ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(P)1223/11
DATE: 2013 01 08
B E T W E E N:
HER MAJESTY THE QUEEN
A. Calsavara, for the Crown
- and -
MARGIE LISBEL COSTA SANTISTEBAN DE ROJAS
B. Crothers, for the Defence
Defendant
HEARD: December 21, 2012
REASONS FOR SENTENCE
HILL J.
Introduction
[1] On October 23, 2012, following a trial, Ms De Rojas was found guilty of the unlawful introduction of counterfeit currency and custody of counterfeit money. It falls to be determined what a fit and just sentence is for the offender’s criminality.
Crimes
[2] As the background facts were extensively reviewed in the court’s earlier reasons for judgment, 2012 ONSC 3227, summary reference only is warranted at this point. On returning with her 5-year-old son to Canada from Peru, her country of birth, on December 21, 2010, the offender was discovered at the Pearson International Airport to be in possession of 1990 US $100 bills concealed in the sides of an item of checked luggage.
[3] At the time of the offences, the offender was the single mother of three young children. There was no child support from the children’s father. She was in an apprentice-like position seeking accreditation as a hair-dresser. The offender was supporting herself on social assistance and was effectively living hand-to-mouth and indebted to the government for repayment of a student loan.
[4] The offender’s trial evidence that she believed she was smuggling $50,000 in currency into Canada on behalf of someone else, believing that her actions were only in contravention of currency importation reporting laws, and not that the money was counterfeit, was rejected as unbelievable, inconsistent with the weight of the credible evidence, and incapable, on the totality of the record, of raising a reasonable doubt.
The Offender
[5] The offender is 33 years of age. She is a citizen of Peru and has permanent resident status in Canada. She immigrated to Canada 12 years ago. Ms De Rojas has no prior criminal record. She completed high school in Peru.
[6] Ms De Rojas’ children are aged 7, 10 and 11 years. She described to the PSR author a troubled relationship with her husband, from whom she is separated, indicating that he was often unemployed and physically abusive toward her. The offender has limited employment history since coming to Canada.
[7] The PSR states that at some point after Ms De Rojas was charged with the offence before the court, she suffered from depression and attempted suicide by medication overdose. Thereafter, she attended counselling including with the pastor of her church. The offender has no family in the Ontario jurisdiction. Ms. De Rojas is a regular volunteer at her church.
Positions of the Parties
[8] On behalf of the Crown, Ms Calsavara stated that she was prepared to have the court enter a conditional stay on the custody of counterfeit money charge on the basis of the Kienapple principle.
[9] Ms Calsavara submitted that in the totality of the circumstances, including the PSR and the offender’s family circumstances, a mid-reformatory, as opposed to a penitentiary sentence, would be appropriate. It would be unfit for the court to impose a conditional sentence given the gravity of the offence and the paramount objective of general deterrence. Crimes dealing with counterfeit money threaten the economy including the victimization of small merchants. It is said that the offender participated in a planned offence with a significant quantity of high quality US currency.
[10] Speaking for the offender, while recognizing that an extremely serious crime was committed and a significant quantity of counterfeit money imported, Mr. Crothers submitted that a conditional sentence of imprisonment of two years less a day would be a ft disposition. Counsel emphasized in particular the lack of a prior record, the relatively positive PSR, the motivation to assist family finances not greed, the offender’s efforts toward hair stylist accreditation as an occupation, and what is said to be Ms De Rojas’ “remorse for her actions”.
Analysis
[11] The parties agreed that Ms De Rojas was a courier and not a principal in the overall scheme to traffic counterfeit money.
[12] Important factors in counterfeit money sentencing cases include the quantity of currency involved, its quality, and the circumstances of an offender’s involvement with the phoney money.
[13] In the present case, the US $100 bills were high quality representations of genuine legal tender. This is not an amateurish case of passing a small number of counterfeit bills but rather cross-border introduction into Canada of $199,000 in counterfeit bills with the prospect of wide-spread victimization of Canadians. Although Ms De Rojas’ role was limited to that of a courier, this was a planned offence and one that is difficult to detect. The offender’s actions attract a significant degree of moral and legal culpability.
[14] The crime of introducing counterfeit money into Canada is a serious offence punishable by a maximum of 14 years’ imprisonment. With recent statutory amendments, it is no longer possible to receive a conditional sentence of imprisonment. Counterfeit money crimes threaten economic stability.
[15] “Counterfeiting is an offence for which … deterrence is a far more important factor than it is for many other offences”: R. v. Le, [1993] B.C.J. No. 165 (C.A.)(QL), at para. 6. After reviewing sentence dispositions in a number of counterfeit money cases, the court in R. v. Leung, [1985] B.C.J. No. 2165 (C.A.)(QL), at para. 17 , stated:
Other sentences elsewhere in Canada have varied from four years to a sentence of one year or less. Each, of course, depends on its own circumstances and depends upon the seriousness of the offence and, of course, the background of the offenders.
