CITATION: R. v. Murororunkwere, 2016 ONSC 1039
COURT FILE NO.: CR-14-00081-0000
DATE: 2016 02 10
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
J.W. Leising, for the Crown
- and -
AGNES MURORORUNKWERE
S. Robichaud, for the Defence
Defendant
HEARD: January 15, 2016
REASONS FOR SENTENCE
Woollcombe J.
Overview
[1] On October 1, 2015, Ms. Murororunkwere was found guilty by a jury of importing heroin and conspiracy to import heroin. Following the verdict, her bail was revoked and she was remanded in custody pending sentencing. Sentencing submissions were heard on January 15, 2016.
[2] For the reasons that follow, Ms. Murororunkwere is sentenced to a total of 15 years in custody less credit for pre-sentence custody of 200 days, for an effective sentence of 14 years and 165 days.
Facts of the Offences
[3] After a guilty verdict by a jury, the sentencing judge must decide the facts upon which the offender is to be sentenced. The Supreme Court of Canada set out in R. v. Ferguson 2008 SCC 6 how this is to be done. The sentencing judge need not arrive at a complete theory of the facts, but must make those factual determinations necessary for the appropriate sentence.
[4] The Court in Ferguson set out the two principles governing this exercise at paras. 17-18:
17 Two principles govern the sentencing judge in this endeavour. First, the sentencing judge "is bound by the express and implied factual implications of the jury's verdict": R. v. Brown, 1991 73 (SCC), [1991] 2 S.C.R. 518, p. 523. The sentencing judge "shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty" (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), 1995 16075 (MB CA), 95 C.C.C. (3d) 443 (Man. C.A.).
18 Second, when the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.). In so doing, the sentencing judge "may find any other relevant fact that was disclosed by evidence at the trial to be proven" (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: (ss. 724(3)(d) and 724(3)(e); see also R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 1987 9452 (ON SC), 58 C.R. (3d) 71 (Ont. H.C.)). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.
[5] In this case, the jury found Ms. Mururorunkwere guilty of both importing heroin and conspiracy to import heroin.
a) Count One – Importing Heroin
[6] Count one relates to the importation of heroin into Canada on March 24, 2011. The jury was instructed that they could find Ms. Murororunkwere guilty of importing either on the basis that she was a joint principal or that she aided or abetted Ms. Mukandori. As it is unclear from the verdict the route that the jury took to find Ms. Murororunkwere guilty, I am required to make an independent determination of the relevant facts.
[7] It is my view that the Crown proved beyond a reasonable doubt that Ms. Murororunkwere was a joint principal to Ms. Mukandori’s importation of cocaine. There was compelling evidence that satisfies me that Ms. Murororunkwere was an integral part of a sophisticated plan for Ms. Mukandori to bring heroin into Canada from Uganda.
[8] On the basis of Ms. Mukandori’s evidence, as confirmed by other independent evidence, I find that Ms. Murororunkwere was an organizer of this importation and was an active participant in arranging for Ms. Mukandori to bring heroin from Uganda into Canada. I conclude that Ms. Murororunkwere either sent to Ms. Mukandori the money for her trip to Uganda or was present when Ms. Mukandori purchased her plane ticket. Together, they planned for Ms. Mukandori to go to Uganda to bring back drugs. Ms. Murororunkwere arranged for a man named Tule to provide a suitcase to Ms. Mukandori on the day she was to leave Entebbe to return to Canada. Ms. Mukandori’s passport stamps confirm the dates of the trip.
[9] No better evidence supports my conclusion regarding Ms. Murororunkwere’s heavy involvement in this importation than the telephone records that were entered into evidence at the trial. These reveal the telephone contact between Ms. Murororunkwere and Ms. Mukandori in March when the planning for the trip began. Perhaps more importantly, however, the records confirm the numerous calls that were placed by Ms. Murororunkwere to Ms. Mukandori on March 24, 2011, immediately after Ms. Mukandori’s return to Canada. They support the conclusion that Ms. Murororunkwere was anxiously awaiting Ms. Mukandori’s return to Canada with the drugs, and became panicked that something had gone wrong when she was unable to reach Ms. Mukandori.
