Michael Ford (post until Oct. 31/19)
Criminal

Sentence reduction in heroin case an important precedent

A recent Court of Appeal decision to reduce her client's sentence to time served provides a valuable precedent for those facing charges related to drug trafficking, Toronto criminal lawyer Jessica Zita tells AdvocateDaily.com.

The appellant in the case was originally sentenced to four years in prison after she was found with 486 grams of heroin and convicted of possession for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act.

A unanimous three-judge panel of the province’s top court cut the sentence to three years after finding the trial judge should have taken more notice of her difficult life circumstance and demonstrated rehabilitative potential.

Zita, associate with Hicks Adams LLP, who acted only on the appeal and not the initial trial, says convictions involving that amount of heroin typically result in a prison term of between five and 10 years.

“She had already received a sentence at the low end of the scale, so for the Court of Appeal to say that a reduction was appropriate is going to be significant for other people who find themselves in similar situations, particularly where the accused is a vulnerable person,” Zita explains. “This is going to be an important precedent to work from in terms of providing more leeway to figure out what sentence is most appropriate.”

Although the panel rejected an appeal of the woman’s conviction after finding the judge had applied the correct legal test regarding her wilful blindness to the contents of the package she received, Zita says she was pleased with the overall result and her sentence reduction.

The client had been granted bail pending the appeal but was required to turn herself in on the eve of oral arguments in late February, shortly after giving birth. The panel released its decision the same day, allowing her to be immediately freed.  

“It was a great relief to her,” Zita says.

In its ruling, the appeal court panel highlighted a number of errors in the trial judge’s weighing of factors when deciding on the sentence.

“Although the trial judge mentioned a number of factors that favoured the appellant, he failed to properly take into account the fact that the appellant had suffered a very difficult life, which included serious violence,” they wrote. “Moreover, the trial judge failed to fully consider the appellant’s rehabilitative potential, which was partly demonstrated by her community involvement while in pre-sentence custody.”

The judges also noted that Zita’s client had continued to make positive community contributions since her sentencing and that a medical report revealed she may suffer from a serious condition.

“In our view, when all of these factors are taken into consideration, the goals of general deterrence and denunciation would still be achieved in this case by imposing a shorter sentence,” the panel concluded. “Accordingly, leave to appeal sentence is granted and the appeal against sentence is allowed by reducing the custodial portion of the appellant’s sentence to one of time served.”

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