Court of Appeal for Ontario
Date: 2019-06-05
Docket: C63475
Judges: Watt, Pardu and Nordheimer JJ.A.
Between
Her Majesty the Queen Respondent
and
Agnes Murororunkwere Appellant
Counsel
Najma Jamaldin, for the appellant
Scott Wheildon, for the respondent
Heard: April 30, 2019
Appeal Information
On appeal from the convictions entered by Justice Jennifer Woollcombe of the Superior Court of Justice, sitting with a jury, on October 1, 2015, and from the sentence imposed on February 10, 2016, with reasons reported at 2016 ONSC 1039.
Judgment
Pardu J.A.:
[1]
At the hearing of this appeal, the appellant did not pursue the conviction appeal and it was dismissed. The appellant's sentence appeal was reserved. For the reasons that follow, the sentence appeal is also dismissed.
[2]
The appellant was sentenced to 15 years in custody less credit for 200 days presentence custody for importing heroin, and conspiracy to import heroin. The sentence was broken down as 15 years for the conspiracy count, and 12 years concurrent for the importation count.
[3]
The count charging conspiracy alleged that the appellant conspired to import heroin between October 15, 2010 and March 25, 2011. The substantive importation count charged her with importing heroin into Canada on or about March 24, 2011.
A. Factual Overview and the Sentencing Judge's Reasons
(1) The Seriousness of the Offence and Nature of the Conspiracy
[4]
The sentencing judge concluded that she was satisfied beyond a reasonable doubt that the appellant was part of a broad ongoing conspiracy to import heroin, extending beyond the importation of March 24, 2011, evidenced by multiple other importations of heroin: R v. Murororunkwere, 2016 ONSC 1039, at para. 14.
[5]
The sentencing judge found that the appellant recruited Ms. Mukandori to bring heroin from Nairobi in October 2010: Murororunkwere, at paras. 15-19. According to her evidence, Ms. Mukandori was outfitted with an undergarment designed to conceal drugs. The appellant was present for the fitting of this garment and according to Ms. Mukandori's evidence, after the drugs were concealed in the undergarment, the appellant told her there was a kilogram of heroin in the garment and drove Ms. Mukandori to the airport to return to Canada. The sentencing judge, at paras. 17-18, referred to other evidence which in her view provided independent confirmation of this incriminatory evidence and supported her conclusion that the appellant conspired to import heroin into Canada in October 2010.
[6]
The sentencing judge also concluded that the appellant conspired with others to import heroin in January 2011: Murororunkwere, at para. 28. The sentencing judge found that the appellant provided Ms. Kalimba with a plane ticket to travel to Mombasa so that she could return travel to Detroit with drugs. The sentencing judge accepted Ms. Mukandori's testimony that the appellant told her Ms. Kalimba would also be importing drugs. In the same month, the appellant drove Ms. Mukandori to Nairobi where she met the same two men who had given her the special undergarment in the appellant's presence. This time the men gave her hand luggage in which heroin was concealed and which Ms. Mukandori brought to Canada.
[7]
Finally, the sentencing judge concluded that the appellant conspired to import heroin in March 2011: Murororunkwere, at paras. 29-30. Ms. Mukandori was caught at the airport with 2.5 kilograms of heroin, worth between $200,000 and $750,600 at the time. The guilty verdict on the substantive count establishes that the appellant facilitated this importation.
[8]
The appellant had planned for Ms. Kalimba to bring drugs to Canada around the same time but abandoned those plans when Ms. Mukandori was apprehended at the airport.
[9]
The sentencing judge found that the appellant played a significant role in the conspiracy, well beyond that of a one-time courier, at para. 55 of her reasons:
There is no doubt in my mind that Ms. Murororunkwere's role was much more significant than that of a one-timer courier. She facilitated and arranged for two couriers to travel to three different African countries (Kenya, Uganda and Tanzania) in order to bring heroin into Canada on four occasions and into the United States once. Twice, when the importation was into Canada, she organized for the heroin to be transported to the United States. She was an active participant in a sophisticated international drug importation scheme. I find that her culpability is high – much higher than that of a courier. Her sentence must reflect the very serious nature of her repeated conduct.
