DATE: 20060202
DOCKET: C43527
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – BLANAS, TOULA (Appellant)
BEFORE:
SHARPE, BLAIR and ROULEAU JJ.A.
COUNSEL:
Somboun Tsai
for the appellant
Fergus O’Donnell
for the respondent
HEARD & RELEASED ORALLY:
January 30, 2006
On appeal from the sentence imposed by Madam Justice Sandra Chapnik of the Superior Court of Justice dated April 15, 2005.
E N D O R S E M E N T
[1] The appellant pleaded guilty to charges of dealing in passports contrary to the Immigration and Refugee Protection Act, s. 122(1)(c) and breach of trust contrary to s. 122 of the Criminal Code. The appellant stole 246 blank passports from the Scarborough Passport Office where she was employed. She stored the bulk of the stolen passports in Allan Graham’s garage. Graham was later arrested when he tried to sell one of the blank passports to an undercover officer. He pleaded guilty to dealing in passports and received a sentence of 4 ½ years. Forty-one of the stolen passports had not been recovered at the time of trial and several had been seized from individuals in airports around the world.
[2] The appellant was 24 years old at the time of the commission of these offences. She had no criminal record and was steadily employed before she lost her job at the Passport Office.
[3] The trial judge imposed a sentence of 5 ½ years, less 6 months credit for pre-trial custody and stringent bail terms pending trial. In her reasons for sentence the trial judge stated: “In all of the circumstances I find that Ms. Blanas likely committed the offence for profit whether or not any profit was realized. Accordingly s. 123(2)(b) of the Act applies and the profit motive will be considered as an aggravating factor on sentence.” The respondent concedes that this constitutes an error in principle as the aggravating factor had to be proved beyond a reasonable doubt. It is further conceded that in view of this error in principle it is open to us to impose what we consider to be a fit sentence. The respondent urges us, however, not to interfere with the sentence imposed as the passport offence was “clearly…the worst offence envisaged by the fourteen year [maximum] penalty”.
[4] We agree that these were very serious offences involving a breach of trust and jeopardizing the security of Canada and the integrity of its passport regime. On the other hand, we do not agree that the passport offence was “the worst offence” envisaged by the statute. Neither of the two aggravating factors identified by the statute, namely profit motive or that the offence was committed at the direction of, or in association with a criminal organization, were made out.
[5] In our view, parity with Graham’s sentence is a factor and a penitentiary sentence satisfying the need for general deterrence must be imposed. However, general deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant. A first sentence of imprisonment “should be as short as possible and tailored to the individual circumstances of the accused rather that solely for the purpose of general deterrence”: see R. v. Priest (1996), 1996 1381 (ON CA), 110 C.C.C. (3d) 289 (Ont. C.A.) at 296.
[6] Taking all of these factors into account we consider that the appropriate sentence is a global sentence of 4.5 years.
[7] The trial judge gave 6 months credit for pre-trial custody and the stringent pre-trial bail conditions. That was a matter of discretion and we see no error in that regard. Accordingly we would give the same credit and impose a net sentence of 4 years.
[8] Accordingly, leave to appeal sentence is granted and the appeal is allowed to the following extent: The sentence of five years on count 1 is set aside and in its place a sentence of four years is imposed. The sentence of two years concurrent on count 2 remains.
“R.J. Sharpe J.A.”
“R.A. Blair J.A.”
“P. Rouleau J.A.”