



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. DiBenedetto, 2016 ONCA 116

DATE: 20160210

DOCKET: C58036

Gillese, Watt and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Michael DiBenedetto

Respondent

Howard Piafsky, for the appellant

Mark Evans and Jeffrey Root, for the respondent

Heard: February 5, 2016

On appeal from the sentence imposed on October 28, 2013
    by Justice Tory Colvin of the Ontario Court of Justice.

ENDORSEMENT

[1]

Police found $7600 in cash and 409.89 grams of heroin, with a street
    value of approximately $204,490, in the home and garage of Michael DiBenedetto
    (the respondent).  He was convicted of possession of heroin for the purposes
    of trafficking and possession of proceeds of crime in excess of $5,000.

[2]

At the sentencing hearing, the Crown sought a penitentiary sentence in
    the range of six to eight years.  It pointed to the large quantity of heroin,
    the seriousness of the offence, and the fact that the appellant, who is not a
    drug addict, had possession of the drug for commercial gain.

[3]

The defence sought a conditional sentence of two years less a day based
    on the favourable pre-sentence report, the fact that the appellant is employed
    and a responsible father to his two children, and is in a new, stable
    relationship.

[4]

A sentence of three years imprisonment, concurrent on each count, was
    imposed.

[5]

The Crown appeals against sentence.  It submits that the sentence: (i)
    fails to take proper account of the purpose of principles and sentencing as set
    out in the
Criminal Code
, and (ii) is demonstrably unfit.

[6]

The respondent points to
R. v. Lacasse
, 2015 SCC 64, and
argues that
while the
    sentence does not fall within the range established by this court for offences
    of this sort, in itself that does not justify appellate intervention.

[7]

We accept the Crowns position on this matter.

[8]

The respondent had a large commercial quantity of heroin, one of the
    most sinister of drugs.  Given the nature of the drug and its quantity, as well
    as the substantial amount of money which was found to be the proceeds of crime,
    the sentence is demonstrably unfit.  It also failed to meet the need for
    general deterrence and denunciation, the predominant sentencing objectives for
    offences of this sort.

[9]

The case law
establishes a range of sentence
    from 6 to 12 years for offences involving trafficking of between approximately
    0.5 to 1 kilograms of heroin: see
R. v. Pannu
, 2015 ONCA 677.  The
    quantity in this case is approximately a half kilogram or one pound.  While the
    trial judge referred to the respondents relatively young age, positive
    personal background, potential for rehabilitation, and unrelated criminal
    record, those considerations do not amount to circumstances justifying such a significant
    departure from the range.  Rather, they support a sentence at the lower end of
    the range.

[10]

The
    respondent asks that if the appeal is allowed and the custodial sentence increased,
    that the court stay the execution of that sentence.  While we acknowledge that
    the respondent has served the sentence that was imposed and a significant
    period of time has elapsed since his release, in our view the seriousness of
    the offence militates against a stay.

DISPOSITION

[11]

Accordingly,
    leave to appeal sentence is granted, the appeal is allowed, the sentence
    imposed at trial is set aside, and in its place a sentence of six years
    imprisonment is imposed.  The respondent shall have forty-eight hours from the
    release of this endorsement and the order that gives effect to it, to surrender
    into custody, failing which a warrant shall issue for his apprehension.

E.E. Gillese J.A.

David
    Watt J.A.

M.
    Tulloch J.A.


