





CITATION: R. v. Speziale, 2011 ONCA 580



DATE: 20110908



DOCKET: C51640



COURT OF APPEAL FOR ONTARIO



Laskin, Armstrong and LaForme JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Giuseppe Speziale



Appellant



Paul Calarco, for the appellant



Niall Gilks, for the respondent



Heard: December 1, 2010



An application for leave to appeal
          and, if leave be granted, an appeal against the sentence imposed by Justice C.
          Horkins of the Superior Court of Justice, on July 22, 2009.



ARMSTRONG J.A.:

INTRODUCTION

[1]

This appeal was argued before us on December 1, 2010.  At the conclusion
    of the argument, we granted leave, allowed the appeal and reduced the
    appellants sentence to time served with written reasons to follow. 
    Unfortunately, the delivery of those reasons has been unintentionally delayed
    until now.

[2]

The appellant was tried by a judge and jury.  He was convicted of
    possession of cocaine for the purpose of trafficking and one count each of
    possession of cocaine and possession of MDMA (ecstasy).  On the possession of
    cocaine for the purpose of trafficking count, he was sentenced to a term of
    imprisonment for five years.  On the simple possession of cocaine and
    possession of MDMA, he was sentenced to one year on each count.  All three
    sentences were to be served concurrently.

BACKGROUND

(i)        The Offences

[3]

The appellant rented an apartment on Wilson Avenue in Toronto in October
    2005.  He testified that shortly thereafter he moved out of the apartment and
    turned it over to a person called Tito, who had previously sold drugs to the
    appellant in the apartment.  The appellant conceded at trial that Tito was
    likely selling drugs to other persons who attended at the apartment.

[4]

The trial judge, in her reasons for sentence, rejected the appellants
    evidence that he had moved out of the apartment.

[5]

On the night of November 4, 2005, unknown men entered the apartment and
    a gunfight broke out.  The appellant testified that he had nothing to do with
    the gunfight and that he had gone to the apartment to purchase some drugs from
    Tito.  When he approached the apartment, he was forced inside with a gun held
    to his head by one of the assailants who used him as a shield.  According to
    the appellant, his hands were tied together with duct tape.

[6]

The appellant testified that after a number of gun shots had been fired,
    everyone in the apartment left.  The appellant was able to free his hands from
    the duct tape and he exited the apartment by a balcony.  The appellant later
    turned himself in at the police station.

[7]

When the police arrived at the apartment, they conducted a search.  The
    police seized powdered cocaine and ecstasy tablets.  The appellant admitted
    owning six and a half tablets of ecstasy and 2.77 grams of cocaine, which were
    found on the top shelf of the bedroom closet beside the appellants birth
    certificate and employment record.

[8]

The appellant denied possessing any other drugs found in the apartment. 
    The trial judge found that the appellant was in possession of 14.87 grams of
    cocaine and the ecstasy pills.

[9]

The police also found inside the apartment a debt list, a money counting
    machine, a scale and four or five empty kilo bags with cocaine residue.  There
    was a dusting of cocaine on the kitchen counter consistent with the manufacture
    of crack.  Two thousand dollars was found on the top of a refrigerator.

[10]

The police also found a safe in the apartment, which contained a gun and
    ammunition.  The appellant was charged with possession of a loaded prohibited
    firearm and careless storage of ammunition.  The jury acquitted him on both of
    these charges.

(ii)       The Appellant

[11]

At the time of the offences, the appellant was 25 years old.  He was a
    trained and licensed welder.  He had a grade 9 education.  He was on bail for
    nearly four years prior to trial.  While on bail, he lived with his parents and
    his sister.  According to his bail conditions, he was confined to his residence
    except for court attendances, employment and consultations with counsel.  He
    could also leave his residence when accompanied by one of his sureties.

[12]

The appellant committed two breaches of his recognizance while on bail
    for which he received short jail terms.  Also, while on bail, he was convicted
    of possession of a Schedule III substance (amphetamine) for which he was fined
    $500.

[13]

The appellant has a criminal record dating from September 1998 in youth
    court.  His offences included assault with a weapon, assault, possession of
    property obtained by crime, possession of a prohibited weapon, possession of a
    Schedule II substance, possession of a Schedule III substance, failure to
    comply with a recognizance (x 3) and dangerous driving.  Up to the time of the
    offences in this case, his longest custodial sentence was 45 days served
    intermittently for failure to comply with a recognizance and assault.

[14]

Prior to sentencing, the appellant provided assistance to the Toronto
    Police Service Organized Crime Task Force.  The following agreed statement of
    facts was admitted at the sentencing hearing:

Mr. Speziale has been assisting the Toronto Police
    Service Organized Crime Task Force.  His involvement with this unit began upon
    his arrest in November 2005.

As a result of information received from Mr.
    Speziale in February of 2006, police seized two loaded handguns, a quantity of
    ammunition and a significant amount of marijuana, cocaine and methamphetamine. 
    Two persons were arrested, convicted and served time in jail relating to these
    charges.

Mr. Speziale has contact with the officer on a
    regular basis and there are ongoing investigations at this time based on
    information provided.

(iii)     The Trial Judges Reasons

[15]

The trial judge was not impressed with the appellant as a witness.  She
    rejected his evidence concerning his moving out of the apartment.  She also
    rejected his evidence as to his lack of involvement in the illicit drug activity
    in his apartment.  She did not accept his evidence concerning his attendance at
    the apartment at the time of the gunfight.  The trial judge concluded that the
    appellant was part of a high level drug business.  That said, she stated that
    she was sentencing the appellant for possession of 14.87 grams of cocaine for
    the purpose of trafficking.

