Court File and Parties

Court File No.: Central East - Newmarket 12-01524 Date: 2014-09-25 Ontario Court of Justice

Between: Her Majesty the Queen — and — Jamie Marino

Before: Justice P.N. Bourque

Counsel:

• V. Fedorchuk, for the Crown
• P. Lam, for the accused Jamie Marino

Sentencing

Released on September 25, 2014

BOURQUE J.:

Overview

[1] The defendant was convicted after a trial before me of a single count of possession of cocaine for the purpose of trafficking. The facts indicated that the defendant was selling cocaine out of his home where he and his spouse and children were living. He was the subject of surveillance by the police, who after confirming a buy of cocaine at his home, executed a search warrant and discovered 216 grams of cocaine in his basement. I specifically find that this is a significantly large amount of cocaine.

[2] The Crown seeks a period of incarceration of 4 years, while the defence seeks a conditional sentence. The defendant's past history of convictions is as follows:

Date	Charge	Disposition
December 11, 2001	Assault X 2	Suspended sentence
February 18, 2003	Impaired driving and breach of recognizance	1 day custody and year driving prohibition
April 10, 2003	Mischief	$500 fine and 9 months' probation
August 18, 2010	Trafficking in cocaine, possession for the purpose of trafficking	2 years less a day concurrent, conditional sentence

Pre-Sentence Report

[3] The PSR report indicates that the defendant has had difficulty with alcohol and drugs for a long time. His record also speaks of these difficulties. He and his spouse own their home and they have two children ages 7 and 2.

[4] He has been self-employed in a Steam Cleaning Business but shows a fairly low income on his tax return. The PSR describes it as a "cash business".

[5] His spouse was unaware of his use of and selling of drugs. She was angry that he was doing this in their home, although she describes him as a good family man and she obviously worries about the family's financial circumstances when he is in jail.

[6] Probation reports that for his first probation in 2003, he had difficulty reporting. He was still on a two-year conditional sentence order when he committed these further drug offences before the court.

[7] The defendant, while insisting that he was dealing drugs only to support his own habit, denies that he has any drug or alcohol issues.

Bail

[8] The defendant has been on a strict bail with a curfew for two years and 9 months. He has not breached his bail. Whatever sentence I impose, I will give him credit for this house arrest.

Remorse

[9] The defendant asserted his right to contest the charges and have a trial. I cannot give him any credit for a guilty plea and he has expressed no remorse for his actions.

[10] The defendant's father spoke from the body of the court with the consent of the prosecutor who did not seek to cross-examine him, and asked me to be lenient upon his son. He believes that his son has reformed and will not be involved in criminal activity in the future. I accept these words as heartfelt, and no one cannot but be moved by a parent who pleads for their child. I will keep his words in mind, but I must not lose sight of the sentencing principals which I am charged to uphold.

The Law

[11] Under section 5(3) of the Criminal Code, the maximum sentence is life imprisonment.

[12] In the oft cited case of R. v. Bajada, the Court of Appeal stated in paragraph 13:

. . . sentences of five to five and one half years are not uncommon for possession of a substantial amount of cocaine for the purposes of trafficking following and accused's plea of guilty or where the accused has no prior record.

[13] In the recent decision of the court of appeal in R. v. Peltier, 2013 ONCA 141, the court cited Bajada and stated in paragraph 15:

Here the appellant had a previous record for drug offence. He committed another drug offence while facing these charges. The appellant was 25 years old - an adult, not a youthful offender. The six-year sentence was within the appropriate range of sentences and, in these circumstances, was fit.

[14] In R. v. Speziale, 2011 ONCA 580, where the quantity was 14.87 grams of cocaine, the defendant was remorseful, plead guilty and was attending narcotics anonymous; the sentence was 14 months.

[15] The defendant cited several cases at the trial level of the Superior Court where the defendants received conditional sentences for trafficking or importing various amounts of cocaine. Most are distinguishable on their facts, as set out below:

Case	Distinguishing Factor
R. v. Shaw, [2000] O.J. No. 2646	Importing large amounts of cocaine but defendant's child had no caregiver
R. v. Nicol, [2008] O.J. No. 5840	The defendant was a first time offender deliveryman working for a relative
R. v. Imoro, 2011 ONSC 1445	Trafficking small amounts of cocaine
R. v. Tinker, [2013] O.J. No. 3231	Defendant trafficked in small amounts of cocaine
R. v. Lo, [2012] O.J. No. 6001	Trafficking in small amounts of cocaine

These cases do not set any binding principals upon me.

[16] The defendant further urges upon me the decision of R. v. Woolcock, [2002] O.J. No. 4927 (ON CA), where the court stressed that in that case, "the potential for rehabilitation should not have been overlooked" (par 14). Those principles were reflected in R. v. Rebello, [2010] O.J. No. 650 (ON CJ), where the court cited Woolcock but also noted that "trafficking in cocaine and its attendant negative social repercussions, will not be tolerated...."

Sentencing Principles

[17] Section 718 of the Code states the following:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and,

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[18] The aggravating factors are:

1. Schedule I substance, namely cocaine;
2. Evidence that drugs stored and sold from his home where his spouse and children live;
3. He has a previous conviction for trafficking in cocaine, and he was still on a conditional sentence for that matter when he committed this offence;
4. He had 216 grams of cocaine in his possession at the time of the offence; and,
5. He has shown no remorse.

[19] The mitigating factors are:

1. No weapons involved and no children involved in the offences;
2. He is a good family man;
3. He has prospects for employment;
4. He was on strict bail terms for almost two years; and,
5. He has family supports.

[20] The defendant urged upon me that the defendant is wishing to have an order to deal with an addiction. He has not availed himself up to now of any programs or counselling with regard to any potential addiction.

Is a Conditional Sentence Appropriate?

[21] As an initial matter, I can only consider a conditional sentence where I feel that a period of incarceration of 2 years or less is appropriate. It is difficult to see how this matter could be less than 2 years, but I do not exclude those cases were special circumstances would apply. I will, in any event, consider whether a conditional sentence could be appropriate in this case.

[22] Section 742.1 of the Code sets out the circumstances where a conditional sentence can be imposed. There is not presumption for or against a conditional sentence. The factors to be considered are those set out in R. v. Proulx, 2000 SCC 5. It is my belief that while rehabilitation is a very important consideration, this is a case where denunciation and deterrence play a large part. While that in of itself does not preclude a conditional sentence of imprisonment, there is in my opinion, a strong element of moral blameworthiness coupled with the gravity of the offence (and its consequences) which would lead to the imposition of a sentence of real jail time.

[23] In my mind, the most important factors are the large quantities of cocaine, and the fact that the defendant was already serving a conditional sentence for a similar offence.

Conclusion

[24] In my opinion, I am guided by the principals as set out in R. v. Bajada. In that case the defendant was arrested at gunpoint with over 500 grams of cocaine. He received a sentence of 6 years. The defendant did not plead guilty and had an extensive and related criminal record. I look upon that sentence as the upper range for this defendant. I do not feel that I can consider a sentence in the reformatory range, due to the large amount of cocaine and the fact that this is a second offence within a short time.

[25] I will sentence the defendant to 3-1/2 years' imprisonment for this offence. With regard to the strict bail conditions, I will give a credit of 6 months' custody. He will therefore be imprisoned for 3 years from this day forward.

[26] I will make the following ancillary orders: DNA order and an order under section 109 for life.

Signed: "Justice P.N. Bourque"

Released: September 25, 2014