R. v. Li (P.S.), (2009) 267 B.C.A.C. 77 (CA)

• Judge: Hall, Frankel and D. Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 03, 2009
• Jurisdiction: British Columbia
• Citations: (2009), 267 B.C.A.C. 77 (CA);2009 BCCA 85;267 BCAC 77

R. v. Li (P.S.) (2009), 267 B.C.A.C. 77 (CA);

    450 W.A.C. 77

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. MR.014

Regina (respondent) v. Peter Sum Li (appellant)

(CA035586; 2009 BCCA 85)

Indexed As: R. v. Li (P.S.)

British Columbia Court of Appeal

Hall, Frankel and D. Smith, JJ.A.

February 27, 2009.

Summary:

Li appealed consecutive sentences for multiple drug-related offences. He contended that three of the individual sentences were calculated improperly, and that the sentences were improperly made consecutive. In the end, he submitted that the total sentence of 13 years' imprisonment was unduly harsh and disproportionate.

The British Columbia Court of Appeal granted leave, but dismissed the appeal.

Criminal Law - Topic 5662.1

Punishments (sentence) - Imprisonment and parole - Term of imprisonment - Consecutive sentences - An accused appealed consecutive sentences for five drug-related offences, resulting in a total sentence of 13 years' imprisonment - Two offences related to importing the precursor chemical MDP2P (precursor offences) - Three offences related to possession for the purpose of trafficking cocaine, marijuana and ecstasy (drug possession offences) - The trial judge concluded that the precursor offences constituted separate transactions from the drug possession offences and warranted consecutive sentences for the following reasons - The offences differed in the nature and quality of the offending conduct, in the magnitude of the transactions, and in the severity of the impact on the community - The accused contended that the sentences should be served concurrently, as the offences were sufficiently similar in time, place, nature and victims, as to be linked within a single endeavour - The British Columbia Court of Appeal found no error of principle - The trial judge was aware of the legal test for the imposition of consecutive or concurrent sentences - Further, the factual assessment was to be accorded considerable deference - See paragraphs 42 to 47.

Criminal Law - Topic 5662.1

Punishments (sentence) - Imprisonment and parole - Term of imprisonment - Consecutive sentences - An accused appealed his consecutive sentences for multiple drug-related offences - Two offences related to importing and transporting a precursor chemical (precursor offences) - The other offences related to possession for the purpose of trafficking cocaine, marijuana and ecstasy (drug possession offences) - The trial judge concluded that the precursor offences constituted separate transactions from the drug possession offences, and that consecutive sentences were warranted - The accused submitted that the offences were sufficiently similar such that the sentences should be served concurrently, relying on the trial judge's use of similar fact evidence - The British Columbia Court of Appeal stated that the submission "conflates an evidentiary rule" relating to the admissibility of similar fact evidence with the principles of sentencing for multiple offences - Similar evidence involving multiple offences did not necessarily lead to the conclusion that concurrent sentences were warranted - See paragraphs 45 to 46.

Criminal Law - Topic 5662.1

Punishments (sentence) - Imprisonment and parole - Term of imprisonment - Consecutive sentences - An accused appealed consecutive sentences for multiple drug-related offences, contending that the global sentence of 13 years' imprisonment was unduly harsh and disproportionate - He submitted that the totality principle would have reduced his sentence to between eight and nine years, after being given ten months' credit for his pre-sentence custody - The British Columbia Court of Appeal held that the trial judge did not err in his application of the totality principle sentence - The sentence was just and appropriate, considering the gravity of the offence and the accused's culpability - The accused used his legitimate business to mask the criminal activity, and played a central role in the drug trade - The potential profit was "staggering" - The accused "grossly" minimized his culpability, and displayed a lack of appreciation for the harm that his conduct posed - His criminal record further disclosed his indifference - See paragraphs 48 to 57.

Criminal Law - Topic 5765

Punishments (sentence) - Particular offences - Drug offences - In the context of an appeal of consecutive sentences for multiple drug-related offences, the accused submitted that the sentence of seven years for importing MDP2P, a precursor chemical used in manufacturing ecstasy, was excessive - The maximum sentence was ten years - The British Columbia Court of Appeal held that the sentence was fit - The circumstances were very serious, considering the following aggravating factors: (i) the volume of MDP2P imported; (ii) the potential profit; (iii) the lack of legitimate commercial application of the MDP2P chemical; (iv) the importation of MDP2P as part of a highly sophisticated drug operation with the accused as the central figure; and (v) the motive for the importation scheme being financial gain - In addition, the trial judge properly considered the accused's prior criminal record of other profit-motivated offences, that he was on bail for a charge of production of marijuana when the offences occurred, and that he had breached his conditional sentence order while on bail - While the trial judge considered denunciation and deterrence to be of paramount importance, he did not ignore the accused's potential for rehabilitation - See paragraphs 30 to 34.

