



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Murororunkwere, 2019 ONCA 463

DATE: 20190605

DOCKET: C63475

Watt, Pardu and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Agnes Murororunkwere

Appellant

Najma Jamaldin, for the
    appellant

Scott Wheildon, for the
    respondent

Heard: April 30, 2019

On appeal from the
    convictions entered by Justice Jennifer Woollcombe of the Superior Court of
    Justice, sitting with a jury, on October 1, 2015, and from the sentence imposed
    on February 10, 2016, with reasons reported at 2016 ONSC 1039.

Pardu J.A.:

[1]

At the hearing of this appeal, the appellant did
    not pursue the conviction appeal and it was dismissed. The appellants sentence
    appeal was reserved. For the reasons that follow, the sentence appeal is also
    dismissed.

[2]

The appellant was sentenced to 15 years in
    custody less credit for 200 days presentence custody for importing heroin, and
    conspiracy to import heroin. The sentence was broken down as 15 years for the
    conspiracy count, and 12 years concurrent for the importation count.

[3]

The count charging conspiracy alleged that the
    appellant conspired to import heroin between October 15, 2010 and March 25,
    2011. The substantive importation count charged her with importing heroin into
    Canada on or about March 24, 2011.

A.

factual overview and the sentencing judges
    reasons

(1)

The seriousness of the offence and nature of the
    conspiracy

[4]

The sentencing judge concluded that she was
    satisfied beyond a reasonable doubt that the appellant was part of a broad
    ongoing conspiracy to import heroin, extending beyond the importation of March
    24, 2011, evidenced by multiple other importations of heroin:
R v.
    Murororunkwere
, 2016 ONSC 1039, at para. 14.

[5]

The sentencing judge found that the appellant
    recruited Ms. Mukandori to bring heroin from Nairobi in October 2010:
Murororunkwere
, at paras. 15-19. According to her evidence, Ms. Mukandori was
    outfitted with an undergarment designed to conceal drugs. The appellant was
    present for the fitting of this garment and according to Ms. Mukandoris
    evidence, after the drugs were concealed in the undergarment, the appellant
    told her there was a kilogram of heroin in the garment and drove Ms. Mukandori
    to the airport to return to Canada. The sentencing judge, at paras. 17-18,
    referred to other evidence which in her view provided independent confirmation
    of this incriminatory evidence and supported her conclusion that the appellant
    conspired to import heroin into Canada in October 2010.

[6]

The sentencing judge also concluded that the
    appellant conspired with others to import heroin in January 2011:
Murororunkwere
, at para. 28. The sentencing judge found that the appellant
    provided Ms. Kalimba with a plane ticket to travel to Mombasa so that she could
    return travel to Detroit with drugs. The sentencing judge accepted Ms.
    Mukandoris testimony that the appellant told her Ms. Kalimba would also be
    importing drugs. In the same month, the appellant drove Ms. Mukandori to
    Nairobi where she met the same two men who had given her the special
    undergarment in the appellants presence. This time the men gave her hand
    luggage in which heroin was concealed and which Ms. Mukandori brought to
    Canada.

[7]

Finally, the sentencing judge concluded that the
    appellant conspired to import heroin in March 2011:
Murororunkwere
, at paras. 29-30. Ms. Mukandori was caught at the airport with 2.5 kilograms
    of heroin, worth between $200,000 and $750,600 at the time. The guilty verdict
    on the substantive count establishes that the appellant facilitated this
    importation.

[8]

The appellant had planned for Ms. Kalimba to
    bring drugs to Canada around the same time but abandoned those plans when Ms.
    Mukandori was apprehended at the airport.

[9]

The sentencing judge found that the appellant
    played a significant role in the conspiracy, well beyond that of a one-time
    courier, at para. 55 of her reasons:

There
    is no doubt in my mind that Ms. Murororunkweres role was much more significant
    than that of a one-timer courier. She facilitated and arranged for two couriers
    to travel to three different African countries (Kenya, Uganda and Tanzania) in
    order to bring heroin into Canada on four occasions and into the United States
    once. Twice, when the importation was into Canada, she organized for the heroin
    to be transported to the United States. She was an active participant in a
    sophisticated international drug importation scheme. I find that her
    culpability is high  much higher than that of a courier. Her sentence must
    reflect the very serious nature of her repeated conduct.