[10] Ms. Mukandori’s importation on March 24, 2011, for which Ms. Murororunkwere was a joint principal, was of 2502 grams of heroin. It would have had a re-sale value of $200,000.00 to $750,600.00 in Toronto in 2011.
b) Count Two – Conspiracy to Import Heroin
[11] In relation to the conspiracy count, the jury’s finding of guilt is ambiguous in so far as they were not required to make any findings about the extent of the conspiracy. As a result, counsel agree that in order to impose a fit sentence, I must determine whether the evidence proved beyond a reasonable doubt that there was a conspiracy to import heroin on just one occasion (the March 24, 2011 importation committed by Ms. Mukandori), or whether the evidence establishes beyond a reasonable doubt that Ms. Murororunkwere was a member of a more extensive conspiracy.
[12] Mr. Leising urges me to find that that Ms. Murororunkwere was involved in a conspiracy to import heroin on multiple occasions. More specifically, he submits that Ms. Murororunkwere conspired with others in regard to three trips to Africa made by Ms. Mukandori (October 2010, New Year’s 2010-11 and March 2011) in which Ms. Mukandori imported heroin. In addition, he submits that Ms. Murororunkwere conspired with others for Ms. Kalimba to import heroin into the United States at New Year’s 2010-11 and into Canada in March 2011 (although that importation was not pursued after the arrest in Toronto of Ms. Mukandori). He says that I should find that Ms. Murororunkwere was part of an ongoing scheme to import heroin into Canada and that she should be sentenced accordingly.
[13] Mr. Robichaud submits that I should find that Ms. Murororunkwere conspired to import heroin into Canada only in relation to Ms. Mukandori’s importation in March 2011. He says that there is ample evidence to support that the other importations occurred, but that the evidence does not support a finding beyond a reasonable doubt of Ms. Murororunkwere’s involvement in them. He says that the evidence is qualitatively different, and much stronger, in relation to Ms. Murororunkwere’s involvement in the March 2011 importation by Ms. Mukandori.
[14] In my view, the evidence supports a conclusion beyond a reasonable doubt that Ms. Murororunkwere conspired with others to import heroin on multiple occasions. I will review that evidence in relation to each of those occasions in chronological order.
[15] Ms. Mukandori described the first time she imported drugs from Kenya into Canada in October, 2010. She testified that she met Ms. Murororunkwere’s sister Ms. Kalimba in 2005 or 2006 when they worked together at a long term care facility. In the period before her first importation, she discussed the idea of bringing drugs into Canada with Ms. Murororunkwere. Both Ms. Kalimba and Ms. Murororunkwere told her that it was safe and easy to do so. I accept her evidence about being told by Ms. Murororunkwere that importing was safe and easy.
[16] Ms. Mukandori flew from Toronto to Nairobi on October 14, 2010. I accept her evidence that he was met at the Nairobi airport by Ms. Murororunkwere and her friend Odette, with whom Ms. Mukandori stayed. I also accept her evidence that, as she had been told by Ms. Murororunkwere to expect, two men came to the apartment to fit her for an undergarment suit that she was to wear back to Canada with the drugs. That suit was entered as Exhibit 10 at trial. I accept that Ms. Murororunkwere was present at the time of this “fitting”. The men returned the next day with the drugs that were concealed in the undergarment. Ms. Murororunkwere told her that there was one kilogram. Ms. Murororunkwere drove her to the airport and she returned to Canada with the drugs.
[17] I observe that Ms. Murororunkwere’s phone book had a listing for “Odette” in Africa and find this to be some independent confirmation supporting Ms. Mukandori’s evidence about Ms. Murororunkwere’s involvement in coordinating this importation.
[18] Ms. Murororunkwere told Ms. Mukandori to take a bus to New York city and Ms. Mukandori said that Ms. Murororunkwere arranged for her to meet with a taxi driver there named Adam to deliver the drugs. She did so and was paid $10,000.00. In her statement to police, Ms. Murororunkwere acknowledged knowing a taxi driver named Adam whose New York telephone number was on a card in her wallet. I find this to be compelling evidence confirming Ms. Mukandori’s testimony that she was instructed by Ms. Murororunkwere to deliver the drugs to a taxi driver named Adam in New York.
