



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Gobran, 2013 ONCA 407

DATE: 20130618

DOCKET: C55626

Juriansz, MacFarland and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

George Gobran

Appellant

George Gobran, for the appellant, in person

Russell Silverstein, Duty Counsel

Thomas C. Lemon, for the respondent

Heard: April 17, 2013

On appeal from the sentence imposed by Justice John T.
    Lynch of the Ontario Court of Justice, dated October 15, 2012.

Pepall
    J.A.:

[1]

The appellant pled
    guilty to two counts of production of marijuana and three counts of possession
    for the purpose of trafficking.

[2]

The sentencing judge
    sentenced him to five years concurrent on the production counts and four years
    concurrent on the possession for the purpose of trafficking counts.

[3]

The appellant appeals
    his sentence.

Facts

[4]

In response to
    information provided by a confidential informant, the police began
    investigating the appellant in February 2011. They discovered that the
    appellant was involved in three active marijuana grow operations.  The first had
    2,079 marijuana plants in various stages of growth and 24 pounds of harvested
    marijuana; the second had 1,312 marijuana plants, 27 pounds of marijuana ready
    for sale and over 600 grams of hash; the third contained 2700 plants which amounted
    to 265 pounds. Growing equipment was found at each of these three locations. The
    appellant also maintained two storage units for marijuana, one of which
    contained over 52 pounds of marijuana and the other over 177 pounds, all packaged
    for sale. In addition, 7.5 pounds of marijuana were found at the appellants
    residence along with an additional 240 grams, $12,980 in Canadian currency and
    $3,302 in American currency.

[5]

The sentencing judge
    found that the appellant was the operating mind behind the grow operations and more
    involved than his two co-accused.

[6]

The appellant pled
    guilty on the basis of an Agreed Statement of Facts. It stated that the controlled
    substances seized had a street value of over $6,500,000.

[7]

The sentencing judge
    understood that the Crown had taken the position that the substances had a
    street value of over $6.5 million, whereas the defence had suggested a value of
    between $1.6 and $2.5 million. The sentencing judge adopted the latter as the
    more conservative estimate. The record discloses that, in spite of the Agreed
    Statement of Facts, this conservative estimate was advanced in submissions by
    the Crown, not the defence who had submitted that the value was $800,000.

The Pre-Sentence Report

[8]

The pre-sentence report
    revealed that the appellant was a 42 year old first time offender. He was
    raised in a stable home environment. He has maintained a relationship with his
    spouse, with whom he has a son, for at least 20 years.

[9]

The appellant had long
    term employment as a forklift operator for 19 years, until July 29, 2007 when
    he was laid off due to a plant closure. He had exhausted his severance payments
    by June 2011. From March 2011 until April 2012, he held three positions. They
    were of eight months, three months and five months duration, respectively.

[10]

In
    2007 or 2008, he was introduced to cocaine and took it daily until January 2011.
    In 2010, he became preoccupied with gambling. He estimated that his losses
    peaked at between $10,000 and $30,000 per day. The pre-sentence report quotes
    the appellant as saying: Gambling ruined my life  cocaine killed me
    physically, gambling killed me every other way. In February 2011, he completed
    a residential rehabilitative program and is stated to have resisted the
    temptation to gamble on completion.

[11]

Before
    the sentencing judge, the Crown proposed a sentence in the range of five to
    seven years and the defence sought a conditional sentence of two years less a
    day.

Sentencing Judges Decision

[12]

On
    the basis of the Agreed Statement of Facts and the acknowledgement of defence
    counsel, the sentencing judge found that the appellant was the more involved
    offender, and observed that the offenders degree of responsibility is a
    significant factor in sentencing. He referred to the principles of sentencing
    in ss. 718 and 718.1 of the
Criminal Code
, R.S.C. 1985 c. C-46 
    including the principles of deterrence, denunciation, rehabilitation,
    proportionality and restraint  as well as the sentencing provision for drug
    offences in s. 10 of the
Controlled Drugs and Substances Act
, S.C. 1996,
    c. 19.

[13]

Relying
    in part on the $1.6 to $2.5 million estimate of value, the sentencing judge
    found that the grow operations constituted a substantial commercial
    enterprise.  He acknowledged that the appellant had pled guilty, been
    co-operative with the police, and had no prior criminal record. That said, he
    was the controlling mind behind the operation and he was involved for financial
    gain. Members of the community needed to be deterred from cultivation or
    possession for the purposes of trafficking. Moreover, specific deterrence was also
    a factor because the appellants pre-sentence report characterized him as
    someone who sought sensation and displayed a lack of impulse control.

[14]

In
    imposing a five year sentence, the sentencing judge expressly referred to two
    decisions involving significant commercial grow operations in which sentences
    of seven years and six and one-half years were imposed.

Grounds of Appeal

[15]

The
    appellant advances three arguments on appeal. First, he submits that the
    sentencing judge erred in accepting that the value of the marijuana was between
    $1.6 and $2.5 million. Second, he submits that the sentencing judge erred in
    finding that the appellant was the controlling mind behind the operation. Third,
    he submits that a sentence of five years is too long; it is outside the range
    and is manifestly unfit.

Analysis

[16]

Dealing
    with the first argument advanced, the record discloses that the Agreed
    Statement of Facts stated that the street value of the controlled substances
    seized exceeded $6,500,000. Both counsel in submissions suggested more
    conservative valuations, but in light of the Agreed Statement of Facts, it was
    open to the sentencing judge to accept the lower estimated value proffered in the
    Crowns submissions, even if he erred in attributing the figures to defence
    counsel.

