Her Majesty the Queen - v. -, 2011 SKPC 147

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 147 Date: September 16, 2011 Information: 31572744 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Abite Tesfye Shawile Appearing: H. Sherdahl For the Crown M. Bodnar, Q.C. For the Accused JUDGMENT H. M. HARRADENCE, J I. INTRODUCTION [ 1 ] This offender, Abite Tesfye Shawile, pled guilty on June 13, 2011, to the following offence: On or about the 8 th day of December, A.D. 2010, at or near Prince Albert, Saskatchewan, did unlawfully have in his possession a controlled substance included in

Schedule I, to wit: cocaine, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act .

[ 2 ] On that date His Honour Judge Carter ordered a pre-sentence report and he further adjourned sentencing to August 29, 2011. [ 3 ] On August 24, 2011, the pre-sentence report, completed by Tammy Holmes, was filed with the Court. The sentencing hearing proceeded on August 29 th with both counsel making submissions. This is my sentencing decision. II. THE POSITION OF THE PARTIES

a) The Crown [ 4 ] The police received confidential information that a red car was travelling to Prince Albert transporting cocaine. At 11:20 p.m. they stopped the vehicle which was being driven by this offender. They seized cocaine and $895.00 cash from the vehicle. [ 5 ] The Crown in its sentencing submissions noted the quantity of cocaine found in the possession of the offender, being two ounces. The Crown estimated the street value of the cocaine at between $2,400.00 and $9,500.00, depending on how it was sold.

The Crown also noted that there is no evidence to suggest that the offender was addicted to drugs, and that the only reason that the offender was involved in this activity was to make money. The Crown also noted that previously this offender had been conditionally discharged after he had pled guilty to a charge of possession of cocaine. [ 6 ] The Crown submitted that the appropriate sentence for this offender was 18 months incarceration.

The Crown acknowledged the offender’s exceptional background, his lack of any criminal convictions, and the recommendation for a conditional sentence contained in the pre-sentence report. However the Crown indicated that this Court is bound by the decisions of the Saskatchewan Court of Appeal and incarceration is the most appropriate sentencing alternative available given these decisions. [ 7 ] As indicated by the Crown the Saskatchewan Court of Appeal has set a range for cocaine trafficking. That range is 18 months to four years incarceration.

The Crown filed the following cases in advance of the sentencing hearing: R. v. Radway , R. v. Kraft, R. v. Patryluk, R. v. Dubai , R. v. Aube , and R. v. Pankewich . [1] [ 8 ] In addition to the sentence of incarceration the Crown requests forfeiture of the drugs, money, cell phone and vehicle. The Crown further requests the imposition of the mandatory s. 109 firearms prohibition and the discretionary DNA order.

b) The Defence [ 9 ] Mr. Bodnar on behalf of the offender referred the Court to the contents of the pre-sentence report and emphasizes the offender’s limited role in this offence. He agrees that an 18 month sentence is appropriate but suggests that given this offender’s individual circumstances and the individual circumstances of this offence a conditional sentence would be appropriate.

The offender does not oppose the forfeiture order, the DNA order or the mandatory firearms prohibition. [ 10 ] The defence effectively distinguished the cases filed by the Crown and urged me to sentence this offender based on the particular facts of this offence. III. ANALYSIS [ 11 ] As indicated by His Honour Judge Hinds in R. v. Radway , [2] the guidance of the Saskatchewan Court of Appeal is concisely stated by Madam Justice Smith in R. v. Aube :

[40] In R. v. Aube , 2009 SKCA 53 , Smith J.A. speaking for the Court, stated as follows: [19] This Court has repeatedly said that the range of sentencing for trafficking in cocaine is 18 months to four years, and that the personal circumstances of an accused, while not to be ignored, are secondary considerations to the issues of deterrence and denunciation. It is an error in principle to overemphasize the personal circumstances of the offender to the exclusion of an examination of other sentencing factors. See R. v. Patryluk , 2002 SKCA 33 , and especially paragraphs 21-23.

