



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nuziato, 2021 ONCA 300

DATE: 20210507

DOCKET: C68388

Hoy, Hourigan and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joshua Nuziato

Appellant

Joshua Nuziato, acting in
    person

Christina Malezis, for the
    respondent

Heard: May 4, 2021, by videoconference

On appeal from the sentence imposed by
    Justice Fergus C. ODonnell of the Ontario Court of Justice on May 28, 2020.

REASONS FOR DECISION

[1]

The police
    received information that the appellant was trafficking cocaine. During their
    investigation of the appellant, the police obtained a search warrant and
    searched his pickup truck. They seized a bag containing a package with 21
    one-ounce baggies of cocaine and a second package containing twenty grams of
    cocaine. The police also seized $11,480 in cash. The appellant entered a plea
    of guilty to a charge of trafficking in a Schedule I substance contrary to s.
    5(3)(a) of the
Controlled Drugs and Substances
    Act
, S.C. 1996, c.
    19
.

[2]

The Crowns
    position was that a term of imprisonment of between five and eight years was a
    fit sentence. The defence submitted that 2.5 years incarceration would be an
    appropriate sentence, less pre-trial custody credit and a reduction due to the
    COVID-19 pandemic, plus a period of probation.

[3]

In his reasons
    for sentence, the sentencing judge adverted to the appellants previous record,
    which he considered "neither tremendously serious nor irrelevant."
    The sentencing judge then took into account mitigating and aggravating factors.
    He considered the following mitigating factors: (i) the guilty plea, (ii) the
    appellants youth, (iii) the fact this was the appellants first period of
    incarceration, (iv) his addiction to cocaine, (v) his history of mental
    illness, (vi) the progress he made in his rehabilitation while incarcerated,
    and (vii) the collateral consequences of COVID-19 during his pre-sentence
    custody.

[4]

Regarding
    aggravating factors, the sentencing judge considered the following: (i) the
    inherent harmfulness, addictive power and societal impact of cocaine and its
    trafficking, (ii) the quantity of the cocaine seized, (iii) the commercial
    nature of that quantity and the seized cash, which demonstrate that the
    appellant was not a drug addict trafficking at a subsistence level, and (iv)
    the fact that the appellant was on probation at the time of the offence.

[5]

The sentencing
    judge gave the appellant a twenty-month credit for pre-sentence custody and imposed
    a sentence of 24 months incarceration, to be followed by a two-year probation
    term. He also issued a s. 109 order and a DNA order.

[6]

Before this
    court, the appellant submits, in substance, that the sentencing judge erred by
    imposing an inappropriate sentence, given his guilty plea. He argues that the
    sentencing judge also gave insufficient weight to the fact that his
    pre-sentence custody took place during the COVID-19 pandemic. Finally, he
    submits that the imposition of a probation term was not legally available to
    the sentencing judge.

[7]

We are not
    persuaded that the sentencing judge erred in imposing his sentence or that the
    sentence is in any way unfit. The sentence was within the range of sentences
    imposed in other cases regarding the trafficking of similar amounts of cocaine.
    On the issue of COVID, the trial judge considered the current circumstances of
    the Niagara Detention Centre. He noted that the risk of communication of
    COVID-19 had been addressed by certain policies at the institution and observed
    that he knew of no inmate or staff member at the prison who had tested
    positive. Despite those observations, the sentencing judge included the
    appellants incarceration during the pandemic as a mitigating factor.

[8]

The imposition of a
    period of probation was available to the sentencing judge. Under s. 731(1)(b)
    of the
Criminal Code
, R.S.C. 1985, c. C-46, a court can impose
    a probation order where the term of imprisonment imposed does not exceed two
    years. The t
erm
    of imprisonment is the term imposed by the judge at the time of sentence. Pre-sentence
    custody is not part of the sentence:
R. v. Mathieu
, 2008 SCC 21, [2008] 1 S.C.R.
    723. In this case, the sentence imposed did not exceed two years. Therefore, a
    probation order was available.

[9]

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

Alexandra Hoy J.A.

C.W. Hourigan J.A.

B. Zarnett J.A.


