Court File and Parties

CITATION: R. v. Nero, 2008 ONCA 622

DATE: 20080912

DOCKET: C47350 and C47353

COURT OF APPEAL FOR ONTARIO

Armstrong, Lang and Epstein JJ.A.

BETWEEN:

Her Majesty the Queen

Appellant

and

Nicola (Nick) Nero

Respondent

Maureen McGuire and Andrew Cappell for the appellant

James Lockyer for the respondent

Heard: September 8, 2008

On appeal from the sentence imposed by Justice T. Dunnet of the Superior Court of Justice, sitting without a jury, on June 8, 2007.

ENDORSEMENT

[1] Both the federal and the provincial Crowns appeal the total sentence of seven years, as well as the amount of the $250,000 restitution order, imposed on the respondent by the sentencing judge.

[2] In her reasons, the sentencing judge canvassed the correct legal principles and determined that an appropriate sentence for the theft-related charges was one of four to five years and that the appropriate sentence for the drug-related charges was one of five years. However, in her view, the principal of totality required a reduction of the combined consecutive sentences of nine to ten years to one of seven years. In the result, the sentencing judge sentenced the respondent to three years for the theft charges and four years for the drug-related charges to be served consecutively to the theft sentence. In addition, she sentenced the appellant to one year for breach of recognizance to be served concurrently with the drug sentence. She also provided the respondent with three months of credit for his four months of pre-trial custody. Finally, the sentencing judge imposed a $250,000 restitution order.

[3] The theft charges related to the respondent's participation in stealing $2.7 million from an armoured car. The respondent’s role consisted of renting a van for the purpose of the theft, attending at the armoured vehicle, loading the money into the van, and departing with the money. The theft was made possible because the van’s driver arranged and cooperated in the theft. In the result, the respondent received at least $1 million as his share of the proceeds. He did not return any of his share of the proceeds and offered no explanation as to its whereabouts.

[4] Upon apprehension the respondent was charged with conspiracy to commit theft over $5,000, theft over $5,000 and possession of the proceeds of crime over $5,000.

[5] While the respondent was released on bail on these charges and while on probation in relation to unrelated convictions, he sold one kilogram of cocaine to a member of the Hells Angels, who was in fact a police agent. He repeated this offence one month later. When he was arrested one month after that, the police found a further kilogram of cocaine in his possession. It was clear from the circumstances of these offences that the respondent was knowledgeable about the drug industry.

[6] As a result of these actions, the respondent was charged with the following additional offences; two charges of trafficking in cocaine, possession of cocaine for the purposes of trafficking, possession of the proceeds of crime and fail to comply with recognizance.

[7] The respondent, who was 31 years of age at time of sentence, had an unrelated record for an assault on his wife and child. He pled guilty to all of the charges – both the theft and the drug-related charges at an early stage of the proceeding. Mr. Bruni, the driver of the armoured vehicle, who had also pled guilty, but did not cooperate with the police, received a sentence of six years. The other person involved in the theft received a conditional sentence of two years less a day in light of his early guilty plea, minor involvement, his return of the funds in his possession and the fact that his participation was uncharacteristic.

[8] We recognize that, given the unique qualifications of a sentencing judge, broad discretion is shown to sentences imposed by such judges and that an appellate court will not intervene absent and error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors. This deference has recently been emphasized by the Supreme Court in R. v. L.M (2008), 2008 SCC 31, 231 C.C.C. 310.

[9] In our view, we see no error in principle with respect to the four to five year the sentence judge relating to the theft given the circumstances of the offences and the offender.

[10] However, in our view, the sentencing judge erred in principle with respect to the sentence for the drug-related offences. In particular, the sentencing judge erred in relying on the decision of this Court in Regina v. Bajada, (2003) 2003 CanLII 15687 (ON CA), 173 CCC (3rd) 255. In that case, Weiler J.A. observed at para. 13 that sentences of "five to 5 1/2 years are not uncommon for possession of a substantial amount of cocaine for the purposes of trafficking following an accused's plea of guilty or where the accused had no prior record." However, Bajada can be distinguished.

[11] First, the circumstances in Bajada involved a single drug transaction. The respondent's culpability in this case was significantly higher given his conviction for two offences of trafficking, each of one kilogram of cocaine, one month apart. Second, these offences were committed while the respondent was both on bail and on probation. In addition, the respondent was in possession of a further kilogram of cocaine at the time of his arrest. In these circumstances, it was an error in principle for the sentencing judge to consider a five-year sentence adequate. The trafficking and possession charges related to significant quantities of cocaine over a three-month period, which is indicative of the respondent’s extensive involvement in and familiarity at a high level with the drug business. In our view, the appropriate sentence for the three counts involving cocaine would have been eight years.

[12] In light of this conclusion the respondent’s potential imprisonment would be 12 to 13 years. However, it remains necessary to adjust the sentence to take into account the principle of totality which requires the sentencing judge to consider whether the total sentence is proportional to the overall culpability of the offender and whether the total sentence, in all the circumstances, would be crushing for the respondent. The sentencing judge recognized that the totality principle applied at this stage of the sentencing, even though the offences were separate. However, she did not explain what aspects of the offences or the offender justified a reduction of the aggregate sentence to seven years.

[13] In our view, taking into account the seriousness of these offences, the circumstances of the offender and the offence, the sentence imposed on Mr. Bruni, the appropriate total sentence that ought to have been imposed on this offender is nine years.

[14] The sentencing judge ordered restitution of $250,000, even though the evidence was clear that the respondent, who advised the court that his actions had been motivated by greed, had profited from the theft by at least $1 million and had provided no information about where the money was. In these circumstances, the sentencing judge was obliged to explain why she arrived at the figure of $250,000. An absence of reasons leaves this court in a position to determine the appropriate restitution order.

[15] We would accordingly grant leave to appeal sentence, allow the appeal, and substitute a sentence of five years for the trafficking and possession charges and four years consecutive for the theft charges. We would also substitute a restitution order of $1 million.

[16] We would not disturb the sentence of a further one year imprisonment for breach of recognizance, to be served concurrently, nor the three months credit given for pre-trial custody.

“Robert P. Armstrong J.A.”

“S.E. Lang J.A.”

“G. Epstein J.A.”