CITATION: R. v. Sterling, 2017 ONSC 183
COURT FILE NO.: CrimJ (F) 758/15
DATE: 2017 01 12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
M. Dykstra, for the Crown
- and -
KENESHA VENETIA STERLING
C. Robb, for the Defence
Defendant
HEARD: January 5, 2017
REASONS FOR SENTENCE
Bielby J.
Overview
[1] The offender herein, Kenesha Venetia Sterling, entered a plea of guilty to the charge of importing cocaine into Canada, contrary to section 6(1) of the Controlled Drugs and Substances Act.
[2] The plea of guilt was made after the jury had been selected and before the Crown commenced its case.
The Facts
[3] On June 15, 2014, the offender landed at the Pearson International Airport in Toronto on a flight from Jamaica.
[4] The offender was directed to the secondary inspection area where ultimately 758 grams of cocaine were located in her bra.
[5] The cocaine seized had a purity of 70%.
[6] The offender initially lied to the Canadian Border Service Agent when asked if she was carrying drugs. After the drugs were found the offender provided an inculpatory statement. In fact, she asked to speak to the agent to whom she had lied for the purpose of apologizing.
[7] The cocaine had a street value of around $75,000 and the offender was to be paid $500 up front and $4,000 on her return.
Circumstances of the Offender
[8] The offender is 27 years old, and is single with no dependents. The Crown did not file a criminal record, although it would appear the offender was previously convicted of theft under $5,000 and was given a suspended sentence and a year’s probation (as noted in the Pre-Sentence Report (PSR)).
[9] There is no doubt the offender is extremely remorseful for her attempt to smuggle cocaine into the country. At the sentencing hearing the offender personally apologized to the court without excuse and recognized the gravity of her crime.
[10] The offender was the subject of a pre-sentence report. She is held in high regard by her family and friends. She is currently employed as a server at a bar/restaurant.
[11] One of the sources noted in the PSR is RCMP Constable Panzer who stated in reference to the offender, “The subject is a good person who made a stupid mistake and I believe she has learned her lesson.” He added, “Jail time would probably be a dis-service to her.”
[12] The author of the PSR described the offender as remorseful, forthcoming and open. Family sources were said to describe the offender as “a go-getter, ambitious, kind, loving, very giving, straight forward and a good girl’.
[13] Clearly the offender makes a good impression on those with whom she comes into contact with. There is no evidence such an impression is unwarranted.
[14] The PSR also refers to the offender’s use of marijuana and her possible abuse of alcohol in the past.
[15] Exhibits 2 and 3 to the sentencing hearing are letters from the offender’s employers. Both indicate that she will be welcomed back as an employee upon her release.
Impact on the Victim and/or Community
[16] Very little needs to be said about the cost to the community of the importation and trafficking in cocaine. The community as a whole becomes a victim. As stated by Doherty J. in R. v. Hamilton (2004) 2004 CanLII 5549 (ON CA), 186, C.C.C. (3d) 129 (Ont. C.A.) and referenced at paragraph 8 of Durno J.’s decision in R. v. Gordon-Cummins 2013 ONSC 5901, I quote,
“The importation of dangerous drugs like cocaine and others found in Schedule 1 of the Controlled Drugs and Substances Act has always been considered among the most serious crimes known to Canadian law…The use and sale of cocaine kills and harms both directly and indirectly. The direct adverse health effects on those who use the drug are enormous and disastrous. Cocaine sale and use is closely and strongly associated with violent crime(s). Cocaine importation begets a multiplicity of violent acts. Viewed in isolation from conduct which inevitably follows the importation of cocaine, the act itself is not a violent one in the strict sense. It cannot, however, be dissociated from its inevitable consequences.”
Legal Parameters
[17] The maximum sentence for this crime is life imprisonment, an indication of the significant moral culpability of those who import drugs.
Positions of Crown and Defence
[18] The Crown seeks a jail term of 2.5 years although at the same time submitting that the Ontario Court of Appeal has established a range of 3-5 years, for a first time offender in relation to the importation of cocaine of less than a kilo.
[19] In suggesting a sentence less than the minimum range the Crown, it seems, recognizes the unique circumstances surrounding the offence and the offender.
[20] The Crown also seeks a weapons prohibition order pursuant to section 109 of the Criminal Code of Canada and an order requiring the offender to provide a DNA sample.
[21] Defence counsel submits a term of two years is an appropriate sentence.
[22] Counsel for the offender asks me to take into account her client’s remorse and plea of guilty.
Case Law
[23] R. v. Madden (1996) 1996 CanLII 10228 (ON CA), 27 O.R. (3d) 640 is a decision of the Ontario Court of Appeal. In this decision the court stated that the appropriate range of sentence for a youthful first offender is 3-5 years for importing cocaine in the amount of a kilogram or less.
[24] In R. v. Tracy-Ann Spencer [2004] ONCA 5550, the trial judge sentenced a single woman who was a first time offender to two years less a day for importing 733 grams. On appeal, the Court of Appeal increased the sentence to 40 months citing the range set out in R. v. Madden.
[25] In the Gordon-Cummins case the offender had imported into Canada 2.2 kilograms of cocaine hidden in her luggage. The offender was young without a criminal record and entered a plea of guilty.
[26] Durno J. sentenced the offender to five years imprisonment.