[10]

Crown
and defence counsel at trial agreed that a
    sentence of 12 to17 years would be fit for a first time importer of a large
    amount of heroin.  The Crown further submitted that if the sentencing judge
    found that Ms. Murororunkwere was a principal in multiple attempts to import
    and multiple successful importations, then the appropriate sentencing range
    would be 14 to 18 years. Defence counsel took the position that due to the
    unique and exceptional circumstances of the appellant, which I will discuss
    below, the broad sentencing range the court should consider is between 8 to 12
    years.

[11]

The sentencing judge concluded that the
    appellants culpability was more serious, as she had been part of a conspiracy
    to import heroin on multiple occasions and that the appropriate range of
    sentence for the offences committed by Ms. Murororunkwere was 14 to 18 years:
Murororunkwere
, at paras. 48, 55-56.

(2)

The appellants personal history

[12]

At
    the sentencing hearing, the appellant tendered a letter written by her daughter
    describing horrific suffering the appellant endured during the Rwandan genocide
    in 1994 which the sentencing judge summarized at para. 32 of her reasons:

The
    letter from Ms. Murororunkweres daughter, Olga Kata, says that during the 1994
    Rwandan genocide, Ms.Murororunkwere was raped, and that she is a product of
    that rape. She says that her mother was kidnapped by people who killed members
    of her family. Counsel has elaborated his understanding of what happened to Ms.
    Murororunkwere. He tells the court that she is Tutsi and that Hutu soldiers
    killed her parents and brothers and that one of the soldiers took her from
    Rwanda through Zaire (now the DRC) to Uganda and then Kenya. He says she was
    effectively a prisoner bride and that she was beaten and tortured. She also
    became HIV positive. According to counsel, Ms. Murororunkwere was rescued by a
    neighbor in Kenya. She came to Canada as a refugee in 2003.

[13]

At the sentencing hearing, defence counsel urged
    the court to conclude that the appellants personal history was so exceptional
    as to amount to extenuating circumstances justifying a sentence of not more than
    12 years. The sentencing judge did not accept this argument.  Citing
R.
    v. Shahnawaz
(2000)
, 51 O.R. (3d) 29 (C.A.), leave to appeal refused, [2001] S.C.C.A.
    No. 24, she concluded that the horrific events occurring some 18 years ago
    could not justify a departure from the normal range of sentence in the absence
    of a link between the offenders history and one of the relevant principles of
    sentencing:
Murororunkwere
, at paras. 61-65. While
    the sentencing judge noted that there was a lack of evidence about the
    appellants personal history outside of the hearsay account provided by her
    daughter, she was prepared to accept the version of events between and
    following the 1994 Rwandan genocide for the purposes of sentencing:
Murororunkwere
, at para. 65. She did conclude that the
    appellants past was, to some degree, a relevant and mitigating factor on
    sentencing:
Murororunkwere
, at para. 67.

(3)

The sentencing judges weighing of mitigating
    and aggravating factors

[14]

The sentencing judge outlined the following
    mitigating factors, at para. 68:

·

Ms. Murororunkwere has no previous criminal
    history;

·

Ms. Murororunkwere has widespread support in her
    community. She has been an active member of the community, providing to friends
    and family both encouragement and support;

·

Ms. Murororunkwere has a history of actively
    volunteering in her community as detailed above;

·

Ms. Murororunkwere is the sole parent to her
    university-aged daughter;

·

Ms. Murororunkwere has significant health concerns
    including HIV, hepatitis B and recurring genital herpes;

·

Ms. Murororunkwere came to Canada as a refugee
    having seen member of her family members [
sic
] killed in the Rwandan
    genocide and having been abducted, raped and beaten herself.

[15]

The aggravating factors she described related
    primarily to the seriousness of the offence, and the reason for the appellants
    criminal conduct, at para. 69:

·

There was 2.5 kg of heroin imported in March
    2011;

·

The value of the heroin inmported in March 2011
    was between $200,000.00 and $750,600.00;

·

Ms. Murororunkwere was involved in a
    sophisticated international plan to import heroin that resulted in successful
    importations into Canada on three occasions, a successful importation into the
    United States, and a plan for a further importation into Canada in March 2011;

·

Ms. Murororunkweres importation was solely for
    personal gain.

[16]

The sentencing judge characterized the six year
    sentence imposed on Ms. Mukandori following her plea of guilty to importing
    heroin as very lenient.

