COURT OF APPEAL FOR ONTARIO
DOHERTY, LASKIN and FELDMAN JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Gregory Lafontaine
for the appellant
Respondent
- and -
ZACHARY SYED
Amy Alyea
for the respondent
Appellant
Heard: January 14, 2005
On appeal from conviction by Justice S. Foster of the Ontario Court of Justice dated July 15, 2004 and sentence imposed by Justice Foster dated September 2, 2004.
BY THE COURT:
1The appellant pled guilty to a number of charges, including possession of a quantity of marijuana for the purpose of trafficking and possession of prohibited firearms and stolen identification documents. He received a total sentence of two years less a day after receiving a one year credit for six months pretrial custody. He seeks leave to appeal his sentence.
2The respondent also appealed his conviction on the possession of marijuana for the purpose of trafficking charge. The Crown conceded on appeal that the conviction was registered under the wrong section of the Controlled Drugs and Substances Act and that the appellant should properly have been convicted of a less serious form of the offence. At the end of oral argument, the court allowed the conviction appeal and endorsed the record to reflect a conviction under the proper section. The court reserved judgment on the sentence appeal. These reasons address that appeal.
3In our view, the sentencing proceedings at trial reflect significant errors meriting a review by this court of the fitness of the sentence imposed on the appellant. We are, however, satisfied that the total sentence imposed was appropriate for the offences and the offender.
4The appellant pled guilty to seven charges under the Criminal Code and the Controlled Drugs and Substances Act. They were: (1) possession of a firearm without a license or registration certificate; (2) possession of a loaded prohibited firearm together with readily accessible ammunition without a license or authorization or registration certificate; (3) possession of a prohibited weapon (a taser) without a license; (4) possession of property being identification, knowing that it was obtained by the commission of an indictable offence; (5) possession of a Canadian passport knowing it was obtained by the commission of an indictable offence; (6) possession of marijuana for the purpose of trafficking under s. 5(3)(a) of the Controlled Drugs and Substances Act; and (7) possession of $2,590 knowing that it was obtained by the commission of an indictable offence.
5On February 29, 2004, at 5:55 a.m., using a search warrant, the police entered the address where the appellant resided. Although the appellant lived alone, his father was present at the time and both were arrested. The following items were found: a loaded, 40 calibre Smith and Wesson semi-automatic pistol with one chambered round and the safety off, together with a magazine loaded with hollow point bullets located within arm’s reach of the appellant’s bed; two magazines for the pistol consisting of one empty 10-round magazine and one magazine loaded with 14 rounds of 9 millimetre hollow point bullets, found in the sleeve of a jacket hanging in the bedroom closet; a second loaded semi-automatic .25 calibre pistol with a loaded magazine containing 5 rounds, hidden in the hood of a sweater in the closet; and Can. $2,715.00 and U.S. $40.00 in the same sweater. The police also found four $10.00 Canadian counterfeit bills, a forged Royal Bank credit card, a stun gun, a machete, a hunting knife, a number of expandable batons, a non-expandable baton, a flashlight, a pellet gun, some personal identification items in other people’s names including a passport, a driver’s license, a SIN card and a health card. There were also targets with holes in them, a piece of body armour, spent casings from a 9 millimeter automatic, a spring loaded switch blade, plus 590 grams of marijuana. The basement drywall was pitted with bullet holes from use for target practice.
6The appellant pled guilty to all of the charged offences on July 15, 2004. The charges were withdrawn against the father. The facts relating to everything that was found, as described above, which included items for which there was no charge, were placed before the court. The matter was put over to September 2, 2004 for sentencing and the preparation of a pre-sentence report. On that date the appellant’s criminal record was tendered, including a youth record for theft under, and as an adult, a charge of possession of a controlled substance, for which he received a conditional discharge and probation.
7Crown counsel sought a sentence of three years. In his submissions, Crown counsel recapped the facts, mistakenly stating that drug trafficking paraphernalia had been found in the appellant’s home. Crown counsel also mis-described the offences for which the appellant had pled guilty, informing the court that two of the weapons offences attracted a minimum one year sentence. In fact, only one count attracted the minimum sentence set out in s. 95(1) of the Code. In his submissions, defence counsel also appeared to be under the impression that two of the gun charges carried the minimum one-year sentence. He urged the court to make those sentences concurrent.
8The Crown highlighted the context as one of drug dealing, emphasizing the drugs, the cash on hand, and the body armour. However, defence counsel mentioned that $1,500 of the Canadian cash belonged to the appellant’s father and following the sentence, that amount was ordered returned to the father. It follows that $1,500 of the $2,590 recovered was not proceeds of crime or part of any drug dealing. It also transpired that the appellant’s sister had been a security officer in England and was apparently storing her body armour in the appellant’s home, so that neither was the body armour properly part of the contextual picture that Crown counsel painted for the sentencing judge.
