Court File and Parties
COURT FILE NO: Crim J(F) 749/15 DATE: 2018 11 30 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN H. Akin, for the Crown
- and -
JAIME HODGE A. Mamo, for the Accused
HEARD: November 13, 2018
REASONS FOR SENTENCE
Lemon J.
The Facts
[1] Ms. Hodge was convicted by a jury of importing 1.34 kilograms of cocaine into Canada.
[2] It was agreed at trial that Ms. Hodge brought the cocaine into the country hidden in a suitcase that she brought from the Dominican Republic. The issue was whether Ms. Hodge knew that the cocaine was in her suitcase. The jury found that she knew that she was importing cocaine. The Crown did not rely on the principle of willful blindness to make its case.
[3] Given the conviction, I can safely find the following facts for the purposes of sentencing.
[4] On March 28, 2014, Ms. Hodge spoke with a CBSA officer at primary inspection at Pearson Airport on her return from the Dominican Republic. Based on her demeanour and the answers she gave to the officer’s questions, Ms. Hodge was forwarded for further examination.
[5] Ms. Hodge was then interviewed by a line officer in secondary customs inspection. Based on an inspection of Ms. Hodge’s luggage by sight and X-ray, the officer found a white powder in the bottom of the bag. He tested that substance for cocaine and it tested positive. Ms. Hodge was then arrested and transferred to the RCMP detachment at the airport. An RCMP officer took custody of her belongings, including the suitcase.
[6] The evidence from the RCMP officer was that he went through those belongings on March 29 and April 2. He described the packages of cocaine as less than 2 inches thick at both the top and the bottom of the bag. He could not detect them until he took the bag apart. They did not show a bulge in the lining either before or after the zipper lining was removed. It took him approximately 10 to 15 minutes to unscrew the wheels from the bottom of the bag in order to access the lining of the bag where the cocaine was hidden. He testified that he would not have expected that the bag held drugs simply from the weight of the bag. The top and bottom of the bag appeared normal until dismantled.
[7] The cocaine was found to be 91% to 93% pure.
Position of the Parties
[8] It is the position of the Crown that Ms. Hodge should serve a period of four years in custody (less pre-trial custody) along with a DNA order and a s. 109(a) and (b) order.
[9] It is the position of the defence that Ms. Hodge should serve a period of less than three years in custody; the defence did not submit a particular sentence. The defence does not dispute the ancillary requests.
Circumstances of the Offender
[10] I have the benefit of both a pre-sentence report and a Gladue report. The sentencing submissions were delayed for their preparation.
[11] Ms. Hodge is 26 years of age. At the time of the offence, she was 21.
[12] She had no criminal record until this offence.
[13] Ms. Hodge is single and presently resides with her mother and other family members. Her principle source of income is from ODSP, but she has some employment income in compliance with her public funds. She is seeking re-training.
[14] Ms. Hodge’s father was Aboriginal; she believes that his Cherokee ancestry originates from Burbank, California, and that he was born in Kokomo, Indiana.
Legal Parameters
[15] In R. v. Madden (1996), 27 O.R. (3d) 640 (C.A.), the Ontario Court of Appeal confirmed a sentencing range of three to five years imprisonment for the importation of one kilogram, more or less, absent exceptional circumstances. In that case, Ms. Madden had pled guilty and assisted in a further investigation. Despite those circumstances, she received a sentence of three years.
[16] In R. v. Norman, 2018 ONSC 2872, at paras. 44-45, 62-63, Andre J. summarized “exceptional circumstances” as:
[44] Courts have held that the existence of exceptional circumstances, justify a downward departure from the sentence ranges in Madden and Cunningham. The following circumstances have been held to be exceptional circumstances:
(1) Meaningful cooperation with the authorities. (2) Compulsion short of duress. (3) An honest belief that the imported drug was a soft drug. (4) Where an accused who had imported 2144 grams of cocaine was the sole caregiver of her 18-year-old daughter who had cerebral palsy. (5) An offender with serious health issues for which he or she would not receive the requisite medication and/or treatment while incarcerated, thereby jeopardizing his or her life.
[45] As Hill J. noted in Sharma, at para. 86: “While there may be no exhaustive list of exceptional circumstances … their number will be constrained by their extraordinary nature …
[62] The sentencing of Aboriginal offenders, as the Supreme Court of Canada noted in Gladue, at paras. 80-81, involves a consideration of the following question: “[h]ow has the offender who is being sentenced been affected, for example, by substance abuse in the community, or poverty, or overt racism, or family or community breakdown?”
[63] This question therefore suggests, as the Court of Appeal stated in R. v. Kakekagamick that:
[I]t is not a mitigating factor on sentencing simply to be an Aboriginal offender … nor is being an Aboriginal offender a “get out of jail free” card.
[Citations omitted.]
