Court of Appeal for Ontario

Citation: R. v. DiBenedetto, 2016 ONCA 116
Date: 2016-02-10
Docket: C58036

Judges: Gillese, Watt and Tulloch JJ.A.

Between:

Her Majesty the Queen
Applicant/Appellant

and

Michael DiBenedetto
Respondent

Counsel:
Howard Piafsky, for the appellant
Mark Evans and Jeffrey Root, for the respondent

Heard: February 5, 2016

On appeal from the sentence imposed on October 28, 2013 by Justice Tory Colvin of the Ontario Court of Justice.

Endorsement

[1] Police found $7600 in cash and 409.89 grams of heroin, with a street value of approximately $204,490, in the home and garage of Michael DiBenedetto (the “respondent”). He was convicted of possession of heroin for the purposes of trafficking and possession of proceeds of crime in excess of $5,000.

[2] At the sentencing hearing, the Crown sought a penitentiary sentence in the range of six to eight years. It pointed to the large quantity of heroin, the seriousness of the offence, and the fact that the appellant, who is not a drug addict, had possession of the drug for commercial gain.

[3] The defence sought a conditional sentence of two years less a day based on the favourable pre-sentence report, the fact that the appellant is employed and a responsible father to his two children, and is in a new, stable relationship.

[4] A sentence of three years’ imprisonment, concurrent on each count, was imposed.

[5] The Crown appeals against sentence. It submits that the sentence: (i) fails to take proper account of the purpose of principles and sentencing as set out in the Criminal Code, and (ii) is demonstrably unfit.

[6] The respondent points to R. v. Lacasse, 2015 SCC 64, and argues that while the sentence does not fall within the range established by this court for offences of this sort, in itself that does not justify appellate intervention.

[7] We accept the Crown’s position on this matter.

[8] The respondent had a large commercial quantity of heroin, one of the most sinister of drugs. Given the nature of the drug and its quantity, as well as the substantial amount of money which was found to be the proceeds of crime, the sentence is demonstrably unfit. It also failed to meet the need for general deterrence and denunciation, the predominant sentencing objectives for offences of this sort.

[9] The case law establishes a range of sentence from 6 to 12 years for offences involving trafficking of between approximately 0.5 to 1 kilograms of heroin: see R. v. Pannu, 2015 ONCA 677. The quantity in this case is approximately a half kilogram or one pound. While the trial judge referred to the respondent’s relatively young age, positive personal background, potential for rehabilitation, and unrelated criminal record, those considerations do not amount to circumstances justifying such a significant departure from the range. Rather, they support a sentence at the lower end of the range.

[10] The respondent asks that if the appeal is allowed and the custodial sentence increased, that the court stay the execution of that sentence. While we acknowledge that the respondent has served the sentence that was imposed and a significant period of time has elapsed since his release, in our view the seriousness of the offence militates against a stay.

Disposition

[11] Accordingly, leave to appeal sentence is granted, the appeal is allowed, the sentence imposed at trial is set aside, and in its place a sentence of six years’ imprisonment is imposed. The respondent shall have forty-eight hours from the release of this endorsement and the order that gives effect to it, to surrender into custody, failing which a warrant shall issue for his apprehension.

“E.E. Gillese J.A.”

“David Watt J.A.”

“M. Tulloch J.A.”