Court File and Parties

COURT FILE NO.: CR-22-00000118-0000 DATE: 20240112 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING - and - Sarah Nolan, RAMIN RAYEGAN-TAFRESHI, THAVYSAY PHAENGNAVONG and JULIA BELLISSIMO

Counsel: Mr. S. Tsai, for the Crown Ms. S. DiGiuseppe, for Sarah Nolan

HEARD: June 12 and October 16, 2023

M. Forestell J.

REASONS FOR SENTENCE OF SARAH NOLAN

Overview

[1] Sarah Nolan entered guilty pleas on June 12, 2023 to charges of possession of approximately 6.5 kilograms of cocaine and possession of 29.74 grams of fentanyl, both for the purpose of trafficking. Sentencing submissions were heard on October 16, 2023, and the matter was adjourned to today for sentencing.

[2] The Crown submitted that a sentence of eight years was appropriate and would include an agreed 10-month reduction to reflect the treatment of Ms. Nolan upon her arrest. Counsel for Ms. Nolan submitted that five to six years was the appropriate sentence before the agreed 10-month reduction in the otherwise appropriate sentence.

[3] The 10-month reduction in sentence was agreed by the parties and obviated the need to litigate the impact of the alleged breaches of Ms. Nolan’s rights upon arrest. I accept the submissions of both counsel with respect to this aspect of the sentencing.

[4] The issue before me is the appropriate sentence before the reduction, taking into account all of the other circumstances.

Circumstances of the Offences

[5] The circumstances of the offences are set out in detail in the Agreed Statement of Facts filed in support of the guilty plea. In summary, on March 10, 2021, Ms. Nolan received $59,000.00 which was the proceeds of a sale of 1 kilo of cocaine to an undercover officer. The sale was made by two other individuals, but the money was turned over to Ms. Nolan. On March 18, 2021, the police executed a search warrant at Ms. Nolan’s condominium. Ms. Nolan was in the residence at the time. The police located 6.5 kilos of cocaine, 29 grams of Fentanyl, 550 grams of methamphetamine, 4.8 kilograms of cannabis and $27,500.00.

[6] A subsequent search of Ms. Nolan’s iPhone yielded photographs of the drugs found in the condominium and notes relating to other transactions.

Circumstances of Sarah Nolan

[7] Ms. Nolan testified at her sentencing hearing.

[8] Ms. Nolan is a 30-year-old first offender. She was 28 years old at the time of the offences.

[9] Ms. Nolan completed high school and attempted, but did not complete, two different courses of study at college. Ms. Nolan struggled in school because of Attention Deficit Disorder/Attention Deficit Hyperactivity Disorder (“ADD/ADHD”).

[10] Ms. Nolan lived with her parents until 2018. She worked through high school and college at retail jobs. Just before dropping out of college, Ms. Nolan began working as a dancer. She did not disclose the nature of her employment to her family.

[11] In 2015, while working as a dancer she met the man who became her boyfriend and who initiated her involvement in drug trafficking. The relationship has since ended. At the outset of the relationship Ms. Nolan was aware of her boyfriend’s involvement in drug dealing but she was not aware of the extent of his involvement. At some point, when he was out of the country, he asked Ms. Nolan to do him a favour and pick up an item and deliver it to a location where the item would be exchanged for a different item. Ms. Nolan did not feel that she could say no. After she did as he asked, he told Ms. Nolan that money had been exchanged that turned out to be counterfeit. He told her that she now owed a debt to a third party, and she would have to ‘work off the debt’. From that time onward, Ms. Nolan assisted in drug transactions until her arrest on the charges before me.

[12] Ms. Nolan testified at her sentencing hearing that at the time that she was assisting her boyfriend she felt unable to refuse his directions. She also testified that she was unaware of the effects of the substances that she was handling. She has since informed herself about the impact of the various drugs with which she was involved and appreciates the damage caused by these drugs.

[13] During the approximately seven years when she was working as a dancer and involved with her boyfriend, Ms. Nolan became distant from her family.