9Crown counsel provided the court with only one authority for guidance on the proper range of sentence, the case of R. v. Kucovic, [1998] O.J. No. 5762 (Ont. Gen Div.) In that case, the twenty-five year old accused pled guilty to trafficking in cocaine and possession of an assault rifle with a fully loaded clip containing more than 40 rounds in firing mode and a hand gun. The police found drug paraphernalia, a significant amount of cocaine and almost $15,000 cash, which was forfeited to the Crown. After seven months and nineteen days of pre-trial custody for which he received two for one credit, the accused was given a sentence of 2.5 years in penitentiary, based on a joint submission. Although Crown counsel pointed out that there were some differences from the case at bar, including the very serious nature and large quantity of the drug (cocaine) as well as the fact that the weapon was an assault rifle, he essentially equated the two cases on the basis that they both involved drug trafficking with weapons. He again emphasized that the appellant had armed himself with weapons and body armour.
10Crown counsel also discounted the appellant’s avowed remorse in the pre-sentence report, describing the appellant as “cagey” and unwilling to help the police by identifying the source of the handguns.
11The appellant expressed remorse, regret and embarrassment to the court, and indicated that he had learned his lesson. His mother died of breast cancer when he was eight years old and his father appeared to have left him alone a lot of the time. His father remarried and the son had been living essentially independently since he was eighteen. He was twenty-one years old at the time of the sentencing. He told the author of the pre-sentence report that he became involved in criminal activity to assist his father who was in financial difficulty. In fact, the appellant had inherited $60,000 on his eighteenth birthday. He still had that money. On the sentencing date, the appellant had a job offer and the ability to attend college. His father had visited him regularly in jail during the appellant’s pre-trial custody and was prepared to supervise him closely upon his release.
12The trial judge’s reasons for sentence were brief. He agreed with Crown counsel that three years was the appropriate sentence. He referred to the drug trafficking and the weapons as well as the Kucovic case as providing guidance on the proper range of sentence. He rejected a conditional sentence without giving any reasons. The judge also imposed a lifetime weapons prohibition, and a DNA order, which defence counsel incorrectly conceded was available. However, the order was withdrawn after Crown counsel advised the court that the order was not available on the charges to which the appellant pled guilty.
13There were several errors made in the sentencing proceedings, including the following:
the appellant pled guilty to possession of marijuana for the purpose of trafficking in an amount over three kilograms. In fact, he was in possession of significantly less than three kilograms. The maximum penalty for the former offence is life imprisonment. The maximum for the offence actually committed by the appellant is five years less a day;
Crown counsel misstated facts during the sentencing proceedings indicating that drug trafficking paraphernalia had been found in the appellant’s home;
both counsel appeared to believe mistakenly that two of the gun charges carried minimum one year sentences;
the trial judge and defence counsel erroneously believed that a DNA order was mandatory; and
the trial judge did not acknowledge that most of the money said to be the proceeds of crime was in fact the father’s money.
14In addition to the errors described above, the reasons for sentence are not particularly helpful. The trial judge also placed undue reliance on Kucovic. That case was significantly different from this case and could not provide much assistance in determining an appropriate sentence in this case.
15In our view, the errors committed in the sentencing proceedings and the uninformative nature of the reasons sufficiently undermine confidence in the sentence imposed to merit a non-deferential assessment of the fitness of that sentence .
16We are satisfied, despite the appellant’s age and his positive rehabilitative potential, that the seriousness of these offences demands a sentence of two years less a day. When the circumstances of these offences are considered in their totality, it is clear that the appellant was involved in multi-faceted criminal activity. The number of dangerous weapons found in his possession, particularly the handgun loaded with deadly bullets found at his bedside, strongly suggests that the appellant was ready and willing to use deadly force in the course of his criminal activities.
17The seriousness of the offences to which the appellant pled guilty justified a significant penitentiary term. There are, however, significant mitigating factors. The appellant is a young man. He expressed remorse for his conduct and has the strong support of his father. The pre-sentence report is not, however, entirely positive. The appellant, although contrite, lied to the author of the pre-sentence report when explaining the reason for his involvement in criminal activity. The genuineness of the appellant’s remorse remains to be seen.
18A sentence of two years less a day, having regard to the pre-trial custody, strikes the appropriate balance between the seriousness of the offences and the positive aspects of the appellant’s personal circumstances. Leave to appeal sentence is granted, but the appeal is dismissed.
RELEASED: “FEB 28 2005” “DD”
“Doherty J.A.”
“John Laskin J.A.”
“K. Feldman J.A.”