[19] I am satisfied beyond a reasonable doubt that Ms. Murororunkwere conspired with others for Ms. Mukandori to import heroin into Canada in October, 2010.
[20] The next importation took place over the New Year holiday in 2010-2011 and involved both Ms. Mukandori and Ms. Kalimba. Ms. Mukandori said that before taking this trip, she spoke to both Ms. Murororunkwere and Ms. Kalimba about it, and was told that the arrangement would be the same. She flew to Nairobi where she was met by Riziki, whom she understood to be a friend of Odette. He gave her a plane ticket to Mombassa, where she was met by Ms. Murororunkwere and Odette.
[21] In Ms. Murororunkwere’s phone book, which was entered as an exhibit at trial, there is a listing for “Riziki” and an African telephone number. I find this to be some confirmation of Ms. Murororunkwere’s involvement in arranging Ms. Mukandori’s travel plans.
[22] Ms. Kalimba also flew to Kenya. I do not accept her evidence that Ms. Murororunkwere called her around Christmas time and suggested simply that she was in Mombassa having a good time and that Ms. Kalimba should come with her son. Rather, I find that Ms. Murororunkwere provided Ms. Kalimba with a ticket to travel to Mombassa, via Tanzania, so that she could return to Canada with drugs. Ms. Kalimba made that trip, arriving in Mombassa on New Year’s Eve with her son.
[23] There was compelling evidence that Ms. Mukandori and Ms. Kalimba spent the New Year holiday in Mombassa with Ms. Murororunkwere. The many photographs and passports confirm that a group was assembled at Mombassa over the New Year. It is my conclusion from the evidence that there was a plan in place with Ms. Murororunkwere for each of Ms. Mukandori and Ms. Kalimba to then return to Canada with heroin.
[24] Ms. Mukandori said that in January 2011, Ms. Murororunkwere drove her back to Nairobi where the same two men she had met in October gave her black hand luggage in which drugs were concealed. They discussed that there were drugs in the bag with Ms. Murororunkwere present. Ms. Mukandori was told by Ms. Murororunkwere that Ms. Kalimba would also be importing heroin and would be doing so through Tanzania. I accept Ms. Mukandori’s evidence about this.
[25] Again, Ms. Mukandori successfully imported drugs into Canada. I find that she was again told by Ms. Murororunkwere to travel to New York to deliver the drugs to Adam. On her return to Canada, she again travelled to New York, gave the drugs to Adam, and was paid $10,000.00.
[26] Ms. Murororunkwere also made plans for Ms. Kalimba and arranged that when she returned home through Dar Es Salaam, Tanzania, she would be picked up at the airport and taken to a hotel. Two men did so and gave her a red suitcase. It contained African arts and picture frames, and also contained drugs for which Ms. Murororunkwere had told her she would be paid $10,000.00.
[27] Ms. Kalimba flew from Tanzania to Detroit where she was met by a woman named Faith who gave her $8,500.00 (as $1,500.00 was deducted for her son’s travel). Ms. Kalimba’s passport confirms her evidence about her travel route.
[28] I am satisfied beyond a reasonable doubt that Ms. Murororunkwere conspired with others for both Ms. Mukandori to import heroin into Canada and with Ms. Kalimba to import heroin into the United States in January, 2011 following their New Year’s trip.
[29] The final instance in which Ms. Murororunkwere conspired to import heroin into Canada was in relation to Ms. Kalimba was in March, 2011. Ms. Kalimba travelled to Entebbe, Uganda on March 23, 2011, arriving as Ms. Mukandori was leaving. She had agreed with Ms. Murororunkwere to bring drugs back to Canada. Ms. Kalimba and Ms. Mukandori met at the airport where Tule was dropping Ms. Mukandori for her trip to Canada. He took Ms. Kalimba to her hotel.
