ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CrimJ(P) 2221/12
DATE: 201501104
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JUAN SANCHEZ-REIMER
Defendant
H. Gluzman for the Crown
J. Neuberger for the Defendant
HEARD: October 23, 2015
REASONS FOR SENTENCE
Ricchetti, J.
OVERVIEW
[1] After a trial, on February 26, 2015, Mr. Sanchez-Reimer was found guilty of possessing $110,000 USD counterfeit monies.
[2] The real issue is whether, in the circumstances of this case, a conditional sentence is a fit and appropriate sentence.
[3] I am satisfied that a fit and proper sentence in this case is a conditional sentence of 15 months, on the terms set out herein, given the circumstances of the offence and offender in this case.
THE FACTS
[4] After a trail, on November 2, 2010 Mr. Sanchez-Reimer returned to Canada from Peru with $110,000 counterfeit USD secreted in a binder. The sole issue at trial was knowledge.
Circumstances of the offender
[5] Mr. Sanchez-Reimer is 26 years old.
[6] At the time of the offence, Mr. Sanchez-Reimer was a cocaine addict. His trip to Peru was a cocaine binge. He was also a heavy marijuana user.
[7] Mr. Sanchez-Reimer has had a difficult upbringing. His parents divorced when he was very young. He was introduced to alcohol when he was seven years old by his father. This led to problems with controlled substances. He suffered several concussion injuries, one of which ended a promising athletic career.
[8] Mr. Sanchez-Reimer was shot in the chest while buying drugs earlier in the same year of the offence.
[9] Mr. Sanchez-Reimer’s mother died while these charges were outstanding. He now cares for his 96 year-old grandmother.
[10] Mr. Sanchez-Reimer has no criminal record.
[11] There are two reports from Julie Albert MSW who concludes Mr. Sanchez-Reimer:
• Is a person who likely suffers from depression and ADHD resulting in some learning issues;
• Recognizes that his addiction has cost him a great deal in life – being shot, his post-secondary education and going from job to job for years;
• He has severed ties with his previous friends involved with narcotics; and
• He has a supportive family, friends and an employer.
[12] Ms. Albert concluded in her most recent report: “At this juncture, Mr. Sanchez has made significant progress in his rehabilitation, but there are more steps he can, and should take, in this regard.” Mr. Sanchez-Reimer continues counselling with Ms. Albert on a regular basis.
[13] Mr. Sanchez-Reimer attended for a mental health assessment with Dr. Julian Gojer, a forensic psychiatrist. Dr. Gojer determined that Mr. Sanchez-Reimer suffers from ADHD and exhibits features of this problem. Neuropsychological testing confirmed the presence of brain damage from prior concussions – resulting in executive functioning impairment “especially impacting on abstract functioning, planning and these problems are likely to impact on his judgment”.
[14] Mr. Sanchez-Reimer recognizes that his life needs to change. He has voluntarily seen Ms. Albert for a considerable period of time. He has given up cocaine use - he has not used cocaine for more than two years. Despite counselling, he has not been able to give up marihuana entirely. He has reduced his marijuana use, a pattern of extended non-use of about ten days with a very limited use for two days.
[15] Mr. Sanchez-Reimer had part time work in landscaping since spring 2014 and in the spring of 2015 was able to convert that into a full time job.
[16] Mr. Sanchez-Reimer has strong support from family and friends. He has the support of his current full-time employer, who is aware of the circumstances of this case and states he will continue to employ Mr. Sanchez-Reimer.
Impact on the Community
[17] A memorandum of Special Agent Gillespie was filed. This memorandum sets out the economic impact of counterfeit currency. Further, the memorandum sets out that the counterfeit monies are apparently from a particular family in Peru notorious for distributing large quantities of counterfeit USDs.
[18] An affidavit of Mr. Lambert from the Federal Reserve System was filed setting out the prevalence of United States currency counterfeiting and its impact on victims and society.
