Court File and Parties

Citation: R. v. Varga, 2017 ONSC 7671 Court File No.: CRIMJ(F) 1399/16 Date: 2017-12-21

Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Madison Varga

Counsel: M. Dykstra, for the Crown M. Owoh, for the accused

Reasons for Sentence

Barnes J.

[1] Ms. Varga was convicted by a jury of importing cocaine into Canada contrary to section 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA). After hearing the submissions of counsel, I sentenced Ms. Varga to 7 years’ incarceration, imposed a section 109 Criminal Code, R.S.C. 1985, c. C-46 weapons prohibition for 10 years and ordered that she provide a DNA sample pursuant to the provisions of the Criminal Code. These are my reasons for the above sentence and ancillary orders.

Background Facts

[2] At approximately 7:10 p.m. on December 10, 2014, Madison Varga and Michael Taylor arrived together at Toronto Lester B. Pearson International Airport in Mississauga, Ontario on board a flight from Montego Bay, Jamaica.

[3] Both Ms. Varga and Mr. Taylor were referred to the secondary examination area for further examination. Mr. Taylor’s luggage was examined. Several packages of food products containing cocaine were found. Ms. Varga’s luggage was examined. Cocaine was found concealed in food packaging. The total weight of cocaine in Mr. Taylor and Ms. Varga’s luggage was between 6.9 kg and 8.465 kg. The estimated street value of this amount of cocaine is between $400,000 and $900,000.

Law

[4] Rehabilitation, deterrence and denunciation are important sentencing principles: Criminal Code s. 718; CDSA s. 10. The primary sentencing principles in narcotics importation cases is deterrence and denunciation: R. v. Gordon-Cummins, 2013 ONSC 5901, [2012] O.J. No. 6594 at paras. 18-19.

[5] As a general principle, first time offenders who import large amounts of cocaine in excess of one kilogram should be sentenced to between 6 to 8 years in custody: R. v. Cunningham (1996), 27 O.R. (3d) 786 (C.A.) at p. 8; R. v. Zeisig, 2016 ONCA 845, 134 W.C.B. (2d) 110 at para. 13; R. v. Potts, 2016 ONSC 459, 127 W.C.B. (2d) 180 at paras. 42-55.

[6] Time spent under stringent bail conditions, such as house arrest, can be considered a mitigating factor in sentencing which may warrant the application of credit to the appropriate sentence. The circumstances of each case shall determine the amount of credit given or whether any credit shall be given: R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.) at paras. 36-37.

Position of the Parties

[7] The Crown seeks a sentence of 7 years’ incarceration, a DNA order and a weapons prohibition order for a period of 10 years. The defence concedes that the current case law and quantum of cocaine imported into Canada makes a sentence in the range of 6 to 7 years’ incarceration appropriate. However, the court is asked to consider that Ms. Varga has been subject to bail conditions for 2 years and 5 months. The defence submits that the time spent on bail is a mitigating factor warranting credit applied to the appropriate sentence, therefore, the sentence imposed should be reduced to 6.5 years. The defence takes no issue with orders for a DNA sample or a 10 year weapons prohibition.

[8] It is appropriate to consider the sentence imposed on Michael Taylor in assessing the appropriate sentence in this case, however, neither party made reference to Michael Taylor or the sentence he received in the Ontario Court of Justice. Therefore, I will not consider Mr. Taylor’s sentence as part of the assessment of the appropriate sentence for Ms. Varga.

Analysis and Sentence

[9] My analysis of the aggravating and mitigating factors in this case includes an assessment of the circumstances of the case and the offender.

[10] Ms. Varga’s mitigating factors include: her young age (21 years of age) at the time of the offence; her tumultuous childhood which included parents who divorced at a very early age and abusive relationships with her mother and step-parents; the fact that she lived on her own when she was 14 years old and continues to suffer from a serious addiction to alcohol and ecstasy that began at that time; the fact that she dropped out of school at a young age; her series of abusive relationships with older men; her self-esteem and overall health has suffered; her strong support of her immediate and extended family; her strong and supportive relationship with her fiancée; her intention to return to school; and the fact that her prospects for rehabilitation are good.

[11] The aggravating factors include: the deleterious and ravaging effects of cocaine on the individual and society and the large quantum of cocaine that was imported – between 6.5 to 8.5 kilograms.

[12] Ms. Varga does not get the benefit of a guilty plea in mitigation. The fact that she exercised her right to a trial is a neutral factor. Applying the sentencing range enunciated in Cunningham to the circumstances of this case and this offender, the appropriate sentence for this offence of importing multiple kilograms of cocaine is 7 years’ incarceration.

[13] In Potts, the accused were convicted by a jury of importing 7.86 kilograms of cocaine into Canada. Mr. Potts had spent over 2 years on bail under a restrictive house arrest condition. He was compliant whilst on bail. Bielby J. considered this as a mitigating factor and reduced the 7 year sentence to 6.5 years’ incarceration.

[14] In this case, Ms. Vargas’ bail condition required her to reside with her mother. There were no other restrictions placed on her. This restriction does not rise to the level considered in Downes as stringent. There is no basis to consider this as a mitigating factor warranting a reduction of the appropriate sentence.

[15] Ms. Varga is sentenced to 7 years’ incarceration. A section 109 Criminal Code weapons prohibition for 10 years is imposed. Pursuant to s. 487.051 of the Criminal Code, Ms. Varga shall provide a DNA sample.

Original signed by Justice Barnes

Barnes J.

Released: December 21, 2017

CITATION: R. v. Varga, 2017 ONSC 7671 COURT FILE NO.: CRIMJ(F) 1399/16 DATE: 2017 12 21

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – MADISON VARGA

REASONS FOR SENTENCE Barnes J.

Released: December 21, 2017