[27] From paragraph 22 I quote,
“For a very few number of offences, our Court of Appeal has provided ranges of sentences. One of the offences for which they have provided ranges is the importation of cocaine. There are three: in the area of a half kilogram up to a kilo, more or less, is around two years to five years; a kilogram, more or less, three to five; and multi-kilos, six to eight years. However, the range is really a starting point with respect to sentence. In terms of another area where there are ranges, our Court of Appeal has said ranges are not embedded in stone. Given their nature as guidelines only, I do not view them as being fixed in law as is the case with binding legal principles. The Supreme Court of Canada said it would be wrong to assume there is a precise range that will apply in every case. And of particular importance, in Hamilton, Justice Doherty spoke about fixing sentences in a case that dealt in with the importation of cocaine.
Fixing the range of sentence for a particular offence, of course, does not determine the sentence to be imposed on a particular offender. The range is in large measure a reflection of the “objective seriousness” of the crime. Once the range is identified, the sentencing judge must consider specific aggravating and mitigating factors. The mitigating factors may be so significant as to take the case below the otherwise appropriate range.”
[28] Defence counsel provided me with three authorities.
[29] R. v. Hamilton 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1, is a decision of the Ontario Court of Appeal and is a case involving the importation of cocaine. Counsel relies on this case in regards to the purity of the cocaine seized from Ms. Sterling.
[30] At Note 2 on page 32 the Court stated that purity adjusted weight is determined by multiplying the weight of the drug by the purity stated as a percentage. Counsel for Ms. Sterling states therefore that the purity weight of the cocaine imported by her client was 530.6 grams.
[31] From paragraph 153 of the Hamilton case I quote,
“In so holding I do not suggest that the purity of the drug is irrelevant. If the weight of the cocaine imported brings it within the Madden range, its purity will have some relevance to the determination of where in the range the sentence should fall. In cases where the purity is low and the weight near the bottom end of the ‘a kilogram more or less’ amount referred to in Madden, the offence may fall outside of the Madden range entirely.”
[32] R. v. Ebanks 2012 ONSC 5002, [2012] O.J. No. 4619, is a decision of Baltman J. in which an accused was convicted of importing 406 grams of cocaine from Jamaica. The accused was a young single female with no criminal record.
[33] Baltman J. sentenced the accused to two years imprisonment taking into account as a mitigating factor that the accused was the subject of police misconduct. At paragraph 48 the judge noted that for approximately 0.5 kilo of cocaine the Court of Appeal has provided a range of 2-5 year’s imprisonment. She opined that a reasonable sentence would be 2.5 years and reduced it by six months because of the police misconduct.
[34] In R. v. Rosales [2001] Q.J. No. 919, the accused pleaded guilty to importing three kilos of ecstasy pills. Defence counsel asks me to consider this case as the facts are very similar to the circumstances before me, notwithstanding the jurisdictional issues and the difference in the type of drug.
[35] A global sentence of 30 months was imposed. From paragraph 16 I quote,
“The Court finds that the decisions are to the effect that the sentence must fit the crime, the person, and the circumstances of the community; and that sentences are to be individualized, while avoiding unjustified disparities.”
Mitigating and Aggravating Factors
[36] I find that the nature of the drug to be an aggravating factor. The offender does have a minor criminal record unrelated to drugs and for the purpose of this sentencing I will treat her as a first time offender.
[37] In regards to mitigating factors, I am taking into account the offender’s age, the offender’s remorse and the fact the she entered a guilty plea, albeit after the jury was selected.
[38] As did Durno J. in the Gordon-Cummins judgement (para.12), I accept that the offence is out of character for the offender. It would appear the offender was suffering from significant financial issues.
[39] I also consider as a mitigating factor the fact that, once arrested, the offender asked to speak to the original CBSA officer to whom she denied carrying drugs. Clearly it was important to her to apologize for lying.
Principles of Sentencing
[40] The principles of sentencing to be considered with respect to these circumstances are denunciation and deterrence, more so in this case, general deterrence.
[41] There is no doubt that any matter involving the importation of cocaine calls for a period of incarceration.
Reasons and Final Decision
[42] I accept that, as stated in Gordon-Cummins, that the sentencing range for the importation of cocaine in the amount of 0.5 kilo to 1 kilo is two to five years. Therefore sentences suggested by both counsel are at the lower end of that range. However, even if the range is said to be 3-5 years, such ranges are not etched in stone. Given the circumstances of this case, the purity of the cocaine and the submissions of counsel, a sentence of less than 3 years is appropriate.
[43] From a principled, legalistic point of view, the difference between a sentence of two years and one of 2.5 years is not very significant, although the six months difference is, no doubt, significant to the offender.
[44] The offender clearly has a real sense of what is right and what is wrong. I accept that she recognizes the stupidity of what she attempted to do and is genuinely remorseful. Further, as noted above, I am particularly impressed that the offender sought out the CBSA officer to whom she had lied to offer an apology. While perhaps a small gesture, it provides insight as to the character of the offender.
[45] For these reasons, I will accept the submissions of defence counsel and sentence the offender to two years in jail. In doing so I accept that the offender made one error in judgment, an error she will not likely make again. If I am wrong and she comes back before the court on a similar charge, she will be treated as someone who traffics and transports drugs and will be, if found guilty, sentenced as such.
Ancillary Orders
[46] The offender is ordered to provide a DNA sample.
[47] A weapon prohibition order will issue pursuant to section 109 of the Criminal Code.
Bielby J.
Released: January 12, 2017
CITATION: R. v. Sterling, 2017 ONSC 183
COURT FILE NO.: CrimJ (F) 758/15
DATE: 2017 01 12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
KENESHA VENETIA STERLING
Defendant
REASONS FOR SENTENCE
Bielby J.
Released: January 12, 2017