Court of Appeal for Ontario
Date: September 10, 2018 Docket: C63122
Justices: Lauwers, Pardu and Paciocco JJ.A.
Between
Her Majesty the Queen Respondent
and
Paval Banovac Appellant
Counsel
Amy Ohler, for the appellant James Clark, for the respondent
Heard and released orally: September 5, 2018
On appeal from: the sentence imposed on November 18, 2016 by Justice B.A. Allen of the Superior Court of Justice.
Reasons for Decision
[1] The appellant appeals from his sentence for possession for the purpose of trafficking in heroin. The appellant was found in possession of 21.91 grams of heroin, divided into four "8-ball" 3.5 gram packages. He pleaded guilty to possession of the heroin, but asserted that it was for personal use and not for trafficking. He admitted that he was badly addicted at the relevant time.
[2] The trial judge accepted the expert evidence about the amounts of heroin used by addicts. She concluded that given his limited financial resources, the appellant had to have been trafficking in heroin to support his habit. The agreed statement of facts confirmed the amount of drugs found and indicated that this amount would have provided 1103 "hits" of heroin.
[3] The appellant submits that the sentencing judge made the following errors in principle:
She treated the absence of pro-social life factors as an aggravating factor;
She considered outstanding charges alleging domestic violence more than two years after the arrest for drug-trafficking as an aggravating factor; and
She failed to exercise restraint and should have imposed a two-year sentence as urged by defence counsel.
[4] We agree that the absence of a pro-social life network might more appropriately be treated as relevant to the likelihood that the appellant could rehabilitate himself rather than being treated as an aggravating factor. We also agree that the outstanding charges of assault against the domestic partner were irrelevant to the sentence to be imposed for possession for the purpose of trafficking in heroin. There was no nexus between the later charges and the offence for which the appellant was to be sentenced – see R. v. Edwards, [2001] O.J. No. 2582.
[5] That said, despite these errors, the sentence imposed was fit and well within the range for other offenders, even those with no previous record, unlike the appellant and with significantly smaller amounts of heroin: see R. v. Farizeh, [1994] O.J. No. 2624; R. v. Bahari, [1994] O.J. No. 2625 and R. v. Pimentel, [2004] O.J. No. 5780.
[6] Leave to appeal sentence is granted, but the appeal is dismissed.
"P. Lauwers J.A."
"G. Pardu J.A."
"David. M. Paciocco J.A."