



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ukwuaba, 2021 ONCA 152

DATE: 20210310

DOCKET: C65917

Feldman, Paciocco and Coroza
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Peter Ifejuna Ukwuaba

Appellant

Jessica Zita, for the appellant

Brian G. Puddington, for the respondent

Heard: March 8, 2021 by video
    conference

On appeal from the convictions entered
    by Justice Casey Hill of the Superior Court of Justice on May 11, 2015, with
    reasons reported at 2015 ONSC 2953, [2015] O.J. No. 2349, and from the sentence
    imposed on February 17, 2016, with reasons reported at 2016 ONSC 3109, [2016]
    O.J. No. 2817.

REASONS FOR DECISION


OVERVIEW

[1]

The appellant, Peter Ukwuaba, was convicted
    after a trial by judge alone of three offences involving approximately one kilogram
    of heroin: (1) possession of heroin for the purpose of trafficking, contrary to
    s. 5(2) of the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19
    (
CDSA
); (2) importing heroin, contrary to s. 6(1) of the
CDSA
;
    and (3) conspiracy to import heroin, contrary to s. 465(1)(c) of the
Criminal
    Code of Canada
, R.S.C. 1985, c. C-46. He was sentenced to 11 years
    imprisonment, concurrent on each charge.

[2]

Mr. Ukwuabas appeal counsel conceded,
    appropriately, that evidence showing he possessed the heroin for the purpose of
    trafficking was overwhelming. Accordingly, the conviction contrary to
CDSA
s. 5(2) is not being appealed. The appellant does, however, appeal the
    remaining two convictions and he seeks leave to appeal his sentences.

[3]

We notified counsel at the end of the oral
    hearing that, for reasons to follow, the conviction appeals are dismissed, but
    that leave to appeal the sentences is granted and the sentence appeal is
    allowed. The sentences of 11 years incarceration concurrent on each conviction
    are set aside, and concurrent sentences of 9 years incarceration are ordered.
    These are our reasons.

ANALYSIS

Appeals from conviction

[4]

Mr. Ukwuaba rested
    his conviction appeals on the absence of evidence linking him to the
    importation of the heroin until July 15, 2011, the day after the heroin left
    India by courier secreted in a box of automobile parts. On July 15, 2011, Mr.
    Ukwuaba received a text message containing the tracking number for the package and,
    on July 25, 2011, he received delivery of the package. He argues that, in the
    absence of any evidence of his participation in discussions leading to an agreement
    to export the heroin from India, the conspiracy conviction is unreasonable. He
    also submits that the fact that he took delivery of the couriered package upon
    its arrival cannot support a finding beyond a reasonable doubt that he was
    complicit in the importation.

[5]

We do not agree
    with either submission. It is evident that a package of valuable contraband
    would be sent to a trusted recipient. This couriered package of valuable
    contraband was addressed to a former resident of a rooming house. There was
    evidence that Mr. Ukwuaba was aware that the former resident no longer lived
    there. There was also evidence that Mr. Ukwuaba had formerly lived there
    himself and continued to receive mail deliveries at that residence, so he was
    aware that he could easily gain entry to receive a couriered package.

[6]

It is also
    evident that Mr. Ukwuaba was aware of the time when the couriered package would
    be delivered. He arrived at the subject residence shortly before the delivery,
    after having received a phone call from the same number used to text him the
    tracking number. Upon his arrival, he was observed conducting counter-
    surveillance of the residence before taking delivery of the couriered package.
    He was apprehended shortly after attempting to destroy the packaging
    information showing the origin of the box containing the heroin.

[7]

In these
    circumstances, it was appropriate for the trial judge to infer that Mr. Ukwuaba
    was the trusted recipient and that he would necessarily have agreed to perform
    that role prior to the decision to send the heroin by courier to his former
    residence. It was entirely reasonable, in the circumstances, for the trial
    judge to infer that Mr. Ukwuaba would have provided the details required to
    give effect to the importation plan before the courier shipment was arranged.

[8]

Accordingly, his
    convictions of importing heroin and conspiracy to import heroin were not
    unreasonable.

Appeal from
    sentence

[9]

In support of
    his request for leave to appeal the 11-year concurrent sentences of
    imprisonment imposed on each of the three charges for which he was convicted,
    Mr. Ukwuaba urges that the trial judge failed to consider the principle of
    restraint or the mitigating circumstances that he was a first offender and the
    principal caregiver to his autistic son.

[10]

We do not
    accept this submission. The trial judge recognized in his sentencing decision
    that Mr. Ukwuaba was a first offender, and he imposed a sentence that reflects
    the principle of restraint. It was open to the trial judge to conclude that the
    sentence he imposed was necessary to satisfy the operative sentencing
    principles.

[11]

However, fresh
    evidence introduced on appeal shows that circumstances have changed materially since
    Mr. Ukwuaba was sentenced in February 2016. In May 2017, he suffered a
    debilitating stroke that left him largely immobile and with serious impairment of
    his ability to communicate. Given his poor health, the circumstances of Mr.
    Ukwuabas incarceration are no doubt harsher than anticipated at the time of
    his sentencing, and the needs for specific deterrence and incapacitation have
    lessened. When Mr. Ukwuaba was initially sentenced, the Crown sought a sentence
    of 9 to 12 years incarceration. We are persuaded by Ms. Zita, Mr. Ukwuabas
    appeal counsel, that it is in the interests of justice to set aside the 11-year
    concurrent sentences imposed, and to substitute concurrent sentences of 9 years
    incarceration.

DISPOSITION

[12]

The conviction
    appeals are therefore dismissed. We grant leave to appeal the sentence, set
    aside the sentences imposed, and substitute sentences of 9 years imprisonment,
    to be served concurrently on each of the three convictions. All other terms of
    the sentence remain.

K. Feldman J.A.

David M. Paciocco J.A.

S. Coroza J.A.


