



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Banovac, 2018 ONCA 737

DATE: 20180910

DOCKET: C63122

Lauwers, Pardu and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paval Banovac

Appellant

Amy Ohler, for the appellant

James Clark, for the respondent

Heard and released orally: September 5, 2018

On appeal from the sentence imposed on November 18, 2016
    by Justice B.A. Allen of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals from his sentence for possession for the purpose
    of trafficking in heroin. The appellant was found in possession of 21.91 grams
    of heroin, divided into four 8-ball 3.5 gram packages. He pleaded guilty to
    possession of the heroin, but asserted that it was for personal use and not for
    trafficking. He admitted that he was badly addicted at the relevant time.

[2]

The trial judge accepted the expert evidence about the amounts of heroin
    used by addicts. She concluded that given his limited financial resources, the
    appellant had to have been trafficking in heroin to support his habit. The
    agreed statement of facts confirmed the amount of drugs found and indicated
    that this amount would have provided 1103 hits of heroin.

[3]

The appellant submits that the sentencing judge made the following
    errors in principle:

1.

She treated the absence of pro-social life factors as an aggravating
    factor;

2.

She considered outstanding charges alleging domestic violence more than
    two years after the arrest for drug-trafficking as an aggravating factor; and

3.

She failed to exercise restraint and should have imposed a two-year
    sentence as urged by defence counsel.

[4]

We agree that the absence of a
    pro-social life network might more appropriately be treated as relevant to the
    likelihood that the appellant could rehabilitate himself rather than being
    treated as an aggravating factor. We also agree that the outstanding charges of
    assault against the domestic partner were irrelevant to the sentence to be
    imposed for possession for the purpose of trafficking in heroin. There was no
    nexus between the later charges and the offence for which the appellant was to
    be sentenced  see
R. v. Edwards
,
    [2001] O.J. No. 2582.

[5]

That said, despite these errors, the
    sentence imposed was fit and well within the range for other offenders, even
    those with no previous record, unlike the appellant and with significantly
    smaller amounts of heroin: see
R. v. Farizeh
, [1994] O.J. No. 2624;
R. v. Bahari
, [1994] O.J. No. 2625 and
R. v. Pimentel
, [2004] O.J. No. 5780.

[6]

Leave to appeal sentence is granted,
    but the appeal is dismissed.

P. Lauwers J.A.

G. Pardu J.A.

David. M. Paciocco J.A.