[16]

The trial judge concluded that denunciation and deterrence were of
    paramount importance in sentencing the appellant.  She concluded that the
    appropriate range of sentence was five to eight years.  She relied in
    particular on this courts judgment in
R. v. Bajada
(2003), 173 C.C.C.
    (3d) 255 (Ont. C.A.).

[17]

The trial judge considered both aggravating and mitigating factors in
    respect of the appellant.  The aggravating factors include his criminal record
    and the facts of the particular offences occurring as they did in the context
    of a gunfight in an apartment apparently used for high level drug trafficking. 
    The list of mitigating factors included the appellants assistance to the
    police and his regular attendance at Narcotics Anonymous.

[18]

Counsel for the appellant at trial submitted that there were other
    mitigating factors, which included the possibility that he suffered from attention
    deficit disorder, his expression of remorse and his desire to change his life. 
    The trial judge declined to give these factors any significant weight. 
    Finally, the trial judge considered the prospect for rehabilitation.  In this
    respect, she said:

I recognize that one danger of imposing a lengthy
    jail term is that it can impair the rehabilitation and reintegration as a
    person as a responsible member of this community.  This was referred to in
R.
    v. Woolcock
[2002] O.J. 4927 Ont. C.A. at para. 13.  While I appreciate
    that I cannot overlook the rehabilitation factor, denunciation and deterrence
    are paramount.  Furthermore, there is nothing particular about Mr. Speziales
    circumstances that require me to be concerned about rehabilitation.  He has
    already trained to work as a welder and can, if he wished, return to his
    employment after his release from jail.

[19]

The trial judge agreed that she should take into consideration the
    appellants co-operation with the police and did so by imposing a sentence at
    the low end of the range of five to eight years.

[20]

The trial judge declined to give effect to the submission of trial
    counsel that she should take into account the appellants restrictive bail
    terms and give some credit for his time on bail.

THE APPEAL

[21]

The appellant raises several grounds of appeal.  It is not necessary to
    deal with all of the grounds in order to dispose of the appeal.  In my view,
    there are three errors that justify this courts intervention:

(i)

The trial judge erred in determining the appropriate range of sentence.

(ii)

The trial judge erred in failing to consider the element of
    rehabilitation in the circumstances of the appellant.

(iii)

The
    trial judge erred in failing to apply the principle of proportionality.

(i)        The Range of Sentence

[22]

The appellant was convicted in respect of 14.87 grams of cocaine and six
    and a half tablets of ecstasy.  The focus of the trial judges reasons was on
    the cocaine.  Counsel for the appellant submits that a five year sentence for
    possession for the purpose of trafficking of 14.87 grams of cocaine is far
    beyond the range that could be justified on the facts of this case.  The trial
    judge relied in particular on this courts decision in
R. v. Bajada
. 
    The facts in
Bajada
are significantly different from the case at bar. 
    In that case, the appellant was convicted of possession for the purpose of
    trafficking of more than one half kilogram of cocaine, which had an estimated
    value of $62,500.  Mr. Bajada was 51 years old with a significant criminal
    record including conspiracy to traffic in a narcotic and two convictions for
    trafficking in a narcotic.  He also received a three year sentence in respect
    of a conviction for extortion, which was also related to drug trafficking.  In
    the result, Mr. Bajadas sentence of eight years was reduced to six years.

[23]

In this case, the appellant was convicted of a very serious offence. 
    The circumstances in the apartment on the night of the offences are troubling. 
    However, the evidence does not establish what part the appellant played in the
    trafficking operation that was carried on from the apartment.  The evidence
    does not establish that he had anything at all to do with the gunfight.  To say
    otherwise is to speculate.  Indeed he was acquitted in respect of two firearm
    related offences.  He was not charged in connection with the gunfight.

[24]

This is not a case for a penitentiary term.  A sentence of five years is
    outside the range for the amount of cocaine in issue.  In my view, the
    appropriate sentence falls within the range of a reformatory term.

(ii)       Rehabilitation

[25]

In my view, the trial judge erred in concluding that she need not
    concern herself with the appellants rehabilitation.  The appellant was 29
    years old at the time of sentencing.  He recognized that he had a drug problem
    and was regularly attending Narcotics Anonymous.  He expressed remorse.  He was
    a trained and licensed welder with prospects for future employment.  It seems
    to me that he needed encouragement to turn his life around in order to continue
    on a path that he had, at least, started down.  A penitentiary term of five
    years is unlikely to provide such encouragement.

(iii)     Proportionality

[26]

This sentence does not satisfy the fundamental principle of sentencing
    articulated in s. 718.1 of the
Criminal Code
.  A sentence of five years
    in the penitentiary for the small amount of cocaine involved in this case is
    not proportionate to the gravity of the offence and the degree of
    responsibility of the appellant.

DISPOSITION

[27]

Leave to appeal sentence on the conviction for possession of cocaine for
    the purpose of trafficking is granted.  The appeal is allowed.  The sentence of
    five years is reduced to the time served, which was 14 months and 9 days.

RELEASED:

JL                                                    Robert
    P. Armstrong J.A.

SEP -8 2011                                  I agree John
    Laskin J.A.

I
    agree H.S. LaForme J.A.


