Her Majesty the Queen v. Speziale [Indexed as: R. v. Speziale]
107 O.R. (3d) 447
2011 ONCA 580
Court of Appeal for Ontario,
Laskin, R.P. Armstrong and LaForme JJ.A.
September 8, 2011
Criminal law -- Sentencing -- Possession of cocaine and ecstasy -- Cocaine and ecstasy found in accused's apartment following gunfight -- Jury acquitting accused of weapons- related offences but convicting of possession of cocaine for purposes of trafficking and possession of ecstasy -- Apartment used for trafficking but unclear what role accused playing -- Trial judge erring in imposing five-year sentence on 29- year-old accused with minor record -- Appropriate sentence for trafficking small amount of cocaine being in reformatory range -- Trial judge erring in failing to consider rehabilitation on basis that accused having trade could return to after incarceration -- Accused having provided substantial assistance to authorities after arrest and addressing his drug problem -- Accused on stringent bail for almost four years -- Sentence reduced to time served (14 months and nine days).
There was a gunfight in the accused's apartment. During a subsequent search, the police recovered two loaded handguns, ammunition, along with marijuana, cocaine and methamphetamine. There were signs that crack was being manufactured in the apartment and that a substantial drug-dealing operation was being run from it. Two other people were convicted and sentenced to jail in relation to the weapons, methamphetamine and other drug offences. The accused testified that he was in possession of six ecstasy tablets and a very small amount of cocaine that was found in the apartment near his identification but he denied any involvement in the cocaine trafficking operation being run from his apartment. He testified that he had moved out of the apartment before the gunfight, allowing a man he knew to be a drug dealer to remain there. He was charged with possession of a loaded prohibited weapon and careless storage of ammunition, in addition to possession of cocaine for the purposes of trafficking and possession of ecstasy and cocaine. The jury acquitted him on the weapon and ammunition offences. There was evidence that the accused had provided substantial assistance to the police after his arrest. He was on stringent bail terms for almost four years prior to sentencing. When sentencing the accused, the trial judge stated that she disbelieved his evidence that he had moved out of the apartment and that he was not present when the gunfight took place. She found that he was in possession of 14.87 grams of cocaine for the purpose of trafficking and that he was part of a high-level drug business. She concluded that the key factors in sentencing were denunciation and deterrence, in light of the gunfight taking place in the context of a residence being used for drug trafficking. She noted that the accused had a trade to which he could return following his sentence, and that she need not be concerned about his rehabilitation. The trial judge concluded that the range of sentence was five to eight years in the penitentiary. She sentenced the accused to five years' imprisonment on the trafficking offence and imposed one-year concurrent sentences for possession of cocaine and possession of the ecstasy pills, to reflect his co-operation with the police and the time spent on the strict bail terms.
Held, appeal allowed and sentence varied to time served. [page448]
The trial judge erred in concluding that the possession of 14.87 grams of cocaine for the purpose of trafficking called for a substantial penitentiary sentence. The case that the trial judge referred to in relation to the appropriate range of sentence dealt with an accused who possessed almost one-half of a kilogram of cocaine and had a substantial criminal record, including two prior convictions for trafficking in a narcotic. The proper range of sentence for an accused with this amount of cocaine is a reformatory sentence. The sentence was disproportionate to the gravity of the offence and the uncertain role of the accused in the trafficking operation. There is no evidence that the accused played any role in the gunfight, and he was acquitted of charges in relation to the weapon. The accused was 29 years old and had a prior record, but his longest prior sentence was a 45-day intermittent sentence. He was attending Narcotics Anonymous and was remorseful. The trial judge should have encouraged his efforts at reformation. The sentence on the charges of possession of cocaine for the purpose of trafficking was reduced to time served (14 months, nine days).
APPLICATION for leave to appeal and, if leave be granted, an appeal against the sentence imposed by Horkins J. of the Superior Court of Justice on June 22, 2009.
Cases referred to R. v. Bajada, 2003 CanLII 15687 (ON CA), [2003] O.J. No. 721, 169 O.A.C. 226, 173 C.C.C. (3d) 255, 56 W.C.B. (2d) 664 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 718.1 [as am.] Paul Calarco, for appellant. Niall Gilks, for respondent.
The judgment of the court was delivered by
R.P. ARMSTRONG J.A.: -- Introduction
[1] This appeal was argued before us on December 1, 2010. At the conclusion of the argument, we granted leave, allowed the appeal and reduced the appellant's sentence to time served with written reasons to follow. Unfortunately, the delivery of those reasons has been unintentionally delayed until now.
