Court Information
Ontario Court of Justice
Date: August 12, 2016
Court File No.: Brampton 15-7668
Parties
Between:
Her Majesty the Queen
— And —
Dulce Maria Gonsalves
Before the Court
Justice: Joseph W. Bovard
Heard: August 4, 2016
Reasons for Judgment Released: August 12, 2016
Counsel
Ms. S. Thompson — counsel for the Crown
Mr. A. Goldkind — counsel for the defendant Dulce Maria Gonsalves
Judgment
BOVARD J.:
[1] Introduction
[1] This is the sentencing of Dulce Maria Gonsalves on the charge of importing 844 grams of heroin.
Facts of the Case
[2] On October 28, 2015, Ms. Gonsalves pleaded guilty based on the following facts. On June 27, 2015, Ms. Gonsalves arrived at Toronto Pearson International Airport from Aruba on an Air Canada flight. A Border Security Officer flagged her for a secondary examination which meant that her luggage would be searched. As an Officer was searching her luggage she made a spontaneous admission that she had ingested drugs. She was arrested. She had swallowed 63 pellets of heroin.
[3] While she was in the custody of the Border Security Services she excreted 23 pellets of heroin. Afterwards, she complained of pain so an ambulance came and took her to the hospital. After the hospital released her she returned to the airport where the Border Security Officers turned her over to the RCMP who arrested her "again this time for the importation of heroin."
[4] After speaking to duty counsel, Ms. Gonsalves gave a statement to the RCMP in which she admitted to having ingested the heroin. The weight of the drug is 844 grams. The estimated street value is $295,470 if sold at the gram level.
Position of the Parties
[5] Ms. Thompson, the Crown, submitted that a sentence of 7 years minus pre-trial detention of 1 year and 17 days (as of the day of sentencing) is the appropriate sentence. At the regular 1.5 rate for each day of pre-trial detention, Ms. Gonsalves has served the equivalent of approximately 2 years and 2 months. When this is subtracted from 7 years it leaves 4 years and 10 months. This is the sentence that the Crown asks the court to impose today.
[6] Mr. Goldkind for the defence agrees that what the Crown is asking for is within the range established by the Court of Appeal. However, he submits that a sentence of 4 years minus pre-trial detention is appropriate because of the extraordinary and unusual circumstances that exist in this case. This would result in a further period of incarceration of 1 year and 10 months.
Personal and Mitigating Circumstances
[7] The court ordered a Pre-Sentence Report (PSR), which indicates that Ms. Gonsalves is a citizen of Aruba and lived there prior to committing the offence. She plans to return after she serves her sentence.
[8] She is 22 years old. She had a traumatic childhood. She recalled having some contact with her parents and that they were fighting. She was raised by distant relatives. She is not sure who exactly they were. She does not have fond memories of her childhood. She was abused, including sexual abuse by an uncle when she was five years old. Ms. Gonsalves does not have contact with her parents or with her two sisters. She stated that they do not care about her.
[9] Ms. Gonsalves worked in the sex trade even as a child. She gave birth to a child when she was 14 years old. The father was 24 years old and was a drug dealer. They lived on the street. He abused her physically and sexually. The authorities took her child away from her when the child was 4 months old.
[10] Ms. Gonsalves said that she did not have a stable residence and that for years she lived "here and there with crackheads."
[11] She quit school when she was 14 years old. She left because she was pregnant. She has never worked at a regular job. However, she speaks Spanish, Dutch, English and Papiamento (her mother tongue). She learned these languages on the street and in school.
[12] Ms. Gonsalves has a long history of substance abuse. She started using cocaine when she was 14 years old. She said that the sexual abuse and her life on the street are the main causes of her substance abuse.
[13] The PSR writer, Ms. Jennifer Martins, found that Ms. Gonsalves was confused and at times contradictory. Ms. Gonsalves told her that she was forced to commit the offence by persons whom she feared would hurt her. The person that forced her had sexually abused her in the past. In addition, she said that she was using drugs at the time that she committed the offence.
