Court of Appeal for Ontario

Citation: R. v. D'Onofrio, 2013 ONCA 145

Date: 20130308

Docket: C55074

Judges: Rosenberg, Juriansz and Tulloch JJ.A.

Between:

Her Majesty the Queen

Respondent

and

Franco D’Onofrio

Appellant

Counsel:

Lawrence Greenspon and Eric Granger, for the appellant

Kevin R. Wilson and Christine Josic, for the respondent

Heard: March 8, 2013

On appeal from the conviction entered on December 14, 2011 and the sentence imposed on January 27, 2012 by Justice Lynn D. Ratushny of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1] The trial judge’s finding of reasonable and probable grounds turned on findings of fact that are entitled to considerable deference. The appellant attempts to meet that burden by arguing that three of the key findings are based on misapprehension of evidence.

[2] We do not agree that there were material misapprehensions.

[3] The police officer acknowledged his mistake with respect to the tear as recorded in his notes. It was open to the trial judge to accept the trial evidence. The photos confirmed that the location on top is difficult to describe.

[4] The powder was confirmed by other evidence as was the brick-like shapes in the bags.

[5] Given all the evidence, the trial judge’s conclusion is not subject to reversible error.

[6] As to sentence, two factors dominate the range of sentence. The unprecedented quantity of almost 112 kilos with a street value of $15 million and the prior record for the same offence. The evidence shows that although a courier, the appellant must have been close to the importation.

[7] Sentences for importing and trafficking large quantities of cocaine were of assistance in locating the proper range. The sentence was not manifestly outside the range. There was no error in principle.

[8] Accordingly, the appeal from conviction is dismissed. While leave to appeal sentence is granted, the appeal is dismissed.