While the personal circumstances of Mr. Radway are very positive in this case, I must not overemphasize the same to the exclusion of the other sentencing factors such as the objectives of deterrence and denunciation in relation to crimes of this nature. [ 12 ] This guidance is abundantly clear to me.

It has been repeatedly stated in numerous recent cases. [3] I accept this direction and further the direction as stated by Justice Cameron in Patryluk that, “…sentencing is not a wholly subjective business, nor entirely an individual process…”. [4] [ 13 ] In following Chief Justice Lamer’s direction in Proulx , I agree on a preliminary basis that the 18 months recommended by the Crown is an appropriate sentence.

I must then move on to consider the principles of sentencing comprehensively to determine whether the imposition of a conditional sentence would be consistent with the fundamental principles of sentencing which are set out in s. 718 to 718.2. I have relied on these provisions as enumerated below: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. 718.02 When a court imposes a sentence for an offence under subsection 270(1),

section 270.01 or 270.02 or paragraph 423.1(1)( b ), the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or (

v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 14 ] In R. v. Proulx , Chief Justice Lamer clearly describes the balance required by the sentencing process as follows: 82 This Court has held on a number of occasions that sentencing is an individualized process, in which the trial judge has considerable discretion in fashioning a fit sentence.

The rationale behind this approach stems from the principle of proportionality, the fundamental principle of sentencing, which provides that a sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender. Proportionality requires an examination of the specific circumstances of both the offender and the offence so that the “punishment fits the crime”. As a by-product of such an individualized approach, there will be inevitable variation in sentences imposed for particular crimes.

In M. (C.A.) , supra , I stated, at para. 92: It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. . . . Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.

As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. 83 My difficulty with the suggestion that the proportionality principle presumptively excludes certain offences from the conditional sentencing regime is that such an approach focuses inordinately on the gravity of the offence and insufficiently on the moral blameworthiness of the offender.

This fundamentally misconstrues the nature of the principle. Proportionality requires that full consideration be given to both factors. As s. 718.1 provides: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [Emphasis added.] [5] [ 15 ] Justice Vancise in the 2000 decision in R. v. Laliberte stated the approach, with particular reference to a conditional sentence order, in the following fashion: [33] In my opinion, a conditional sentence of imprisonment should not be restricted to minor offences or property offences.

The sentence should be used in appropriate circumstances for all offences including drug offences and offences against the person. This is always subject to the qualification that the statutory prerequisites have been satisfied and that ordering the offender to serve the sentence in the community will not put the collectivity at risk and in danger. The type of offence or the gravity of the offence should not determine whether a conditional sentence of imprisonment is available.

Rather, the sentence should be tailored to the offender, having regard to the principles and purposes of sentencing, the moral blameworthiness of the offender, the circumstances of the offence, the current needs of the community and the interests of public security in the same way a sentencing judge would decide any sentence of imprisonment.

A conditional sentence of imprisonment is appropriate for any prison sentence of less than two years (subject to the above qualifications) and the goals of deterrence and denunciation can be met by serving the sentence in the community. [6] [ 16 ] As recognized by Madam Justice Jackson in R. v.

Pankewich , a conditional sentence is not an inappropriate sentence for this type of offence: [30] As soon as one recognizes that a conditional sentence of imprisonment is not prohibited in cases of trafficking or possession for the purposes of trafficking, it becomes an appropriate penalty in appropriate cases if it can satisfy the principles of sentencing in ss. 718 to 718.2 and is not demonstrably unfit.

In this case, the sentencing judges did not commit errors in principle, so the issue becomes whether the sentences imposed are demonstrably unfit. [7] [ 17 ] It is helpful to me in applying sections 718 to 718.2 to follow the six factors listed by Madam Justice Jackson in Pankewich and which were relied upon by His Honour Judge Hinds in Radway : [33] In R. v. Pankewich ; R. v. Gaveronski , supra , Jackson J.A. set out the factors to be considered in determining an appropriate sentence for trafficking in cocaine as follows at paragraph 49:

Fitness of sentence in such cases will depend on a wide variety of factors including: 1. the sophistication and significance of the offence and the accused's place in it; 2. the type and quantity of drug; 3. the motivation for the offence: those who traffic to support their own habit may be more likely to receive a restorative disposition than those who traffic for other reasons; 4. the need for and the utility of the deterrence which will be provided by the sentence imposed; 5. the factors relating to the community like the significance of the problem; and, 6. the age, lack of record and other personal circumstances of the accused. [8] [ 18 ] Although only one factor, which must not be overemphasized, the personal circumstances of this offender are compelling.

