during the interviews by the border services and the RCMP. [ 36 ] Indeed, the Court heard no evidence of remorse. [ 37 ] However, lack of remorse is not an aggravating factor [7] . Role of a drug courier

__________________________________ MYRIAM LACHANCE, J.C.Q. Me Isabelle Desrosiers Counsel for the Public Prosecution service of Canada Me Isabelle Larouche Counsel for the accused DATE: February 8, 2017 [ 38 ] The parties agree that the role played by the accused is that of a courier. [ 39 ] A courier plays an essential and crucial role in the trafficking of heroin, a drug that has to be imported to be distributed in Canada [8] . [ 40 ] Mr. Mohamed is right to underline that sentence ranges are not automatically justified in all situations.

They are guidelines [9] . [ 41 ] In determining the length of an imprisonment term, the Court needs to tailor it to an accused, taking into consideration his role given the gravity of the crime. [ 42 ] The sentencing of drug couriers presents a difficult situation in which the gravity of the offence and the personal responsibility of the offender suggest different dispositions. [ 43 ] Not being part of a criminal organization can amount to a mitigating factor [10] . [ 44 ] But when the quantity and the value of the heroin are substantial, it is incredible that no link existed between the accused and an organization that entrusted him with that drug [11] . [ 45 ] General deterrence and denunciation must be addressed primarily.

In this case, rehabilitation plays no role. [ 46 ] Here, all the circumstances cannot justify a sentence below the accepted range. CONCLUSION [ 47 ] In all cases of importation of heroin, a hard drug, a jail sentence is to be imposed except in exceptional circumstances. There is none in this case. This was clearly a commercial operation on something more than a minimal scale. It calls for a penitentiary term. [ 48 ] Nevertheless, the context in which Mr. Mohamed committed the crimes and his role as a courier are relevant to impose a proportionate sentence that meets the objective of denunciation and respects

section 718.2e) of the Cr. C . [ 49 ] Considering the relevant factors and provisions of

section 718, following the Criminal Code and the subjective and objective criteria relating to Mr. Mohamed, and considering the provisional detention of 36 months and 11 days, which will be credited as 54 months and 6 days. THE COURT imposes the following sentence: [ 50 ] On count 1, importing heroin: 12 years of imprisonment, less the provisional detention of 54 months and 6 days for a quantum of 7 years and 3 weeks; [ 51 ] On count 2, possession of heroin for the purpose of trafficking: 7 years to be served concurrently with the sentence imposed on count 1.