Court of Appeal for Ontario

Citation: R. v. Maone, 2020 ONCA 461 Date: 2020-07-14 Docket: C67866

Before: Benotto, Fairburn and Jamal JJ.A.

Between: Her Majesty the Queen (Respondent) and Marco Maone (Appellant)

Counsel: Marco Maone, in person Mark Halfyard, duty counsel Kelvin Ramchand, for the respondent

Heard: July 7, 2020 by Videoconference

On appeal from the sentence imposed on July 22, 2019 by Justice John B. McMahon of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1] The appellant sold large quantities of cocaine to an undercover police officer on three occasions and to a third party on a fourth occasion. Together, the transactions totalled about 3.5 kg of cocaine.

[2] The appellant pled guilty. He asked for a sentence of five years and the Crown asked for a sentence of eight years.

[3] The sentencing judge observed that, despite the guilty plea having been entered in the context of an “exceptionally strong” Crown case, it still acted as a significant mitigating factor on sentence. The appellant’s remorse was reflected in his guilty plea, as well as his apology to the court. The sentencing judge also accepted that, while on bail, the appellant had taken active steps to rehabilitate himself and had positive family and community supports in place. In further mitigation of sentence, the sentencing judge referred to the significant support that the appellant was giving to his young daughter who has health challenges. Individual deterrence did not play a significant role.

[4] At the same time, the sentencing judge observed that these were extremely serious offences. The appellant had trafficked in quantities of cocaine at the kilogram level. The sentencing judge referred to the fact that cocaine is an inherently dangerous drug with a significant impact on end-users, often resulting in life-long health challenges or death. This case involved multiple transactions and they occurred over a lengthy period of time. The fact that the appellant was negotiating and selling at the kilogram level demonstrated an involvement beyond mere street-level trafficking. As well, the sentencing judge found that it was a profit-motivated crime. While not at the top end of the hierarchy, the appellant was found to have been an active participant in the cocaine trafficking enterprise, “making important decisions and sharing directly in the profits.”

[5] While the appellant has a criminal record, the sentencing judge properly noted that it is dated. Accordingly, he placed “no weight on it” other than to mention that it was not the appellant’s first time before the court.

[6] Ultimately, the sentencing judge concluded that an eight-year sentence would not be unreasonable in the circumstances. Even so, considering all of the mitigating factors at work in the case, a global sentence of seven years was imposed. Six months of credit was then assigned to reflect time served and time spent on restrictive bail conditions.

[7] On behalf of the appellant, duty counsel suggests that there are two legal errors reflected in the reasons for sentence.

[8] First, the sentencing judge is said to have erred in his application of the parity principle when he concluded as follows: “The principle of parity does not play a significant role in this sentencing since the other accused who pleaded guilty had a far lesser role and lesser degree of moral culpability.”

[9] This comment does not reflect an error in principle. One co-accused received a five-year sentence after trial for having been involved in the sale of a half-kilogram of cocaine. While he had a related criminal record and went to trial, his proven conduct was far less serious than the appellant’s conduct. The other co-accused received the equivalent of a 2.5-year sentence after pleading guilty for his involvement in the sale of a half-kilogram of cocaine. Again, the seriousness of that co-accused’s conduct does not match the appellant’s conduct.

[10] In these circumstances, we see no error in the sentencing judge’s application of the principle of parity. That principle allows for different sentences to be imposed on co-accused where the circumstances justify it. The circumstances justified it here.

[11] The sentencing judge is also said to have erred in his conclusion that, before giving some additional credit for mitigating factors, a sentence “around the eight-year range” was appropriate in the circumstances of this case. In making that comment, he referred to R. v Bajada (2003), 2003 CanLII 15687 (ON CA), 173 C.C.C. (3d) 255 (Ont. C.A.), and R. v. Nero, 2008 ONCA 622. The appellant submits that these cases do not support the sentencing judge’s conclusion of an “around” eight-year range. We do not agree.

[12] While Bajada involves a six-year sentence, it also involves a far lower amount of cocaine and only one incident. As for Nero, this court commented that three cocaine-related trafficking offences at the multiple kilogram level would have involved a sentence of about eight years. While we agree that Nero was a much different offender than the appellant, with organized crime connections and involvement in other serious offences, the court accounted for those other matters in the global sentence imposed on all offences.

[13] Accordingly, we see no error in the trial judge having referred to those decisions or in the observation that an approximately eight-year sentence would be in the correct range of sentence for offences of this nature.

[14] Finally, we wish to note the appellant’s submissions regarding his continued remorse for his actions and desire to become a prosocial, active and contributing member of the community. The sentencing judge took the appellant’s significant remorse into account at sentencing. All indications are that the appellant’s rehabilitation efforts remain strong and reflect a genuine desire to better himself. We commend the appellant for the important steps he has taken and continues to take toward rehabilitation and meaningful reintegration into society, steps that will undoubtedly serve him very well in the future.

“M.L. Benotto J.A.”

“Fairburn J.A.”

“M. Jamal J.A.”