[19] As set out in R. v. Haldane, [2001] O.J. No. 5161 (S.C.J.):
17 Counterfeit money constitutes a very serious threat to the community, from the economy of the community to the economy of the country, particularly now when it can be produced relatively easily, although the government does try to keep one step ahead. ...
LEGAL PARAMETERS
[20] Counsel agreed that there is no minimum sentence in effect at the time of the offence.
[21] At the time of the offence, a conditional sentence was available. See R. v. Ijam (2007), 2007 ONCA 597, 226 C.C.C. (3d) 376 (Ont. C.A.) and R. v. Piamonte, [2006] O.J. No. 2814 (S.C.J.) (QL).
POSITIONS OF CROWN AND DEFENCE
[22] Counsel agreed on a forfeiture order for the counterfeit monies.
[23] The Crown seeks a term of incarceration of 9 to 12 months. The Crown submits that a conditional sentence would not meet the principles of sentencing, in particular, general deterrence and denunciation.
[24] The Defence submits a conditional sentence is appropriate and warranted in the circumstances of this case, particularly given the very strong rehabilitation prospects for Mr. Sanchez-Reimer. The Defence acknowledged and agreed that, if a conditional sentence were imposed, a complete abstinence of any controlled substance use along with random testing would be integral in the terms of a conditional sentence.
CASE LAW
[25] While the Crown submitted the case of R. v. Mankoo [2000] O. J. 1869 (C.A.), I am not persuaded that this authority is of much assistance as the offender in that case had possession embossing plates, which makes culpability higher in the counterfeiting.
[26] In R. v. Rojas, 2013 ONSC 121, Ms. Rojas was importing $199,000 counterfeit USD. Justice Hill, after reviewing precedents and concluding that there were “no exceptional or extraordinary mitigating factors present”, imposed a sentence of 15 months incarceration.
[27] In R. v. Piamonte, [2006] O.J. No. 2814 (S.C.J.) the accused was found guilty of 12 counts on four indictments, one of which was possession of $100,000 in counterfeit bank notes. However, it is difficult to distinguish the impact of the sentence imposed and the number of other serious offences committed by the accused.
[28] There are sentencing authorities for similar offences. However, in many, the culpability of the offender is significantly different than the circumstances of this case, such as the manufacturing counterfeit monies or the possession of embossing plates. Those authorities must be distinguished from this case where Mr. Sanchez-Reimer was a courier to import the counterfeit monies.
[29] In my view the upper range of sentence for this offence is 15 months, the sentence imposed in Rojas.
[30] This case is closest to the Rojas case but with more mitigating factors and a much higher prospect for rehabilitation.
MITIGATING AND AGGRAVATING FACTORS
[31] The mitigating factors include:
- Mr. Sanchez-Reimer has no criminal record;
- Mr. Sanchez-Reimer is youthful;
- Mr. Sanchez-Reimer is remorseful;
- Mr. Sanchez-Reimer has a supportive family, friends and an willing full-time employer;
- Mr. Sanchez-Reimer has already obtained counseling and medical attention for his issues. He agrees to continue with the counselling; and
• Mr. Sanchez-Reimer has already made large strides towards rehabilitation back into a productive member of society and his continuing prospect for further rehabilitation are very high.
[32] The aggravating factors include:
• The amount of counterfeit monies was substantial; and
• There was planning given that the monies had to be secreted in the lining of the binder.
PRINCIPLES OF SENTENCING
[33] The Criminal Code sets out the purpose and principles of sentencing:
- The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders
REASONS
[34] In my view, when the fundamental purpose and principles of sentencing are applied to the circumstances of the offence and offender, the range of sentence is up to 15 months incarceration.
[35] The range suggested by the Crown is reasonable in the circumstances. The issue is whether the sentence should be served in the community or prison.
[36] S. 742.1 of the Criminal Code provides:
742.1 If a person is convicted of an offence,… , and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s compliance with the conditions imposed under section 742.3.
