R. v. Brown (T.C.), (2012) 280 Man.R.(2d) 205 (CA)

• Judge: Hamilton, Freedman and MacInnes, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: May 29, 2012
• Jurisdiction: Manitoba
• Citations: (2012), 280 Man.R.(2d) 205 (CA);2012 MBCA 60

R. v. Brown (T.C.) (2012), 280 Man.R.(2d) 205 (CA);

      548 W.A.C. 205

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. JN.012

Her Majesty The Queen (respondent) v. Timothy Cameron Brown (appellant)

(AR 12-30-07744; 2012 MBCA 60)

Indexed As: R. v. Brown (T.C.)

Manitoba Court of Appeal

Hamilton, Freedman and MacInnes, JJ.A.

May 29, 2012.

Summary:

The accused pleaded guilty to trafficking in cocaine (five ounces). The Crown sought a sentence of five years' imprisonment. The accused argued that an appropriate sentence was the 26 months he spent in pre-trial custody.

The Manitoba Court of Queen's Bench, in a judgment reported at (2012), 274 Man.R.(2d) 66, sentenced the accused to five years' imprisonment, less 39 months' credit for 26 months' pre-trial custody (1.5 to 1 basis), leaving a net sentence to be served of 21 months. The accused appealed against sentence.

The Manitoba Court of Appeal dismissed the appeal.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - A 25 year old first time offender pleaded guilty to trafficking in cocaine shortly before trial - He was sentenced to five years' imprisonment - The accused, who had not applied for bail, spent 26 months' in pre-trial custody awaiting trial and sentencing - He sought two for one credit for time served - The trial judge gave the accused 39 months' credit for the 26 months of pre-trial custody (1.5 to 1.0 basis), stating that "I recognize that the accused may well be a candidate for early remission of his sentence, that he has spent some time in administrative segregation and that he has not had access to a full range of programming. However, other factors, when taken together, call for a somewhat reduced credit from the usual two-for-one. Some programming has been available to [the accused] and, to some extent, he has participated. As well, of considerable importance is the fact that he chose not to make a bail application for a period of over two years." - The Manitoba Court of Appeal held that the trial judge did not err in not giving the accused double credit for pre-trial custody.

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substance - The accused pleaded guilty to trafficking in cocaine - The 25 year old accused sold five ounces to a police agent for $5,000 - The Crown sought a five year sentence - The accused sought a sentence of time served (26 months) - The trial judge held that the accused was a mid to high level trafficker who used a courier - He was not a low level or street level dealer - Aggravating factors included the type of drug (cocaine), the accused's membership in a criminal organization, the commercial nature of the venture and his level of involvement beyond being a mere courier - Mitigating factors included the lack of a criminal record, his youth, a guilty plea, his remorse and his leaving the criminal organization - The accused's involvement was serious and denunciation and deterrence called for a lengthy period of imprisonment - The judge sentenced the accused to five years' imprisonment, less 39 months' credit for 26 months' pre-trial custody (1.5 to 1 basis), leaving a net sentence to be served of 21 months - The Manitoba Court of Appeal dismissed the accused's sentence appeal.

Cases Noticed:

R. v. Rocha (S.) (2009), 236 Man.R.(2d) 213; 448 W.A.C. 213; 2009 MBCA 26, refd to. [para. 3].

Counsel:

Z.I. Garber, for the appellant;

C.J. Mainella, for the respondent.

This appeal was heard on May 29, 2012, before Hamilton, Freedman and MacInnes, JJ.A., of the Manitoba Court of Appeal.

On May 29, 2012, Hamilton, J.A., delivered the following judgment orally for the Court.