SUPERIOR COURT OF JUSTICE
Indictment No. CR-11-00001017-0000
HER MAJESTY THE QUEEN
v.
TOMIKA DaCOSTA
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE C. HILL
On Monday, June 8, 2015, at BRAMPTON, Ontario
APPEARANCES:
L. McKenzie
Counsel for the Federal Crown
L. Rados
Counsel for Tomika DaCosta
Monday, June 8, 2015:
R E A S O N S F O R S E N T E N C E
HILL J. (Orally):
Following a trial, Tomika DaCosta was found guilty of importing cocaine into Canada. It now falls to be determined what a fit and just sentence is for this crime, having regard to the seriousness of the offence and the personal culpability of the offender. Because the facts of the unlawful importation were fully described in the court's earlier Reasons for Judgment, 2015 ONSC 1478, only summary reference is necessary at this time.
It was established at trial beyond a reasonable doubt that on May 28th, 2010, the offender returned to Canada's Pearson International Airport from Jamaica. A Canada Border Services Agency's search of two liquor bottles in the offender's possession revealed 415 grams of pure cocaine in each bottle. Depending upon the level of sale, the range in value of the narcotic would be $29,000 to $91,300.
On facts not entirely dissimilar to those in R. v. Wilson, 2003 34247 (ON CA), [2003] O.J. No. 144 (C.A.), the offender here acquired the cocaine at a Jamaican airport in circumstances of actual knowledge of the contents of the two liquor bottles. The offender is currently 25 years of age. At the time of commission of the offence, she was just short of her 20th birthday. The offender's parents separated when she was two or three years' old. Her father resides in Jamaica.
Ms. DaCosta graduated from high school before attending one year of post-secondary school education. Thereafter, she held a series of short term unskilled employment positions until securing full-time employment in January 2011 in customer service for a translation company. The offender has no prior criminal record. Ms. DaCosta and her common law partner have two young children aged one and three years.
The Pre-Sentence Report notes outstanding indebtedness of a $5,000 Highway Traffic Act fine in 2011, as well as $6,000 regarding a civil matter. Letters filed this morning on the offender's behalf by family members indicate that she is a very good mother and that the crime committed was out of character.
On behalf of the offender, Mr. Rados submitted that despite the relatively high quantity of cocaine involved, an appropriate disposition would be a conditional sentence with very restrictive conditions, or in the alternative, a penitentiary sentence below three years' duration. Counsel placed particular emphasis on the offender's youth and lack of prior criminal record and the passage of time since the crime, during which the offender has given birth to two children and has been employed and bail-compliant. Mr. Rados underlined the unique hardship that incarceration would pose for the offender's family unit. The offender was described as a different person who has matured and poses no risk of reoffending.
On behalf of the Crown, Ms. McKenzie submitted that a fit sentence would be three years' imprisonment having regard in particular to the nature and quantity of the drug imported, as well as the planned character of the offence for personal compensation. It was submitted that despite the attendant mitigating circumstances, the gravity of the offence and the moral blameworthiness of the offender outweigh any significant reliance on those circumstances.
It was agreed between the parties that the offender's role was that of a courier unlawfully importing cocaine into Canada. The importation of cocaine is a very grave offence for which general deterrence and denunciation are the paramount sentencing considerations: see R. v. Hamilton; R. v. Mason (2004), 2004 5549 (ON CA), 186 CCC (3d) 129 (Ont.C.A.) paragraphs 104 to 106.
In R. v. Madden (1996) 1996 10212 (ON CA), 104 CCC 3d 548 (Ont.C.A.), the court articulated somewhat flexible guidelines for sentencing a first offender courier engaged in cocaine importation of a kilogram more or less. This was described as a flexible starting point range of three to five years' imprisonment "absent exceptional circumstances": Wilson at paragraph 13.
The Madden decision has been routinely followed as it has contributed to consistency in sentencing while reflecting the gravity of the crime at hand (Hamilton; Mason, at paragraph 108). In this regard, reference may also be made, by way of example only, to the Wilson decision - three quarters of a kilogram, three years imposed; and to R. v. Jones (2006) 2006 28086 (ON CA), 211 CCC (3d) 4 (Ont.C.A.) - 849 grams imported, 40 months' imprisonment imposed.
