



COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Kusi, 2015 ONCA 638

DATE: 20150922

DOCKET: C58124

Cronk, Epstein and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ransford Nash Kusi

Appellant

John Norris and Meara Conway, for the appellant

Kevin Wilson, for the respondent

Heard: September 15, 2015

On appeal from the sentence imposed on December 3, 2013
    by Justice Alan D. Cooper of the Ontario Court of Justice.

ENDORSEMENT

[1]

Upon his arrival from Ghana at the Toronto
    Pearson International Airport on March 31, 2013, the appellant, Ransford Nash
    Kusi, was arrested for importing 1.37 kg. of heroin into Canada. He pleaded
    guilty to importing heroin, a Schedule I substance, contrary to s. 6(1) of the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19
. On
    December 3, 2013, the appellant was sentenced to 10.5 years imprisonment, less
    credit for pre-sentence custody equivalent to 1 year. The appellant seeks leave
    to appeal his sentence and, if leave is granted, appeals his sentence.

[2]

The appellant advances three main grounds of
    appeal: (i) the sentencing judge failed to give sufficient reasons for
    rejecting the appellants evidence that he had acted under pressure; (ii) the sentencing
    judge erred in finding that the appellant was a principal in the importation
    scheme, as opposed to a courier; and (iii) the sentencing judge erred by
    departing from the length of sentence discussed by this court in
R. v.
    Mensah
(2003)
,
170 O.A.C. 244, and imposing
    an unfit sentence
.

[3]

As to the standard of appellate review, absent
    an error in principle, failure to consider a relevant factor, or an
    overemphasis of the appropriate factors, a court of appeal should only
    intervene to vary a sentence imposed at trial if the sentence is demonstrably
    unfit:
R. v. M.(C.A.
),
[1996] 1 S.C.R. 500
, at
    para. 90.

First Ground of Appeal: The failure to give
    sufficient reasons for rejecting the appellants evidence that he had acted
    under pressure

[4]

The appellant operated a heavy equipment import
    business in Ghana. He testified that in 2008 he lost a cash deposit provided to
    him by a business client for a piece of equipment. According to the appellant,
    over the ensuing four-and-a-half years, the client pressed the appellant for
    re-payment of the lost cash, including threatening the appellant and his
    family. The appellant testified that when, in March 2013, his client had asked
    him to import drugs into Canada, he felt he had no choice but to agree. At the
    sentencing hearing, the appellant submitted that the duress or pressure under
    which he had acted should mitigate the sentence imposed.

[5]

The appellant submits that the sentencing judge made
    adverse credibility findings against him that led him to reject his evidence
    about acting under pressure without providing adequate reasons.

[6]

We see no merit in this submission. Although the
    sentencing judges reasons were brief, they explained why he made adverse
    credibility findings against the appellant, including why he rejected the
    appellants evidence that he had acted under pressure  i.e., there was no
    other evidence about the existence of the client; the appellants position that
    he had acted under pressure was undercut by his testimony that he would not
    have acceded to his clients request had he known the substance was heroin, not
    cocaine; and, the appellants experience as a sophisticated international
    businessman rendered unbelievable his contention that he did not know there
    would be penal consequences for importing cocaine into Canada. Those findings
    were firmly based in the evidence and provided adequate reasons for the
    sentencing judges findings about the appellants lack of credibility.

[7]

The appellant also submits that the sentencing judges
    conclusion that the appellant wasnt in complete duress signifies that he mistakenly
    thought the appellant was relying on the evidence of pressure as a defence to
    the charge, not for the purpose of mitigating the sentence.

[8]

We disagree. The exchanges between the
    sentencing judge and defence counsel during closing submissions disclose that the
    sentencing judge clearly understood that the appellant was relying on the
    evidence of pressure as a mitigating factor for purposes of sentencing.

