Court of Appeal for Ontario

CITATION: R. v. Maddigan, 2009 ONCA 269

DATE: 20090327

DOCKET: C49367

BEFORE: Rosenberg, Watt and Epstein JJ.A.

BETWEEN:

Her Majesty the Queen

Applicant/Appellant

and

Jason Maddigan

Respondent

COUNSEL:

Hugh O’Connell and Jeremy Streeter, for the appellant

Paul Calarco, for the respondent

Heard and released orally: March 17, 2009

On appeal from sentence imposed by Justice G. Gage of the Ontario Court of Justice dated August 18, 2008.

ENDORSEMENT

[1] While the trial judge referred to the appropriate principles, including that this offence was committed for the benefit of and at the direction of a criminal organization, the sentence imposed did not reflect those principles. In our view it was grossly inadequate. Knowingly supplying a handgun and ammunition to a member of The Hells’ Angels is a serious aggravating factor. As pointed out by the Crown, these criminal organizations depend upon the complicity of people like this respondent. In this case, the seriousness of the offence was aggravated by the fact that the respondent was under a prohibition order at the time. In the circumstances, it was an error in principle not to impose a consecutive sentence for the s. 117.01 offence.

[2] Were it not for the fact that the respondent has served the sentence, we would consider imposing a sentence of four years, which was the sentence sought by the Crown at trial. However, taking into account the additional hardship of re-incarcerating the respondent, his guilty plea and lack of prior criminal convictions, and that the trial judge found the respondent was remorseful and only a “runner”, we would vary the sentence by reducing the sentence for the s. 117.01 offence to 12 months imprisonment but making that sentence consecutive to the other sentences imposed by the sentencing judge.

[3] Accordingly, leave to appeal is granted and the sentence is varied to a total of 20 months in addition to the credit of 18 months for pre-trial custody. A warrant may issue if required.

“M. Rosenberg J.A.”

“David Watt J.A.”

“Gloria J. Epstein J.A.”