Reformatory proper range of sentence for possession of "small" amount of cocaine for trafficking

R. v. Speziale, 2011 ONCA 580 is a clear statement of the appropriate range for possession of a 'small' amount of cocaine for trafficking. 'Small' is not a definite quantity but certainly is as large as 15 grams. The Court held:

  (i)        The Range of Sentence

[22]         The appellant was convicted in respect of 14.87 grams of cocaine and six and a half tablets of ecstasy.  The focus of the trial judge's reasons was on the cocaine.  Counsel for the appellant submits that a five year sentence for possession for the purpose of trafficking of 14.87 grams of cocaine is far beyond the range that could be justified on the facts of this case.  The trial judge relied in particular on this court's decision in R. v. Bajada.  The facts in Bajada are significantly different from the case at bar.  In that case, the appellant was convicted of possession for the purpose of trafficking of more than one half kilogram of cocaine, which had an estimated value of $62,500.  Mr. Bajada was 51 years old with a significant criminal record including conspiracy to traffic in a narcotic and two convictions for trafficking in a narcotic.  He also received a three year sentence in respect of a conviction for extortion, which was also related to drug trafficking.  In the result, Mr. Bajada's sentence of eight years was reduced to six years.
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[24]         This is not a case for a penitentiary term.  A sentence of five years is outside the range for the amount of cocaine in issue.  In my view, the appropriate sentence falls within the range of a reformatory term.

(ii)       Rehabilitation

[25]         In my view, the trial judge erred in concluding that she need not concern herself with the appellant's rehabilitation.  The appellant was 29 years old at the time of sentencing.  He recognized that he had a drug problem and was regularly attending Narcotics Anonymous.  He expressed remorse.  He was a trained and licensed welder with prospects for future employment.  It seems to me that he needed encouragement to turn his life around in order to continue on a path that he had, at least, started down.  A penitentiary term of five years is unlikely to provide such encouragement.

(iii)     Proportionality

[26]         This sentence does not satisfy the fundamental principle of sentencing articulated in s. 718.1 of the Criminal Code.  A sentence of five years in the penitentiary for the small amount of cocaine involved in this case is not proportionate to the gravity of the offence and the degree of responsibility of the appellant.