[14] The court heard an application to strike the plea based on this information, but in written reasons, after careful consideration of the matter, decided that the plea should stand.
[15] Ms. Gonsalves said that she had mental health issues but it could not be confirmed. She said that since her arrest she has had suicidal thoughts. While on remand at the Vanier Centre for Women she has been taking medication for depression and anxiety.
[16] Ms. Khatija Laloo, the social worker at Vanier, described Ms. Gonsalves as "cooperative, personal and open to counselling." She attends programs offered by the Elizabeth Fry Society. Ms. Laloo described Ms. Gonsalves as "simple in her mental processes." She was not aware of any mental health diagnosis.
[17] Mr. Goldkind argued that the following additional circumstances are mitigating:
Ms. Gonsalves swallowed 63 pellets of heroin and could have died (he referred to this factor as an exceptional and extraordinary circumstance);
There is no evidence of personal gain;
Mr. Goldkind stated that perhaps there is a racial component that is mitigating, but I did not understand this submission;
Ms. Gonsalves took many courses while in pre-trial detention (13 certificates are exhibit 3);
The level of moral blameworthiness is low;
Ms. Gonsalves is a courier, not an overseer;
Gonsalves pleaded guilty and was very co-operative. She has always wanted to resolve the matter;
Ms. Gonsalves' place of custody was in lock down mode for many days while she was there. Exhibit 4 is a calendar that she gave to the court with dates circled to indicate the lock down dates. There are 109 dates. There is no specific evidence as to what occurred on these dates other than that a lock down was in effect. Therefore, it is difficult to assess the impact that this had on Ms. Gonsalves.
The Law
[18] With regard to the plight of couriers, the Court of Appeal said in R. v. Sidhu that
…this court explained in R. v. Cunningham (1996), 104 C.C.C. (3d) 542 at 547, concerns for "the plight of many couriers" must "give way to the need to protect society from the untold grief and misery occasioned by the illicit use of hard drugs." And lest there be any doubt about it, heroin represents the worst of the hard drugs.
[19] In Sidhu, the Court of Appeal stated what the range is for similar offences to the case at bar. These cases do not fall on all fours with Ms. Gonsalves' case, however, they are sufficiently similar that the ranges still apply:
R. v. Mostafalou (October 21, 1992), Toronto, C11611 (Ont. C.A.), in which a sentence of nine-and-a-half years, in addition to six-and-a-half months of pretrial custody, was upheld for importing 489 grams of heroin; R. v. Anaso, [2002] O.J. No. 4452 (Ont. C.A.), where the accused received a sentence of eight years, in addition to two years and four months credit for pretrial custody, for her courier-like role in attempting to export 1.13 pounds (512 grams) of heroin; R. v. Mensah (2003), 170 O.A.C. 244, leave to appeal to S.C.C. refused, [2003] S.C.C.A. No. 207, where the accused received a global sentence of nine years, less credit for pretrial custody of twenty-and-a-half months, for importing 1.038 kilograms of heroin; R. v. Jantuah (1993), 62 Q.A.C. 19, where the Quebec Court of Appeal upheld a sentence of ten years, in addition to six months pretrial custody, for the importation of 475 grams of heroin; (emphasis added)
[20] The court stated in paragraphs 14, 15 that:
…as a general rule, absent exceptional or extenuating circumstances, first offender couriers who import large amounts of high grade heroin into Canada for personal gain should expect to receive sentences consistent with the twelve to seventeen year range suggested by the Crown. To be clear, when we refer to "large amounts" of high grade heroin, we are not referring solely to multiple kilograms; as authorities from this court and other courts show, lesser amounts will often attract similar, if slightly lower, penalties...
That range of sentence may seem harsh to some, but it is necessary to protect our country and our citizens from the ravages of heroin. Those who would engage in its importation must know that they will pay a heavy price.
