R. v. Belenky (A.S.), (2010) 477 A.R. 354 (CA)

• Judge: Côté, Ritter and McDonald, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 16, 2010
• Citations: (2010), 477 A.R. 354 (CA);2010 ABCA 98

R. v. Belenky (A.S.) (2010), 477 A.R. 354 (CA);

      483 W.A.C. 354

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. MR.136

Her Majesty the Queen (appellant) v. Alexander Sasha Belenky (respondent)

(0903-0288-A; 2010 ABCA 98)

Indexed As: R. v. Belenky (A.S.)

Alberta Court of Appeal

Côté, Ritter and McDonald, JJ.A.

March 16, 2010.

Summary:

The accused pled guilty to two counts of trafficking in cocaine (s. 5(1) of the Controlled Drugs and Substances Act). His criminal record included a previous conviction for cocaine trafficking in 2007 for which he received a sentence of 24 months. The Crown sought a 33 month global sentence. The sentencing judge imposed concurrent sentences of two years less a day on each count followed by 18 months' probation. The Crown appealed.

The Alberta Court of Appeal allowed the appeal, imposing concurrent sentences of 2.5 years on each count.

Criminal Law - Topic 5833

Sentencing - Considerations on imposing sentence - Deterrence - The accused sold 3.5 grams of cocaine for $200 to an undercover police officer on two separate occasions - He pled guilty to two counts of trafficking in cocaine (s. 5(1) of the Controlled Drugs and Substances Act) - His criminal record included a previous conviction for cocaine trafficking in 2007 for which he received a sentence of 24 months - The Crown sought a 33 month global sentence - The sentencing judge imposed concurrent sentences of two years less a day on each count followed by 18 months' probation - The Alberta Court of Appeal allowed the Crown's appeal, imposing concurrent sentences of 2.5 years on each count - The sentencing judge erred in principle by not placing significant or sufficient emphasis on specific deterrence in light of the accused's prior sentence of 24 months - The prior record pointed to a need for greater emphasis on specific deterrence - The sentencing judge clearly erred in imposing a lesser sentence for the two current convictions than had been imposed in 2007 - See paragraphs 11 to 15.

Criminal Law - Topic 5840

Sentencing - Considerations on imposing sentence - Prospective deportation of convict - The accused sold 3.5 grams of cocaine for $200 to an undercover police officer on two separate occasions - He pled guilty to two counts of trafficking in cocaine (s. 5(1) of the Controlled Drugs and Substances Act) - His criminal record included a previous conviction for cocaine trafficking in 2007 for which he received a sentence of 24 months - The Crown sought a 33 month global sentence - After noting that the accused was a landed immigrant and would be unable to appeal a deportation order if he received a penitentiary sentence, the sentencing judge imposed concurrent sentences of two years less a day on each count followed by 18 months' probation - The Alberta Court of Appeal allowed the Crown's appeal, imposing concurrent sentences of 2.5 years on each count - The sentencing judge erred in principle in giving anything more than nominal weight to the collateral consequence of deportation that would result from a penitentiary sentence - See paragraphs 16 to 22.

Criminal Law - Topic 5842

Sentencing - Considerations on imposing sentence - Previous criminal offences (incl. not criminally responsible, repeat, dangerous or long-term offenders) - [See Criminal Law - Topic 5833 ].

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substance (incl. possession for the purpose of trafficking) - [See Criminal Law - Topic 5833 ].

Cases Noticed:

R. v. Hamilton (M.A.) et al. (2004), 189 O.A.C. 90; 72 O.R.(3d) 1 (C.A.), refd to. [para. 8].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 10].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 10].

R. v. Maskell (1981), 29 A.R. 107; 58 C.C.C.(2d) 408 (C.A.), refd to. [para. 11].

R. v. Morgan (D.N.) (2008), 446 A.R. 140; 442 W.A.C. 140 (N.W.T.C.A.), refd to. [para. 17].

R. v. Leung (A.F.) (2004), 354 A.R. 2; 329 W.A.C. 2; 2004 ABCA 55, refd to. [para. 18].

Counsel:

J. Selvaratnam, for the appellant;

M.T. Duckett, Q.C., for the respondent.

This appeal was heard on March 16, 2010, by Côté, Ritter and McDonald, JJ.A., of the Alberta Court of Appeal. McDonald, J.A., delivered the following memorandum of judgment for the court from the bench on March 16, 2010, and filed it in writing on March 26, 2010.