



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Spagnola, 2020 ONCA 638

DATE: 20201009

DOCKET: C67767

Pardu, Paciocco and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Frank Spagnola

Appellant

Brian Snell, duty counsel


Joseph Selvaratnam, for the
    respondent

Heard and released orally: October 7, 2020 by
    video conference

On appeal from the sentences imposed on November 20, 2019
    by Justice Allan G. Letourneau of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals from sentences imposed for possession of
    methamphetamine for the purpose of trafficking, and possession of small amounts
    of marijuana and cocaine. In addition to sentences totalling 32 months, a
    forfeiture order was made.

[2]

The sentencing judge referred to the fact that the appellant had been
    offered an 18-month sentence in exchange for an early plea, but indicated that
    his guilty plea, approximately one year after he was arrested, did not qualify
    as an early plea. The sentencing judge gave no weight at all to the guilty
    plea. This was an error in principle which had an impact on sentence. The
    appellant planned on sharing the methamphetamine with friends and did not plan
    to sell it. The absence of a commercial motive was also a relevant mitigating
    factor to which no weight was given. The Crown agrees that the range of
    sentence for the possession for the purpose offence was from 24 to 36 months
    and that the sentence imposed here was somewhat excessive. The appellant is now
    off drugs and on a methadone program, a significant step for him.

[3]

We agree and would reduce the sentence for possession for the purpose of
    trafficking to 28-months (count 1 on the indictment). The minimum sentence
    within the range is not appropriate, given the appellants lengthy criminal
    record.

[4]

The appellant was also sentenced to 60 days concurrent for possession of
    less than a gram of marijuana (count 4 on the indictment). Given the nature of
    the drug and the amount possessed, we reduce that sentence from 60 days to ten days
    concurrent.

[5]

The appellant had $320.00 in his possession upon arrest. He intended to
    use that money to pay his hydro bill, which he showed to the arresting
    officers. The sentencing judge ordered forfeiture of these funds without making
    any finding that the money was drug related. The forfeiture order is set aside
    and the money is ordered returned to the appellant.

G. Pardu J.A.

David M. Paciocco
    J.A.

A. Harvison Young
    J.A.


