ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-50000251-0000
DATE: 2014/05/28
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RAPHAEL KOFI ODURO
Accused
Stephanie Henderson, for the Crown
James Miglin, for the Accused
HEARD: May 6, 2014
SENTENCING
B.A. ALLEN J. (Orally)
[1] Raphael Oduro was found not guilty on May 1, 2014 on several firearms charges and an assault police/resist arrest charge. At trial he admitted to the charge of possession of 1.06 grams of crack cocaine. This is the charge for which he faces sentence.
[2] While he was facing the current charges, Mr. Oduro was charged with other offences for which he was discharged after the preliminary inquiry. He served five months custodial time at East Detention Centre on those charges. It is acknowledged that it can be reasonably concluded that the denial of bail on the subsequent charges was affected by his current charges. Mr. Oduro also served five days pre-trial custody on the current charges.
[3] The parties agree that the five days and five months’ time served should be taken into account of in determining his sentencing. The Crown takes the position that the five months plus five days pre-trial custodial time should be noted on the indictment. The defence disagrees and takes the position that at most the five days be noted.
[4] Crown counsel seeks a conviction with a $500 fine and a period of probation on the terms that Mr. Oduro abstains from the consumption, purchase and possession of any controlled substances. The defence seeks an absolute discharge or alternatively a conditional discharge with the conditions sought by Crown counsel. The central consideration then is whether Mr. Oduro should receive a conviction or not.
[5] The fundamental guiding principle as stated in s. 718.1 of the Criminal Code is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718 sets out the principles that underlie the purpose of sentencing as denunciation, deterrence, separation of offenders from society, rehabilitation, reparation and responsibility.
[6] I find the sentencing principles to be considered in the case before me are denunciation and general deterrence. There is no evidence of general bad character on the part of Mr. Oduro and hence a sentence directed to specific deterrence is not called for. A sentence must be fashioned for the offence of possession of 2.06 grams of crack cocaine based in the factual context of the case that is commensurate with the seriousness of the offence and sufficient to promote denunciation and general deterrence.
[7] Section 718.2(a) requires the court in considering the nature and extent of sentence to consider any aggravating or mitigating circumstances.
[8] An aggravating factor in this case is the pernicious nature of crack cocaine which because of its highly addictive quality, its accessibility and pervasiveness, is a plague on vulnerable communities like the one where Mr. Oduro purchased the drug. Mr. Oduro admitted he bought the crack with the intention of selling it to buy drinks the night of his arrest. He did not sell the crack and was not charged with trafficking. But his admitted intention which was aborted by his arrest somewhat heightens the seriousness of his conduct.
[9] The mitigating factors are that Mr. Oduro does not have a criminal record and he committed the offence when he was young, at age 21. The offence is not violent and the small quantity of crack was not in his possession as part of a commercial enterprise. Mr. Oduro served the five months on the withdrawn charges at a young age in the reputedly very poor conditions at East Detention. One or both of his parents attended every day of his trial and at his sentencing hearing. The parents provided the court with a letter of support for their son that described him as quiet and respectful of them. It is evident he has a close and supportive family.
[10] I also considered as mitigating factors that Mr. Oduro was under strict bail conditions following his release from custody and he maintained compliance with the terms of his bail. Mr. Oduro stated that he intended to go to college before his arrest but his involvement with the criminal justice system prevented this. He stated he had enrolled in an HVAC course at George Brown College. He indicated that his immediate plan is to return to school.
[11] The defence argues the conditions are present for the grant of a discharge. Section 730(1) of the Criminal Code sets down two criteria that must be met for a conditional or absolute discharge. The court must be satisfied such a sentence is in the interests of the accused and not contrary to public interest.
[12] I note here the principle set down by the Ontario Court of Appeal that the narrow focus of the sentencing process is directed to imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender [R. v. Hamilton (2004), 2004 5549 (ON CA), 186 C.C.C. (3d) 129, 72 O.R. (3d) 1 (Ont. C.A.)]. On determining the suitability of a discharge the court held that “each case must be carefully considered on its own facts and on the criteria laid down by the statute” [R. v. Caffrey, 1988] O.J. No. 1609, at p. 2. (Ont. C.A.)].
[13] It would be the rare case that an accused would regard it as not being in their interest to avoid a conviction. There is however certain objective factors that favour Mr. Oduro on this criterion. He has no criminal record and he is young. He had plans to return to school before he was arrested and he stated he now plans to turn his life around and follow through with his schooling. He has a close, loving family who watches over him and is very concerned about his wellbeing.
[14] I find the factors on the first criterion also impact on the public interest criterion. I combine those factors with the added facts that Mr. Oduro has served over five months in pre-trial custody (on both the withdrawn charges and the current charges) and has also maintained compliance with rather strict bail conditions.
[15] The cases advanced by the Crown where more serious sentences were imposed for drug offences involved drug trafficking and are therefore distinguishable on that basis.
[16] On all the circumstances of this case, I find it is not necessary to enter a conviction in order to achieve the objectives of deterrence and denunciation.
[17] The defence provided cases in which an absolute discharge was granted. R. v. Caffrey contains few facts. An absolute discharge was granted in circumstances where the accused was a first offender and a student at the time of the offence. In the circumstances of that case, the court found no purpose for imposing conditions. In R. v. Caswell, new evidence came before the appeal court that was not before the sentencing court. The court considered the impact of a criminal conviction on the requirement that the accused be bonded as an employee of a bank. The court entered an absolute discharge [R. v. Caswell, [1994] B.J.C. No. 3056 (.B.C.C.A.)]. In R. v. Seiter, the accused pleaded guilty to possession of cocaine which he attempted to carry across the Canada/U.S. border to a party. At the time of the offence he worked as a loans officer with a mortgage company and planned to attend law school. Based on an error the sentencing judge made in arbitrarily limiting his discretion and due to the passage of time, the appeal judge entered an absolute discharge [R. v. Seiter, [2007] O.J. No. 5025 (Ont. S.C.J.)].
[18] The facts of the case before me are distinguishable. I find a period of probation is appropriate. I looked at the fact that Mr. Oduro was not employed or in school when he was arrested although he has plans to return to school and obtain employment. I also considered the nature of the drug in his possession and that he continues to reside in the vulnerable neighbourhood where he purchased the drug.
[19] I find a conditional discharge with a one-year probationary term with the condition that Mr. Oduro abstains from the consumption, purchase and possession of any controlled substances is a fit sentence in the circumstances.
[20] I wish to caution Mr. Oduro that he has not received a conviction but he still remains under the watchful eye of the police and court for the period of his probation. Under s. 730(4) of the Criminal Code a failure on Mr. Oduro’s part to comply with the probation order associated with the conditional discharge could result in the court revoking the discharge and convicting him on the offence he was charged with and a harsher sentence could be imposed.
SENTENCE
[21] Raphael Oduro please stand. You are sentenced as follows:
(a) You are conditionally discharged with one year’s probation on the following terms:
(b) You will keep the peace and be of good behaviour.
(c) You will abstain from the consumption, purchase and possession of drugs prohibited under the Controlled Drugs and Substances Act.
(d) It shall be noted on the indictment, sentenced to time served for 5 days pre-trial custody.
B.A. Allen J.
Released: May 28, 2014
COURT FILE NO.: 13-50000251-0000
DATE: 2014/05/28
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
RAPHAEL KOFI ODURO
Accused
REASONS FOR SENTENCE
B.A. Allen J.
Released: May 28, 2014