[10]
Crown and defence counsel at trial agreed that a sentence of 12 to 17 years would be fit for a first time importer of a large amount of heroin. The Crown further submitted that if the sentencing judge found that Ms. Murororunkwere was a principal in multiple attempts to import and multiple successful importations, then the appropriate sentencing range would be 14 to 18 years. Defence counsel took the position that due to the unique and exceptional circumstances of the appellant, which I will discuss below, the broad sentencing range the court should consider is between 8 to 12 years.
[11]
The sentencing judge concluded that the appellant's culpability was more serious, as she had been part of a conspiracy to import heroin on multiple occasions and that the appropriate range of sentence for the offences committed by Ms. Murororunkwere was 14 to 18 years: Murororunkwere, at paras. 48, 55-56.
(2) The Appellant's Personal History
[12]
At the sentencing hearing, the appellant tendered a letter written by her daughter describing horrific suffering the appellant endured during the Rwandan genocide in 1994 which the sentencing judge summarized at para. 32 of her reasons:
The letter from Ms. Murororunkwere's daughter, Olga Kata, says that during the 1994 Rwandan genocide, Ms. Murororunkwere was raped, and that she is a product of that rape. She says that her mother was kidnapped by people who killed members of her family. Counsel has elaborated his understanding of what happened to Ms. Murororunkwere. He tells the court that she is Tutsi and that Hutu soldiers killed her parents and brothers and that one of the soldiers took her from Rwanda through Zaire (now the DRC) to Uganda and then Kenya. He says she was effectively a "prisoner bride" and that she was beaten and tortured. She also became HIV positive. According to counsel, Ms. Murororunkwere was rescued by a neighbor in Kenya. She came to Canada as a refugee in 2003.
[13]
At the sentencing hearing, defence counsel urged the court to conclude that the appellant's personal history was so exceptional as to amount to extenuating circumstances justifying a sentence of not more than 12 years. The sentencing judge did not accept this argument. Citing R. v. Shahnawaz (2000), 51 O.R. (3d) 29 (C.A.), leave to appeal refused, [2001] S.C.C.A. No. 24, she concluded that the horrific events occurring some 18 years ago could not justify a departure from the normal range of sentence in the absence of a link between the offender's history and one of the relevant principles of sentencing: Murororunkwere, at paras. 61-65. While the sentencing judge noted that there was a lack of evidence about the appellant's personal history outside of the hearsay account provided by her daughter, she was prepared to accept the version of events between and following the 1994 Rwandan genocide for the purposes of sentencing: Murororunkwere, at para. 65. She did conclude that the appellant's past was, to some degree, a relevant and mitigating factor on sentencing: Murororunkwere, at para. 67.
(3) The Sentencing Judge's Weighing of Mitigating and Aggravating Factors
[14]
The sentencing judge outlined the following mitigating factors, at para. 68:
Ms. Murororunkwere has no previous criminal history;
Ms. Murororunkwere has widespread support in her community. She has been an active member of the community, providing to friends and family both encouragement and support;
Ms. Murororunkwere has a history of actively volunteering in her community as detailed above;
Ms. Murororunkwere is the sole parent to her university-aged daughter;
Ms. Murororunkwere has significant health concerns including HIV, hepatitis B and recurring genital herpes;
Ms. Murororunkwere came to Canada as a refugee having seen member of her family members killed in the Rwandan genocide and having been abducted, raped and beaten herself.
[15]
The aggravating factors she described related primarily to the seriousness of the offence, and the reason for the appellant's criminal conduct, at para. 69:
There was 2.5 kg of heroin imported in March 2011;
The value of the heroin imported in March 2011 was between $200,000.00 and $750,600.00;
Ms. Murororunkwere was involved in a sophisticated international plan to import heroin that resulted in successful importations into Canada on three occasions, a successful importation into the United States, and a plan for a further importation into Canada in March 2011;
Ms. Murororunkwere's importation was solely for personal gain.