[17]

In
    addition, it is apparent that the sentencing judges conclusion that these grow
    operations were substantial commercial enterprises was informed not only by the
    valuation of the controlled substances seized, but also the number of plants
    seized; the number of facilities used; the significant amount of marijuana
    packaged ready for sale and the presence of grow charts for the years 2010 and
    2011.

[18]

With
    respect to the appellants second submission, based on the record before him
    and defence counsels submissions, it was open to the sentencing judge to
    conclude that the appellants involvement in the operation was greater than that
    of the other two co-accused and that he was the operating mind. We therefore
    give no effect to this ground of appeal.

[19]

The
    final issue to consider is whether the global sentence of five years is outside
    the range and unfit, section 718.2(b) of the Code providing that a sentence
    should be similar to sentences imposed on similar offenders for similar offences
    committed in similar circumstances. In reviewing for disparity, an appellate
    court should only intervene where the sentence imposed by the trial judge
    departs substantially and markedly from those customarily imposed in similar
    circumstances:
R. v. M.(C.A.)
, [1996] 1 S.C.R. 500 at para. 92.

[20]

The
    sentencing judge relied on two decisions that imposed sentences in the six and
    a half to seven year range for significant commercial grow operations. In
R.
    v. Jowett
, [1990] O.J. No. 2911 (Ont. C.A.), the accused pled guilty to
    possession, possession for the purpose of trafficking and cultivation of
    marijuana. Over four tons of marijuana were found. The accused was the master
    mind behind a highly skilled commercial

enterprise, which

had
    been in operation for at least three years. This

court reduced the
    sentence from eight and a half years to six and a half years imprisonment, but
    affirmed that the offence of which the appellant was convicted clearly called
    for a significant penitentiary term.

[21]

In
R. v. Ha
, 2009 ONCJ 503, a 53-year-old offender pled guilty to
    production of marijuana and possession for the purpose of trafficking. The
    operation consisted of 40,040 plants and 500 pounds of freshly harvested
    plants. The retail value of the marijuana amounted to $80 million and the
    wholesale value was estimated to be between $26 and $35 million. The accused
    was a first time offender. He was sentenced to seven years imprisonment,
    leaving a sentence of six years to be served after pre-sentence custody was
    deducted.

[22]

Duty
    counsel for the appellant relied upon other case law to illustrate that the five
    year sentence given to the appellant in this case was excessive. In
R. v.
    Nguyen
, 2007 ONCA 645, this court upheld the 15-month sentence given to a
    first time offender convicted of production and possession of marijuana for the
    purpose of trafficking and of theft of electricity. The operation was carried
    out in the offenders residence and involved 1,121 plants and 18 pounds of
    harvested marijuana, plus the theft of $10,000 of electricity.

[23]

In
R. v. Ho
, [2007] O.J. No. 151, the accused pled guilty to production of
    marijuana, possession of marijuana for the purpose of trafficking and
    fraudulent consumption of electricity. 1,100 plants having a value approaching $1
    million were seized at two separate residences in the City of Windsor. The
    accused had become involved in her sons grow operation, but had not profited
    personally from it. She was sentenced to 22 months imprisonment.

[24]

In
R. v. Chao
, [2007] O.J. No. 1887, the accused, a first time offender,
    was convicted of production of marijuana and possession for the purpose of
    trafficking. Together with others, he ran a sophisticated marijuana grow
    operation in an industrial area of Toronto. 2,530 marijuana plants were seized.
    The venture would yield six crops a year which would translate into approximately
    $1.8 to $2.6 million per year if sold by the ounce and $1 million if sold by
    the pound. He received a 20 month reformatory sentence.

[25]

R.
    v. Bick
, [2012] O.J. No. 1787, involved another first time offender. He
    pled guilty to production and possession of marijuana for the purpose of
    trafficking. The offender grew marijuana in a commercial building, as part of a
    well-planned and carefully executed commercial venture. 3,418 plants were
    seized. He was sentenced to one year imprisonment.

[26]

The
Safe Streets and Communities Act
, S.C. 2012, c. 1, amended s. 7(2)(b)
    of the
Controlled Drugs and Substances Act
to provide for minimum
    sentences for the production of marijuana. If a crop exceeds 500 plants, s. 7(2)(b)(vi)
    of the Act now calls for a minimum sentence of three years provided other
    factors are met.  That said, the Act came into force on November 6, 2012 and is
    therefore inapplicable to the appellants convictions.

[27]

In
    the case before us, the sentencing judge appreciated the broad range in
    sentencing in the jurisprudence, but also properly recognized that the fixing
    of a fit sentence is an individualized process based on the circumstances of
    the case and the offender. As stated by Lamer C.J. for the Supreme Court of
    Canada in
R. v.

M. (C.A.)
, [1996] 1 S.C.R. 500 at para. 92, the
    search for a single appropriate sentence for a similar offender for a similar
    crime will frequently be a fruitless exercise of academic abstraction.

[28]

The
    sentencing judge properly considered all of the relevant factors, and his
    finding that the appellant was engaged in a substantial commercial enterprise
    is well supported by the record. The size of the operation and the yield were significant.
    Seizures involving in excess of 6000 marijuana plants were effected at six
    different locations, both residential and rural. The appellant was involved in
    three active marijuana grow operations and he maintained two storage units.
    Moreover, he was involved for his own financial gain.

[29]

While
    shorter terms have been imposed for similar offences, in my view the sentence
    was not outside the acceptable range having regard to the gravity and
    seriousness of the appellants crimes.

[30]

Accordingly,
    while I would grant leave to appeal the sentence imposed, I would dismiss the
    appeal.

Released: June 18, 2013 RGJ

S.
    E. Pepall J.A.

I
    agree R. G. Juriansz J.A.

I
    agree J. MacFarland J.A.