Criminal Law - Topic 5765

Punishments (sentence) - Particular offences - Drug offences - An accused received a six year sentence for possession for the purpose of trafficking ecstasy, to be served concurrently with a six year sentence for possession for the purpose of trafficking cocaine - On appeal, the accused submitted that the cocaine offence was more serious (maximum sentence of life imprisonment); therefore the identical sentence for the ecstasy offence was excessive; and that a four year sentence was appropriate - The British Columbia Court of Appeal dismissed the ground of appeal - The court first noted that although the submissions reflected the range of sentences for the offence, "the concept of a sentencing range should not fetter the individual sentencing process, even if a particular sentence falls above or below the range" - In this case, however, the sentence imposed by the trial judge fell within the range - Moreover, the accused's position was "a distinction without a difference" - The sentence was to be served concurrently with the sentence for possession for the purpose of trafficking cocaine, which was not challenged - As a concurrent sentence, the ecstasy related sentence was not impacted by the totality principle - See paragraphs 37 to 41.

Criminal Law - Topic 5801.1

Sentencing - General - Proportionality - [See Criminal Law - Topic 5807 ].

Criminal Law - Topic 5803

Sentencing - General - Consecutive sentences - [See Criminal Law - Topic 5807 ].

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) - [See third Criminal Law - Topic 5662.1 and Criminal Law - Topic 5807 ].

Criminal Law - Topic 5807

Sentencing - General - Imposing sentences respecting multiple convictions - On an appeal of consecutive sentences for multiple drug-related offences, the British Columbia Court of Appeal stated that "there is a two-stage approach to sentencing an offender convicted of multiple offences. The first stage is to determine the appropriate sentence for each offence, and decide whether the individual sentences should be made consecutive or concurrent. If consecutive sentences are imposed, then the second stage is to determine whether the sentences, in the aggregate, offend the totality principle. If the sentence, as a whole, is unduly harsh or disproportionate, then the length of the individual sentences should be adjusted in order to arrive at an appropriate global sentence" - See paragraphs 26 to 28.

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotic offences - [See both Criminal Law - Topic 5765 ].

Criminal Law - Topic 5891

Sentence - Importing or exporting a narcotic or controlled substance (incl. possession for the purpose of) - [See first Criminal Law - Topic 5765 ].

Criminal Law - Topic 5936

Sentence - Multiple offences - [See third Criminal Law - Topic 5662.1 ].

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court (incl. standard of review) - A sentencing judge ordered an accused to serve consecutive sentences for multiple offences - The accused appealed - The British Columbia Court of Appeal stated "A trial judge's exercise of discretion in imposing sentence is entitled to considerable deference. In order to succeed on a sentence appeal, an appellant must show that the sentencing judge committed an error in principle, failed to consider a relevant factor or placed undue emphasis on an appropriate factor, or imposed a sentence that was demonstrably unfit ... . Similarly, a trial judge's decision on whether to impose concurrent or consecutive sentences is also entitled to considerable deference as it involves a factual assessment of the degree to which the circumstances of the offences are interconnected or separate. Such an assessment falls uniquely within the jurisdiction of the trial judge and is therefore not to be interfered with lightly" - The court also confirmed the standard of review on the appropriateness of consecutive or concurrent sentences - See paragraphs 23 to 25.

Cases Noticed:

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 23].

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. 23].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 23].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 23].

R. v. P.P.H. (2003), 190 B.C.A.C. 89; 311 W.A.C. 89; 2003 BCCA 591, refd to. [para. 28].

R. v. Chan, 2008 ONCJ 271, dist. [para. 31].

R. v. Ma (R.Y.P.), [2005] B.C.T.C. 493; 2005 BCSC 493, refd to. [para. 38].

R. v. Russell (M.C.) et al. (2000), 27 B.C.T.C. 321; 2000 BCSC 27, refd to. [para. 38].

R. v. G.P.W. (1998), 106 B.C.A.C. 239; 172 W.A.C. 239 (C.A.), consd. [para. 42].

R. v. Abrosimo (B.E.) (2007), 245 B.C.A.C. 180; 405 W.A.C. 180; 225 C.C.C.(3d) 253; 2007 BCCA 406, refd to. [para. 51].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 462.37 [para. 19]; sect. 718.1 [para. 26].

Authors and Works Noticed:

Ruby, Clayton C., Sentencing (4th Ed. 1994), pp. 44, 45 [para. 50].

Counsel:

R. Fernyhough, for the appellant;

W.P. Riley, for the respondent.

This appeal was heard on February 3, 2009, at Vancouver, British Columbia, by Hall, Frankel and D. Smith, JJ.A., of the British Columbia Court of Appeal. D. Smith, J.A., delivered the following written reasons for judgment of the court on February 27, 2009.