R. v. Nesbitt (N.L.), 2012 BCCA 243

• Judge: Levine, Chiasson and Tysoe, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: April 26, 2012
• Jurisdiction: British Columbia
• Citations: 2012 BCCA 243;(2012), 322 B.C.A.C. 249 (CA)

R. v. Nesbitt (N.L.) (2012), 322 B.C.A.C. 249 (CA);

    549 W.A.C. 249

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. JN.008

Regina (appellant) v. Nathanael Lucas Nesbitt (respondent)

(CA039480; 2012 BCCA 243)

Indexed As: R. v. Nesbitt (N.L.)

British Columbia Court of Appeal

Levine, Chiasson and Tysoe, JJ.A.

June 7, 2012.

Summary:

In 2005, the then 20 year old accused was arrested and charged with possession of 17 kilograms of cocaine for the purpose of trafficking. He pled guilty in 2011.

The British Columbia Provincial Court sentenced the accused to a conditional sentence of two years less a day. The Crown sought leave to appeal.

The British Columbia Court of Appeal granted leave to appeal and dismissed the appeal.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - In 2005, the then 20 year old accused was arrested and charged with possession of 17 kilograms of cocaine for the purpose of trafficking - He pled guilty in 2011 and received a conditional sentence of two years less a day - The British Columbia Court of Appeal dismissed the Crown's appeal - This was a unique case - The accused committed a serious crime that would normally attract a significant period of incarceration, but, by the time of sentencing, the accused was rehabilitated - He had no previous record and was involved in criminal activity for a relatively short time - He was incarcerated for 51 days before making bail with most of that time spent in protective custody - The sentencing judge was well aware of and considered the relevant factors as well as the usual range of sentences - He committed no error in principle - Sentencing ranges were not absolute - Absent a legislated minimum, sentences were to be judged solely on whether they were fit - This sentence was not unfit - Levine, J.A., in concurring reasons, added that the "sentencing judge sought to justify the sentence he imposed by unjustifiably, in my opinion, minimizing the [accused's] responsibility for this offence. Were it not for the fact that the [accused] completely rehabilitated himself in the six years following the offence, a sentence of less than two years in jail could not be justified" - See paragraphs 17 to 44.

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotic offences - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle and sentencing ranges) - [See Criminal Law - Topic 5720.4 ].

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 5720.4 ].

Criminal Law - Topic 6204

Sentencing - Appeals - Variation of sentence - Grounds for refusing to vary sentence - [See Criminal Law - Topic 5720.4 ].

Cases Noticed:

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351, refd to. [para. 17].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161; 171 D.L.R.(4th) 385, refd to. [para. 19].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 182 D.L.R.(4th) 1, refd to. [para. 20].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 21].

R. v. Hein (B.S.) (2008), 256 B.C.A.C. 189; 431 W.A.C. 189; 231 C.C.C.(3d) 105; 2008 BCCA 230, refd to. [para. 22].

R. v. Mileos (J.N.), [2008] B.C.T.C. Uned. G71; 2008 BCSC 1833, refd to. [para. 39].

R. v. Kreutziger (W.D.) (2005), 212 B.C.A.C. 32; 350 W.A.C. 32; 2005 BCCA 231, refd to. [para. 43].

Counsel:

P.A. Eccles, for the appellant;

G.D. McKinnon, Q.C., for the respondent.

This application for leave to appeal and appeal were heard at Vancouver, B.C., on April 26, 2012, by Levine, Chiasson and Tysoe, JJ.A., of the British Columbia Court of Appeal. On June 7, 2012, the court delivered its judgment, including the following opinions:

Chiasson, J.A. (Tysoe, J.A., concurring) - see paragraphs 1 to 34;

Levine, J.A., concurring - see paragraphs 35 to 44.