DATE: 20030925

DOCKET: C39784

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – KEVIN MACDIARMID (Appellant)

BEFORE:

WEILER, GILLESE and ARMSTRONG JJ.A.

COUNSEL:

Mr. Doucett

for the appellant

Nick Devlin

for the respondent

HEARD:

September 23, 2003

On appeal from the sentence imposed by Justice W. George Beatty of the Ontario Court of Justice dated February 28, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant was convicted of counselling to commit the indictable offence of trafficking and sentenced to two years consecutive to the sentence being served.

[2] The sentencing judge relied on a joint submission by the Crown and duty counsel that the sentence should be two years. In making submissions, the Crown referred to the case of “Jason English” as establishing that two years was the appropriate range. However we are advised that the offence in English related to a much greater quantity and involved hashish.

[3] In our view, the sentencing judge erred in principle in accepting that two years was the appropriate range for this type of offence. An appropriate range for this type of offence is between six and twelve months. In saying this, we observe that:

(i) the drug in the instant case was marijuana;

(ii) the quantity of sixteen grams was small; and

(iii) the record is clear that the drugs were for the appellant’s personal use. See R. v. Voykin [1996] A.J. No. 1100 (Alta. Q.B.).

[4] Accordingly, leave to appeal sentence is granted and the sentence is reduced to six months consecutive.

“E.E. Gillese J.A.”