• Taskeen Ahluwalia

R v Maone, 2020 ONCA 461

Updated: Feb 20

Facts and Procedural Background

The appellant, Marco Maone, sold large quantities of cocaine totaling about 3.5 kg to an undercover police officer on three occasions and to a third party on a fourth occasion. At trial, Mr. Maone plead guilty and showed remorse for his actions through an apology to the court, having taken active steps to rehabilitate himself, had positive family and community supports in place and gave significant support to his young daughter who has health challenges. These were all mitigating factors for the sentence. However, the sentencing judge noted that these were extremely serious offences as the case involved multiple transactions beyond mere street-level trafficking occurring over a long period of time. Mr. Maone had asked for a sentence of five years and the Crown had asked for a sentence of eight years. Mr. Maone was given a global sentence of seven years with six months of credit to reflect time served and time spent on restrictive bail conditions. A global sentence is when the court deals with all the crimes committed by a party together and to have all the charges resolved at once. Mr. Maone appealed on the basis of two legal errors he suggested the sentencing judge made in his reason for the sentence. There were co-accused in this case whose sentences were also discussed throughout the sentencing hearing for Mr. Maone.

Issues on Appeal

The appellant argued that the sentencing judge:

1. erred in his application of the parity principle; and

2. erred in his conclusion that a sentence “around the eight-year range” was appropriate while referring to the cases of R v Bajada (2003), 173 CCC (3d) 255 (Ont CA), and R v Nero, 2008 ONCA 622.

Holding

There was no error in the sentencing judge’s application of the parity principle. This principle allows for different sentences to be imposed on co-accused where the circumstances justify it, and they did in this case. There was also no error found in the trial judge having referred to the abovementioned decisions or in the observation that an approximately eight-year sentence would be appropriate for offences of this nature.

Reasoning

The Parity Principle

This principle can be found in section 718.2 (b) of the Criminal Code, RSC 1985, c C-46 and holds that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” The sentencing judge concluded that this principle was not reflective of the facts in this case as the other accused who pleaded guilty had a far lesser role and lesser degree of moral culpability. The appellate judge did not find error in this principle as one of the co-accused with a related criminal record received a five-year sentence for being involved in the sale of a half-kilogram of cocaine. The other co-accused received the equivalent of a 2.5-year sentence for also being involved in the sale of a half-kilogram of cocaine.

Reference to Other Decisions

The appellant submitted that the cases of R v Bajada and R v Nero did not support the sentencing judge’s conclusion of a sentence of around an eight-year range. The appellate judge noted how R v Bajada involved a six-year sentence but a far lower amount of cocaine and only one incident. The case of R v Nero consisted of three cocaine-related trafficking offences at the multiple kilogram level. The court commented that this case would have involved a sentence of about eight years due to the offenders organize crime connections and involvement in other serious offences. However, the offender was on trial for other separate offences which required the totality principle to be applied on sentencing. The totality principle requires the sentencing judge to consider whether the total sentence is proportional to the overall culpability of the offender and whether the total sentence, in all circumstances, would be crushing for the respondent. The court accounted for this in the global sentence imposed on all offences. Thus, these references were sufficient to support the sentencing judge’s conclusion for Mr. Maone’s case.


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