[16]
The sentencing judge characterized the six year sentence imposed on Ms. Mukandori following her plea of guilty to importing heroin as very lenient.
[17]
The sentencing judge reiterated the judicial pronouncements about the nature of heroin, and its impact on the community at para. 46:
Heroin is the "most pernicious of the hard drugs" in that it is the most addictive, most destructive and most dangerous (Sidhu at para. 12). There is a pressing need to protect society from the untold grief and misery occasioned by the importation and subsequent use of hard drugs such as heroin.
[18]
After considering a number of appellate authorities dealing with sentencing for importation of heroin, the sentencing judge ultimately concluded that a global sentence of 15 years was fit. She allocated 15 years to the conspiracy count and 12 years concurrent for the substantive count of importing.
B. Arguments on Appeal
[19]
The appellant submits that the sentencing judge should not have sentenced her as if she were a party to a broad over-arching conspiracy extending beyond the agreement inherent in the substantive charge of importing. The appellant submits that the trial Crown invited the jury to convict of a narrower conspiracy related to the events of March 24, 2011, and that the sentencing judge should not have gone on to make findings of fact in relation to a broader conspiracy. She further submits that the findings of a broader conspiracy were unreasonable.
[20]
The appellant also argues that the global 15 year sentence was simply too high, particularly since Ms. Mukandori received a six year sentence. The appellant distinguishes the authorities relied upon by the Crown on the ground that they involved larger amounts of high grade heroin valued a much higher dollar amount than what the appellant imported.
[21]
The Crown argues that the sentence is fit and relies on the following cases to support the range identified by the sentencing judge:
| Case | Quantity | Offender's Circumstances | Sentence |
|---|---|---|---|
| R. v. Sidhu, 2009 ONCA 81, 94 O.R. (3d) 609 | 9.56 kg. | Courier. Guilty plea. No record. | 14 years 9 months after 3 months pre-trial custody. |
| R. v. Thambiah (1987), 23 O.A.C. 394 (C.A.) | 13.6 kg. | Courier. Convicted after trial. No record. | 15 years custody. |
| R. v. Kusi, 2015 ONCA 638 | 1.37 kg. | Guilty plea. No record. | 10.5 years custody |
| R. v. Osinfolarin, 2017 ONCA 787 | 1.98 kg. of "street ready" heroin. | Convicted after trial. | 13 years custody. |
| R. v. Kwok (1986), 31 C.C.C. (3d) 196 (Ont. C.A.) | 3.49 kg. | Overseer. Convicted after trial. | 15 years custody. |
| R. v. Mohamed, 2017 QCCA 1643 | 2.6 kg. | Courier. No record. Convicted after trial. | 12 years custody. |
| R. v. Phu, [2001] O.J. No. 5796 (Ont. C.A.) | 2.54 kg. | Guilty plea. Directed Canadian end of scheme to import from Vietnam. | 14 years custody. |
| R. v. Wu (2002), 170 C.C.C. (3d) 225 (Ont. C.A.) | 42 kg. | Convicted after trial. Not an overseer or principal but much more than couriers. | 18 years and 4 months custody in addition to 22 months pre-trial custody (credited at 44 months). |
| R. v. Devasagayam, [1993] O.J. No. 1172 (Ont. C.A.) | Conspiracy to import over 6 kg. | Convicted after trial. Overseer responsible for recruiting and supervising courier. | 16 years in addition to 1 year pre-trial custody. |
C. Analysis
[22]
First, I do not accept the appellant's arguments suggesting the sentencing judge erred by sentencing her as if she were a party to a broader conspiracy to import heroin. The trial Crown invited the jury to convict on two bases, either a narrow agreement related to the March 24, 2011 importation or a broader agreement related to a series of importations suggesting an ongoing agreement to import heroin. Either basis was possible on the wording of the indictment. The guilty verdict on the conspiracy count did not reveal the basis upon which the jury convicted and the sentencing judge was obliged to come to her own independent determination of the facts relevant to sentencing: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 16-18.
