Court of Appeal for Ontario

Date: 2025-03-19
Docket: COA-24-CR-0233

Before: Paul Rouleau, L. Favreau, and L. Madsen

Between

His Majesty the King
Respondent

and

Marvin Gurango
Appellant

Counsel:
Breana Vandebeek, for the appellant
Yael Pressman, for the respondent

Heard and released orally: March 14, 2025

On appeal from the sentence imposed by Justice John R. McCarthy of the Superior Court of Justice on January 18, 2024, with reasons reported at 2024 ONSC 364.

Reasons for Decision

[1] The appellant, Marvin Gurango, pleaded guilty to possession for the purpose of trafficking. The substance at issue was 1,279 grams of cocaine the police found at his home. Mr. Gurango was sentenced to three years in custody.

[2] Mr. Gurango seeks to appeal his sentence. He submits that the sentencing judge erred in ruling out a conditional sentence based only on the quantity of cocaine and that he failed to tailor a sentence that reflected Mr. Gurango’s specific circumstances. He also argues the sentence is manifestly unfit.

[3] This court owes significant deference to the sentencing judge’s decision. Unless the sentencing judge made an error of law or of principle that materially affected the sentence, or unless the sentence is manifestly unfit, the court should not interfere. We see no error of law or principle in the sentence imposed on Mr. Gurango, and the sentence was not manifestly unfit.

[4] In his reasons, the sentencing judge correctly noted the importance of denunciation and deterrence for an offence of this nature. He also reviewed the relevant aggravating and mitigating factors, which included the mitigating factors Mr. Gurango emphasizes on appeal. The sentencing judge nevertheless concluded that, given the quantity of drugs at issue and the pervasive harmful effects of cocaine, a three-year custodial sentence was appropriate in this case.

[5] We reject Mr. Gurango’s submission that the sentencing judge implicitly held that a conditional sentence would never be available for possession for the purpose of trafficking involving this quantity of cocaine. That is not what he said. He simply concluded that, given the quantity of cocaine and the circumstances in this case, a non-custodial sentence would not be appropriate. This was not an error in principle.

[6] We also reject Mr. Gurango’s argument that the sentencing judge failed to tailor the sentence to his specific circumstances. The sentencing judge reviewed and acknowledged those circumstances. The sentencing judge noted that Mr. Gurango was not a youthful offender and there was no evidence that he was forced or coerced into storing the cocaine at his home. The sentencing judge also reviewed several mitigating factors, which included those emphasized by Mr. Gurango on appeal, such as his guilty plea, his expressions of remorse and his rehabilitative efforts. The sentencing judge nevertheless concluded that a custodial sentence was warranted given the quantity of cocaine and the need for specific and general deterrence. This again was not an error in principle.

[7] Finally, we reject Mr. Gurango’s argument in his factum that the sentence was manifestly unfit. A three-year custodial sentence for possession of over one kilogram of cocaine for the purpose of trafficking, even taking account of the strong mitigating factors, is consistent with the decisions reviewed by the sentencing judge for sentences imposed in similar circumstances. The three-year custodial sentence is not so disproportionate in relation to other sentences imposed in similar circumstances as to be manifestly unfit.

[8] Leave to appeal the sentence is granted, but the appeal from sentence is dismissed.

Paul Rouleau
L. Favreau
L. Madsen