I. INTRODUCTION

[1]. Mr. Henneh has pleaded guilty to three counts of trafficking heroin. Subsequent to his plea Mr. Henneh applied for a stay of proceedings based on the fact that he had been entrapped. In separate reasons, I dismissed that application.

II. CIRCUMSTANCES OF THE OFFENCE

[2]. Operating a dial-a-dope operation, Mr. Henneh sold 0.82 grams; 0.91 grams and 6.9 grams of heroin to an undercover police agent. He told the undercover agent that he could sell him significantly more heroin if he wanted. Mr. Henneh was 57 years of age at the time of the offence, Mr. Henneh did not use drugs, and there is no dispute that this offence was entirely commercial in nature.

III. POSITIONS OF CROWN AND DEFENCE

[3]. The Crown submits that the appropriate sentence in this case is 4 years incarceration even after allowing for time served in terms of the restrictive bail Mr. Henneh has been on. The defence argues that the appropriate sentence is 2 to 2.5 years and that Mr. Henneh should be credited with 1 year of time served because of his restrictive bail.

IV RELEVANT PRINCIPLES OF SENTENCING

[4]. The purpose and principles of sentencing are set out in s. 718 of the Criminal Code. Generally speaking, the fundamental purpose of sentencing is to foster respect for the law and to maintain a just, peaceful and safe society. The court attempts to achieve this purpose by imposing just penalties that have one or more of the following objectives:

(1) denouncing unlawful conduct [s. 718(a)];

(2) deterring this offender and others from committing offences [s. 718(b)];

(3) imprisoning offenders where necessary to separate them from law-abiding members of society [s. 718(c)];

(4) assisting in rehabilitating offenders and in appropriate circumstances encouraging their treatment [s. 718(d)];

(5) providing reparation for harm done to victims of the community [s. 718(e)]; and

(6) promoting in offenders a sense of responsibility for and acknowledgement of the harm they have done to victims and to the community [s. 718(f)].

[5]. Section 718.1 of the Criminal Code provides that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and to the degree of responsibility of the offender. Section 718.2 of the Criminal Code also requires the court to take into account other principles, including these:

(a) that a sentence may be increased or decreased depending upon the presence of any relevant aggravating or mitigating circumstances relating to the offence or to the offender [s. 718.2(a)];

(b) that a sentence should be similar to those imposed on similar offenders for similar offences committed in similar circumstances [s. 718.2(b)];

(d) that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances [s. 718.2(d)]; and

(e) that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

[6]. By including these last two principles within the Criminal Code, Parliament has directed courts in effect to consider imprisonment as a last resort.

[7]. In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 the Court held at para. 43:

The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft a sentence that is tailored to the nature of the offence and the circumstances of the offender. The determination of a "fit" sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case. [Citations omitted.] No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences. The judge's discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law.

[8]. The principles of sentencing that are most relevant in this case are denunciation and deterrence, both general and specific. However, I acknowledge that given Mr. Henneh’s age, the fact that he had no prior relevant criminal record, and that he has not committed any criminal offences since his arrest on April 17, 2012, the need for general deterrence is lessened in this case.

V. CIRCUMSTANCES OF THE OFFENDER

[9]. Mr. Henneh is 62 years old. He was born in Ghana and came to Canada in 1984, becoming a Canadian citizen in 1997. He is a bricklayer by trade. He works five days a week as a bricklayer with Tonrock Construction. His wife of 19 years is a nurse and they have four children: Benjamin (17), Gertrude (16), Daniella (12), and Juliet (11). Mr. Henneh does not live in the family home at this time, but equally splits parenting duties with his wife, and does the necessary work to maintain the home. He also has two children outside of the marriage as well as three brothers and a number of cousins living in the GTA.

[10]. Mr. Henneh has been an active member in a Ghanaian community support organization since the 1990’s. The overall name of it is Ghana Union Association, but it is segmented into sub-associations based on the region of origin of the various segments of the Ghanaian community. Mr. Henneh was Chairman of the Brong/Ahafo Association for three years. His duties included soliciting funds from NGO’s in order to help various communities in Ghana and organizing fundraising events. As a regular member, Mr. Henneh donates money, assists in the collecting of donated clothes and other items to be sent to Ghana, and generally assists with fundraising functions.

[11]. Since being charged and released on bail, Mr. Henneh has focused on his relationship with his children and on working when he’s been allowed to do so. The time spent on house arrest made it difficult to advance anything along in his life, even when he was able to work. The charges have been a constant source of stress, anxiety, and uncertainty.

[12]. Mr. Henneh has felt deep embarrassment and shame in the eyes of his family and community since being charged. He’s felt regret since committing the offences, and remorse for doing something that made him part of the problem for other people in this city. Beyond shame and embarrassment, the charges had a very real immediate effect upon Mr. Henneh. His hometown in Ghana is headed by a traditional village chief. Matrilineage determines eligibility for this position, but the chief is ultimately selected among the eligible by a council of elders. After the town’s chief died, Mr. Henneh had been chosen by the council to be the next chief, but had not yet been installed as chief when these charges arose. Word gets around quickly in Ghanaian community, and very soon the fact of being charged disqualified Mr. Henneh from being chief. One of his brothers was installed as chief instead. This was a clear expression of disgust and dishonour from the community toward Mr. Henneh because of what he had done.

