CITATION: R. v. Uzondu, 2016 ONSC 7243
COURT FILE NO.: CR-15-1356
DATE: 2016 11 23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
V. Rivers, for the Crown
- and -
FAITH CHINWENDU UZONDU
G. Tomlinson, for the Defence
Defendant
HEARD: October 12, 2016
REASONS FOR SENTENCE
Bielby J.
Overview
[1] On July 27, 2016, I convicted the offender, Faith Chinwendu Uzondu, of, on June 9, 2015, having heroin in her possession for the purpose of trafficking, contrary to the Controlled Drugs and Substances Act. Three other charges were dismissed.
[2] A sentencing hearing was conducted on October 12, 2016.
The Facts
[3] In June, 2015, a package was intercepted by Canada Border Services and was found to contain 486 grams of heroin. The package was made up of a number of wooden dowels which were covered by bangles. The heroin was inserted into the dowels.
[4] The RCMP was notified and a controlled delivery was organized. On its face, the package was to be delivered to a Samuel John. It was to be delivered by TNT Delivery.
[5] On July 8, 2015 the offender called TNT and said she was the wife of Samuel John and provided her home address for the delivery of the package. The package was delivered to the address on July 9, 2015. The offender was not home so as pre-arranged by the offender, a second floor tenant signed for the package and left it on the stairs leading down to the offender’s apartment.
[6] Shortly thereafter the offender returned home and discovered the package. She then called a person by the name of Dan who had arranged for her participation in the delivery of the package. She was advised by Dan that someone else would attend at her home and take possession of the package.
[7] The offender hid the package behind the furnace. Subsequently the police exercised a warrant and entered the premises. The package was located and the offender arrested.
[8] The offender was to be paid $700 for her role.
[9] The expert report of RCMP Officer Corcoran was admitted on consent and therein the officer opined that the amount seized was possessed for the purpose of trafficking. This opinion was not challenged.
Circumstances of the Offender
[10] The offender has been in custody since July 9, 2015. She has resided in Canada since 2011, entering the country from Nigeria on a student visa. She left two children in Nigeria in the care of her mother who was financing the offender’s trip to Canada for the purposes of a higher education.
[11] The offender studied for one year at Durham College in Oshawa but then dropped out of school. The offender’s visa expired in 2012 which resulted in the offender making a refugee claim. She remained in Oshawa for a while but soon relocated in Toronto to live with her boyfriend.
[12] The offender got involved in fraudulent internet schemes which involved wire transfers and the collection of cheques. Her activities also involved the use and transfer of fraudulent credit cards and passports.
[13] In 2014, the offender was introduced to Dan and continued, with him, to participate in fraudulent activities. She would collect monies obtained through fraud and deposit the funds in accounts in her name. She would then withdraw the monies and pay them to Dan.
[14] The offender testified that a portion of the monies she earned was sent back to Nigeria to help support her children. Counsel for the offender argues that the offender, shortly after her arrival in Canada, was vulnerable and was taken advantage of by other individuals who used her for their illegal purposes.
[15] While this may be true to some extent, from the text messages received and the offender’s testimony the offender seemed to be a willing participant.
[16] In her pre-sentence report the offender denies responsibility and knowledge of the heroin. It is suggested therein that she is remorseful for the criminality in which she voluntarily participated.
[17] In her statement to the police the offender was very misleading, however, defense counsel submits that the lies did not cause the police to conduct a useless investigation and ultimately the offender told the police about Dan.
[18] Further, it is submitted that when the offender was in actual possession of the package there was only a very small amount of heroin contained therein as most of it had been removed by the police. The amount left in the package was about 5.5 grams.
Impact on the Victim and/or Community
[19] The impact of illegal drugs on the community needs no real explanation. It continues to tear at the social fabric of our nation. The cost of the damage done is horrendous. The costs are both in money and lives.
[20] Heroin is one of the hardest of drugs and one of the most addictive. Generally, for sentencing purposes the possession of heroin results in longer sentences than those imposed with respect to the other types of controlled substances.
