Court File and Parties

Court of Appeal for Ontario Date: 2021-12-15 Docket: C69302

Gillese, Brown and Coroza JJ.A.

Between: Her Majesty the Queen Respondent

And: Salvatore Lamacchia Appellant

Counsel: Delmar Doucette, for the appellant Nicholas R. Cooper, for the respondent

Heard: December 14, 2021

On appeal from the sentence imposed on October 26, 2020 by Justice Meredith Donohue of the Superior Court of Justice.

Reasons for Decision

[1] In 2017, police found Mr. Lamacchia with 1.04 kg of cocaine. They executed a search warrant at his home and found $49,700 and a marijuana grow operation. He was charged with various offences and released on a recognizance which included a condition that he not be in possession of any non-prescription drugs. Approximately 18 months later, in 2018, police executed a search warrant at his home and found 44.8 grams of cocaine and indicia of drug trafficking.

[2] Mr. Lamacchia pleaded guilty to, and admitted the facts supporting, two counts of possession of cocaine for the purpose of trafficking, one for each of the two incidents, and breach of a condition of his recognizance, based on his possessing 44.8 grams of cocaine in the second incident. His criminal record included a 2011 conviction for possession for the purpose of trafficking, for which he received a 30-month sentence.

[3] He was given a global sentence of eight years, comprised of six years for the 2017 offence and two years consecutive for the 2018 offences. After R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575 credit for presentence custody and R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.) credit for strict house arrest bail, the imposed sentence was six years and 147 days.

[4] On his sentence appeal, Mr. Lamacchia makes no complaint against the imposition of consecutive sentences. He acknowledges that consecutive sentences were appropriate given the separation in time between the 2017 offence and the 2018 offences. He also concedes that the sentences of six years and two years – individually – were within the range for those offences. However, he submits, the sentencing judge failed to consider the totality principle. On that basis, he contends his sentence should be reduced by a year. He also points to his efforts to provide housing for homeless persons and argues that his sentence should be reduced a further year in recognition of that mitigating factor. He did not press this point at the oral hearing of the appeal.

[5] We accept neither submission.

[6] As an appellate court, we owe the sentencing judge considerable deference. Appellate intervention is justified only where the sentencing judge erred in principle, failed to consider a relevant factor, or erroneously considered an aggravating or mitigating factor, and the error had an impact on the sentence imposed: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 41-44. We see no basis for intervention with the sentence imposed in this case.

[7] The sentencing judge was alert to the totality principle. The sentencing submissions of both the Crown and the defence both mentioned the appropriate total sentence. And, the sentencing judge approached her task by determining the appropriate total sentence and then apportioning it to each offence. This court has endorsed that approach: R. v. J.H., 2018 ONCA 245, at paras. 49-50.

[8] The sentencing judge did specifically identify, as a mitigating factor, that the appellant had been “helpful in community work with providing affordable housing”. The sentencing judge also identified and considered the other mitigating factors: the appellant pleaded guilty before the scheduled trial, had good family support, was remorseful, and wished to be a better role model for his children.

[9] The sentencing judge identified the aggravating factors which include: commercial profit was the driver behind the offences; the first incident involved a significant amount of cocaine; the appellant had a prior conviction for possession for the purpose of trafficking; and, the second incident occurred while the appellant was on release for the first incident and prohibited from possessing non-prescription drugs. We see no error in her balancing of the aggravating and mitigating factors when determining a fit sentence.

Disposition

[10] Accordingly, leave to appeal sentence is granted but the appeal is dismissed.

“E.E. Gillese J.A.”

“David Brown J.A.”

“S. Coroza J.A.”