[17]

The sentencing judge reiterated the judicial
    pronouncements about the nature of heroin, and its impact on the community at
    para. 46:

Heroin
    is the most pernicious of the hard drugs in that it is the most addictive,
    most destructive and most dangerous (
Sidhu
at para. 12). There is a
    pressing need to protect society from the untold grief and misery occasioned by
    the importation and subsequent use of hard drugs such as heroin.

[18]

After considering a number of appellate
    authorities dealing with sentencing for importation of heroin, the sentencing
    judge ultimately concluded that a global sentence of 15 years was fit. She
    allocated 15 years to the conspiracy count and 12 years concurrent for the
    substantive count of importing.

B.

Arguments on appeal

[19]

The appellant submits that the sentencing judge
    should not have sentenced her as if she were a party to a broad over-arching
    conspiracy extending beyond the agreement inherent in the substantive charge of
    importing. The appellant submits that the trial Crown invited the jury to
    convict of a narrower conspiracy related to the events of March 24, 2011, and
    that the sentencing judge should not have gone on to make findings of fact in
    relation to a broader conspiracy. She further submits that the findings of a
    broader conspiracy were unreasonable.

[20]

The appellant also argues that the global 15
    year sentence was simply too high, particularly since Ms. Mukandori received a
    six year sentence. The appellant distinguishes the authorities relied upon by
    the Crown on the ground that they involved larger amounts of high grade heroin valued
    a much higher dollar amount than what the appellant imported.

[21]

The Crown argues that the sentence is fit and
    relies on the following cases to support the range identified by the sentencing
    judge
[1]
:



Case

Quantity

Offenders
          circumstances

Sentence



R. v. Sidhu
, 2009 ONCA 81, 94 O.R. (3d) 609.

9.56 kg.

Courier. Guilty plea. No record.

14 years 9 months after 3 months
          pre-trial custody.



R. v. Thambiah
(1987), 23 O.A.C. 394 (C.A.).

13.6 kg.

Courier. Convicted after trial. No record.

15 years custody.



R. v. Kusi
, 2015 ONCA 638.

1.37 kg.

Guilty plea. No record.

10.5 years custody



R. v. Osinfolarin
, 2017 ONCA 787.

1.98 kg. of street
          ready heroin.

Convicted after trial.

13 years custody.



R. v. Kwok
(1986), 31 C.C.C. (3d) 196 (Ont. C.A.), leave to appeal refused,
          [1987] S.C.C.A. No. 362.

3.49 kg.

Overseer. Convicted after trial.

15 years custody.



R. v.
          Mohamed
, 2017 QCCA 1643.

2.6 kg.

Courier. No record. Convicted after trial.

12 years custody.



R. v. Phu
,

[2001] O.J. No. 5796 (Ont. C.A.), leave to appeal
          refused, [2001] S.C.C.A. No. 540.

2.54 kg.

Guilty plea.
          Directed Canadian end of scheme to import from Vietnam.

14 years custody.



R. v. Wu
(2002), 170 C.C.C. (3d) 225 (Ont. C.A.).

42 kg.

Convicted after trial. Not an overseer or
          principal but much more than couriers.

18 years and
          4 months custody in addition to 22 months pre-trial custody (credited at 44
          months).



R. v. Devasagayam
, [1993] O.J. No. 1172 (Ont. C.A.).

Conspiracy to import over 6 kg.

Convicted
          after trial. Overseer responsible for recruiting and supervising courier.

16 years in addition to 1 year pre-trial
          custody.



C.

Analysis

[22]

First, I do not accept the appellants arguments
    suggesting the sentencing judge erred by sentencing her as if she were a party
    to a broader conspiracy to import heroin. The trial Crown invited the jury to
    convict on two bases, either a narrow agreement related to the March 24, 2011
    importation or a broader agreement related to a series of importations
    suggesting an ongoing agreement to import heroin. Either basis was possible on
    the wording of the indictment. The guilty verdict on the conspiracy count did
    not reveal the basis upon which the jury convicted and the sentencing judge was
    obliged to come to her own independent determination of the facts relevant to
    sentencing:
R. v. Ferguson
, 2008 SCC 6, [2008]
    1 S.C.R. 96, at paras. 16-18.

[23]

At trial, both the Crown and defence counsel
    accepted that the sentencing judge had to make this determination given the
    ambiguity of the jurys finding of guilt on the conspiracy count. The Crown
    urged the court to conclude that the appellant conspired to import heroin from
    October 15, 2010 to March 25, 2011 and alleged that she was implicated in
    organizing a number of separate trips to Africa to facilitate importation of
    heroin as part of an ongoing scheme. Defence counsel urged the trial judge to
    conclude that only a narrower conspiracy related to the March 24, 2011
    importation was proven.

