



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Maone, 2020 ONCA 461

DATE: 20200714

DOCKET: C67866

Benotto, Fairburn and Jamal
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marco Maone

Appellant

Marco Maone, in person

Mark Halfyard, duty counsel

Kelvin Ramchand, for the respondent

Heard: July 7, 2020 by
    Videoconference

On appeal from the sentence imposed on July
    22, 2019 by Justice John B. McMahon of the Superior Court of Justice, sitting
    without a jury.

REASONS FOR DECISION

[1]

The appellant sold large quantities of cocaine
    to an undercover police officer on three occasions and to a third party on a
    fourth occasion. Together, the transactions totalled about 3.5 kg of cocaine.

[2]

The appellant pled guilty. He asked for a sentence
    of five years and the Crown asked for a sentence of eight years.

[3]

The sentencing judge observed that, despite the
    guilty plea having been entered in the context of an exceptionally strong
    Crown case, it still acted as a significant mitigating factor on sentence. The
    appellants remorse was reflected in his guilty plea, as well as his apology to
    the court. The sentencing judge also accepted that, while on bail, the
    appellant had taken active steps to rehabilitate himself and had positive
    family and community supports in place. In further mitigation of sentence, the
    sentencing judge referred to the significant support that the appellant was
    giving to his young daughter who has health challenges.  Individual deterrence
    did not play a significant role.

[4]

At the same time, the sentencing judge observed
    that these were extremely serious offences. The appellant had trafficked in
    quantities of cocaine at the kilogram level. The sentencing judge referred to
    the fact that cocaine is an inherently dangerous drug with a significant impact
    on end-users, often resulting in life-long health challenges or death. This
    case involved multiple transactions and they occurred over a lengthy period of
    time. The fact that the appellant was negotiating and selling at the kilogram
    level demonstrated an involvement beyond mere street-level trafficking. As
    well, the sentencing judge found that it was a profit-motivated crime. While
    not at the top end of the hierarchy, the appellant was found to have been an
    active participant in the cocaine trafficking enterprise, making important
    decisions and sharing directly in the profits.

[5]

While the appellant has a criminal record, the
    sentencing judge properly noted that it is dated. Accordingly, he placed no
    weight on it other than to mention that it was not the appellants first time
    before the court.

[6]

Ultimately, the sentencing judge concluded that
    an eight-year sentence would not be unreasonable in the circumstances. Even so,
    considering all of the mitigating factors at work in the case, a global
    sentence of seven years was imposed. Six months of credit was then assigned to
    reflect time served and time spent on restrictive bail conditions.

[7]

On behalf of the appellant, duty counsel
    suggests that there are two legal errors reflected in the reasons for sentence.

[8]

First, the sentencing judge is said to have
    erred in his application of the parity principle when he concluded as follows:
    The principle of parity does not play a significant role in this sentencing
    since the other accused who pleaded guilty had a far lesser role and lesser
    degree of moral culpability.

[9]

This comment does not reflect an error in
    principle. One co-accused received a five-year sentence after trial for having
    been involved in the sale of a half-kilogram of cocaine. While he had a related
    criminal record and went to trial, his proven conduct was far less serious than
    the appellants conduct. The other co-accused received the equivalent of a
    2.5-year sentence after pleading guilty for his involvement in the sale of a half-kilogram
    of cocaine. Again, the seriousness of that co-accuseds conduct does not match
    the appellants conduct.

[10]

In these circumstances, we see no error in the
    sentencing judges application of the principle of parity. That principle
    allows for different sentences to be imposed on co-accused where the
    circumstances justify it. The circumstances justified it here.

[11]

The sentencing judge is also said to have erred
    in his conclusion that, before giving some additional credit for mitigating
    factors, a sentence around the eight-year range was appropriate in the
    circumstances of this case. In making that comment, he referred to
R. v
    Bajada
(2003), 173 C.C.C. (3d) 255 (Ont. C.A.), and
R. v. Nero
,
    2008 ONCA 622. The appellant submits that these cases do not support the
    sentencing judges conclusion of an around eight-year range. We do not agree.

[12]

While
Bajada
involves a six-year sentence, it
    also involves a far lower amount of cocaine and only one incident. As for
Nero
,
    this court commented that three cocaine-related trafficking offences at the
    multiple kilogram level would have involved a sentence of about eight years. While
    we agree that
Nero
was a much different offender than the appellant,
    with organized crime connections and involvement in other serious offences, the
    court accounted for those other matters in the global sentence imposed on all
    offences.

[13]

Accordingly, we see no error in the trial judge having
    referred to those decisions or in the observation that an approximately eight-year
    sentence would be in the correct range of sentence for offences of this nature.

[14]

Finally, we wish to note the appellants
    submissions regarding his continued remorse for his actions and desire to
    become a prosocial, active and contributing member of the community. The
    sentencing judge took the appellants significant remorse into account at
    sentencing. All indications are that the appellants rehabilitation efforts remain
    strong and reflect a genuine desire to better himself. We commend the appellant
    for the important steps he has taken and continues to take toward
    rehabilitation and meaningful reintegration into society, steps that will undoubtedly
    serve him very well in the future.

M.L. Benotto J.A.

Fairburn J.A.

M. Jamal J.A.


