Court File and Parties
CITATION: R. v. Thevarajah, 2016 ONSC 6739
COURT FILE NO.: CR-14-90000527-0000
DATE: 20161129
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KEERTHIGAN THEVARAJAH
Accused
COUNSEL:
Chris Leafloor, for the Crown
Christopher Assie, for the Accused
HEARD: October 20, 2016
BEFORE: B.A. ALLEN J.
REASONS FOR DECISION ON SENTENCING
BACKGROUND
[1] Keethigan Thevarajah pleaded guilty to trafficking MDMA. The facts are that an undercover officer responded to an ad in Craigslist. In response to the officer answering the ad Mr. Thevarajah met the undercover officer. The officer gave Mr. Thevarajah $200 in exchange for 4.95 grams of MDMA. When Mr. Thevarajah was searched he was found to have only the $200 in his possession.
[2] Under the Controlled Drugs and Substances Act, MDMA is a Schedule I controlled substance as are cocaine and heroin. Under a 2012 amendment, section 742.1 of the Criminal Code made conditional sentences unavailable for convictions for certain offences including trafficking in a controlled substance.
[3] The Crown seeks a custodial sentence of six months and the defence seeks a suspended sentence or in the alternative an intermittent sentence of 30 days.
MITIGATING AND AGGRAVATING FACTORS
[4] The mitigating factors are the following:
• Mr. Thevarajah was a young 21 years when he committed the offence.
• He has no criminal record and no outstanding charges.
• He trafficked in a small quantity of MDMA, a drug that, while being a Schedule I substance, is not as pernicious as heroin and cocaine.
• He graduated from high school and attended the University of Toronto, studying political science for two years. He changed schools and enrolled at Centennial College where he is a full-time student in the Business Administration - Human Resources program.
• He has a history of employment from high school as a lifeguard to jobs at Costco and the restaurant Pickle Barrel. He currently works in his father’s catering business.
• He resides in a stable home with both parents and two younger siblings.
• He pleaded guilty and while the plea came not long before trial, he has expressed remorse before the court for his offence.
• Letters of support reveal Mr. Thevarajah has taken positive steps toward rehabilitation by distancing himself from old friends and becoming active in his religion at his Temple.
• He gave up smoking and drinking and there is no evidence of emotional or substance problems.
[5] The aggravating factors are:
• Mr. Thevarajah trafficked in a dangerous drug through an ad on a social media site which opened his activity to a broad spectrum of people, including young people.
• He sold the drugs on the street in a public place having used the broad reach of social media.
[6] It is clear the mitigating factors far outweigh the aggravating factors.
THE LAW
[7] With a suspended sentence the court imposes a sentence after conviction. The sentence is delayed to allow the offender to do a period of probation not exceeding three years. The offender is required to comply with the conditions of probation. If an offender breaches probation, the offender can be sentenced for the offence of breach of probation and the suspended sentence can be revoked.
[8] A sentencing court can look to a guiding principle in the Criminal Code when determining whether to impose a custodial or suspended sentence. Pursuant to s. 718.2(d) “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”. Further, s. 718.2(e) provides that “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”.
[9] The Ontario Court of Appeal set the appropriate range of sentencing for street level trafficking in cocaine to be six months to two years less a day. The court held that cases that involve larger quantity narcotics offences committed during probation should attract sentences at the higher end of the range: [R. v. Woolcock, [2002] O.J. No. 4927, at paras. 8 and 15, (Ont. C.A.)].
[10] With the elimination of conditional sentences for trafficking in controlled substances some trial judges have imposed suspended sentences: [R. v. McGill, 2016 ONCJ 138, [2016] O.J. No. 1346, at para. 61, (Ont. C.J.); R. v. Caputi, [2013] O.J. No. 6447, unreported (Ont. C.J.); R. v. Azeez, 2014 ONCJ 311, 2014 ONCJ 311 (Ont. C.J.); R. v. Moniz, unreported, 2015 (Ont. C.J.); and R. v. Duncan, [2016] O.J. No. 25 (Ont. C.J.)].
[11] However, generally in sentencing offenders convicted of trafficking in controlled substances, especially with the unavailability of conditional sentences, courts have tended to impose a custodial sentence. One court remarked that it is difficult to find a single reported case of a court suspending the sentence of an offender who was convicted of trafficking in Schedule I drugs like cocaine or heroin: [R. v. McGill, 2016 ONCJ 138, [2016] O.J. No. 1346, at para. 61, (Ont. C.J.)].
[12] In the rare case that a non-custodial suspension of sentence is imposed, the court has relied on the doctrine of “exceptional circumstances”.