[37] In R. v. Wells, 2000 SCC 10, [2000] S.C.J. No. 11, the court set out the approach to determining whether a conditional sentence is appropriate:
27 Lamer C.J., in Proulx, supra, held that a purposive interpretation of s. 742.1 required the sentencing judge to proceed in stages in determining the appropriateness of a conditional sentence. At the preliminary stage, the judge simply has to exclude two possibilities: (a) probationary measures; and (b) a penitentiary term. The duration and venue of the sentence are not determined at this preliminary stage. In addition, the judge is required to consider the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 only to the extent necessary to narrow the range of sentence for the offender. If, at this point, either a penitentiary or a suspended sentence is appropriate, then a conditional sentence should not be imposed (Proulx, at paras. 58-59).
28 Before moving to the next stage of the analysis, the sentencing judge must also establish whether the statutory prerequisites set out in s. 742.1 have been satisfied. These prerequisites include: (i) the absence of a minimum term of imprisonment; (ii) a sentence of imprisonment of less than two years (i.e., the elimination of a penitentiary term per step one); and (iii) that the safety of the community would not be endangered by the offender serving the sentence in the community. Two factors must be taken into account in assessing the danger to a community posed by an offender: (i) the risk of the offender re-offending; and (ii) the gravity of the damage that could ensue in the event of re-offence. In Proulx, the Chief Justice provided helpful guidance for this risk assessment at paras. 69-76.
29 Pursuant to s. 742.1(b), the second and most substantial stage of the analysis involves the determination of whether a conditional sentence would be consistent with the fundamental purpose and principles set out in ss. 718 to 718.2. Unlike the more cursory review of the purpose and principles of sentencing at the preliminary stage, this second stage requires a comprehensive consideration of these principles and objectives. It is this comprehensive consideration which guides the sentencing judge in determining (i) whether the offender should serve the sentence in the community or in jail, (ii) the duration of the sentence, and, if a conditional sentence, (iii) the nature of the conditions to be imposed.
Probation or Penitentiary Sentence?
[38] There is no minimum sentence for this offence.
[39] Neither counsel suggested a penitentiary sentence is appropriate in this case.
[40] Given the range of sentences for this offence, I am satisfied that neither probation nor a penitentiary sentence is appropriate.
Safety of the Community?
[41] Neither counsel suggested that Mr. Sanchez-Reimer poses as risk to the community.
[42] I am satisfied that Mr. Sanchez-Reimer does not pose a high risk of to the safety of the community.
[43] As a result, I am obliged to seriously consider the imposition of a conditional sentence since the statutory prerequisites are satisfied. See R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 at para 95.
Will a Conditional Sentence be Consistent with the Purpose and Principles of Sentencing?
[44] This requires a more comprehensive consideration of the principles and objectives of sentencing as they apply to this case.
[45] I agree with the Crown that the principles of general deterrence and denunciation play a significant part in sentencing for this offence. Like in Rojas, general deterrence and denunciation would weigh in favour of period of incarceration.
[46] That is not to say rehabilitation is not important in the circumstances of this case. In Proulx, at para 109 the court noted that a conditional sentence is generally better suited to achieving the restorative objectives of rehabilitation, repatriation and promoting a sense of responsibility in the offender.
[47] Mr. Sanchez-Reimer can be rehabilitated. He has already demonstrated that he has and will continue to work towards rehabilitation. Mr. Sanchez-Reimer has already made great strides towards his rehabilitation particularly with his use of controlled substances, which was the genesis of this trip to Peru and likely the financial incentive for importing the counterfeit monies. He has a very supportive family, friends and an employer. He provides care for his elderly grandmother. He has been working full-time and will be able to continue to be employed full-time if a conditional sentence were imposed.
[48] The imposition of a conditional sentence would permit Mr. Sanchez-Reimer to work and be a productive member of society. It would permit Mr. Sanchez-Reimer to continue with counselling he has already started. A lengthy conditional sentence at the higher end of the range would also permit this court to impose strict terms which would include the prohibition of the use of any controlled substances and be subject to random testing.
