ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 1246/11
DATE: 2012 03 13

B E T W E E N:

HER MAJESTY THE QUEEN

Sarah Curtis, for the Crown

• and -

ANGELA ROBINSON

W. John (Jack) McCulligh, for the Defendant

REASONS FOR SENTENCE

A.J. GOODMAN J.

[ 1 ] On October 19, 2011, the defendant Angela Robinson was found guilty by a jury and a conviction was registered for the offence of importing into Canada an amount of cocaine, contrary to section 6(1) of the Controlled Drugs and Substances Act.

[ 2 ] The Crown seeks a penitentiary sentence of 8 years. Defence counsel agrees that a term of imprisonment in the penitentiary is called for but urges the court to find that the appropriate range ought to be 4 to 5 years after deducting the appropriate credit for pre-trial custody.

Circumstances of the offense

[ 3 ] On April 19, 2011, Ms. Robinson arrived at Toronto International Airport from Jamaica. Specifically, on April 19, 2011, Ms. Robinson carried a total of 3.532 kilograms of cocaine when she entered into Canada from Jamaica at the Pearson International Airport in Mississauga.

[ 4 ] At the time of her arrest Ms. Robinson’s luggage had been searched and officials detected cocaine contained in cake mix boxes located in her checked luggage. Ms. Robinson had denied any knowledge of the cocaine in the cake mix boxes at all relevant times and testified that she was given those boxes by her boyfriend’s mother to take to him.

[ 5 ] The central issue on the trial before the jury was whether or not Ms. Robinson knew about the presence of cocaine in the cake mix boxes. She testified that she had packed all of the food items into her luggage, including those particular cake mix boxes among other food items she received from her boyfriend’s mother prior to leaving Jamaica. Her intent was to deliver various Jamaican food items to her boyfriend during her short visit to Toronto. She claimed that she had no knowledge of any drugs and no reason to suspect that anything improper or illicit was placed in the cake mix boxes prior to her packing them.

[ 6 ] It was evident from the jury's verdict that they did not accept her evidence and her story that she did not know there was cocaine in the cake mix boxes. Moreover, the jury did not accept her version of events giving rise to her visit to Jamaica, her activities leading to her departure from Jamaica, her conduct at the Toronto International Airport and her actions and stated intention with respect to her journey to Canada.

Circumstances of the offender

[ 7 ] A pre-sentence report was prepared which provides Ms. Robinson’s background and life challenges. Ms. Robinson is a citizen and a resident of the United Kingdom, born in Birmingham, England. She resides in England and has neither status nor family connections in Canada. She has children in England and a son in Jamaica. She was employed as a nursing assistant.

[ 8 ] Ms. Robinson left the family home at 18 years of age after she gave birth to her first son. She admits that she was unable to care for her son and her mother assumed the role of primary caregiver. At the age of 21 Ms. Robinson gave birth to her second son. She advises that his biological father is in and out of the picture and offers intermittent financial assistance for him. She also advises that the relationship was abusive. At the age of 27 (2002), Ms. Robinson gave birth to her third son, and the biological father's whereabouts are unknown to her. Ms. Robinson advises that her two middle sons currently reside with her mother in Birmingham. Her mother (Ms. Margaret Henry) confirmed that she is caring for her daughter's children and claims that it has been a financial strain on her. Ms. Robinson's eldest son resides on his own.

[ 9 ] Ms. Robinson married for the first time in 2002, and gave birth to her fourth son in 2005. This marriage dissolved shortly after the birth of their son. Both her son and her former spouse returned to his native homeland of Jamaica. The defendant’s husband has custody of their son in Jamaica, which was a stated reason for Ms. Robinson’s visit to Jamaica.

[ 10 ] Ms. Robinson did not complete high school. At the age of 25, Ms. Robinson enrolled in the Access to Nursing Studies Program through the city college in Birmingham. She reported that she obtained her high school diploma and graduated from the Registered Nursing Assistant Program in 2000 with "distinction". After graduating she commenced full-time employment as an auxiliary nurse. In contrast to her testimony at trial, it is reported that Ms. Robinson had been out of work for approximately one to one and a half years prior to the offense date.