[30] I accept Ms. Kalimba’s evidence that Ms. Murororunkwere had told her that she would be paid $10,000.00 to bring a suitcase with drugs back to Canada. I also accept her evidence that after Ms. Mukandori was caught at Pearson International Airport in Toronto, Ms. Murororunkwere told her not to bring anything back and that she did not do so. Again I am satisfied beyond a reasonable doubt that Ms. Murororunkwere conspired with others to have Ms. Kalimba import heroin into Canada in March 2011 and that this importation was stopped by Ms. Murororunkwere following Ms. Mukandori’s arrest in Toronto.
Circumstances of the Offender
[31] No witnesses testified at the sentencing hearing. Defence counsel presented a letter from Ms. Murororunkwere’s daughter, character reference letters, letters of community and civic involvement and medical documentation.
[32] The letter from Ms. Murororunkwere’s daughter, Olga Kata, says that during the 1994 Rwandan genocide, Ms. Murororunkwere was raped, and that she is a product of that rape. She says that her mother was kidnapped by people who killed members of her family. Counsel has elaborated his understanding of what happened to Ms. Murororunkwere. He tells the court that she is Tutsi and that Hutu soldiers killed her parents and brothers and that one of the soldiers took her from Rwanda through Zaire (now the DRC) to Uganda and then Kenya. He says she was effectively a “prisoner bride” and that she was beaten and tortured. She also became HIV positive. According to counsel, Ms. Murororunkwere was rescued by a neighbour in Kenya. She came to Canada as a refugee in 2003.
[33] Ms. Kata’s letter describes Ms. Murororunkwere as a very committed and dedicated mother who has, by example, raised her daughter to be a patient, kind and compassionate person. Ms. Kata speaks about her mother’s kindness to everyone, and of her resilience in overcoming her past in Rwanda and living with a positive attitude.
[34] Ms. Murororunkwere has never worked in Canada. Counsel submits that this is because she finds it difficult to concentrate because of her HIV related medication. I have been provided with a letter from Dr. Gordon Arbess, who confirms that Ms. Murororunkwere suffers from HIV and Hepatitis B, as well as having recurrent episodes of Genital Herpes Simplix. She takes daily antiretroviral drugs.
[35] There is nothing in the medical evidence before me to suggest that the drugs that Ms. Murororunkwere takes preclude her from being able to work. Nor is there any other evidence before me supporting counsel’s submission.
[36] The evidence does confirm that Ms. Murororunkwere studied at George Brown College in 2006-2008 and completed a Community Worker Program.
[37] Mr. Robichaud has provided me with a twenty-two character reference letters. In these letters, friends and family members describe Ms. Murororunkwere as a caring and compassionate woman. There are numerous people who speak of the comfort and kindness that she has provided to those who have experienced illness or difficult personal circumstances. She is described as a role model, a committed and dedicated mother, and as a “selfless” person who is positive and loving.
[38] In addition to assisting friends and family in need, Ms. Murororunkwere has volunteered in her community. She has been a committed volunteer with the Canadian Association of Rwandanese in Diaspora (“CARD”) where she has taught children Rwandese culture. She has also volunteered as a peer leader to promote raising sexually healthy children in the community.
Positions of the Crown and Defence
[39] The parties made submissions both as to the appropriate range of sentence for a single conspiracy and as to the range for a larger conspiracy, which the Crown submitted had been proven beyond a reasonable doubt. Given my conclusion that there was both an importation and sophisticated conspiracy to import heroin into Canada on three additional occasions (as well as into the United States on one occasion), I will review counsels’ positions on sentence only for a more sophisticated and repeated conspiracy.
[40] Mr. Leising, for the Crown, reminds me that in R. v. Sidhu, 2009 ONCA 81, the Court of Appeal made clear that the range of sentence for a first time courier who imports a large amount of heroin is 12-17 years. This range was recently affirmed by the Court of Appeal in R. v. Kusi, 2015 ONCA 638 at para. 14. He submits that if I conclude that Ms. Murororunkwere was a conspirator for multiple importations, as I have, the appropriate range of sentence is 14-18 years incarceration.
[41] Mr. Leising also seeks a s. 109 prohibition order and a DNA order.