[13]. After Mr. Henneh’s brother was installed as chief, Mr. Henneh worked to support his brother in his responsibilities as chief, which included giving advice in zoning decisions and liaising with the central government, and collecting goods to send to the town for free distribution.

VI. MITIGATING AND AGGRAVATING FACTORS

[14]. In this case there are several serious aggravating circumstances:

Heroin is one of the most serious narcotics that can be sold. Our courts have long recognized the dangers involved in heroin use and the destructive potential that they have on the broader community.
The fact that this is a purely commercial enterprise.
The fact that Mr. Henneh repeatedly sold heroin to the undercover agent in increasing amounts and indicated that he had the ability to sell even larger amounts of heroin.
The fact that this is a dial-a-dope operation makes this a more serious form of trafficking. While our Court of Appeal has not addressed this issue, I agree with the lengthy line of cases decided by the British Columbia Court of Appeal that suggest that this form of trafficking is more serious: R. v. Le 2016 BCCA 155; R. v. Oates, 2015 BCCA 259; R. v. Tran, 2007 BCCA 613; R. v. Franklin, 2001 BCSC 706; R. v. To (1998), 109 B.C.A.C. 242.

[15]. However, there are also several mitigating circumstances:

He had one prior criminal conviction for impaired driving in 1994. He has otherwise lived a good life and these offences are very much out of character;
He has a supportive family;
He has filed several letters attesting to his otherwise good character; and
He has been positively involved in the Ghanaian community in Toronto and that community continues to support him.

VII. THE APPROPRIATE SENTENCE

[16]. In determining what sentence I should impose I must consider what credit to give Mr. Henneh for the strict bail he was on since his arrest on April 17, 2012. While time spent on bail under house arrest conditions must be taken into account by the sentencing judge, there is no rigid formula to be applied in reducing the sentence, given the wide variation in release conditions: R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555 (C.A.), at para. 34. In Downes, the accused, who had been on bail for 18 months under a fairly strict house arrest, was awarded five months' credit towards his sentence. In R. v. Phronimadis, [2006] O.J. No. 3992 (C.A.), the accused was given eight months' credit for 31 months of restrictive bail conditions. At para. 2, the Court emphasized that no "formulaic approach to sentencing credit for a lengthy period of pre-sentence house arrest is envisaged by Downes" but rather that the determination of what, if any credit should be given "must be case specific." Thus it is clear that the credit to be afforded to the accused is a matter of discretion for the sentencing judge. The overriding consideration will generally be the impact of the conditions for release on the accused.

[17]. In this case Mr. Henneh was arrested on April 17, 2012. He was released on a house arrest bail that permitted no exception for work, although he could be out of the residence in the company of a surety. On January 17, 2013, his bail was varied to permit him to go to work. On January 30, 2015, his bail was varied eliminating the house arrest aspect of the release. On February 18, 2016, as a result of other criminal charges that have since been withdrawn, Mr. Henneh entered a new global bail that contained no exception for work. On November 15, 2016, his bail was varied to permit him to again go to work. So in total, Mr. Henneh was on a house arrest bail for 3 years, 10 months and 9 days and he was not permitted to go to work for 2 years and 24 days of that time.

[18]. I consider the house arrest conditions of Mr. Henneh’s bail to have been very strict, especially where he was not permitted to work. In the circumstances of this case, I will give Mr. Henneh credit of 1 year towards his sentence.

[19]. I agree with the Crown that an offence of this nature would usually require a penitentiary sentence in the range of 4 years. However, in this case, I think that the need for general deterrence has largely been met. I also accept that Mr. Henneh is genuinely remorseful for his actions. He expressed this when he spoke to the Court. He was trying to get his family out of a bad part of Toronto and he decided to do this by engaging in trafficking. I accept that he is sincere when he says that he deeply regrets becoming part of the problem he was trying to escape.

[20]. In the circumstances of this case, I think a fit sentence would be three and a half years. Subtracting the credit of one year for Mr. Henneh’s bail, this will leave a sentence of two and a half years.

[21]. I will also impose a weapons prohibition under s. 109 of the Criminal Code for ten years and will make a DNA order. A forfeiture order is also appropriate in this case and I shall make that order once counsel have provided me with a written order.

T. DUCHARME J.

Released:

Citation: R. v. Henneh, 2017 ONSC 5499

Court File No. CR-14-90000184-0000

Date: 20170915

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Plaintiff

and –

DANIEL HENNEH

Accused

REASONS FOR SENTENCE

T. DUCHARME J.

Released: September 15, 2017

R. v. Henneh, 2017 ONSC 5499

Case Summary

I. INTRODUCTION

II. CIRCUMSTANCES OF THE OFFENCE

III. POSITIONS OF CROWN AND DEFENCE

IV RELEVANT PRINCIPLES OF SENTENCING

V. CIRCUMSTANCES OF THE OFFENDER

VI. MITIGATING AND AGGRAVATING FACTORS

VII. THE APPROPRIATE SENTENCE

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 1

Legislation 4