ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Brigid Luke, for the Crown
- and -
JEAN ROMPRE
Mark Ertel, for the Defendant.
Defendant
HEARD: December 15, 2014
REASONS FOR SENTENCE
T.D. RAY, J.
1. Overview:
[1] The defendant was convicted on October 1, 2014, of three counts: possession for the purpose of trafficking (more than 3 kg), possession of the proceeds of crime ($35,110.00), and possession of the proceeds of crime ($36,040.00) following a traffic stop in Ottawa on May 28, 2012. (2014 ONSC 5600). Submissions were heard December 15, 2014. It was adjourned to today for decision.
2. The Facts:
(a) Circumstances of the offence
[2] The defendant was stopped by an Ottawa police officer after he was observed committing a traffic infraction. The officer detected the aroma of marijuana, observed materials in the back seat, then investigated the trunk and seized what has now been estimated to be a quantity of marijuana of a street value of between $41,000 and $140,000. The cash in two separate packages totalled $71,150. It seems the defendant was acting as a courier.
(b) Circumstances of the offender
[3] The defendant is a first time offender. He is 34 years old. He and his partner have a young infant. She was in a car accident and was seriously injured. His family describe the offence as out of character; but he is also described as a person who is highly motivated by money. He is self-employed; and described as hard working and quite entrepreneurial. First, he became a real estate salesman then took the courses and became qualified in Quebec as a contractor. His family is a close one. The presentence report is a positive one.
(c) Impact on the Victim and/or Community
[4] It bears repeating that drugs are a curse in our society. While modest use of marijuana appears in some quarters to be acceptable, trafficking in large quantities is not.
3. Legal Parameters:
[5] The maximum penalty for trafficking (s. 5(3) CDSA)) is life imprisonment; and for possession of proceeds of crime in excess of $5,000 (s. 355(a) CCC) – 14 years.
4. Positions of Crown and Defence:
[6] The Crown and the defendant made a joint submission that the defendant should be given 9 months plus 12 months of probation, and corollary orders. They suggest that the range would ordinarily be 9 to 15 months but that the lower end is appropriate in light of the defendant being a first time offender, youthful, two dependents, and a number of indicia suggesting that his prospects for rehabilitation are excellent.
5. Case Law:
[7] I was referred to the following authorities by the Crown: R. v. Baldasaro, 2009 ONCA 676; 265 O.A.C. 75, R. v. Frost, 2012 NBCA 94; 396 N.B.R. (2d) 305; R. v. Hill, 2007 BCCA 309; [2007] B.C.J. No. 1196, R. v. Kharaghani, 2011 ONSC 3404; [2011] O.J. No. 2440, R. v. Schweitzer, [2000] O.J. No. 5228.
6. Mitigating and Aggravating Factors:
[8] Mitigating factors are to be determined on a balance of probabilities, while aggravating factors are to be determined on the reasonable doubt standard. A large quantity of marijuana is an aggravating factor. This being the defendant’s first offence is a mitigating factor.
7. Principles of Sentencing:
[9] 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.
[10] Sentences should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[11] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect 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 offences:
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.
[12] 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.
[13] However, a court should not depart from a joint submission without very good reasons for doing so.
[14] Denunciation and deterrence are the primary considerations because of the nature of the offence, to reflect society’s disapproval of drugs, and to deter others from engaging in this kind of criminal enterprise - drugs for profit.
8. Reasons:
[15] I accept the joint submissions and impose a sentence of 9 months followed by a period of 12 months of probation. The conditions are as recommended in the PSR: abstain from the purchase/possession/ consumption of alcohol or any intoxicating substance, abstain from the purchase/possession/ consumption of drugs except in accordance with a medical prescription, not to associate with anyone with a criminal, youth, or drug record, maintain full time employment or full time education or a combination of both and show proof to the Probation Officer, attend for assessment/ treatment/ counselling or program as directed by the Probation Officer, sign any release forms in order for the Probation Officer to monitor and confirm compliance with this order; plus he not possess any materials for drug trafficking, and not associate with individuals involved in drug trafficking.
[16] I accept that the defendant focussed solely on the claim of a Charter violation and conducted the trial in an efficient and time saving manner. While it was not a guilty plea, I accept that he should not be penalized for accepting the Crown’s evidence but arguing that his Charter rights had been breached.
[17] I also accept that the defendant presents rehabilitation as a realistic goal. While a longer jail term may be appropriate in other circumstances, I am satisfied that the proposed sentence serves as the necessary deterrence and denunciation while acknowledging the defendant as a first time offender with excellent rehabilitation prospects.
[18] I accept the Crown submissions for the probation conditions, and weapons ban, but am not prepared to impose a DNA order.
9. Ancillary Orders:
[19] A weapons ban for 10 years is imposed, and an order of forfeiture in the form proposed by the Crown.
10. Final Decision
[20] Count #1: 9 months, plus 12 months probation.
[21] Count #2: 3 months, concurrent to Count #1.
[22] Count#3: 3 months, concurrent to Count #1.
Honourable Justice Timothy Ray
Released: January 15, 2015
CITATION: R. v. Rompre, 2015 ONSC 316
COURT FILE NO.: 12-G5583
DATE: 2015-01-15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
JEAN ROMPRE
Defendant
REASONS FOR SENTENCE
Honourable Justice Timothy Ray
Released: January 15, 2015