[24]

As is clear from my summary of the sentencing
    judges findings and reasons provided above, the sentencing judge concluded
    that the appellant was part of a broad ongoing conspiracy going beyond the
    March 24, 2011 importation.

[25]

The sentencing judge had to make factual
    findings as to the nature of the offence committed. (See
Ferguson
) Further, these factual findings were reasonably available to the
    sentencing judge, and no misapprehension of evidence is suggested. There is no
    basis to interfere with these findings.

[26]

Second, I do not accept the appellants position
    that the sentence was unfit nor do I find there is any other error in law or
    principle that would justify appellate intervention with the sentence imposed. The
    amount of drugs imported is not the only measure of the gravity of the offence.
    A review of the relevant case law shows that the role of the individual in a
    drug trafficking organization also can impact the measure of the gravity of the
    offence for the purposes of sentencing.  In both
Sidhu
and
Thambiah
the accused were only
    couriers who had no other involvement in the drug trafficking organization.

[27]

Mr. Sidhu was a first time offender who agreed
    to act as a courier for others and brought 9.56 kilograms of heroin into the
    country, worth between $4.78 and $6.69 million and representing 11.4 percent of
    all heroin seized by Canadian police in 2005:
Sidhu
, at para. 7.

[28]

Mr. Thambiah had been hired to bring 30 pounds,
    or approximately 13.6 kilograms of heroin into Canada:
Thambiah
, at para. 6. He did not oversee the operation, and did not know the
    identity of the Canadian connection, although he knew he was transporting drugs:
Thambiah
, at para. 13.

[29]

The appellant argues that
Sidhu
and
Thambiah

involved far greater
    amounts of heroin than this case, and that a lower sentence would have been fit
    for the appellant.

[30]

Here, the appellant played a substantial role in
    the drug trafficking operation well above that of a one-time courier,
    significantly increasing the degree of moral culpability associated with her
    conduct.

[31]

While parity is a factor to be considered, Ms.
    Mukandori was a lower level courier who undoubtedly received substantial credit
    for pleading guilty and for testifying about the importing operation.

[32]

Sentencing judges are owed substantial
    deference. As noted in
R. v. Lacasse
, 2015 SCC
    64, [2015] 3 S.C.R. 1089, at para. 11:

This
    Court has on many occasions noted the importance of giving wide latitude to
    sentencing judges. Since they have,
inter alia
, the advantage of
    having heard and seen the witnesses, sentencing judges are in the best position
    to determine, having regard to the circumstances, a just and appropriate
    sentence that is consistent with the objectives and principles set out in the
Criminal
    Code
in this regard. The
    fact that a judge deviates from the proper sentencing range does not in itself
    justify appellate intervention. Ultimately, except where a sentencing judge
    makes an error of law or an error in principle that has an impact on the
    sentence, an appellate court may not vary the sentence unless it is
    demonstrably unfit.

[33]

Here, no error of law is alleged. No error in principle has been
    identified. I am unable to conclude that the sentence is demonstrably unfit.
    The appellants essential submission is that the sentencing judge ought to have
    weighed the various factors differently. There is no suggestion that the
    sentencing judge considered irrelevant matters or failed to consider relevant
    factors. Nor could it be said that the sentencing judge overemphasized the
    seriousness of the offence.

[34]

As this court said in
R. v. McKnight
(1999),
    44 O.R. (3d) 263 (C.A.), at p. 273:

To
    suggest that a trial judge commits an error in principle because in an
    appellate courts opinion the trial judge gave too much weight to one relevant
    factor or not enough weight to another is to abandon deference altogether. The
    weighing of relevant factors, the balancing process is what the exercise of
    discretion is all about. To maintain deference to the trial judges exercise of
    discretion, the weighing or balancing of relevant factors must be assessed
    against the reasonableness standard of review. Only if by emphasizing one
    factor or by not giving enough weight to another, the trial judge exercises his
    or her discretion unreasonably should an appellate court interfere with the
    sentence on the ground the trial judge erred in principle.

[35]

There is no basis for appellate interference
    with the sentence imposed and I would dismiss the appeal.

Released: DW JUN 05, 2019

G. Pardu J.A.

I agree. David Watt
    J.A.

I agree. I.V.B.
    Nordheimer J.A.





[1]

This table has been reproduced from the Crowns factum,
    subject to minor revisions.