[ 11 ] Ms. Robinson advised that she is not planning to return to her position as an auxiliary nurse. Eventually, she hopes to obtain full-time employment as a caretaker at a drug rehabilitation centre located in Birmingham.

[ 12 ] Ms. Robinson admitted to the probation officer that she was first introduced to crack cocaine around the age of 14 and used the drug off and on for approximately 5 years. From the ages of 19 to 24 she recalled her drug use steadily increasing to daily use. To her credit, she reported that at the age of 24, she decided to quit all drug use and denied any form of drugs being used since that age. Ms. Robinson advised that she never attended any form of treatment program to address her addiction issues. However she reiterated that illicit drug use is no longer an issue for her and she does not believe professional intervention is warranted.

[ 13 ] Ms. Robinson admitted that alcohol abuse has been an issue for her since she was about 13 or 14 years of age. She admitted that she never previously acknowledged she had an alcohol problem until she became incarcerated with respect to this charge. She admitted drinking alcoholic beverages on a daily basis prior to her arrest and her consumption of alcohol was apparently used as a coping mechanism.

[ 14 ] Ms. Robinson described her formative years as horrific and stated that her family was dysfunctional. She described her father as an alcoholic with a gambling addiction. She claimed that her mother was physically and emotionally abusive towards her. Ms. Robinson recalled the lack of food in her home as her father’s pay cheque was spent on alcohol or gambling. Ms. Robinson's early difficulties at home and throughout her formative years were confirmed for the most part by her half sister when she was contacted by the probation officer. Her mother was also contacted and described her daughter as a very wise and intelligent girl. The defendant’s mother was surprised to learn of the offense before the court.

[ 15 ] Sources contacted by the probation officer indicated that Ms. Robinson could benefit from ongoing intensive counselling to deal with the emotional issues stemming from her childhood anger issues, her coping techniques and the addiction issues. According to the probation officer, Ms. Robinson now appears to have some insight to her need for professional intervention. However the probation officer opines that Ms. Robinson lacks the knowledge or ability to address those issues once she is to be released from custody.

[ 16 ] Ms. Robinson continues to maintain her innocence in the matter before the court but stated that she does feel guilty about being very stupid and not investigating the food items that she was given to take to Canada. According to the probation officer, Ms. Robinson appeared to appreciate the negative impact this offense has created on both herself and her family.

[ 17 ] Ms. Robinson is described as a very clever and loving person. Various individuals contacted for the pre-sentence report confirmed that Ms. Robinson had made some poor decisions in the past and they believe that she acted out of frustration due to her personal situation and substance abuse issues. It was confirmed by sources contacted by the probation officer that Ms. Robinson is a person whose coping techniques are poor and who has anger issues.

[ 18 ] Ms. Robinson believes that she was cooperative with the police when she was arrested for this offense.

[ 19 ] The Probation officer noted that while incarcerated Ms. Robinson has failed to utilize the few professional resources available to her at the institution. Nonetheless, Ms. Robinson confirmed that she has been engaged in various life skills training offered by the Vanier Correctional Institution and she presented the court with various certificates outlining her accomplishments.

[ 20 ] Ms. Robinson does not have any prior criminal record in Canada. In the pre-sentence report Ms. Robinson admitted that she was found guilty of assault in England around 2008 and was required to complete community service work and pay a fine. She stated that she complied with the probation order and denies any outstanding matters before the courts in England. However, Ms. Robinson did not disclose her recent involvement with the criminal justice system in Jamaica.

[ 21 ] As it is extremely likely that Ms. Robinsons will be subject to a deportation order at the conclusion of her sentence, the probation officer did not offer a conclusion. The Court acknowledges that the defendant seeks the earliest possible date for a removal or deportation order following the completion of her sentence.

[ 22 ] Ms. Robinson advises the court that she is sorry for all of the trouble and the burden on the court and the taxpayers of Canada. She expressed that she is glad that the drugs did not make their way onto the streets of Canada.

