Her Majesty The Queen v. Narmatha Satkunananthan

COURT FILE NO.: Crim J (F) 19/17 DATE: 2019 02 20

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Sam Weinstock, for the Crown

- and -

NARMATHA SATKUNANANTHAN Aman Fajoud, for the Defence Defendant

HEARD: January 8, 2019

REASONS FOR SENTENCE

Bielby J.

Overview

[1] Narmatha Satkunananthan, the offender, was, on May 30, 2018, convicted by a jury, of having in her possession a schedule I controlled substance, namely Oxycodone, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.

[2] After hearing counsel’s submissions on sentence I must now determine the appropriate sentence to impose on the offender.

The Facts

[3] On February 5, 2016, at around 12:30 pm, a vehicle, in which the offender was a passenger, was the subject of a police traffic stop. Behind the front passenger seat the police discovered a purple gym bag with the zipper partway open. The offender’s wallet was found in the bag along with 180 Percocet pills.

[4] Health Canada determined the pills tested contained 5 mg of Oxycodone.

[5] The police estimated the pills to have a total value of less than $900.

[6] No other drug paraphernalia or other drug indicia were located.

Circumstances of the Offender

[7] The offender was 25 years old at the time of her arrest. As noted she was a passenger in a car operated by Richard Bennett, a man she had been dating. Mr. Bennett was driving the offender to work. She was employed as a manager at a Foot Locker store in Brampton.

[8] When arrested the offender had no cash on her person or in her purse.

[9] The offender was born in Canada and currently resides with her grandmother and provides ongoing assistance to her grandmother.

[10] I accept the offender is from a close knit family. Her father is employed by a financial institution and her mother is a nurse. The offender’s brother is completing his medical degree in Chicago.

[11] The offender is university educated and I accept that she has always been employed, which employment has included various managerial positions.

[12] The offender has no criminal record and I will consider her to be a youthful, first time offender.

[13] Exhibit 1 to the sentencing hearing are a number of letters from the offender’s family and friends attesting the offender’s character and attributes.

[14] Her brother, was shocked by her arrest and conviction and considers his sister to be honest and trustworthy. He describes her as a positive role model and an exceptional member of the community.

[15] These sentiments are echoed in the other letters and of special note is her apparent dedication to her community and to helping others.

[16] Currently, the offender just obtained a new job and is waiting on a decision in regards to another managerial job she applied for.

Impact on the Victim and/or Community

[17] The disastrous impact that drugs such as oxycodone have on a community are well known. Oxycodone is an opiate, as is fentanyl. Such drugs cost people their lives. A terrible cost is also born by their communities and families.

Legal Parameters

[18] While section 5(2) of the Drugs and Substances Act does not set out a minimum sentence in these circumstances, a maximum sentence of imprisonment for life can be imposed.

Positions of Crown and Defence

[19] The Crown seeks a sentence of 16-18 months in custody together with a non-mandatory DNA order and a mandatory s. 109 order and forfeiture order.

[20] The offender seeks a suspended sentence followed by a term of probation. The Crown acknowledges that such a sentence can be imposed.

Case Law

[21] The following authorities were provided by the Crown.

[22] R. v. Smith 2012 ONCA 761 is a case where a 29 year old offender was convicted of possession of 168.5 oxycodone pills for the purpose of trafficking. The trial judge imposed a sentence of 18 months. The trial judge took into account the, ”harm caused by this drug and the destruction and even tragedy it reaps upon a community.” (para. 3)

[23] The Court of Appeal noted that the trial judge took into account the principles of deterrence and rehabilitation and determined the trial judge’s sentence was fit and did not err in principle. The appeal to sentence was dismissed.

[24] R. v. Roper 2010 CarswellOnt 10857 is a decision of Evans J. of the Ontario Court of Justice. The offender had pleaded guilty to possession for the purpose. He was addicted to OxyContin. The judge noted the impact on the community. It was determined that a global sentence of 19 months was appropriate. The offender had been involved in five separate transaction totalling 31 oxycodone pills.

[25] The offender in Roper had a criminal record.

[26] The Roper sentence was appealed and the Ontario Court of Appeal dismissed the appeal stating that the sentence was not manifestly unjust, given the serious problem presented by oxycodone in the community, the offender’s criminal record and was engaged in selling the drug (R. v. Roper 2011 ONCA 479, para. 1).

[27] R. v. Holmes 2014 ONSC 2986 is a decision of Hill J. Therein the offender pled guilty to possession of oxycodone and cocaine, for the purpose of trafficking. There was an addiction issue and the offender had a criminal record.

[28] The offender was found in the possession of 76 Percocet pills.

[29] The offender was given a 20 month conditional sentence and a 90 day intermittent custodial sentence (a conditional sentence is no longer statutorily available for such offences).