[21] In R. v. Cunningham, the court stated that "flexibity to do justice in individual cases" is important. They said further that "the suggested range will often require the imposition of a severe penalty for first offenders." The court added that it was "mindful…that in many instances, couriers tend to be weak and vulnerable, thereby becoming easy prey to those who engage in drug trafficking…" But the court felt that "Sympathetic though we are to the plight of many couriers, such concerns must give way to the need to protect society from the untold grief and misery occasioned by the illicit use of hard drugs". (page 8)
[22] Section 10 of the Controlled Drugs and Substances Act provides:
- (1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.
[23] The relevant sections of the Criminal Code provide:
- The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
s.718.2
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
[24] In the recent case of R. v. Igbinoba and Godwin, the court highlighted that "There is no dispute that denunciation, general and specific deterrence are the primary and overriding factors in sentencing for the importation of heroin or conspiracy to import heroin."
[25] After reviewing the authorities, the court held that "absent exceptional or extenuating circumstances, the appropriate range of sentence for the importation of approximately 1 kilogram of heroin is approximately 9 to 13 years."
[26] Mr. Goldkind argued that Ms. Gonsalves is quite unsophisticated and that she endangered her life by swallowing 63 pellets of heroin. Also, there is no evidence that she received any money for importing the drug. He states that all couriers are not alike and that some in the cases cited above were more sophisticated than Ms. Gonsalves and that they chose safer methods by which to import the drug, such as in suitcases. Mr. Goldkind suggests that perhaps there should be a lower tariff for couriers like Ms. Gonsalves. However, he could not present the court with any authority that supports this view.
[27] With regard to general deterrence, Mr. Goldkind argues that it is unlikely that anyone in Aruba will be deterred by what happens to Ms. Gonsalves. I am not sure that I agree that the word will not get out in Aruba about Ms. Gonsalves' sentence. She will most probably tell persons in Aruba what happened to her and the grape vine will pass along the information. In addition, the general deterrent message will be known to those in the penitentiary and jails in which Ms. Gonsalves serves her time.
[28] As far as individual deterrence, Mr. Goldkind maintains that it is doubtful that persons in Ms. Gonsalves' shoes would be deterred by the court's sentence.
[29] Mr. Goldkind may be partially correct about the effect of the court's sentence with regard to individual and general deterrence. However, passing lighter sentences than what the courts of appeal have set out would probably not have a deterrent effect either. It would likely have the opposite effect.
[30] In addition, in the case at bar it would be an error because although there are sympathetic circumstances about Ms. Gonsalves, there are no exceptional or extraordinary circumstances that distinguish Ms. Gonsalves sufficiently from the cases cited above to justify straying from the ranges established by this jurisprudence. There is no authority to support that any of the factors mentioned by Mr. Goldkind should lead to a sentence in a range lesser than that established by the authorities cited above.
Disposition
[31] After considering all of the circumstances, the law and counsel's submissions, I find that in spite of Mr. Goldkind's passionate and imaginative arguments, the sentence that Ms. Thompson asks for is a fair and appropriate sentence. I note that it is approximately 2 years lower than the general range for the amount of heroin that Ms. Gonsalves imported.
[32] Therefore, the court finds that a total sentence of 7 years is the appropriate sentence. I will deduct her pre-trial detention of 1 year and 17 days (as of the day of sentencing). She will receive the regular 1.5 rate for each day of pre-trial detention. There is not sufficient evidence to justify increasing the rate above 1.5. Therefore, I calculate that Ms. Gonsalves has served the equivalent of approximately 2 years and 2 months while in pre-trial detention. When this is subtracted from 7 years it leaves 4 years and 10 months. Consequently, the sentence of the court is that Ms. Gonsalves be sentenced to the penitentiary for an additional 4 years and 10 months.
[33] The court makes the mandatory order under s. 109 of the Criminal Code for 10 years.
[34] The court also orders that Ms. Gonsalves give a sample of her DNA while in custody as soon as possible.
[35] With regard to the victim fine surcharge, considering that Ms. Gonsalves does not have a source of income and that she will be in custody for a long time, I find it unrealistic to impose a high victim fine surcharge. I will fine her $10 and give her 12 months to pay the surcharge on the fine as well as the fine.
Released: August 12, 2016
Justice J. W. Bovard