Positions of the parties

[ 23 ] The Crown takes the position that the appropriate range of sentence is between 6 to 8 years and seeks the high end of the range of 8 years in this case. She relies principally on R. v. Cunningham ( 1996 1311 (ON CA) , [1996] O.J. No. 448 (C.A.) ) where the accused pled guilty to importing 5.231 kilograms of cocaine with a value of over a half a million dollars at street level. Ms. Cunningham was 21 years old, single with no children and had no record. She was to be paid $4,000 and she had cooperated with authorities. Ms. Cunningham stated that she was unaware of the quantity of drugs; she admitted that she knew that hard drugs were involved. The trial judge held that the range of sentence was three to five years and he imposed a sentence of three years. The Court of Appeal allowed the appeal and held that as a general rule, absent exceptional or extenuating circumstances, the range of sentence for first offender couriers who smuggle large amounts of cocaine into Canada for personal gain should be six to eight years in the penitentiary. The Court of Appeal adopted the reasons for decision by Lamer J. in R. v. Smith, 1987 , [1987] 1 S.C.R. 1045 , where he held that:

Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts. The direct cause of the hardship cast upon their victims and their families, these importers must also be made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts in order to feed their demand for drugs. Such persons, with few exceptions (as an example, the guilt of addicts who import not only to meet but also to finance their needs is not necessarily the same in degree as that of cold-blooded non-users), should, upon conviction, in my respectful view, be sentenced to and actually serve long periods of penal servitude.

[ 24 ] The defendant’s counsel argues that the court ought to grant Ms. Robinson enhanced pre-trial credit. Counsel advises that Ms. Robinson has served a few days shy of 11 months in pre-trial custody. As mentioned, the defence seeks a range of between 4 to 5 years. There is no issue with respect to any of the ancillary orders sought by the Crown.

Caselaw

[ 25 ] The defendant provided several authorities to the court in support of her position. I have reviewed those authorities which include R. v. Chukwu, [2011] O.J. No. 3356 , a case involving 1.4 kilograms of cocaine. Justice Kiteley held that the appropriate sentence ought to be four years jail for the importing of cocaine, two years concurrent for possession of cocaine and six months consecutive for two Criminal Code offences.

[ 26 ] In R. v. White , [2010] O.J. No. 3618 , the trial judge imposed a sentence of 14.25 months for the importation of 397 to 419 grams of cocaine. In that case, the accused pled guilty and was a first offender. The court specifically acknowledged her post-offence conduct in assisting the authorities and she was clearly remorseful.

[ 27 ] In R v. C.N.H ., 2002 7751 (ON CA) , [2002] O.J. No. 4918 , the Court of Appeal acknowledged that a plea of guilty to the offence of importing multi-kilograms of cocaine would ordinarily attract a lengthy penitentiary sentence. In the case the accused did not have a prior criminal record. The court considered the impact or discount of the accused’s cooperation with the police as well as other legal issues raised by the parties. The court reaffirmed the range of sentence for this type of offence. I find that the authorities provided by the defendant are distinguishable on their facts and are of limited assistance.

[ 28 ] Over and above the aforementioned authorities, both parties provided numerous cases for the attention of the court as being relevant to the appropriate sentence that is called for in this type of offense and in these particular circumstances. As an offender who has been found guilty of importing more than one kilogram of cocaine into Canada, two leading decisions of the Ontario Court of Appeal are authoritative and instructive.

[ 29 ] As mentioned, one of these cases is R v. Cunningham . The other leading case heard predating Cunningham is that of R. v. Madden , 1996 10228 (ON CA) , [1996] O.J. No. 376 . In Madden , the accused, a 23 year old woman with no prior record was arrested for importing 770 grams of cocaine. Ms. Madden believed that she was importing marijuana and not cocaine. She cooperated with the authorities in an attempted controlled delivery. She pled guilty. In the circumstances of that case, the Court of Appeal held that the trial judge erred in “accepting as a starting range a sentence of six to seven years for the importation of this quantity of cocaine”. The Court held that the appropriate range would be three to five years, with the eventual sentence set at three years.