[42] Mr. Robichaud, for Ms. Murororunkwere, agrees with Mr. Leising as to the usual range of sentence. But, he says that in this case, if I conclude that Ms. Murororunkwere was involved in multiple importations, there are unique and extenuating circumstances that warrant departing from the range described in Sidhu. He submits that Ms. Murororunkwere’s personal history is so severe and exceptional that she has extenuating circumstances of mitigation. He describes her as a “survivor of the highest order”. He says that the appropriate sentence is not more than 12 years incarceration.
Analysis
a) The Statutory Principles
[43] Section 718 of the Criminal Code sets out the following in terms of the purpose of sentencing:
718 The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 or to the community.
[44] Further, s. 718.1 of the Criminal Code provides that:
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[45] Section 10 of the Controlled Drug and Substances Act S.C. 1996, c. 19 provides, provides the following with respect to the purpose of sentencing:
10 (1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.
b) Sentencing Principles and the Appropriate Range of Sentence
[46] I need not reiterate in any detail the comments that have been repeatedly made by Canadian courts about the fact that heroin is the “most pernicious of the hard drugs” in that it is the most addictive, most destructive and most dangerous (Sidhu at para 12). There is a pressing need to protect society from the untold grief and misery occasioned by the importation and subsequent use of hard drugs such as heroin.
[47] The law is clear that denunciation, general and specific deterrence are the primary and overriding principles of sentence for the importation of heroin and conspiracy to import heroin.
[48] Counsel agree that a sentence in the range of 12-17 years would be fit for a first time importer of a large amount of heroin. Ms. Murororunkwere is not only an importer on one occasion. She is a conspirator to import on several other occasions. While none of these cases I have reviewed has identical circumstances as those before me, I am assisted by the following authorities.
[49] In R. v. Mensah (2003) 2003 57419 (ON CA), 170 O.A.C. 244, the Court of Appeal determined that a fit sentence for importing 1.038 kg of heroin was about 9 years for a first offender.
[50] In R. v. Chan, 2003 52165 (ON CA), [2003] O.J. 3233, the Court of Appeal upheld a 10 year sentence for an attempted importation of 6 kg of heroin.
[51] In Kusi, the Court of Appeal upheld a 10 ½ year sentence for the importation or 1.37 kg of heroin. The offender was a first offender and pleaded guilty.
[52] In Sidhu, the Court of Appeal increased the sentence to 14 years and 9 months imprisonment for an offender who imported 9.56 kg of heroin into Canada. He was a youthful first offender and was described by the court as lacking in sophistication.
[53] In R. v. Kwok, 1986 4726 (ON CA), [1986] O.J. No.1194 (C.A.), the Court of Appeal considered an appeal against an 18 year sentence for importing heroin. The offender was an overseer who supervised a courier. The courier had 7.7 pounds (3 ½ kg) of heroin in his suitcase and was sentenced to 13 years. Finding the differentiation between the two sentences too great, the Court reduced the overseeing offender’s sentence to 15 years.
[54] In R. v. Thambiah, [1987] O.J. No. 1025 (C.A.), the Court of Appeal upheld a 15 year sentence for a first offender courier following a guilty plea. The offender had been hired to bring about 30 pounds (13.6 kg) into Canada
[55] There is no doubt in my mind that Ms. Murororunkwere’s role was much more significant than that of a one-time courier. She facilitated and arranged for two couriers to travel to three different African countries (Kenya, Uganda and Tanzania) in order to bring heroin into Canada on four occasions and into the United States once. Twice, when the importation was into Canada, she organized for the heroin to be transported to the United States. She was an active participant in a sophisticated international drug importation scheme. I find that her culpability is high – much higher than that of a courier. Her sentence must reflect the very serious nature of her repeated conduct.
[56] In all of these circumstances, I agree with the Crown that the appropriate range of sentence for the offences committed by Ms. Murororunkwere is 14 to 18 years.
c) Ms. Murororunkwere’s Personal Circumstances
[57] A significant issue for me to decide is whether Ms. Murororunkwere’s personal circumstances are so exceptional as to warrant departing from the usual range or sentence. Mr. Robichaud submits that to be exceptional, there is no need to establish any link between Ms. Murororunkwere’s personal circumstances and the offences she has committed. He says that her personal circumstances alone create an exceptional mitigating circumstance. No authority was provided to support this position.
