ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-5248
DATE: 2013-03-12
B E T W E E N:
HER MAJESTY THE QUEEN
Chris Donaldson, and Elizabeth O’Grady, for the Crown.
- and -
ANGELA MARIE BRAY
Leo Russomanno, for the Defendant.
Defendant
HEARD: March 12, 2013
REASONS FOR SENTENCE
T.D. RAY J.
1. Overview:
[1] The offender was convicted September 27, 2012 of three counts of trafficking in cocaine, and three counts of possessing proceeds of crime not exceeding $5,000, January 11 through 13, 2011. (2012 ONSC 5458). She did not give evidence.
[2] The defendant has no record. She is 26 years old, single and is employed full time with a cleaning company.
2. The Facts:
(a) Circumstances of the offence
[3] The defendant, who at the time had the street name Cinderella, was the subject of a sting operation by the Ottawa Police on three consecutive days: January 11, 12 and 13, 2013. She was contacted by telephone by an undercover police officer who she then met her on the three consecutive days; and sold cocaine in the following quantities: $80.00, $80.00, and $250.00. The total quantity of cocaine sold was 4 grams.
[4] She was in possession of $410.00 being the proceeds from the drug sales during the period January 11, 12, and 13, 2013.
(b) Circumstances of the offender
[5] The offender is 26 years of age, single and lives alone. She has a 6 year old child, who she placed in the care of her mother following these criminal proceedings. She said during the sentencing hearing when I asked her if she had anything to say – that her chief concern was her son – and that she wanted to be given a chance. In the PSR, she denied having been an addict, and denied having had any contact with drugs. She was not candid with the probation supervisor regarding her involvement in these offences. She did not accept responsibility for her conduct either during the interview with the probation supervisor or during her comments at the sentencing hearing. She did however accept the statements of fact contained in the PSR, although she took issue with comments attributed to her mother that she may have mental health issues. There is nothing in the PSR to suggest any difficulties or issues while she was a child; other than the fact that she left home at a very early age to live with a boyfriend. The PSR author was sufficiently impressed with the comments of the offender’s mother concerning the mental issues to recommend that she be assessed, even though the offender disputes that. No evidence was led at the sentencing hearing. In submissions, counsel advised that the offender worked full time for a house cleaning company with extended shifts. He submitted that the offender is financially responsible for her child and says that the notation that the offender has no dependents is incorrect.
(c) Impact on the Victim and/or Community
[6] Cocaine is a dangerous substance which continually threatens the fabric of our community. To traffic in cocaine is to profit from the harm and evil it causes. Few activities tear at the very essence of our society than addictions to hard drugs like cocaine with all the tragedy and unhappiness it causes. Those who profit from spreading this evil must be condemned.
3. Legal Parameters:
[7] The maximum penalty for a conviction for trafficking in cocaine is life imprisonment. The maximum penalty for possession of the proceeds of crime is two years. There are no minimum penalties.
4. Positions of Crown and Defence:
[8] The Crown’s position is that the offender should be imprisoned for 12 months followed by a period of probation. The defence contends that this is an appropriate case for a conditional sentence because she has no record and has the responsibility of a young son.
5. Case Law:
[9] I was referred to a number of authorities by counsel. Depending on the circumstances of the offence and the offender, the range of penalties for trafficking in cocaine is in the range of 6 months to two years[^1]. It is recognized that denunciation and deterrence are the principle factors to be considered in hard drug trafficking cases[^2]. On the other hand, weight must be given to all of the other factors including rehabilitation[^3]. Where the offender has no record, and will re-enter the community, a lengthy prison term would “impair the rehabilitation and reintegration of this person as a responsible member of his community”; and would not serve to protect society in the future.[^4] The defence referred me to a number of authorities which would suggest that a conditional sentence is an appropriate penalty. I accept that there is no principle that a conditional sentence must be excluded from consideration in cocaine drug trafficking cases. However in each of those cases, the offender pleaded guilty, or took full responsibility for his or her conduct.[^5]
[10] No authority was referenced where a conditional sentence was imposed in the absence of the offender accepting responsibility for his or her conduct.
6. Mitigating and Aggravating Factors:
[11] Mitigating factors are to be applied if found on a balance of probabilities while aggravating factors are to be considered if found beyond a reasonable doubt.
[12] The relative youth and the first time offender status of the defendant are mitigating factors.
[13] It is an aggravating factor that the offender was profiting from trafficking in cocaine, and it is an aggravating factor that she was engaged in an ongoing criminal enterprise over a period of at least several days.