A delay in sentencing from the point of commission of the offence or from arrest and charge may or may not be a particularly relevant factor in sentencing depending on the particular facts. So for example in R. v. Cooper, 1977 2103 (ON CA), [1977] O.J. No. 721 (C.A.), at paragraph 7, the court noted the mitigating circumstance of delay through no fault of the offender. Where, however, an offender is on bail under not under onerous conditions, delay may be deserving of relatively little weight: R. v. R.S., [2005] O.J. No. 5181 (C.A.), at paragraph three.
Part of the circumstances of the delay in this case is apparent from the indictment which includes two trial dates being adjourned at the request of the defence in 2011 and again in 2013 occasioning protraction of the proceedings.
While the offender's status as the mother of two young children may be a factor to be considered in the individualized exercise of sentencing, the courts must nevertheless sentence in these crimes so that, "Those who would engage in its importation must know that they will pay a heavy price": R. v. Sidhu, 2009 ONCA 81, at paragraph 15; R. v. Cunningham (1996), 1996 1311 (ON CA), 27 O.R. 3d 786 (C.A.), at paragraphs 20 and 21; see also R. v. Scott, 1996 1279 (ON CA), [1996] O.J. No. 3419 (C.A.) at paragraph five where the appellate court found that the sentencing court's sympathy for the accused was misplaced stating:
"The fact that she is the mother of six children and that her incarceration will deny her access to those children is inescapable, but she is the author of these consequences."
While not an aggravating feature, the fact that Ms. DaCosta did not plead guilty, which would have evidenced acceptance of responsibility for her crime, does impact the leniency or compassion which might otherwise be available were the circumstances different.
The aggravating features of the case are manifestly apparent including the following:
The offender imported a hard drug; a dangerous and highly addictive Controlled Drugs and Substances Act Schedule 1 substance;
The cocaine was concealed in a sophisticated manner designed to defeat interdiction discovery;
The quantity of the cocaine, 830 grams of pure cocaine or over 29 ounces;
The value of the imported narcotic.
In the balance in mitigation, these factors must be considered:
Ms. DaCosta is a first offender;
She was age 19 at the time she committed the offence;
The offender has been on judicial interim release for over five years without incident;
Ms. DaCosta has matured and is fully employed with two young children; and
The favourable Pre-Sentence Report.
The quantity of the dangerous drug imported by the offender falls within the one kilogram more or less quantity of the Madden Guidelines. There are no exceptional or extenuating circumstances in this case as described in the relevant jurisprudence. While a conditional sentence is technically available, such a disposition would fall short of being proportionate to the gravity of the crime and the offender's responsibility.
In the circumstances, a fit and just sentence is three years' incarceration. There will also be a DNA order and a s. 109(2)(a) order for ten years and a s. 109(2)(b) order for life. Do you have the draft order?
MS. McKENZIE: I do.
THE COURT: Does it involve the taking of samples by Correctional Service Canada?
MS. McKENZIE: It does.
THE COURT: Any questions on your part, Ms. McKenzie?
MS. McKENZIE: No, thank you, Your Honour.
THE COURT: And Mr. Rados, on your part?
MR. RADOS: No, Your Honour.
THE COURT: I cannot leave the matter without indicating, Mr. Rados, that having heard your submissions and presentation, I think you said everything that could be said on behalf of the offender in this case.
MR. RADOS: Thank you.
THE COURT: And I am grateful. Thank you.
MS. McKENZIE: Thank you
WHEREUPON THIS MATTER CONCLUDED
FORm 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))
Evidence Act
I,
Michael McLellan, C.C.R., B.A. (Hons)
, certify that
(Please print name of authorized person(s))
this document is a true and accurate transcript of the recording of
R. v. Tomika DaCosta
in the
Superior Court of Justice
(Case name)
(Name of Court)
held at
7755 Hurontario Street, Brampton, ON
taken from Recording No.
(Court address)
3199_406_20150608_082943__30_HILLCAS.dcr
, which has been certified in Form 1.
(Date)
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