[23]
At trial, both the Crown and defence counsel accepted that the sentencing judge had to make this determination given the ambiguity of the jury's finding of guilt on the conspiracy count. The Crown urged the court to conclude that the appellant conspired to import heroin from October 15, 2010 to March 25, 2011 and alleged that she was implicated in organizing a number of separate trips to Africa to facilitate importation of heroin as part of an ongoing scheme. Defence counsel urged the trial judge to conclude that only a narrower conspiracy related to the March 24, 2011 importation was proven.
[24]
As is clear from my summary of the sentencing judge's findings and reasons provided above, the sentencing judge concluded that the appellant was part of a broad ongoing conspiracy going beyond the March 24, 2011 importation.
[25]
The sentencing judge had to make factual findings as to the nature of the offence committed. (See Ferguson) Further, these factual findings were reasonably available to the sentencing judge, and no misapprehension of evidence is suggested. There is no basis to interfere with these findings.
[26]
Second, I do not accept the appellant's position that the sentence was unfit nor do I find there is any other error in law or principle that would justify appellate intervention with the sentence imposed. The amount of drugs imported is not the only measure of the gravity of the offence. A review of the relevant case law shows that the role of the individual in a drug trafficking organization also can impact the measure of the gravity of the offence for the purposes of sentencing. In both Sidhu and Thambiah the accused were only couriers who had no other involvement in the drug trafficking organization.
[27]
Mr. Sidhu was a first time offender who agreed to act as a courier for others and brought 9.56 kilograms of heroin into the country, worth between $4.78 and $6.69 million and representing 11.4 percent of all heroin seized by Canadian police in 2005: Sidhu, at para. 7.
[28]
Mr. Thambiah had been hired to bring 30 pounds, or approximately 13.6 kilograms of heroin into Canada: Thambiah, at para. 6. He did not oversee the operation, and did not know the identity of the Canadian connection, although he knew he was transporting drugs: Thambiah, at para. 13.
[29]
The appellant argues that Sidhu and Thambiah involved far greater amounts of heroin than this case, and that a lower sentence would have been fit for the appellant.
[30]
Here, the appellant played a substantial role in the drug trafficking operation well above that of a one-time courier, significantly increasing the degree of moral culpability associated with her conduct.
[31]
While parity is a factor to be considered, Ms. Mukandori was a lower level courier who undoubtedly received substantial credit for pleading guilty and for testifying about the importing operation.
[32]
Sentencing judges are owed substantial deference. As noted in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11:
This Court has on many occasions noted the importance of giving wide latitude to sentencing judges. Since they have, inter alia, the advantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal Code in this regard. The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention. Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit.
[33]
Here, no error of law is alleged. No error in principle has been identified. I am unable to conclude that the sentence is demonstrably unfit. The appellant's essential submission is that the sentencing judge ought to have weighed the various factors differently. There is no suggestion that the sentencing judge considered irrelevant matters or failed to consider relevant factors. Nor could it be said that the sentencing judge overemphasized the seriousness of the offence.
[34]
As this court said in R. v. McKnight (1999), 44 O.R. (3d) 263 (C.A.), at p. 273:
To suggest that a trial judge commits an error in principle because in an appellate court's opinion the trial judge gave too much weight to one relevant factor or not enough weight to another is to abandon deference altogether. The weighing of relevant factors, the balancing process is what the exercise of discretion is all about. To maintain deference to the trial judge's exercise of discretion, the weighing or balancing of relevant factors must be assessed against the reasonableness standard of review. Only if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably should an appellate court interfere with the sentence on the ground the trial judge erred in principle.
[35]
There is no basis for appellate interference with the sentence imposed and I would dismiss the appeal.
Released
Released: June 5, 2019
"G. Pardu J.A."
"I agree. David Watt J.A."
"I agree. I.V.B. Nordheimer J.A."
[1] This table has been reproduced from the Crown's factum, subject to minor revisions.