CITATION: R. v. Carroll, 2010 ONCA 378

DATE: 20100525

DOCKET: C50700

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Armstrong and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dennis Carroll

Appellant

P. Andras Schreck, for the appellant

John North, for the respondent

Heard and orally released: May 20, 2010

On appeal from the sentence imposed by Justice R.G. Masse of the Ontario Court of Justice on March 17, 2009.

ENDORSEMENT

[1] The appellant was sentenced to 7 years concurrent on charges of trafficking in cocaine, possession of psilocybin for the purpose of trafficking, possession of hashish for the purpose of trafficking and possession of marijuana for the purpose of trafficking. At the time of his arrest, the police seized over one kilogram of cocaine, over four kilograms of hashish, over eight kilograms of marijuana and 2.4 grams of psilocybin as well as a substantial amount of cash. The appellant had two prior related convictions. The last one was 11 years before the within offences. His longest previous sentence was 5 months in prison.

[2] We agree with the appellant’s submission that the trial judge failed to take into consideration that it had been 11 years since his last criminal conviction and, therefore, failed to apply the well-known gap principle. As a result, the trial judge placed undue emphasis on the appellant’s criminal record and failed to give adequate weight to the appellant’s prospects for rehabilitation. Thus, this is a case in which this court can look at the sentence afresh.

[3] We agree with the trial judge that 7 years is within the range for these offences, particularly for an offender with a previous related record. However, we are of the view that a sentence of 5 ½ years is appropriate for the appellant having regard to the 11-year gap in his record, his good employment record, his acceptance of responsibility for the offences, his early pleas of guilty, and his favourable prospects for rehabilitation which are reinforced by the fresh evidence.

[4] Accordingly, the application for leave to appeal the sentence is allowed. The appeal against sentence is allowed and the sentence is reduced to 5 ½ years imprisonment.

“D. O’Connor A.C.J.O.”

“David Watt J.A.”

“Robert P. Armstrong J.A.”