Second Ground of Appeal: The finding that the
    appellant was a principal in the importation scheme

[9]

The sentencing judge found that the appellant
    knew what the drug was, and that he knowingly imported it into Canada as part
    of a sophisticated operation. He continued: [The appellant] may have been
    acting with others, but he certainly was a principal in the case as far as Im
    concerned. The appellant submits the sentencing judge erred in finding that he
    acted as a principal and in using that finding as an aggravating factor in
    fashioning the sentence.

[10]

We disagree.

[11]

The sentencing judges characterization of the
    appellant as a principal must be understood in the context of the submissions
    made at the sentencing hearing. Crown counsel had submitted that, while the
    appellants role in the drug importation scheme was not an aggravating factor,
    the appellant was not entitled to the mitigation of sentence that might arise
    upon a finding that he was an unsophisticated courier in the scheme. In the
    course of those submissions, Crown counsel referred the sentencing judge to the
    case of
R. v. Holder
(1998)
,
21 C.R.
    (5th) 277
(Ont. C.J.
(Gen. Div.)
)
    where, at paras. 34-35, Hill J. held that evidence that the offender had acted
    as a courier could operate as a mitigating circumstance in sentencing. Hill J.
    contrasted a courier  a lesser player in the organization, an employee, a
    runner or a mule  with a principal, who was a more active participant,
    more substantially involved, likely to receive more profit and certainly more
    intricately involved in domestic sub-distribution of the narcotic or controlled
    substance.

[12]

The sentencing judge obviously did not treat the
    appellant as an unsophisticated mule or runner, for he described the
    appellant as a sophisticated businessman who travelled around the world, who
    knew what the drug was, and knowingly imported it into Canada. Ample evidence
    supported those findings. Although the sentencing judge could have explained
    more precisely the impact of the appellants role in the importation scheme on
    sentencing, it is clear from his reasons that he did not regard that role as
    one entitling the appellant to a mitigation of sentence and, at the same time, that
    he accepted the Crowns position that the appellants role was not an
    aggravating factor.

Third Ground
    of Appeal: Unfit sentence

[13]

The appellant submits that the sentencing judge
    erred by failing to apply the length of sentence imposed by this court in its
    2003 decision in
Mensah
. In that case, the offender had been convicted
    of importing 1.038 kg. of heroin. He was a first offender and was treated as a
    courier. On appeal, this court imposed a sentence of nine years imprisonment,
    less credit for pre-sentence custody. The appellant submits that in the present
    case the appropriate length of sentence is seven years.

[14]

We see no error in the sentence of 10.5 years
    imposed by the sentencing judge. He took into account, as mitigating factors,
    the appellants guilty plea, his lack of criminal record and his prospects for
    rehabilitation. As well, the sentencing judge specifically referenced this
    courts discussion in
R. v. Sidhu,
2009 ONCA 81, 94 O.R. (3d) 609, at
    paras. 14 and 20, about the relevance of the quantity of the drug involved to the
    sentencing process. In that case, at para. 14, this court held that first
    offender couriers who import large amounts of high-grade heroin into Canada for
    personal gain should expect to receive jail sentences in the 12 to 17-year
    range. This court went on to say that lesser amounts will often attract
    similar, if slightly lower, penalties.  The examples of such lower penalties,
    given at para. 20 in
Sidhu,
disclose that, in
    the case of a courier, even a quantity of about 1 kg. of heroin could attract a
    sentence in the 9 to 11-year range.

[15]

Here, in the light of the trial judges finding
    concerning the appellants role in the heroin importation scheme and the
    quantity of the drug involved, the sentence imposed of 10.5 years imprisonment,
    less credit for pre-sentence custody, was not demonstrably unfit, and we see no
    basis for appellate interference.

Disposition

[16]

For the reasons set out above, we grant the
    appellant leave to appeal sentence, but dismiss the sentence appeal.

E.A. Cronk J.A.

Gloria Epstein J.A.

David Brown J.A.


