R. v. Macdiarmid
The sentencing judge erred in principle by accepting a two-year sentence based on precedent involving a materially greater quantity and hashish; for counselling to commit trafficking of sixteen grams of marijuana for personal use the appropriate sentencing range is six to twelve months, and the court reduced the...
Source-derived case information.
- Citation
- C39784
- Parties
- Respondent: Her Majesty the Queen; Appellant: Kevin Macdiarmid
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 25 September 2003
- Procedural Posture
- Criminal Sentencing Appeal / Appeal From Sentence
- Outcome
- Appeal allowed in part; sentence reduced.
- Legal Topics
- Drug Offences, Counselling to Commit Offence, Sentencing Range, Precedent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Her Majesty the Queen
Respondent
Kevin Macdiarmid
Appellant
Procedural Posture
Criminal Sentencing Appeal / Appeal From Sentence
Legal Issues
- 1 Whether a two-year sentence was appropriate for counselling to commit trafficking of a small quantity of marijuana
- 2 Whether the sentencing judge erred by relying on precedent with materially different facts
- 3 What is the appropriate sentencing range for counselling to commit trafficking of a small personal-use quantity of marijuana
Ratio Decidendi
The sentencing judge erred in principle by accepting a two-year sentence based on precedent involving a materially greater quantity and hashish; for counselling to commit trafficking of sixteen grams of marijuana for personal use the appropriate sentencing range is six to twelve months, and the court reduced the sentence to six months consecutive.
Court Disposition
Appeal allowed in part; sentence reduced.
Orders
- Leave to appeal sentence granted
- Original two-year sentence set aside and replaced with six months custody to be served consecutive to the existing sentence
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Macdiarmid Collection Decisions of the Court of Appeal Date 2003-09-25 Docket numbers C39784 Judges Weiler, Karen Merle Magnuson; Gillese, Eileen E.; Armstrong, Robert Patrick Subject Criminal Decision Content DATE: 20030925 DOCKET: C39784 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) - and - KEVIN MACDIARMID (Appellant) BEFORE: WEILER, GILLESE and ARMSTRONG JJ.A. COUNSEL: Mr. Doucett for the appellant Nick Devlin for the respondent HEARD: September 23, 2003 On appeal from the sentence imposed by Justice W. George Beatty of the Ontario Court of Justice dated February 28, 2003. APPEAL BOOK ENDORSEMENT [1] The appellant was convicted of counselling to commit the indictable offence of trafficking and sentenced to two years consecutive to the sentence being served. [2] The sentencing judge relied on a joint submission by the Crown and duty counsel that the sentence should be two years. In making submissions, the Crown referred to the case of "Jason English" as establishing that two years was the appropriate range. However we are advised that the offence in English related to a much greater quantity and involved hashish. [3] In our view, the sentencing judge erred in principle in accepting that two years was the appropriate range for this type of offence. An appropriate range for this type of offence is between six and twelve months. In saying this, we observe that: (i) the drug in the instant case was marijuana; (ii) the quantity of sixteen grams was small; and (iii) the record is clear that the drugs were for the appellant's personal use. See R. v. Voykin [1996] A.J. No. 1100 (Alta. Q.B.). [4] Accordingly, leave to appeal sentence is granted and the sentence is reduced to six months consecutive. "E.E. Gillese J.A."