ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. Porter, 2015 ONSC 1094
COURT FILE NO.: 14-278
DATE: 20150210
BETWEEN:
Her Majesty the Queen
Ms. E. Barefoot, for the Federal Crown
- and -
Tamara Porter
Mr. G. Deakin, for the Defendant
Defendant
HEARD: December 8, 2014 and February 10, 2015
REASONS FOR SENTENCE
Conlan J.
I. Introduction
[1] A repeat drug offender is before the Court for sentencing.
[2] On December 8, 2014, in Owen Sound, Tamara Porter entered a guilty plea and was found guilty of possessing cocaine for the purpose of trafficking, contrary to subsection 5(2) of the Controlled Drugs and Substances Act (“CDSA”).
[3] A presentence report (“PSR”) was ordered and the matter adjourned to February 10, 2015 for sentencing.
II. The Facts
[4] Briefly stated, on June 12, 2014, police were conducting surveillance on Ms. Porter and a male suspect.
[5] After the police made some observations of the two parties at a hotel in Owen Sound, Ms. Porter was arrested.
[6] Inside a motor vehicle associated with Ms. Porter and on her person were the following items that were seized by the police: 22 grams of crack cocaine, a digital scale with cocaine residue on it and $1545.60 in cash.
[7] The seized cocaine is estimated to be worth $2200.00.
III. The Offender
[8] Ms. Porter is now 31 years old. She was born in September of 1983.
[9] In December 2009, she was convicted of importing a Schedule I substance. She received a sentence of imprisonment of two years less one day.
[10] The offender has two sons, neither of whom lived with her before her arrest. She has been in custody since June 12, 2014.
[11] Ms. Porter has been in a relationship with a male party who was also under surveillance by the police at the time of the offender’s arrest. Her boyfriend was also charged.
[12] The offender is an educated woman. She has her high school diploma and two post-secondary certificates.
[13] According to the PSR, Mr. Porter is on “leave” from her employment as a salesperson with an energy company.
[14] Ms. Porter smoked marihuana daily before she was arrested. And she used crack cocaine for a few months before her arrest.
[15] The offender was polite and cooperative with the author of the PSR. Unfortunately, she downplayed the seriousness of the offence by denying that the crack cocaine was anything but for her personal use.
[16] At Court today, I clarified that comment with Defence counsel and Ms. Porter herself. Ms. Porter categorically acknowledged to me today that she possessed the cocaine for the purpose of trafficking in it. She did not downplay the seriousness of the offence before me today.
[17] According to the PSR, since being in jail over the last eight months or so, Ms. Porter has been diagnosed with ADHD, psychosis and schizophrenia. I have no other information in that regard.
IV. The Positions of the Parties
[18] It is common ground that the offender faces a mandatory minimum sentence of one year in custody, because of the prior conviction: subsection 5(3)(a)(i)(d) of the CDSA.
[19] It is agreed by the Defence that a Forfeiture Order issue for the items seized by the police. I signed that Order as presented.
[20] It is agreed by the Defence that a Secondary DNA Order be made. That Order is issued.
[21] It is agreed by the Defence that a section 109 CCC firearms and weapons prohibition Order be made for life. That Order is issued.
[22] The only issue left to decide is the length of any further custody to be imposed, if any. It is agreed by both sides that the offender be credited with one year of presentence custody (eight months on a scale of 1.5 to 1).
The Crown
[23] The Crown recommends a sentence of imprisonment of 2.5 years less twelve months of credit for time served, resulting in 18 months in custody from today.
[24] The Crown emphasizes the principles of sentencing of denunciation and deterrence.
The Defence
[25] The Defence recommends a sentence of time served and a period of probation.
[26] The Defence emphasizes the sentencing principle of rehabilitation.
[27] The Defence has filed several decisions. I have read them all carefully.
[28] Those decisions give some support for the proposition that twelve months in custody may be at the appropriate low end of the range of penalty for someone found guilty of this type of offence, assuming a relatively small quantity of narcotic and a relatively minor or no prior criminal record.
[29] Of course, sentencing is ultimately a highly discretionary exercise that must be specific to the facts and the offender at issue.
V. Analysis
[30] The main mitigating factor is the guilty plea by Ms. Porter.
[31] In further mitigation, I must consider the mental health difficulties that face this offender and her fairly mature comments outlined in her letter to the Court, filed as Exhibit 3.
[32] The major aggravating factors are the hideous nature of the substance (cocaine) and the related and recent prior conviction.
[33] In my view, I must fashion a sentence that will denounce Ms. Porter’s unlawful conduct and deter her and others from getting involved with cocaine, especially with the intent to traffic in it, while at the same time recognizing that this offender is still fairly young, has two children and is not at all beyond rehabilitation.
[34] I have decided to grant some leniency to Ms. Porter.
[35] In the normal course, it would be unusual to sentence an offender to less than what she received not long ago on a similar offence.
[36] In late 2009, Ms. Porter was sentenced to the maximum reformatory sentence for importing cocaine. I do not know much else about that matter, although I suspect that it likely involved cocaine of a substantial quantity.
[37] This time around, it would not be cruel to send Ms. Porter to the penitentiary.
[38] I am not going to do so, however.
[39] This is the last chance for Ms. Porter. I am giving her significant credit for a guilty plea in circumstances where she could have pointed the finger at her co-accused. I am giving her credit for the measures that she has taken since her arrest to better herself while in custody. And I am accepting as genuine her commitment to change as expressed in her letter to the Court.
[40] I will not accede to the Defence request for time served because I think that twelve months in custody is outside the range. This is not a case for the minimum punishment as prescribed by law.
[41] I would place the range for this offender on these facts at between 18 and 30 months in custody.
[42] I will impose a sentence at the low end of that spectrum.
VI. Conclusion
[43] In addition to the consent matters outlined above, I sentence Ms. Porter to a period of imprisonment of six months from today. The effective sentence is 18 months in custody, less credit for time served of twelve months.
[44] I encourage Ms. Porter to recognize that things could have been much worse for her today. She ought to ensure that this is her last trip to Court to be sentenced on a criminal matter.
Conlan J.
Released: February 10, 2015
CITATION: R. v. Porter, 2015 ONSC 1094
COURT FILE NO.: 14-278
DATE: 20150210
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
Tamara Porter
Defendant
REASONS FOR SENTENCE
Conlan J.
Released: February 10, 2015