He originates from Ethiopia. He was raised by his foster parents in Saskatchewan after approximately the age of 10. He is youthful. He does not have any criminal convictions, although he has been conditionally discharged in relation to an offence of possession. He has performed remarkably well on bail.

The author of the pre-sentence report rates him as a medium risk to reoffend and indicates he is “more than manageable in the community”. [9] [ 19 ] After considering the submissions of counsel, together with the evidence before me, including the pre-sentence report and the offender’s comments as stated to the Court pursuant to s. 726, I make these findings of fact following the framework set out by Madam Justice Jackson in Pankewich : 1. This offender has pleaded guilty to a single incident of transporting cocaine from Saskatoon to Prince Albert.

According to the pre- sentence report this was an isolated mistake in judgment by this offender at the urging of a friend. I find based on what I have before me that this offender was at the lower fringes of any trafficking arrangement and there is no evidence that he was involved in the ongoing sale of cocaine. The evidence suggests that this offender is a one-time courier. Specifically I find there is no evidence that this offender is part of an ongoing criminal commercial venture. 2. Cocaine is classified as a hard drug.

Two ounces of cocaine is neither an insignificant quantity nor is it an overwhelming quantity. Significantly there are no indications of trafficking seized from the vehicle of the offender such as scales or score sheets. 3. The motivation of the offender as indicated in the pre-sentence report was money. He was offered what he considered to be a lot of money (although I do not know how much) to transport this cocaine to Prince Albert. 4. Madam Justice Jackson in Pankewich in referring to the

summary of Chief Justice Lamer in Proulx states the following: [34] In his

summary, he suggests (at para. 113): [113] In sum, in determining whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing, sentencing judges should consider which sentencing objectives figure most prominently in the factual circumstances of the particular case before them.

In my opinion, the sentencing objectives which figure most prominently, for drug traffickers acting for profit where the trafficker is not addicted, are denunciation and personal and general deterrence. The reason for this is the nature of the offence which lacks immediate victims and is often the product of much previous thought. In such circumstances, it is not unreasonable to conclude that deterrence and denunciation will have greater effect in preventing these crimes than they might be in preventing others. [10] Mr.

Justice Vancise in Laliberte at paragraphs 99 to 100 states as follows: [99] The Crown contends the two most important factors in sentencing persons who traffic in drugs are denunciation and deterrence. It submits that the trial judge erred in under emphasizing those factors or goals of sentencing and in overemphasizing the factor of rehabilitation. In my opinion, s. 718 does not establish a hierarchy of sentencing factors or principles. All the factors must be considered in arriving at a fit and appropriate sentence.

In the absence of a directive in the statute itself there is no reason why deterrence and denunciation should be overemphasized in a particular class or classes of cases. This is particularly so when one considers the doubtful effectiveness of deterrence in reducing and controlling crime. [100] Deterrence is antithetical to the fundamental principles of proportionality of sentencing. The use of denunciation and deterrence as primary factors in sentencing will result in imprisonment because it is assumed in such an analysis that deterrence and denunciation can only be achieved by the use of a custodial sentence.

That is a fallacy and a misapprehension of reality as was made clear in Proulx . [11] Clearly, deterrence and denunciation are controversial areas, the effectiveness of which can be debated. For the purpose of this sentencing I recognize the priority to be given to deterrence in instances where offenders have been convicted of cocaine trafficking. Deterrence, denunciation and public protection are paramount considerations. 5.