That observation is not inconsistent with the general range of sentence for serious counterfeit money crimes in Ontario: see, for example, R. v. Mankoo, [2000] O.J. No. 1869 (C.A.)(QL); R. v. Gross (1972), 1972 1325 (ON CA), 9 C.C.C. (2d) 122 (Ont. C.A.); and the jurisprudence reviewed in R. v. Kiss, 1996 4703 (Ont. Ct. Gen Div)(affd, Ont. C.A., June 7, 1996).
[16] Given the time at which Ms De Rojas committed the offence of introducing counterfeit money into Canada, she is eligible for a conditional sentence of imprisonment: see, for example, R. v. Ijam (2007), 2007 ONCA 597, 226 C.C.C. (3d) 376 (Ont. C.A.); R. v. Piamonte, [2006] O.J. No. 2814 (S.C.J.)(QL). In appropriate cases, the necessary measure of general deterrence and denunciation can be effected by such a disposition. While each case is fact-specific, I note a number of distinguishing features between the present case and Ijam including Ijam’s guilty plea, the quantity of only $8,000 in counterfeit money, Ijam’s status as a youthful first offender, the delay in disposition of Ijam’s appeal necessitated by a rehearing, and the fresh evidence relating to Ijam’s ongoing university studies.
[17] The aggravating facts of the crime are manifesting evident including the following:
(1) the importation of counterfeit money involved planning and deliberation
(2) a substantial quantity of counterfeit currency was unlawfully imported into Canada
(3) the counterfeit money was carefully concealed in Ms De Rojas’ luggage designed to defeat contraband interdiction efforts
(4) the US $100 bills were of high quality and the distribution of counterfeit US currency has become a real international problem for the US Secret Service
(5) the offender’s crime was financially motivated – a courier assignment for monetary reward.
[18] While not an aggravating circumstance, Ms De Rojas is disentitled to the leniency extended to an offender who pleads guilty and takes complete responsibility for her crimes.
[19] There are no exceptional or extraordinary mitigating factors present.
[20] In the balance, in mitigation, these factors must be considered:
(1) the offender has no prior criminal record
(2) Ms De Rojas was a courier not a principal in the counterfeit money distribution network
(3) she is a single mother financially overburdened in supporting her three children on her own
(4) she performs volunteer work for her church
(5) the offender’s motivation for financial reward for bringing the counterfeit money to Canada was not to acquire or feed a high life style but rather to improve the somewhat desperate financial circumstances of herself and her children.
[21] While an offender’s explanation for a crime committed for money may mitigate personal culpability, particularly in circumstances where an offender wants to work, is not living a lifestyle beyond her means, and is the lone supporter of her young children, this factor cannot overshadow proportionate punishment for the commission of a serious offence: R. v. Hamilton; R. v. Mason (2004), 2004 5549 (ON CA), 186 C.C.C. (3d) 129 (Ont. C.A.), at paras. 136-143. An offender makes a choice in committing a crime and, in terms of separation from her children when caught and sentenced, she is effectively “the author of these consequences”: R. v. Scott, 1996 1279 (ON CA), [1996] O.J. No. 3419 (C.A.)(QL), at para. 5.
[22] Genuine remorse is, of course, a mitigating circumstance, in appropriate cases. The offender related to the PSR author that she was remorseful for her actions but “was unsure what she did was illegal”. At the sentencing hearing, Ms De Rojas stated that she was sorry for what she did and that she felt remorse. Absence of remorse is not an aggravating factor: R. v. Hardy, [2005] O.J. No. 5478 (C.A.)(QL), at para. 31. However, “a sentencing court is not bound to accept assertions by an offender that [s]he is remorseful”: R. v. Boyd, [2012] NSWCCA 279, at para. 65. Regret at the circumstances in which an offender finds herself is not of course the same as remorse: R. v. Va, [2011] VSCA 426, at para. 16. Although Ms De Rojas has expressed remorse for her actions, having regard to all the circumstances and the entire record including the offender’s submission, it remains unclear whether this relates to a true public acknowledgement of remorse for committing the crimes of which she was found guilty, regret at being caught, or simply acceptance of the verdicts.
[23] Ms De Rojas was in custody prior to judicial interim release from December 21, 2010 to January 13, 2011, a period of about 24 days. Considering the usual circumstances of pre-trial remand facility custody and the offender’s separation from her children, this is an appropriate case for enhanced credit for pre-sentence custody pursuant to section 719(3.1) of the Code. The offender is credited with 36 days’ pre-sentence custody.
[24] Having regard to the nature and gravity of the crime committed, and the balance of relevant mitigatory and aggravating factors, a custodial sentence is required. Proportional punishment and general deterrence could not, in all the circumstances, be honoured by the imposition of a conditional sentence. In the result, the offender is sentenced to 15 months’ incarceration less 36 days to reflect the credit for pre-sentence custody.
Hill J.
Released: January 8, 2013
COURT FILE NO.: CRIMJ(P)1223/11
DATE: 2013 01 08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
MARGIE LISBEL COSTA SANTISTEBAN DE ROJAS
Defendant
REASONS FOR SENTENCE
Hill J.
Released: January 8, 2013