Docket: CACR2067 Her Majesty the Queen Appellant - v. -, 2012 SKCA 51

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 51 Date: 20120502 Between: Docket: CACR2067 Her Majesty the Queen Appellant - and - Abite Tesfye Shawile Respondent Coram: Lane, Ottenbreit and Herauf JJ.A. Counsel: Douglas Curliss, Q.C. for the Federal Crown Morris Bodnar, Q.C. for the Respondent

Appeal: From: 2011 SKPC 147 Heard: May 2, 2012 Disposition: Appeal allowed (orally) Written Reasons: May 4, 2012 By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Ottenbreit Herauf J.A. [ 1 ] Abite Tesfye Shawile pled guilty to one count of trafficking in cocaine contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19. Mr. Shawile was sentenced to 22 months to be served in the community, plus a 10 year firearms prohibition. Mr.

Shawile was made subject to a DNA order and he consented to the forfeiture of his vehicle. [ 2 ] The Crown appealed the sentence on the grounds that the sentencing judge failed to give proper effect to the gravity of the offence and over-emphasized the personal circumstances of the offender to the exclusion of other sentencing factors such as deterrence and denunciation. [ 3 ] Based upon information received from a confidential informant, Mr. Shawile was arrested driving from Saskatoon to Prince Albert with approximately 53 grams of cocaine and $895 cash in his jacket pocket.

The cocaine had a street value of anywhere from $2,400 up to $9,500 if sold in small quantities. [ 4 ] Mr. Shawile was born in Ethiopia where he was raised by his grandmother. While in Ethiopia he experienced regular violence but was not directly subjected to any violence or abuse. His mother, who had previously immigrated to Canada, managed to sponsor Mr. Shawile for immigration to Canada when he was 10 years of age. Shortly after his arrival in Canada, Mr. Shawile was placed in foster care. As a result, he does not have a relationship with his mother. Mr.

Shawile was in foster care with two different families which he found to be very positive. He briefly returned to live with his mother, but left shortly after and essentially has lived on his own since he was 14 or 15. [ 5 ] Mr. Shawile is now 23 years of age; is in good physical and mental health; has a positive work history; has completed his grade 12; and was accepted for post-secondary education. [ 6 ] Mr. Shawile admits to occasional drinking and past experimentation with marijuana and ecstasy. Mr. Shawile received two previous conditional discharges for possession of cocaine and failure to comply.

There are also four recent convictions for breaches of Mr. Shawile’s bail conditions when released on this charge as well as one for evading police. These incidents pre-dated the sentencing on this charge but were not plead to and sentenced until recently. The sentencing judge and the person who prepared the pre-sentence report would not have been aware of these charges. [ 7 ] Mr. Shawile admits that his motivation for committing the offence was money. His friend offered him a “substantial amount of money” to deliver cocaine to Prince Albert. The pre-sentence report was fairly positive. It identified Mr.

Shawile as a medium risk to re-offend given his negative attitude towards police and a belief that they are out to get him; his continued ties with some peers still involved in the criminal justice system; and his lack of any stable or close working relationship. [ 8 ] It was apparent that the sentencing judge was moved by Mr. Shawile’s circumstances. The sentencing judge concluded that Mr. Shawile’s personal circumstances were compelling and unique. The sentencing judge viewed Mr. Shawile’s progress as

“remarkable” given his background. [9] The sentencing judge acknowledged the “guidance” from this court on both the range of sentences for trafficking in hard drugs suchas cocaine (18 months to four years) and, that generally, personal circumstances of an offender are secondary considerations to factorssuch as deterrence and denunciation. [10] The gravity of this offence is demonstrated by the maximum sentence of life imprisonment. As well, the motivation was entirelyfor money. There is no suggestion that Mr. Shawile is addicted to drugs; under dire financial circumstances; or committed the offenceunder duress.

The fact that Mr. Shawile was entrusted by a friend to transport the cocaine to Prince Albert demonstrates that he was atrusted confidant to a wholesaler. [11] The personal circumstances of Mr. Shawile as outlined in paragraphs four to six are very positive. For a decade after arriving inCanada Mr. Shawile led a commendable life. There are no circumstances from his childhood in Ethiopia that would diminish his moralculpability for the offence at issue. [12] While we agree that Mr.

Shawile’s circumstances are mitigating and would justify a sentence at the low end of the range, it is ourview that the sentencing judge gave them undue weight in comparison to the principles of denunciation and general deterrence, whichmust play a significant role in offences of this nature. In R. v.

Aube et al., 2009 SKCA 53, 324 Sask.R. 303, Smith J.A. articulated thispoint 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 thepersonal 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 over-emphasize the personal circumstances of the offender to the exclusion of an examination of othersentencing factors. See. R. v. Patryluk, 2002 SKCA 33, and especially paragraphs 21-23.

This decision, in particular, where thecircumstances were much less serious, cannot be reconciled with the sentences imposed in the instant case. See also R. v. Goy (1992), (SK CA), 105 Sask. R. 131 (Sask. C.A.); R. v. Grewal, 2003 SKCA 56; R. v. Dubai, 2008 SKCA 49; and R. v.McCallum, 2007 SKCA 139. [13] In our view, the 22 month conditional sentence for trafficking in cocaine is demonstrably unfit given the 18 month to four yearrange established in other cases of trafficking offences such as Aube, R. v. Dubai, 2008 SKCA 49, 310 Sask.R. 85; R. v. Kraft, 2008SKCA (SentDig) 36; R. v.

McCallum, 2007 SKCA 139, 302 Sask.R. 298; R. v. Patryluk, 2002 SKCA 33, 217 Sask.R. 309. [14] In the result, leave to appeal is granted, the 22 month sentence to be served in the community is set aside and a sentence of 18months’ imprisonment is imposed, which, is the sentence suggested by the Crown at the sentencing hearing. Mr. Shawile is given creditfor the time already served under the conditional sentence order. Therefore, Mr. Shawile is sentenced to 10 months’ imprisonment forthe offence from today’s date. All other orders will remain in place.