[13] Cases that found exceptional circumstances include cases involving the following mitigating circumstances: rehabilitation after arrest [ R. v. Duncan, [2016] O. J. 25 (Ont. C.J.)]; a guilty plea to trafficking in cocaine [R. v. McGill, 2016 ONCJ 138, [2016] O. J. 1346 (Ont. C.J.)]; a guilty plea to trafficking in MDMA [R. v. Caputi, [2013] O.J. 6447 (Ont. C.J.); small amounts of drugs, post-conviction sobriety and no prior convictions for some of the accused [R. v. Voong, 2015 BCCA 285, [2015] B.C.J. No. 1335 (B.C.C.A.)]; no related record, rehabilitation, youthful offender [R. v. Dickey, [2015] B.B.J. No. 1465 (B.C.S.C.); affirmed [2016] B.C.J. No. 615 (B.C.C.A.)]; a guilty plea and rehabilitation [R. v. Carillo, [2014] B.C.J. No. 873 (B.C.C.A.)]; and a guilty plea, no criminal record, good prospects for rehabilitation [R. v. Orr, [2015] B.C.J. No. 1553 (B.C.P.C.)].
[14] The defence relies on the cases that have imposed non-custodial suspensions of sentence. In a case I decided recently I denied the defence’s request for a suspended sentence. However, in that case I distinguished it from cases that have found exceptional circumstances. In the case before me, the offender did not have a pro-social life; she was not seeking rehabilitation for drug addiction; she had a lengthy criminal record. I imposed a 30-day intermittent sentence and two years’ probation: [R. v. Irish, 2016 ONSC 4500 (Ont. S.C.J.)].
CONCLUSION
[15] Mr. Thevarajah impressed me as a person who truly regretted what he had done. It seems he fell prey in a weak moment to the lure of making easy money when he was financially strapped. The rest of his life seemed positive.
[16] Mr. Thevarajah has lived with his parents in a stable family environment. He is pursuing a post-secondary school education and has been consistently employed. He spoke and wrote to the court and offered a sincere apology for his criminal activity. He has made pro-social steps in his life towards his own rehabilitation. However, I think because of the seriousness of his decision at a young age to traffic drugs through social media and sell them to the public that he can benefit from the supervision of his probation officer during a period of probation.
[17] I realize this might be a case calling for a restriction on Mr. Thevarajah’s use of computers, iPads and cellphones since it was by using such devices to access Craigslist that led him to crime. However, I recognize that important to Mr. Thevarajah’s rehabilitation is continuing his post-secondary education. His program will most certainly require the use of a computer and the internet. In view of Mr. Thevarajah’s sincere presentation on sentencing, I trust he has learned a hard lesson and will not make the mistake of using his devices for any illegal or improper purposes.
[18] Mr. Thevarajah’s parents attended the sentencing hearing. It was evident from the distressed expressions on their faces that they were fretful about their son’s wellbeing and future. To support his son’s progress, the father has secured a job for his son in his catering business.
[19] I find this is an appropriate case for a suspended sentence with a one-year period of probation. I believe this sentence achieves the objectives of denunciation and deterrence, parity with similar cases and proportionality of the crime to the sentence. The sentence is in keeping with the principle enunciated in s. 718.2(e) which provides that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders”.
SENTENCE
[20] I will now pronounce sentence. Keerthigan Thevarajah, will you please stand?
[21] You have been convicted for trafficking in MDMA. You stand to be sentenced for that offence.
[22] I sentence you to a suspended sentence.
[23] I also sentence you to a probationary period of one year on the following conditions:
(a) You will keep the peace and be of good behaviour.
(b) You will appear before the court when required to do so by the court; and
(c) You will notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.
(d) You will report to a probation officer (i) within four working days, or such longer period as the court directs, after the making of the probation order, and (ii) thereafter, when required by the probation officer and in the manner directed by the probation officer.
(e) You will attend for and actively participate in, and to the satisfaction of your probation officer, any assessment, treatment or counselling as required by your probation officer and you will sign whatever consents or releases as may be required by your probation officer in order to monitor and verify compliance with said assessment, treatment or counselling and you will provide written proof of completion of said assessment, treatment or counselling to your probation officer.
(f) You will not own, possess or carry any weapons as defined by the Criminal Code.
(g) You will abstain from the consumption of drugs except in accordance with a medical prescription.
[24] In addition there shall be the following ancillary orders:
(a) A Criminal Code section 109 weapons prohibition for life.
(b) A forfeiture of the $200 seized from Mr. Thevarajah.
B.A. ALLEN J.
Released: November 29, 2016
CITATION: R. v. Thevarajah, 2016 ONSC 6739
COURT FILE NO.: CR-14-90000527-0000
DATE: 20161129
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KEERTHIGAN THEVARAJAH
REASONS FOR DECISION on sentencing
B.A. ALLEN J.
Released: November 29, 2016