[49] I am persuaded that a period of incarceration would potentially undo much of what rehabilitative advances made to date and, potentially, future rehabilitation prospects.
[50] Can a conditional sentence achieve the objectives of general denunciation and deterrence? In my view, with the appropriate length and terms, deterrence and denunciation can be achieved with a conditional sentence.
[51] In Proulx, the Supreme Court stated:
41 This is not to say that the conditional sentence is a lenient punishment or that it does not provide significant denunciation and deterrence, or that a conditional sentence can never be as harsh as incarceration. As this Court stated in Gladue, supra, at para. 72:
. . . in our view a sentence focussed on restorative justice is not necessarily a “lighter” punishment. Some proponents of restorative justice argue that when it is combined with probationary conditions it may in some circumstances impose a greater burden on the offender than a custodial sentence.
A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls.
42 Moreover, the conditional sentence is not subject to reduction through parole….
[52] Balancing all of the circumstances of this case, I am satisfied that a conditional sentence is appropriate as it will greatly assist with rehabilitation and promote a sense of responsibility to Mr. Sanchez-Reimer.
Conclusion
[53] The following terms of a 15 month conditional sentence is herby imposed:
(a) keep the peace and be of good behaviour;
(b) appear before the court when required to do so by the court;
(c) report to a supervisor
(i) within three working days, and
(ii) thereafter, when required by the supervisor and in the manner directed by the supervisor;
(d) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor;
(e) notify the court or the supervisor in advance of any change of name or address of his residence, and promptly notify the court or the supervisor of any change of employment or occupation;
(f) abstain from
(i) the consumption of any alcohol or other intoxicating substances, and
(ii) the consumption of any controlled substances or drugs except in accordance with a medical prescription. The supervisor or the police may request at any time(s) for Mr. Sanchez-Reimer to submit to testing for the consumption of any controlled substances;
(g) abstain from owning, possessing or carrying a weapon;
(h) To advise his supervisor of his full time employment and to remain in full time employment or to be actively seeking full time employment (if he loses his employment);
(i) To advise his supervisor of his residence and to remain in his stated residence:
During the first 12 months to remain in his residence except for:
a. travel directly to and from to his full time employment and elsewhere as may be necessary to carry out his responsibilities for his employment;
b. travel directly to and from for his counseling and medical appointments;
c. travel directly to and from any medical appointments/emergencies for his grandmother while in her company and only for the purpose of her medical appointment or emergency;
d. travel directly to and from directly to report to his supervisor;
e. travel directly to and from directly to the courthouse as may be required;
f. Saturdays from 10 am until 4 pm; and
g. Any other situation which has the prior written approval of his supervisor.
During the last 3 months:
h. To remain in his residence from 10 pm until 6 am each evening except for medical emergencies
(j) The police may attend at any time at the residence of Mr. Sanchez-Reimer and Mr. Sanchez-Reimer must present himself at the front door of the residence within 5 minutes of the police demand for presentment, the failure of which will be a breach of these terms;
(k) continue with the counseling with Ms. Julie Albert or as she may direct and to take any medication as may be prescribed by Ms. Albert;
(l) to take any additional substance use counseling or other counseling as may be directed by Ms. Julie Albert;
(m) to see a medical doctor within one month regarding possible treatment for Attention Deficit Disorder and/or Mood Disorder and to take any medication and treatment prescribed by said doctor; and
(n) to comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences.
[57] I recognize that the term of 15 months is higher than the term of incarceration suggested by the Crown. However, I have considered that a term of incarceration would be followed by a significant term of probation, which is not available in addition to a conditional sentence. Further, a 15 month conditional sentence would achieve the sentencing objectives of deterrence and denunciation.
[58] A forfeiture order for the counterfeit monies is hereby ordered.
L. Ricchetti J.
Released: November 4, 2015
COURT FILE NO.: CrimJ(P) 2221/12
DATE: 201501104
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
JUAN SANCHEZ-REIMER
Defendant
REASONS FOR SENTENCE
L. Ricchetti J.
Released: November 4, 2015