[21] From the judgement of the Court of Appeal, in R. v. Pannu 2015 ONCA 677, para. 184, and in reference to the trial judge, I quote, “He also pointed out the highly addictive nature of the heroin, its promotion of other crimes to sustain it users’ habits and its ruination of lives and families.”
Legal Parameters
[22] Section 5(2) of the Controlled Drugs and Substances Act provides for a maximum sentence of life imprisonment for the possession of a controlled substance for the purpose of trafficking. The possibility of life imprisonment is an indication of the very serious nature of the offence for which the offender was convicted.
Positions of Crown and Defence
[23] The Crown seeks a sentence of five years. The Crown submits that the range of sentencing for a first offender in possession of .5 to 1 kilogram of heroin is six to 12 years. The Crown also requests the offender be ordered to provide a DNA sample which request was unopposed by defence counsel.
[24] The Crown submits that there is nothing exceptional or extenuating and while the circumstances are regrettable, a crime was committed.
[25] The offender was a low level participant in the movement of heroin and often such participation arises out of unfortunate circumstances.
[26] The Crown submits that the aggravating factors include the type of drug, and the amount of the drug. The offender was motivated by profit, also an aggravating factor.
[27] The Crown agrees that the offender should get credit for time served at the rate of 1.5 days for every day in custody pending sentence.
[28] Defence counsel submits that the appropriate global sentence would be two years less one day. He submits the offender has been in custody since July 9, 2015 and should get a credit of 1.5 days for each day in pre-trial custody, resulting in a sentence of time served.
[29] Defence counsel submits that his client should be subject to a three year probation order.
[30] As noted, defence counsel takes no issue with the request for a DNA order.
Case Law
[31] As referenced previously, R. v. Pannu, is a decision of the Ontario Court of Appeal. The trial judge had imposed, on each of the accused, a sentence of nine years for the possession of a kilogram of heroin for the purpose of trafficking. Neither accused had a criminal record. Both accused appealed the length of their sentence. The appeal was dismissed.
[32] The trial judge opined that the range of sentence was between six years and 12 years, for first time offenders.
[33] From paragraph 192 of the Court of Appeal’s ruling I quote,
“Second, the sentences imposed are within the range of sentence the appellants themselves concede is appropriate for first offenders convicted of possession of heroin for the purpose of trafficking. The sentences sit at the mid-point of the range the appellants says is apt, although some authority suggests that the appropriate range is nine to 12 years for similar amounts of heroin: R. v. Shahnawaz (2000) 2000 CanLII 16973 (ON CA), 149 C.C.C. (3d) 97 (Ont. C.A.), at para. 6.”
[34] The Appeal Court went on to say, at paragraph 193,
“But they were also found in possession of a substantial amount of a highly addictive drug. It is a reasonable inference that their possession was for financial gain. Nothing more. Nothing less. For those so inclined, the price upon conviction must be steep.”
[35] R. v. Kelsy [2008] O. J. No. 3879 is a decision of G. Trotter J., as he then was, of the Ontario Superior Court of Justice. The accused was convicted of a number of gun charges as well as possession of 34.42 grams of heroin for the purpose of trafficking. The accused was 24 at the time the crimes were committed and had no criminal record.
[36] The court found that the gun charges were an aggravating factor in considering the sentence for the possession charge. The court also took into account the almost five years the accused was under strict terms of bail pending trial. Further, during that time the accused had educated herself, and put herself in a better position to care for herself and her child.
[37] The accused was sentenced to jail for two years less a day.
[38] Counsel for the offender referenced two other authorities; R. v. Chan 2003 CarswellOnt 3115 (ONCA) and R. v. Giammarco 2012 CarswellOnt 2917.
[39] In the Chan case the RCMP intercepted a package containing six kilos of heroin. All was removed except for one gram and a controlled delivery was executed. At trial the accused, who was found to be in possession for the purpose of trafficking, was sentenced to ten years in jail. It was argued on appeal that when the appellant took possession of the package it only contained the one gram and that such a small amount is not sufficient to convict for the purpose of trafficking.
[40] The Court of Appeal rejected that argument stating at paragraph 27, that the quantity of the drugs possessed is not part of the actus reus of the offence. Regardless of the amount, if the intent of the possession is to traffic, then the offence is made out.