[ 30 ] Some of the plethora of cases that have considered the principles flowing from these leading authorities include R. v. Alleyne , [1998] O.J. No. 1852 ; wherein the Court of Appeal dismissed an appeal from a sentence of seven years in addition to the four months of incarceration prior to conviction for importing a "very substantial amount of cocaine".

[ 31 ] In R. v. Hamilton, 2004 5549 (ON CA) , [2004] O.J. No. 3252 , both Ms. Hamilton and co-accused Ms. Mason had pled guilty to importing cocaine. Ms. Hamilton was a 26 year old black single mother with no criminal record who had agreed to act as a courier for compensation. Before her return from Jamaica, she swallowed pellets containing 349 grams of cocaine with a street value of about $70,000. Ms. Mason was a 31 year old single black mother with no criminal record. She swallowed pellets containing 489 grams of cocaine. There was no evidence of the street value. In a lengthy and detailed decision describing the general nature of drug importation with its correlative systemic racial and gender bias and the specific circumstances of these accused, the trial judge imposed a sentence of 20 months on Ms. Hamilton and a sentence of 2 years less a day on Ms. Mason, both sentences to be served in the community. The Ontario Court of Appeal held that the trial judge erred in principle by imposing conditional sentences. However, the Court of Appeal agreed that imprisonment for 20 months and 2 years less a day would have been appropriate. In that decision the Court did not make reference to the Madden decision.

[ 32 ] I agree with the Crown that the case of R. v. Syblis , 2001 24127 (ON CA) , [2001] O.J. No. 115, (C.A.) is similar to the fact situation before me. In that case, the court imposed a sentence of seven years for importing 2.13 kilograms of cocaine and four years concurrent for importing one kilogram of hashish. The Court of Appeal confirmed the range set out in Cunningham and dismissed the appeal pointing out that while the amount was substantially less than in Cunningham , the appellant was not entitled to consideration of the mitigating factor of a plea of guilty. It should be noted that the accused in Syblis was a first-time offender.

Analysis

[ 33 ] The court is guided by the principles of sentencing as set out in sections 718 and 718.2 of the Criminal Code and specifically the provisions as found in the Controlled Drugs and Substances Act .

[ 34 ] Some of the objectives listed in section 718 of the Code include the denunciation of unlawful conduct, to deter the offender and others from committing offenses and to separate offender from society where and when necessary. I find that in a case such as this, namely the importation of drugs into Canada, the principles of general deterrence must be emphasized. However, while I have placed the consideration of general deterrence as paramount, I have not neglected to consider the other principles listed in section 718 of the Code including specific deterrence and other relevant factors in deciding what sentence to impose.

[ 35 ] Based on the foregoing, it appears that the range of sentence is highly dependent on the quantity of the cocaine that was imported. The informal delineation appears to rest on the threshold of one kilogram. A kilogram or multi-kilogram amounts attract a range of six to eight years. Quantities below a kilogram attract a range of incarceration in the upper reformatory sphere. In the case at bar, the quantity being over 3.5 kilograms, the range appears to be between six to eight years, absent exceptional or extenuating circumstances. However, the bulk of these cases speak to a scenario wherein the accused was a first time offender and did not have the burden of a prior criminal record.

[ 36 ] As directed by section 718 of the Criminal Code , the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that reflect enumerated objectives. Those objectives relevant to this case are denunciation of the unlawful conduct, deterrence of other potential offenders, and rehabilitation of Ms. Robinson. It is also important to impose a sentence that promotes a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The circumstances of the offence and of the offender must be analyzed to identify the aggravating and the mitigating factors.

[ 37 ] Section 718.1 of the Criminal Code requires that the sentence be proportionate to the offense and the degree of the accused’s involvement or responsibility. This is not a case where there is a statutorily imposed minimum sentence. As mentioned, the jurisprudence provides that the quantity of illegal drugs imported into Canada if not determinative of the appropriate sentence, has been held to be one of the most significant factors in determining the sentence, along with the court’s consideration of extenuating circumstances, as well as mitigating or aggravating factors. In this case, the principles as set out in s. 10(1) of the Controlled Drugs and Substances Act are of limited application.