[17] The recent Ontario Court of Appeal case of R. v. F.H.L., 2018 ONCA 83, 360 C.C.C. (3d) 189, summarized the principles in R. v. Gladue, [1999] 1 S.C.R. 688, and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433. I must consider the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts: at para. 31. I must also consider the types of sentencing procedures and sanctions which may be appropriate in the circumstances of the offender because of his or her particular Aboriginal heritage or connection: at para. 31.
Mitigating and Aggravating Factors
[18] Some of the mitigating circumstances are obvious. Ms. Hodge is young. Up until the time of this offence, she had been leading a law abiding life.
[19] She has been on terms of release for four years. While the terms are not onerous, they have restricted her somewhat since her arrest. Since she has complied with those terms, I can expect that she will not likely reoffend.
[20] Ms. Hodge was in pre-trial custody, and counsel agree that she should receive a net credit of one month in custody.
[21] I agree with defence counsel that Ms. Hodge comes from a “horrific” background. Her life has included physical, emotional and sexual abuse. Her father was not involved in her upbringing and effectively rejected her when she sought him out as an adult. Ms. Hodge’s brother was murdered in 2005. She is challenged by PTSD and depression.
[22] As an aggravating factor, the manner of concealment was sophisticated and the cocaine was relatively pure. The Crown does not allege that Ms. Hodge was anything other than a courier, but her knowing participation offsets many of the mitigating factors.
[23] As is her right, Ms. Hodge denies her guilt. That is neither a mitigating nor an aggravating circumstance.
Analysis
[24] The Crown submits that the amount of cocaine in this case is such that the range set out in Madden is controlling. The issue between the parties is the extent to which Ms. Hodge’s circumstances are “exceptional” and should therefore take her out of the usual range of sentences.
[25] Although ranges are helpful, sentencing is still to be an individualized process; I ought not to be restricted in applying the appropriate principles on the whole of the case.
[26] While all of the principles of sentencing set out in ss. 718 and 718.2 of the Criminal Code, R.S.C. 1985, c. C-46, are important to consider, our Court of Appeal has consistently ruled that general deterrence is the overriding factor when fashioning a sentence for importing cocaine. Where the offence is sufficiently serious, imprisonment will be the only reasonable response, regardless of the background of the offender.
[27] The defence relies on a number of cases in which the sentence was below three years. Most of them included guilty pleas. It is not an aggravating circumstance that Ms. Hodge has exercised her right to a trial, but this case does not have the mitigating factor of a guilty plea.
[28] Another case relied upon by the defence included evidence of coercion; that too does not apply here.
[29] The evidence of the impact of Ms. Hodge’s Aboriginal background is limited; what I have, does not provide any contextual impact on Ms. Hodge’s moral culpability. Unlike many other cases where Aboriginal background is considered, I have little evidence of Ms. Hodge’s Aboriginal background or its possible effect on her within the context of her otherwise troubled life. Her life has been extremely difficult, but that hardship appears to be more a result of a dysfunctional family rather than her father’s heritage.
[30] In R. v. Bowen, at para. 41, Andre J. pointed out that:
41 Being a member of a group which has been adversely impacted by systemic racism therefore, does not automatically qualify an individual for a significant attenuation of sentence or for a conditional sentence. The accused’s background and personal circumstances must be reviewed to determine the impact of these systemic factors on the accused.
[31] On this record, I put little weight on Gladue factors. That being said, I agree with the defence that, regardless, there is no doubt that Ms. Hodge’s background in total must be taken into consideration as a significant mitigating circumstance.
[32] In R. v. Cunningham (1996), 27 O.R. (3d) 786 (C.A.), at paras. 20-21, our Court of Appeal, in fixing a range of six to eight years for couriers who smuggle large amounts of cocaine into Canada, said:
We recognize as well that the suggested range will often require the imposition of a severe penalty for first offenders. We are not insensitive to this concern, mindful as we must be that in many instances, couriers tend to be weak and vulnerable, thereby becoming easy prey for those who engage in drug trafficking on a commercial basis.
Sympathetic though we are to the plight of many couriers, such concerns must give way to the need to protect society from the untold grief and misery occasioned by the illicit use of hard drugs.
[33] Those comments apply equally to couriers of lesser amounts such as here. From the reports that I have, Ms. Hodge is one of those vulnerable individuals that the court in Cunningham took into consideration.
[34] A sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances.
Result
[35] Taking all of those factors into consideration, I find that Ms. Hodge should serve a sentence of three years commencing today. She shall have credit for one month of pretrial custody. Her sentence shall therefore be 35 months.
[36] There will be a 10-year weapons prohibition order under s. 109(2)(a) of the Code and for life pursuant to s. 109(2)(b) of the Code.
[37] There will also be a s. 487.051(3)(b) order for the taking of DNA samples.
Lemon J.
Released: November 30, 2018