[41] In Chan the appellant argued that the trial judge erred in principle in imposing a sentence of ten years imprisonment. In regards to the actual amount of heroin in the package (one gram) when the appellant was found in possession the Court said, at paragraph 74,
“It is clear that, but for the intervention of the authorities, the appellant would have succeeded in his efforts to obtain possession of a much larger quantity of heroin than that which he actually received. Because of the appellant’s efforts were frustrated only as a result of that intervention, I see no reason for reducing his sentence in any significant way from that which would have been imposed had the appellant succeeded.”
[42] The Giammarco decision is that of Hourigan J., as he then was, of the Ontario Superior Court of Justice. This case also dealt with the RCMP interception of package containing an amount of heroin and the execution of a controlled delivery. The two accused were sentenced to five and six years in jail.
[43] In Giammarco it was argued by defence counsel that while their clients had no knowledge of the specific type of controlled substance in the package, the trial judge ruled that such wilful blindness is not a mitigating factor as the accused did not take any reasonable steps to understand the nature of the substance.
Mitigating and Aggravating Factors
[44] Ms. Uzondu readily admitted to her involvement in ongoing fraudulent schemes. She was paid by Dan to do whatever he requested, including taking delivery and having possession for the purpose of trafficking, a package containing a quantity of heroin. I find her participation in the fraudulent activities to be an aggravating factor.
[45] The type of drug seized, heroin, given its addictive qualities and its impact on society, is an aggravating factor.
[46] The planned circumstances of the offence I accept as an aggravating factor as well as the motivation for profit.
[47] Notwithstanding her admission of fraudulent activity the offender, it would appear, does not have a criminal record which is a mitigating factor, to some degree, notwithstanding that when arrested for this offence the offender was on bail in regards to a charge(s) relating to fraud. She will be treated as a first time offender.
[48] She was gainfully employed at the time of the offence and sent money home to support her two children. I accept those factors as mitigating in nature.
Principles of Sentencing
[49] Section 718 of the Criminal Code of Canada sets out the purpose of sentencing and lists the objectives to be considered by the sentencing judge.
[50] As noted in the Kelsy case, paragraph 35, the objectives to be emphasized in cases such as this, are denunciation and deterrence, both general and specific.
Reasons and Decision
[51] The offender, Faith Chinwendu Uzondu, had in her possession, for a short period of time, heroin and for sentencing purposes the amount of heroin to be taken into account is almost half a kilo.
[52] The possession was planned and deliberate and the offender was one person out of many, to participate in the scheme of trafficking in heroin. She was paid for her participation, which was akin to a drug mule.
[53] The nature of the offender’s role puts her at the low end of the heroin trafficking hierarchy. She was a conduit, used to insulate others from possibly arrest.
[54] I accept the submissions of the Crown that the case law suggests the appropriate range of sentence to be six to 12 years but accept the submission that given the amount of heroin involved was less than half a kilo, the sentence should be at the lower end of that range or even below.
[55] As noted by Trotter J. in Kelsy, other authorities suggest a very wide range and in Kelsy the accused was sentenced to two years less one day. Counsel for the offender relies on this case in support of what he believes to be the appropriate global sentence.
[56] With respect, I disagree with defense counsel. Given aggravating factors as determined by me, a longer sentence is appropriate.
[57] Taking all of the circumstances into account I believe a global sentence of four years is required but is subject to a credit for time served.
[58] In regards to a credit, I will grant it at a rate of 1.5 for every day of custody up to the date of sentencing. The offender has been in custody since July 9, 2015, which, to the date of sentencing amounts to 502 days. Accordingly, the offender is to get credit for 753 days in custody.
[59] I therefore sentence the offender to a further 22 months in jail.
[60] The offender is ordered to provide a DNA sample.
Bielby J.
Released: November 23, 2016
CITATION: R. v. Uzondu, 2016 ONSC 7243
COURT FILE NO.: CR-15-1356
DATE: 2016 11 23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
FAITH CHINWENDU UZONDU
Defendant
REASONS FOR SENTENCING
BIELBY J.
Released: November 23, 2016