Although in this sentencing there was not a wealth of information presented as to the factors relating to the community, the Crown did make specific reference to this factor, I am prepared to follow Justice Jackson’s lead when she took judicial notice in Pankewich at paragraph 40 and stated: [40] …This Court, and many others, have long since taken judicial notice of the fact that cocaine is a pernicious drug with an insidious effect on society. Those who permit the drug to circulate in our communities cause untold hardships. [12] 6. As indicated the offender’s personal circumstances are compelling and unique.

Despite a background that by Canadian standards is shocking, as detailed on page 1 of the pre-sentence report, this offender is employed, now in university, and has aspirations of going to law school. As urged by defence counsel, this offender has continued to make remarkable progress given his background.

Evidence of his progress and commitment are demonstrated by his compliance with strict bail conditions including reporting several times per week. [ 20 ] The Saskatchewan Court of Appeal has directed that parity, deterrence and denunciation are to be important factors in sentencing convicted traffickers in hard drugs.

I refer to Justice Cameron’s comments in Patryluk at paragraph 15 : [15] There is another principle of sentencing laid down by Parliament that we have to pay attention to, namely that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. In addition, we have to pay attention to the objectives of sentencing, again as laid down by Parliament, including not only the objectives of rehabilitation and so on, but as well the objectives of deterrence and denunciation.

Generally speaking, this means that sentences must also be geared to deterring the offender, as well as others , from committing crime, particularly crimes of like-kind, and to denouncing the conduct giving rise to the crimes. The sentencing judge was aware of this principle, but she tended to undervalue it, if not misapply it. She tended, too, to underestimate the place of deterrence and denunciation in relation to crimes of this nature. [13] [ 21 ] I have given significant consideration to the principles of deterrence, denunciation and parity.

I do note that there are many cases from various Courts in this province where a conditional sentence has been imposed for trafficking in cocaine. [14] Frequently these cases have found a drug addiction or duress to be a mitigating factor in sentencing cocaine traffickers. These factors are significant but should not be considered an exhaustive formula for the imposition of a conditional sentence. [ 22 ] In this instance I have found that this offender on one occasion transported two ounces of cocaine.

Although he was promised money for his involvement I have found that his involvement was limited to a single incident. Applying the law to these facts as I have

stated above and with particular reference to the offender’s involvement in this crime and his personal circumstances I am satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing as set out in s. 718 to 718.2. I am satisfied that a conditional sentence with significant restrictions on the liberty of this offender can reflect the paramount consideration given to deterrence and denunciation.

In this regard I am guided by Chief Justice Lamer in Proulx , and the comments of Justice Vancise in Laliberte . [15] [ 23 ] The offender, Abite Tesfye Shawile, will be sentenced to a conditional sentence order for a duration of 22 months. In addition to the statutory conditions, the following optional conditions will be imposed: 1. Reside as directed in writing by the supervisor or as ordered by the Court. 2. The offender shall be confined to his residence except for educational purposes, employment purposes or with the written permission of his supervisor for the first 12 months of this order. 3.

The offender will obey a curfew of 10:00 p.m. to 7:00 a.m. for the balance of the conditional sentence order, with the exceptions to this curfew as stated above. 4. The offender shall perform 200 hours of community service work within the first 15 months of this order. 5. The offender shall attend such personal counselling as is ordered by his supervisor. 6. The offender shall not attend at any licenced premises where the primary function is the sale or consumption of alcohol. 7.

The offender shall refrain absolutely from the use, possession or consumption of any alcohol/beverage alcohol as defined by The Alcohol and Gaming Regulations Act, 1997 , and any drugs except as prescribed for him by a medical doctor and, where so prescribed, take only as prescribed. [ 24 ] I am satisfied that there should be an order of forfeiture.

Counsel have filed a consent order which I find appropriate and have signed. [ 25 ] In addition there will be a 10 year firearms prohibition pursuant to s. 109. [ 26 ] I am further satisfied that a DNA order is appropriate, given the circumstances of the offence, and such order should be prepared and served on the offender. [ 27 ] A surcharge of $100.00 is ordered to be paid by January 1, 2012. [ 28 ] Dated at the City of Prince Albert, in the Province of Saskatchewan this 16 th day of September, A.D. 2011. ________________________ H. M. Harradence, J