[2] The appellant was tried by a judge and jury. He was convicted of possession of cocaine for the purpose of trafficking and one count each of possession of cocaine and possession of MDMA (ecstasy). On the possession of cocaine for the purpose of trafficking count, he was sentenced to a term of imprisonment for five years. On the simple possession of cocaine and possession of MDMA, he was sentenced to one year on each count. All three sentences were to be served concurrently. [page449] Background (i) The offences
[3] The appellant rented an apartment on Wilson Avenue in Toronto in October 2005. He testified that shortly thereafter he moved out of the apartment and turned it over to a person called Tito, who had previously sold drugs to the appellant in the apartment. The appellant conceded at trial that Tito was likely selling drugs to other persons who attended at the apartment.
[4] The trial judge, in her reasons for sentence, rejected the appellant's evidence that he had moved out of the apartment.
[5] On the night of November 4, 2005, unknown men entered the apartment and a gunfight broke out. The appellant testified that he had nothing to do with the gunfight and that he had gone to the apartment to purchase some drugs from Tito. When he approached the apartment, he was forced inside with a gun held to his head by one of the assailants who used him as a shield. According to the appellant, his hands were tied together with duct tape.
[6] The appellant testified that after a number of gun shots had been fired, everyone in the apartment left. The appellant was able to free his hands from the duct tape and he exited the apartment by a balcony. The appellant later turned himself in at the police station.
[7] When the police arrived at the apartment, they conducted a search. The police seized powdered cocaine and ecstasy tablets. The appellant admitted owning six-and-a-half tablets of ecstasy and 2.77 grams of cocaine, which were found on the top shelf of the bedroom closet beside the appellant's birth certificate and employment record.
[8] The appellant denied possessing any other drugs found in the apartment. The trial judge found that the appellant was in possession of 14.87 grams of cocaine and the ecstasy pills.
[9] The police also found inside the apartment a debt list, a money counting machine, a scale and four or five empty kilo bags with cocaine residue. There was a dusting of cocaine on the kitchen counter consistent with the manufacture of crack. Two thousand dollars was found on the top of a refrigerator.
[10] The police also found a safe in the apartment, which contained a gun and ammunition. The appellant was charged with possession of a loaded prohibited firearm and careless storage of ammunition. The jury acquitted him on both of these charges. [page450] (ii) The appellant
[11] At the time of the offences, the appellant was 25 years old. He was a trained and licensed welder. He had a grade nine education. He was on bail for nearly four years prior to trial. While on bail, he lived with his parents and his sister. According to his bail conditions, he was confined to his residence except for court attendances, employment and consultations with counsel. He could also leave his residence when accompanied by one of his sureties.
[12] The appellant committed two breaches of his recognizance while on bail for which he received short jail terms. Also, while on bail, he was convicted of possession of a Schedule III substance (amphetamine) for which he was fined $500.
[13] The appellant has a criminal record dating from September 1998 in youth court. His offences included assault with a weapon, assault, possession of property obtained by crime, possession of a prohibited weapon, possession of a Schedule II substance, possession of a Schedule III substance, failure to comply with a recognizance (x 3) and dangerous driving. Up to the time of the offences in this case, his longest custodial sentence was 45 days served intermittently for failure to comply with a recognizance and assault.
[14] Prior to sentencing, the appellant provided assistance to the Toronto Police Service Organized Crime Task Force. The following agreed statement of facts was admitted at the sentencing hearing:
Mr. Speziale has been assisting the Toronto Police Service Organized Crime Task Force. His involvement with this unit began upon his arrest in November 2005.
As a result of information received from Mr. Speziale in February of 2006, police seized two loaded handguns, a quantity of ammunition and a significant amount of marijuana, cocaine and methamphetamine. Two persons were arrested, convicted and served time in jail relating to these charges.
Mr. Speziale has contact with the officer on a regular basis and there are ongoing investigations at this time based on information provided.
(iii) The trial judge's reasons
[15] The trial judge was not impressed with the appellant as a witness. She rejected his evidence concerning his moving out of the apartment. She also rejected his evidence as to his lack of involvement in the illicit drug activity in his apartment. She did not accept his evidence concerning his attendance at the apartment at the time of the gunfight. The trial judge concluded that the appellant was part of a high-level drug business. That said, [page451] she stated that she was sentencing the appellant for possession of 14.87 grams of cocaine for the purpose of trafficking.