[14] Ms. Nolan was released on bail after her arrest and was required to live with her parents. Over the time that she was on bail, Ms. Nolan obtained employment in a hair salon. She learned to do hair extensions and has become a valued employee at the business. Ms. Nolan has re-established a close relationship with family and extended family. She has become involved in the care of her grandmothers.

[15] Ms. Nolan was on bail for 34 months before sentencing. She was subject to a curfew of 10:00 p.m. to 6:00 a.m. for just over one year until it was changed to a curfew of 1:00 a.m. to 6:00 a.m.

[16] I have the benefit of a psychological assessment prepared by Dr. Brandie Stevenson, a clinical and forensic psychologist. The assessment confirms the ADD/ADHD diagnosis. It also identifies lower than average cognitive abilities and significant executive functioning deficits. As set out in the report, these deficits impact Ms. Nolan’s ability to assess and manage problems and they affect her ability to make sound judgments. The report notes that Ms. Nolan struggles with depression and low self-esteem. Her deficits and her low self-esteem render her vulnerable to manipulation.

[17] The psychological assessment also addresses Ms. Nolan’s risk for recidivism. Her risk for general recidivism is reported to be low. Ms. Nolan was noted to have over-used alcohol as a coping mechanism. The assessment suggests that Ms. Nolan would benefit from treatment aimed at increasing her knowledge about problematic alcohol use and increasing her skills to cope with emotion, self-regulation and stress.

[18] There were many letters of support filed on the sentencing hearing. It is clear that Ms. Nolan has a large and very supportive family. She also has support from a former co-worker, her employer and her personal trainer. The letters confirm that Ms. Nolan has taken significant and positive rehabilitative steps in the two and a half years since her arrest on these charges.

Sentencing Principles and Objectives

[19] The purpose and objectives of sentencing are set out in s. 718 of the Criminal Code, R.S.C., 1985, c. C-46. Generally speaking, the fundamental purpose of sentencing is to foster respect for the law and to maintain a just, peaceful and safe society. Section 718.1 of the Code requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[20] Courts attempt to achieve these purposes by imposing penalties that have one or more objectives, including denunciation, specific and general deterrence, rehabilitation, reparation to the community and the promotion of a sense of responsibility in the offender.

[21] While the objectives of denunciation and deterrence must be given weight in sentencing, our Court of Appeal has held that these objectives should rarely be the sole determinants of the length of a first penitentiary sentence. [1] In R. v. Priest, the Court of Appeal explained that “it is a well-established principle of sentencing…that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.” [2]

[22] Section 718.2 of the Code also requires that courts take into account other principles, including that a sentence be increased or decreased depending on the presence of relevant aggravating or mitigating circumstances.

[23] Aggravating circumstances in this case are the quantity and nature of the drugs and the duration of Ms. Nolan’s involvement in the drug trade.

[24] There are several mitigating factors. Ms. Nolan is a first offender who was vulnerable to manipulation as a result of her cognitive deficits. She pleaded guilty and took responsibility for her conduct. In addition to her guilty plea, Ms. Nolan has educated herself on the impact of cocaine and fentanyl. She has developed insight into the effects of her offences, and she has demonstrated remorse. Other mitigating factors are her community support and the fact that she has taken significant steps to change her lifestyle and rehabilitate herself. I have also considered the fact that Ms. Nolan spent a lengthy time on bail with a curfew although this has only a minor mitigating impact on the sentence.

[25] A further principle of sentencing is that similar sentences should be imposed on similar offenders for similar offences. Counsel have provided sentencing cases that involve similar circumstances and speak to the usual range of sentence. Sentencing ranges have been described as a “historical portrait” of past decisions that reflects all the principles and objectives of sentencing. [3]

[26] In R. v. Bryan, [4] the Court of Appeal held that “Normally, in cases of this nature, sentences of 5 to 8 years would reflect the proper range for someone, without a record, convicted of possession for the purpose of trafficking in slightly more than a pound of cocaine.” For three kilograms of cocaine the range was described in R. v. Oraha [5] as being six to eight years.