[30] Hill J. noted that the offence of trafficking oxycodone is serious and reviews a number of authorities (para. 16).

[31] He determined the drugs found in the possession of the offender were not for commercial gain but solely on account of his effort to support his own drug dependency (para. 17).

[32] R. v. Smith 2016 CarswellOnt 5009, is a decision of Mulligan J. in which the offender was found guilty of one count of trafficking in oxycodone. She pled guilty to other counts on the indictment.

[33] The offender met with an undercover policeman and arranged for the officer to buy drugs from her brother who was an addict. The officer paid $4,700 for 98 pills.

[34] Mulligan J. had the added consideration of a Gladue report.

[35] The offender did not have a criminal record.

[36] After consideration of all of the circumstances the offender was given a suspended sentence followed by probation for 18 months which included 100 hours of community service.

[37] Counsel for the offender in the matter before me, provided two authorities. R. v. Chivers, [2017] O. J. No. 6889 is a decision of Hornblower J. of the Ontario Court of Justice. The offender had suffered an injury and was prescribed pain medications to which he became addicted. His drug of choice was Fentanyl. The offender was convicted of one count of trafficking.

[38] The trial judge concluded that a suspended sentence was appropriate together with a lengthy period of probation. While the judge noted that the principle of denunciation was applicable, he concluded a period of incarceration is not always necessary (para. 28).

[39] R. v. Christmas [2017] N.S.J. No. 373 was decided by Sakalauskas J. of the Nova Scotia Provincial Court and involved 35 year old aboriginal male with a dated record. He was charged with trafficking Percocets.

[40] The trial judge imposed a suspended sentence together with probation for three years. It was determined no further deterrence was required.

[41] What I take from all these authorities is that a fixed range of sentencing for such offences has not been established. Each case stands on its own set of facts and an appropriate sentence imposed.

Mitigating and Aggravating Factors

[42] The following are considered by me to be mitigating factors:

1. The offender does not have a criminal record;
2. She has a background of school and employment;
3. She has a solid family life and community support; and
4. She was a youthful offender.

[43] I also consider the following to be a mitigating factor. Prior to the trial in this matter, Andre J. concluded that the circumstances of this arrest and the discovery of the oxycodone violated the offender’s s. 8 and 9 Charter rights. However he chose not to exercise any s. 24 remedy.

[44] In that regard I rely on, R. v. Masogaluak 2010 SCC 6 in which one of the issues was whether a court may grant a sentence reduction under s. 24(1) of the Charter to remedy a Charter breach by state actors (para. 2).

[45] I quote from the headnote,

“Where the police or state misconduct relates to the circumstances of the offence or the offender, the sentencing judge may properly take the relevant facts into account in determining a fit and proportionate sentence without having to resort to s. 24(1) of the Charter. The circumstances of an alleged Charter breach which align with the circumstances of the offence or the offender such that they are pertinent to the sentencing regime may be relevant mitigating factors warranting a reduced sentence.” (See also paras. 47 to 50).

Principles of Sentencing

[46] Section 718 of the Criminal Code of Canada sets out a number of sentencing principles. In the matter before me key principles are denunciation and deterrence. I am also to take into consideration the objective of assisting the rehabilitation of offenders and to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims or to the community.

[47] Section 718.1 of the Code dictates that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Reasons and Decision

[48] In most cases, the trafficking of oxycodone and the possession of oxycodone for the purpose of trafficking requires a period of incarceration.

[49] However, in this matter I am impressed with the support provided to the offender by her family and friends and the mitigating factors as set out above, including the Charter breach. The offender is a contributing member of her community and society in general and will, I expect, continue to do so.

[50] Taking into account all the circumstances and the mitigating factors, I accept that the arrest, trial and conviction have imposed upon the offender the seriousness of these circumstances and satisfies the principle of specific deterrence.

[51] On these facts I believe the principles of general deterrence and denunciation can be addressed without the necessity of imposing a custodial sentence.

[52] I believe that the involvement of the offender in these circumstances was a “one-off”. However if the offender is, in the future, found in the possession of drugs for the purpose of trafficking, she will be treated as a, drug dealer.

[53] I therefore will suspend the sentence and place the offender on two years’ probation, the terms of which are:

1. She is to keep the peace and be of good behaviour;
2. She is to report to a probation officer as required;
3. She must seek and maintain gainful employment;
4. For the first six months of probation she is to abide by a curfew from 11:00 pm to 7:00 am;
5. She is to abstain from the possession or consumption of drugs except those lawfully prescribed for her; and
6. She must complete 100 hours of community service.

Ancillary Orders

[54] A DNA order is to issue pursuant to s. 487.05(1) of the Code.

[55] A ten year weapons prohibition order is to issue pursuant to s. 109(2) of the Code.

[56] A forfeiture order is to issue.

Bielby J.

Released: February 20, 2019