[16] The trial judge concluded that denunciation and deterrence were of paramount importance in sentencing the appellant. She concluded that the appropriate range of sentence was five to eight years. She relied in particular on this court's judgment in R. v. Bajada, 2003 CanLII 15687 (ON CA), [2003] O.J. No. 721, 173 C.C.C. (3d) 255 (C.A.).
[17] The trial judge considered both aggravating and mitigating factors in respect of the appellant. The aggravating factors include his criminal record and the facts of the particular offences occurring as they did in the context of a gunfight in an apartment apparently used for high-level drug trafficking. The list of mitigating factors included the appellant's assistance to the police and his regular attendance at Narcotics Anonymous.
[18] Counsel for the appellant at trial submitted that there were other mitigating factors, which included the possibility that he suffered from attention deficit disorder, his expression of remorse and his desire to change his life. The trial judge declined to give these factors any significant weight. Finally, the trial judge considered the prospect for rehabilitation. In this respect, she said:
I recognize that one danger of imposing a lengthy jail term is that it can impair the rehabilitation and reintegration as a person as a responsible member of this community. This was referred to in R. v. Woolcock [2002] O.J. 4927 Ont. C.A. at para. 13. While I appreciate that I cannot overlook the rehabilitation factor, denunciation and deterrence are paramount. Furthermore, there is nothing particular about Mr. Speziale's circumstances that require me to be concerned about rehabilitation. He has already trained to work as a welder and can, if he wished, return to his employment after his release from jail.
[19] The trial judge agreed that she should take into consideration the appellant's co-operation with the police and did so by imposing a sentence at the low end of the range of five to eight years.
[20] The trial judge declined to give effect to the submission of trial counsel that she should take into account the appellant's restrictive bail terms and give some credit for his time on bail. The Appeal
[21] The appellant raises several grounds of appeal. It is not necessary to deal with all of the grounds in order to dispose of the appeal. In my view, there are three errors that justify this court's intervention: (i) The trial judge erred in determining the appropriate range of sentence. [page452] (ii) The trial judge erred in failing to consider the element of rehabilitation in the circumstances of the appellant. (iii) The trial judge erred in failing to apply the principle of proportionality. (i) The range of sentence
[22] The appellant was convicted in respect of 14.87 grams of cocaine and six and a half tablets of ecstasy. The focus of the trial judge's reasons was on the cocaine. Counsel for the appellant submits that a five-year sentence for possession for the purpose of trafficking of 14.87 grams of cocaine is far beyond the range that could be justified on the facts of this case. The trial judge relied in particular on this court's decision in R. v. Bajada. The facts in Bajada are significantly different from the case at bar. In that case, the appellant was convicted of possession for the purpose of trafficking of more than one-half kilogram of cocaine, which had an estimated value of $62,500. Mr. Bajada was 51 years old with a significant criminal record, including conspiracy to traffic in a narcotic and two convictions for trafficking in a narcotic. He also received a three-year sentence in respect of a conviction for extortion, which was also related to drug trafficking. In the result, Mr. Bajada's sentence of eight years was reduced to six years.
[23] In this case, the appellant was convicted of a very serious offence. The circumstances in the apartment on the night of the offences are troubling. However, the evidence does not establish what part the appellant played in the trafficking operation that was carried on from the apartment. The evidence does not establish that he had anything at all to do with the gunfight. To say otherwise is to speculate. Indeed, he was acquitted in respect of two firearm-related offences. He was not charged in connection with the gunfight.
[24] This is not a case for a penitentiary term. A sentence of five years is outside the range for the amount of cocaine in issue. In my view, the appropriate sentence falls within the range of a reformatory term. (ii) Rehabilitation
[25] In my view, the trial judge erred in concluding that she need not concern herself with the appellant's rehabilitation. The appellant was 29 years old at the time of sentencing. He recognized that he had a drug problem and was regularly attending Narcotics Anonymous. He expressed remorse. He was a trained [page453] and licensed welder with prospects for future employment. It seems to me that he needed encouragement to turn his life around in order to continue on a path that he had, at least, started down. A penitentiary term of five years is unlikely to provide such encouragement. (iii) Proportionality
[26] This sentence does not satisfy the fundamental principle of sentencing articulated in s. 718.1 of the Criminal Code, R.S.C. 1985, c. C-46. A sentence of five years in the penitentiary for the small amount of cocaine involved in this case is not proportionate to the gravity of the offence and the degree of responsibility of the appellant. Disposition
[27] Leave to appeal sentence on the conviction for possession of cocaine for the purpose of trafficking is granted. The appeal is allowed. The sentence of five years is reduced to the time served, which was 14 months and nine days.
Order accordingly.