[ 38 ] Both parties have suggested a range of incarceration in a penitentiary.

[ 39 ] The aggravating factors include: The quantity of cocaine imported in the circumstances, being 3.5 kilograms in and of itself constitutes an aggravating factor to be considered. T he drug involved was cocaine which has been described as a scourge on society because of the physical, emotional, psychological and social damage caused to those who are addicted. Ms. Robinson was a courier and it was the Crown’s theory that Ms. Robinson was motivated strictly by financial gain. I accept that proposition.

[ 40 ] In the pre-sentence report Ms. Robinson did not appear to fully recognize or see the seriousness of the consequences of her behaviour. It is also clear that Ms. Robinson exhibited minimal remorse for her conduct, although I fully accept her apology offered to the court.

[ 41 ] Ms. Robinson’s prior criminal record is another aggravating factor. She was convicted on June 25, 2009 in Jamaica of possession of ganga, dealing in ganga and taking steps preparatory to export ganga. [1] Ms. Robinson received a term of incarceration at hard labour in the 6 to 9 month range coupled with a significant fine. Her conviction and subsequent jail term ensued not long before her involvement with the offence before this court.

[ 42 ] There are a few mitigating factors. There is no evidence that Ms. Robinson was going to be involved in trafficking of the cocaine once it made its way into Canada. Her role in this scheme was crucial but limited to the importation of the drugs. Ms. Robinson’s difficult and dysfunctional upbringing and related challenges leading to her emotional and psychological issues have also been recognized.

[ 43 ] The nature of the offence and the maximum sentence demand that denunciation and deterrence are the priorities. It is not surprising that many of these offenders who are caught importing significant drugs into Canada are first time offenders. It may be that the principals of these illicit transactions seek out vulnerable or greedy couriers who are willing to take a risk for a potential reward. But such is not the case here. Ms. Robinson, having been convicted for a similar export/import activity with illicit drugs, albeit of a different nature, ought to have appreciated the significance of her actions. I find that this is not a case where the defendant might receive some benefit based on a potential for her lack of awareness of the seriousness of the situation or not appreciating the gravity of the calculated risk. It seems that Ms. Robinson has not learned from her prior and related criminal behaviour. In my opinion, specific deterrence is required.

[ 44 ] I have considered the relevant authorities including the guidance provided by cases such as Cunningham , Madden and Hamilton . I take into account the circumstances of the offence and of the defendant, while recognizing and applying the applicable sentencing principles.

[ 45 ] In conclusion, this is a serious offence involving a substantial amount of cocaine. The impact of cocaine upon the citizens of Canada cannot be under estimated. The directions from most appellate courts paint the picture of cocaine as a destructive plague on the community. A penalty reflecting all of the principles of sentencing with emphasis on deterrence is warranted. There are no exceptional or extenuating circumstances in this case and but for the range proposed by the Crown, this court would have sentenced the defendant to a longer term of imprisonment. I am persuaded that the range of 6 to 8 years reflects the appellate courts direction to trial judges in cases involving multi kilograms of drugs being imported into Canada in conjunction with individuals who are first-time offenders with no prior criminal antecedents. In this case, the serious aggravating factors dictate consideration of a sentence at the very high-end of the range as submitted by the Crown.

Disposition

[ 46 ] I impose a section 109 weapons prohibition order. You are to provide a sample of your DNA pursuant to section 487.051 of the Criminal Code .

[ 47 ] I conclude that a fit and appropriate sentence in this case is a custodial term of 8 years. Due to the unexpected delay in completing the sentencing hearing, I will grant you some enhanced credit for your pre-trial custody, which I have determined to be the equivalent of 14 months. Therefore, on the one count before me, the sentence imposed shall be a term of imprisonment of 6 years and 10 months in a federal penitentiary.

A.J. GOODMAN J.

Released: March 13, 2012

COURT FILE NO.: 1246/11
DATE: 2012 03 13

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – ANGELA ROBINSON REASONS FOR SENTENCE A.J. Goodman J.

Released: March 13, 2012

[1] I have taken judicial notice that ganga refers to marijuana .