Court File and Parties
Court File No.: CR-18-107 Date: 2019-07-11 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Alceste Pileggi, Defendant
Counsel: Phillip J. Brissette, for the Crown Louie R. Genova, for the Defendant
Heard: March 25 and 26, 2019
Before: Casullo, J.
Reasons for Sentence
Introduction
[1] On April 3, 2019, Alceste Pileggi was convicted of possession of cocaine for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c.19 (“CDSA”).
[2] The facts relevant to this offence are set out in my decision, cited at 2019 ONSC 2097, in which I dismissed Mr. Pileggi’s application for an order pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms to exclude all evidence allegedly obtained as a result of violations of his rights under ss. 8, 9, and 10 of the Charter, in respect of the police search of his home, and his detention and questioning.
[3] After I made this decision, Mr. Pileggi did not contest the Crown’s case. Mr. Pileggi is now before me for sentencing.
Circumstances of the Offence
[4] On May 3, 2017, police executed a CDSA search warrant at Mr. Pileggi’s home, where he lived with his wife and two daughters. As a result of the search, Mr. Pileggi was found in possession of approximately 1 kilogram of cocaine.
[5] I accept the Crown’s submission that the estimated street value of the cocaine ranges from $40,000 to $65,000, as quantified in R. v. Currant, 2018 ONSC 7094.
Circumstances of the Offender
[6] Mr. Pileggi is 47 years old. He has no criminal record and no prior involvement with the law. There is no evidence that Mr. Pileggi is addicted to cocaine.
[7] Mr. Pileggi is a tile setter by trade. However, hip problems, leading to four surgeries have resulted in his assuming the role of stay-at-home dad. He has embraced this role, and shares a close bond with his daughters, as well as his wife, his high school sweetheart.
[8] Mr. Pileggi has a close relationship with his parents. They are elderly and have health issues. They rely on Mr. Pileggi for help around the house and taking them to appointments, among other things. He is also close to his deceased sister’s children, taking them under his wing and providing guidance to them since her passing.
[9] By all accounts, when reading the letters of support written on his behalf, Mr. Pileggi is decent man who treats his family with respect and dignity. It is clear his family believes in him and are very supportive of him. A number of family members were present at the sentencing hearing.
Positions of the Parties
[10] The Crown argues that a fit and proper sentence for possession of cocaine for the purposes of trafficking is five to eight years. Given Mr. Pileggi’s circumstances, however, a sentence closer to five years is warranted. The Crown is also requesting a ten-year weapons prohibition order pursuant to s. 109 of the Criminal Code, RSC 1985, c C-46 (“Criminal Code”), and an order for DNA under s. 487.051 of the Criminal Code.
[11] The defence submits that in light of Mr. Pileggi’s circumstances, a sentence of three to four years is a more appropriate range. No issue was taken with the ancillary orders sought by the Crown.
Principles of Sentencing
[12] The offence Mr. Pileggi has been convicted of is a serious one. Possession for the purpose of trafficking in a Schedule I substance carries a maximum penalty of life imprisonment.
[13] Section 718 of the Criminal Code outlines the principles of sentencing. That section states:
The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 or to the community.
[14] Section 718.1 of the Criminal Code provides that a sentence is to be proportionate to the gravity of the offence and to the degree of responsibility of the offender.
[15] Section 718.2 of the Criminal Code provides additional sentencing principles, including that a sentence may be increased or decreased depending upon aggravating or mitigating factors, and that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[16] In cases involving drug trafficking, the primary principles are denunciation and deterrence. Of the two components of deterrence, specific and general, counsel for Mr. Pileggi submits that in light of his remorse, specific deterrence is not a factor.
Aggravating Factors
[17] The amount and nature of the drugs involved is a significant aggravating factor. No one is blind to the effects of cocaine, not only on those addicted to it, but also their families and communities.
[18] There is no evidence that the cocaine was being used to support a habit, and the Crown submits Mr. Pileggi was involved for financial gain.
Mitigating Factors
[19] Mr. Pileggi has no criminal record. This is a significant mitigating factor. He is a productive member of society with skills he can put to good use in the future.
[20] The focus of the litigation was also narrow. Once the Charter issues were resolved, Mr. Pileggi agreed to go forward on an agreed statement of facts. This resulted in a substantial saving of judicial resources, as there could have been upward of 16 witnesses called.
[21] This crime was out of character for Mr. Pileggi. He is remorseful. He enjoys the benefit of strong family support.
[22] Finally, his 26 months of bail were without incident.
[23] Taking all of these factors into consideration, I sentence Mr. Pileggi to four years and four months.
Credit for Pre-trial Bail Conditions
[24] Relying on R. v. Downes (2006), 79 O.R. (3d) 321, Mr. Pileggi asks that his sentence be reduced for the period he faced restrictive bail conditions. I note that for 16 of his 26 months on bail, Mr. Pileggi was on stringent house arrest.
[25] Both counsel agree that an appropriate reduction ranges between 15 and 30%.
[26] Having considered the arguments of counsel in this regard, I am prepared, in all the circumstances, to credit 25%, or 13 months total, leaving a balance to be served of 3 years and 3 months imprisonment.
Conclusion
[27] Consequently, Mr. Pileggi is sentenced to serve a total term of incarceration of four years and four months, with three years and three months remaining after consideration of the Downes credit. In addition, he will be subject to a DNA order, as well as a weapons prohibition for ten years.