[58] In response, Mr. Leising says that from the perspective of the Canadian public, Ms. Murororunkwere’s personal circumstances are aggravating. He says that after tragic circumstances, Ms. Murororunkwere found her way to Canada and has benefitted as a refugee, citizen and recipient of health care and social assistance. With all these benefits, she has chosen to “poison” the citizens who embraced her by importing drugs, using her criminal underworld contacts in Africa.
[59] I find the position of the defence is troubling. I fail to see how the fact that this offender’s life was marked by horrific circumstances 18 years ago becomes a circumstance that warrants a reduction of sentence below the normal range now, when there is no evidence of any connection between the terrible past and the offences committed.
[60] Having carefully considered this argument, I do not accept that there is a principled basis in this case to depart below the usual range.
[61] The Court of Appeal dealt with what I find to be similar circumstances in R. v. Shahnawaz, [2001] O.J. No. 4151 (C.A.); leave dismissed [2001] S.C.C.A. 24. In that case, the Court considered a Crown appeal from the imposition of a conditional sentence for four counts of trafficking in heroin.
[62] The trial judge in that case recognized that the appropriate range was 9-12 years for the offences committed by the offender, but found that the offender’s exceptional personal circumstances warranted leniency. The offender had been raised in Afghanistan, arrested for political reasons at the age of 17, and imprisoned for three years, during which time he was subjected to horrific and repeated torture. He suffered from post-traumatic stress disorder and chronic depression. The trial judge concluded that after a lengthy penitentiary term, the offender would be more dysfunctional and less able to cope with the stresses of life. She concluded that judicial clemency should be exercised because of the effect that jail would have on the offender.
[63] The majority of the Court of Appeal found that the trial judge had erred. Writing for herself and Justice Osborne, Charron J.A., as she then was, set aside the conditional sentence and substituted a term of six years. She stated:
[31] In my view, the trial judge erred in considering the treatment of Mr. Shahnawaz’s psychological condition as the crucial factor in his rehabilitation in the absence of any evidence that his psychological disabilities played any role in the commission of the offences. Rehabilitation as a goal of sentencing is not the restoration of an offender’s physical and mental health but his reinstatement as a functioning and law-abiding member of the community. It is in this sense that rehabilitation of the offender serves to protect society…
[32] In this case, there is no connection between Mr. Shahnawaz’s post-traumatic stress disorder and his illegal drug activities. The situation would be otherwise if, for example, Mr Shahnawaz’s involvement in the offence was due to an addiction to heroin. In such a case, the treatment of the addiction would have a direct bearing on is rehabilitation and its availability could indeed become the focal point for sentencing…
[33]…Mr. Shahnawaz’s post-traumatic stress disorder becomes irrelevant to the assessment of his moral culpability…
[34] What we are left with as a relevant factor for consideration is the evidence, accepted by the trial judge, that imprisonment had and would probably continue to have an “extreme effect” on Mr. Shahnawaz. Given this fact, it becomes necessary to adjust the sentence imposed on this particular offender so as to ensure that it does not become disproportionate to his crime…[emphasis added]
[64] I understand from this decision that for an offender’s personal circumstances to be so exceptional as to warrant departing from the normal range of sentence, there needs to be some link between the offender’s history and one of the relevant principles of sentencing. In the absence of such a link, an offender’s personal history, regardless of how unfortunate it may be, remains a relevant factor to be considered in imposing an appropriate sentence on a particular offender.
[65] In this case, unlike Shahnawaz, I have very little evidence, other than the hearsay account of Ms. Kata, about Ms. Murororunkwere’s history. She has chosen to provide no evidence herself about her personal history. Perhaps more importantly, even if I accept everything said by Ms. Kata, there is no evidence before me as to the effect of that history. This, again, is in stark contrast with the case of Shahnawaz. For the purposes of sentencing, I am prepared to accept the version of events of Ms. Murororunkwere’s history between following the 1994 Rwandan genocide that Ms. Kata has provided.
