COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kusi, 2015 ONCA 638

DATE: 20150922

DOCKET: C58124

Cronk, Epstein and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ransford Nash Kusi

Appellant

John Norris and Meara Conway, for the appellant

Kevin Wilson, for the respondent

Heard: September 15, 2015

On appeal from the sentence imposed on December 3, 2013 by Justice Alan D. Cooper of the Ontario Court of Justice.

ENDORSEMENT

[1] Upon his arrival from Ghana at the Toronto Pearson International Airport on March 31, 2013, the appellant, Ransford Nash Kusi, was arrested for importing 1.37 kg. of heroin into Canada. He pleaded guilty to importing heroin, a Schedule I substance, contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. On December 3, 2013, the appellant was sentenced to 10.5 years’ imprisonment, less credit for pre-sentence custody equivalent to 1 year. The appellant seeks leave to appeal his sentence and, if leave is granted, appeals his sentence.

[2] The appellant advances three main grounds of appeal: (i) the sentencing judge failed to give sufficient reasons for rejecting the appellant’s evidence that he had acted under pressure; (ii) the sentencing judge erred in finding that the appellant was a principal in the importation scheme, as opposed to a courier; and (iii) the sentencing judge erred by departing from the length of sentence discussed by this court in R. v. Mensah (2003), 2003 CanLII 57419 (ON CA), 170 O.A.C. 244, and imposing an unfit sentence.

[3] As to the standard of appellate review, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit: R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 90.

First Ground of Appeal: The failure to give sufficient reasons for rejecting the appellant’s evidence that he had acted under pressure

[4] The appellant operated a heavy equipment import business in Ghana. He testified that in 2008 he lost a cash deposit provided to him by a business client for a piece of equipment. According to the appellant, over the ensuing four-and-a-half years, the client pressed the appellant for re-payment of the lost cash, including threatening the appellant and his family. The appellant testified that when, in March 2013, his client had asked him to import drugs into Canada, he felt he had no choice but to agree. At the sentencing hearing, the appellant submitted that the duress or pressure under which he had acted should mitigate the sentence imposed.

[5] The appellant submits that the sentencing judge made adverse credibility findings against him that led him to reject his evidence about acting under pressure without providing adequate reasons.

[6] We see no merit in this submission. Although the sentencing judge’s reasons were brief, they explained why he made adverse credibility findings against the appellant, including why he rejected the appellant’s evidence that he had acted under pressure – i.e., there was no other evidence about the existence of the client; the appellant’s position that he had acted under pressure was undercut by his testimony that he would not have acceded to his client’s request had he known the substance was heroin, not cocaine; and, the appellant’s experience as a sophisticated international businessman rendered unbelievable his contention that he did not know there would be penal consequences for importing cocaine into Canada. Those findings were firmly based in the evidence and provided adequate reasons for the sentencing judge’s findings about the appellant’s lack of credibility.

[7] The appellant also submits that the sentencing judge’s conclusion that the appellant “wasn’t in complete duress” signifies that he mistakenly thought the appellant was relying on the evidence of pressure as a defence to the charge, not for the purpose of mitigating the sentence.

[8] We disagree. The exchanges between the sentencing judge and defence counsel during closing submissions disclose that the sentencing judge clearly understood that the appellant was relying on the evidence of pressure as a mitigating factor for purposes of sentencing.

Second Ground of Appeal: The finding that the appellant was a principal in the importation scheme

[9] The sentencing judge found that the appellant knew what the drug was, and that he knowingly imported it into Canada as part of a sophisticated operation. He continued: “[The appellant] may have been acting with others, but he certainly was a principal in the case as far as I’m concerned.” The appellant submits the sentencing judge erred in finding that he acted as a principal and in using that finding as an aggravating factor in fashioning the sentence.

[10] We disagree.

[11] The sentencing judge’s characterization of the appellant as a “principal” must be understood in the context of the submissions made at the sentencing hearing. Crown counsel had submitted that, while the appellant’s role in the drug importation scheme was not an aggravating factor, the appellant was not entitled to the mitigation of sentence that might arise upon a finding that he was an unsophisticated courier in the scheme. In the course of those submissions, Crown counsel referred the sentencing judge to the case of R. v. Holder (1998), 1998 CanLII 14962 (ON SC), 21 C.R. (5th) 277 (Ont. C.J. (Gen. Div.)) where, at paras. 34-35, Hill J. held that evidence that the offender had acted as a courier could operate as a mitigating circumstance in sentencing. Hill J. contrasted a courier – “a lesser player in the organization, an employee, a ‘runner’ or a ‘mule’” – with a “principal”, who was “a more active participant, more substantially involved, likely to receive more profit and certainly more intricately involved in domestic sub-distribution of the narcotic or controlled substance.”

[12] The sentencing judge obviously did not treat the appellant as an unsophisticated “mule” or “runner”, for he described the appellant as a “sophisticated businessman who travelled around the world”, who “knew what the drug was, and knowingly imported it into Canada.” Ample evidence supported those findings. Although the sentencing judge could have explained more precisely the impact of the appellant’s role in the importation scheme on sentencing, it is clear from his reasons that he did not regard that role as one entitling the appellant to a mitigation of sentence and, at the same time, that he accepted the Crown’s position that the appellant’s role was not an aggravating factor.

Third Ground of Appeal: Unfit sentence

[13] The appellant submits that the sentencing judge erred by failing to apply the length of sentence imposed by this court in its 2003 decision in Mensah. In that case, the offender had been convicted of importing 1.038 kg. of heroin. He was a first offender and was treated as a courier. On appeal, this court imposed a sentence of nine years’ imprisonment, less credit for pre-sentence custody. The appellant submits that in the present case the appropriate length of sentence is seven years.

[14] We see no error in the sentence of 10.5 years imposed by the sentencing judge. He took into account, as mitigating factors, the appellant’s guilty plea, his lack of criminal record and his prospects for rehabilitation. As well, the sentencing judge specifically referenced this court’s discussion in R. v. Sidhu, 2009 ONCA 81, 94 O.R. (3d) 609, at paras. 14 and 20, about the relevance of the quantity of the drug involved to the sentencing process. In that case, at para. 14, this court held that first offender couriers who import large amounts of high-grade heroin into Canada for personal gain should expect to receive jail sentences in the 12 to 17-year range. This court went on to say that lesser amounts will often attract similar, if slightly lower, penalties. The examples of such lower penalties, given at para. 20 in Sidhu, disclose that, in the case of a courier, even a quantity of about 1 kg. of heroin could attract a sentence in the 9 to 11-year range.

[15] Here, in the light of the trial judge’s finding concerning the appellant’s role in the heroin importation scheme and the quantity of the drug involved, the sentence imposed of 10.5 years’ imprisonment, less credit for pre-sentence custody, was not demonstrably unfit, and we see no basis for appellate interference.

Disposition

[16] For the reasons set out above, we grant the appellant leave to appeal sentence, but dismiss the sentence appeal.

“E.A. Cronk J.A.”

“Gloria Epstein J.A.”

“David Brown J.A.”