[27] In R. v. Parranto, [6] the Supreme Court of Canada described the range of sentence for possession of Fentanyl for the purpose of trafficking at the wholesale level as eight to 15 years. The quantity of Fentanyl in Parranto was significantly more than the amount possessed by Ms. Nolan. In cases involving Fentanyl in the 30-gram range, sentences in the range of seven to nine years have generally been imposed in this jurisdiction. In R. v. Disher, [7] the Court of Appeal, after a review of the cases, reduced a 12-year sentence to eight years for an offender with a serious related record who had pleaded guilty to possession of 42.6 grams of mixed powder that included heroin, fentanyl, and fentanyl derivatives.

[28] In R. v. Piri, [8] Kelly J. imposed a sentence of six years on a first offender who entered guilty pleas to trafficking in heroin and fentanyl and possession of fentanyl. The amount trafficked was just over 30 grams.

[29] As Justices Brown and Martin wrote in R. v. Parranto: [9]

This Court has repeatedly expressed that sentencing is ‘one of the most delicate stages of the criminal justice process in Canada’. More of an art than a science, sentencing requires judges to consider and balance a multiplicity of factors. While the sentencing process is governed by the clearly defined objectives and principles in Part XXIII of the Criminal Code, it remains a discretionary exercise for sentencing courts in balancing all relevant factors to meet the basic objectives of sentencing. [citations omitted]

[30] In this case, specific deterrence is not a significant objective of sentencing. Ms. Nolan has been deterred from committing further offences by experiencing arrest and bail. Ms. Nolan has also taken responsibility and has begun the process of rehabilitation. The primary objectives to be advanced by the imposition of a period of incarceration are the objectives of denunciation and general deterrence.

[31] Cocaine and fentanyl are extremely serious drugs. The damage they cause to individuals, families and society is staggering. Sentences for trafficking in these highly addictive and destructive substances must be long enough to express society’s condemnation for the conduct and to deter would-be drug traffickers.

[32] Having weighed the relevant factors and objectives, I have concluded that a fit sentence in the unusual circumstances of this case would be a global sentence of six years. This is a sentence that is outside the usual range of sentence for these offences.

[33] A significant penitentiary sentence is required to meet the objectives of general deterrence and denunciation. The principle of restraint, however, demands that it be as short as possible and tailored to the needs of Ms. Nolan. The progress towards rehabilitation that Ms. Nolan has made over the last two and a half years justifies a sentence outside the usual range. In reaching this conclusion I have considered Ms. Nolan’s vulnerability to manipulation and her positive response to the structure and the community support that she and her family have marshalled while she has been on bail. I conclude that a shorter sentence is appropriately tailored to the needs of Ms. Nolan, a vulnerable first offender with excellent prospects of rehabilitation.

[34] Having concluded that a global sentence of six years would be appropriate, as agreed by counsel, I will reduce that sentence by 10 months. I therefore impose a global sentence of five years and two months or 62 months. The sentence will be one of 62 months on the count of possession of cocaine for the purpose of trafficking and 54 months concurrent on the count of possession of fentanyl for the purpose of trafficking.

[35] There will be a s.109 weapons prohibition order for 10 years. These are secondary designated offences, and the Crown seeks a DNA order which is not opposed. I make that order. In addition, I have signed a forfeiture order for the drugs and money seized.

[1] R. v. Borde (2003), 63 O.R. (3d) 417, at para. 36 [2] R. v. Priest (1996), 110 C.C.C. (3d) 289 [3] Parranto, 2021 SCC 46, at para. 21; R. v. Lacasse, 2015 SCC 64, [2015] 3 SCR 1089, at para. 57 [4] 2011 ONCA 273, at para. 1 [5] 2012 ONSC 1439, at para. 8 [6] Parranto, at para. 8 [7] 2020 ONCA 710, at para. 66 [8] 2020 ONSC 920 [9] 2021 SCC 46, at para. 9

M. Forestell J. Released: January 12, 2024