[14] It is an aggravating factor that on two out of the three drug sales, the offender had her young son with her in her van.
[15] An absence of remorse is not an aggravating factor. However, the offender has not taken responsibility for her conduct which might otherwise have been a mitigating factor. She is young, has no record, no prior dealings with the law, and according to her parents and the PSR, she has the potential to be easily influenced. She is employed full time, and has acted responsibly in making arrangements for the care of her son in anticipation of sentencing.
7. Principles of Sentencing:
[16] The law establishes a number of principles for the imposition of sentences. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[17] Sentences should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[18] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing justice sanctions that have one or more of the following objectives:
i. to denounce unlawful conduct;
ii. to deter the offender and other persons from committing offenses:
iii. to separate offenders from society, where necessary;
iv. to assist in rehabilitating offenders;
v. to provide reparations for harm done to victims or community; and
vi. to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.
[19] The process of analysis requires that the offence first be placed in a category. Secondly, the range of sentences is identified for that category to referenced texts and judicial decisions. Lastly, the sentence is placed at the appropriate point according to all of the circumstances of the offence and the offender.
8. Reasons:
[20] Convictions for trafficking in cocaine are deserving of a prison sentence because of the tragic effects of cocaine addiction on our society. This is an unusual case. The PSR raises psychiatric issues and the offender’s need for assessment and treatment. She is young and apparently demonstrated a history of being easily influenced. To impose a lengthy prison term would put the offender in close proximity to the very kinds of people who might influence her adversely, and thereby present serious obstacles to her rehabilitation. A lengthy period of probation with appropriate conditions would support her rehabilitation. I am concerned at the offender’s lack of insight into her conduct, but am of the view that a lengthy period of probation with strict requirements against associations, but with the requirement for assessments and treatments would allow her to gain insight. I am encouraged that some of her family members were present in court.
[21] This not a case for a conditional sentence. There must be evidence of the offender’s acknowledgement of her conduct, remorse, or some insight plus some kind of a plan for rehabilitation[^6]. There was none. The sentencing process requires that I weigh all of the factors and circumstances. While the quantity of cocaine was not great, these are serious offences. The offender was operating a business which fed on those in our society who are the most vulnerable. They in turn frequently engage in criminal activities in order to finance their drug addictions. I am satisfied that a period of incarceration is necessary in order to denounce and deter her and others from trafficking in cocaine.
[22] I am satisfied that in this case a 90 day period of incarceration followed by a 30 month period of probation would adequately recognize the need for deterrence and denunciation while at the same time, through the imposition of terms that would assist in her rehabilitation and restrict her activities, serve to protect society. The terms of probation will include those recommended in the PSR, namely:
i. To report to Probation Officer as directed,
ii. Attend for a psychiatric or psychological assessment,
iii. To attend and consent to participate in any treatment/counselling as directed by the Probation Officer,
iv. To sign any consent form to allow the Probation Officer to monitor attendance to such program/counselling/treatment,
v. To abstain from illicit drugs,
vi. Not to associate with anyone known to her to have a criminal record or engaged in criminal activity, and
vii. To continue employment and/or attend school or educational institute.
[23] The offender asked for a chance. This is it.
9. Ancillary Orders:
[24] Also imposed is a 10 year weapon ban, and a DNA order.
10. Final Decision
[25] Count 1, 2, and 3 – 90 days concurrent followed by 30 months of probation with terms as above.
[26] Counts 4, 5 and 6 – 30 days concurrent with counts 1, 2 and 3.
Honourable Justice Timothy Ray
Released: March 12, 2013
COURT FILE NO.: 11-5248
DATE: 2013-03-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
ANGELA BRAY
Defendant
REASONS FOR SENTENCE
Honourable Justice Timothy Ray
Released: March 12, 2013
[^1]: R. V. Woolcock, [2002] O.J. No. 4927 @ para. 15 (OCA)
[^2]: R. V. Bui, [2004] O.J. No. 3452 @ para. 2 (OCA)
[^3]: Criminal Code of Canada, R.S.C. 1985, Chap. C-46, section 748
[^4]: R. v. Woolcock, supra, para. 13
[^5]: R. v. Kerr, 2001 21142 (ON CA), [2001] O.J. No. 5085 (OCA); R. v. Mundle [2003] O.J. No. 4392 (SCJ); R. v. Imoro {2011 ONSC 1445, 2011] O.J. No. 996 (SCJ).
[^6]: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 @ para. 113-4