[66] I am not persuaded, however, that on the basis of this information I should impose a sentence that is below the usual range. In reaching this conclusion, I rely on both the absence of any link between the offenses and Ms. Murororunkwere’s history, and on the comments of the majority of the Court of Appeal Shahnawaz.
[67] At the same time, I am not prepared to find that Ms. Murororunkwere’s personal circumstances are aggravating as suggested by the Crown. I find that she has had a very unfortunate past and that this is, to some degree, a mitigating factor on sentencing. Certainly, it is a factor for me to considering in determining a fit sentence, having regard to the principles of sentence to which effect must be given.
d) Mitigating and Aggravating Factors
[68] The mitigating circumstances in this case are the following:
• Ms. Murororunkwere has no previous criminal history;
• Ms. Murororunkwere has widespread support in her community. She has been an active member of the community, providing to friends and family both encouragement and support;
• Ms. Murororunkwere has a history of actively volunteering in her community as detailed above;
• Ms. Murororunkwere is the sole parent to her university-aged daughter.
• Ms. Murororunkwere has significant health concerns including HIV, hepatitis B and recurring genital herpes;
• Ms. Murororunkwere came to Canada as a refugee having seen member of her family members killed in the Rwandan genocide and having been abducted, raped and beaten herself.
[69] I find that the following factors are aggravating:
• There was 2.5 kg of heroin imported in March 2011;
• The value of the heroin imported in March 2011 was between $200,000.00 and $750,600.00;
• Ms. Murororunkwere was involved in a sophisticated international plan to import heroin that resulted in successful importations into Canada on three occasions, a successful importation into the United States, and a plan for a further importation into Canada in March 2011;
• Ms. Murororunkwere’s importation was solely for personal gain.
e) The Sentence to be Imposed
[70] Ms. Mukandori received a sentence of six years following her guilty plea to importing heroin. The Crown suggests that this was a very lenient sentence. I agree.
[71] Having considered the case law and all of the circumstances of these offences and this offender, I conclude that a fit overall sentence for Ms. Mururorunkwere is 15 years incarceration. I would break this down as 15 years, less pre-sentence credit for count 2, the conspiracy to import heroin count. I would impose a slightly lower sentence of 12 year, less pre-sentence custody, for the single importing offence, to be served concurrently.
f) Ancillary Orders
[72] The Crown seeks a s. 109 order. Mr. Robichaud takes no issue with such an order. Under s. 109(1)(c), a s. 109 order is mandatory following a conviction under s. 6(1) of the Controlled Drugs and Substances Act. In accordance with s. 109(2) it shall be for ten years.
[73] The Crown also seeks a DNA order under s. 487.051(3)(b). Mr. Robichaud takes no issue with such an order. While Ms. Murororunkwere has no criminal record her offences involved a degree of sophistication. She has international connections to the drug trade in Kenya, Uganda and Tanzania as well as in the United States. I conclude that it is in the best interests of the administration of justice to make the DNA order requested.
g) Pre-sentence Custody
[74] Ms. Murororunkwere has been in custody since she was found guilty by the jury on October 1, 2015. As of today, she has served 133 days. Applying the usual 1:1.5 credit, she should receive credit for 200 days. This will be deducted from the sentences of 12 years for count 1 and 15 years for count 2.
Conclusion
[75] Ms. Murororunkwere is sentenced to 11 years and 165 days (after credit for pre-sentence custody) for importing heroin (count 1) and to 14 years and 165 days (after credit for pre-sentence custody) for conspiracy to import heroin (count 2). The sentences for counts 1 and 2 are to be served concurrently.
[76] There will be a s.109(2) order and a DNA Order.
Woollcombe J.
Released: February 10, 2016
CITATION: R. v. Murororunkwere, 2016 ONSC 1039
COURT FILE NO.: CR-14-00081-0000
DATE: 2016 02 10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
AGNES MURORORUNKWERE
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REASONS FOR SENTENCING
WOOLLCOMBE J.
Released: February 10, 2016