Sentence at upper end of range was not warranted

Narcotic and drug control

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Offences

Sentence at upper end of range was not warranted

Accused delivered one-kilogram brick of cocaine contained in grocery bag to man. Accused was 44-year old first offender who was gainfully employed at time of his arrest. Jury convicted accused of trafficking. Trial judge sentenced accused to eight years’ imprisonment less credit of 24 days for time spent in pre-disposition custody. Accused appealed sentence. Appeal allowed. Sentence was reduced to term of five years. Trial judge erred in making findings of fact that prior transactions between accused and man who supplied him with brick involved cocaine or methamphetamine in absence of evidence to support such conclusion and using that finding as aggravating factor on sentence. Trial judge erred in failing to give effect to principle of parity in light of sentences imposed on two others involved. Trial judge erred in imposing sentence of imprisonment at upper end of range of sentence without taking into account that accused was first offender. Evidence did not warrant sentence at upper end of range of sentence applicable to accused’s offence for first offender. Trial judge did not have benefit of Gladue report which was received as fresh evidence on hearing of appeal. Report and errors warranted reduction in sentence.
R. v. McIntyre (2016), 2016 CarswellOnt 17506, 2016 ONCA 843, J.C. MacPherson J.A., E.A. Cronk J.A., and David Watt J.A. (Ont. C.A.).