R. v. Racca (R.A.), (2015) 323 Man.R.(2d) 245 (CA)

• Judge: Monnin, Steel and Burnett, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: June 19, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 323 Man.R.(2d) 245 (CA);2015 MBCA 121

R. v. Racca (R.A.) (2015), 323 Man.R.(2d) 245 (CA);

      657 W.A.C. 245

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. JA.003

Her Majesty The Queen (appellant) v. Reynaldo Ascalona Racca (accused/respondent)

(AR 14-30-08280; 2015 MBCA 121)

Indexed As: R. v. Racca (R.A.)

Manitoba Court of Appeal

Monnin, Steel and Burnett, JJ.A.

December 17, 2015.

Summary:

The accused was convicted of possession of cocaine for the purpose of trafficking. He was sentenced to a conditional sentence of two years less a day. The Crown applied for leave to appeal and appealed the sentence.

The Manitoba Court of Appeal granted leave to appeal and allowed the appeal. The accused was sentenced to 36 months' imprisonment with credit for time served conditionally.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5830.4

Sentencing - Considerations on imposing sentence - Guilty plea - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotic offences - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substance (incl. possession for the purpose of trafficking) - In October 2010, Racca was arrested in his vehicle - He had one ounce of cocaine and $480 in cash in his possession - 30 individually wrapped ounces of cocaine, $160 in cash and a digital scale were seized from his residence - In April 2014, Racca pleaded guilty to possession of cocaine for the purpose of trafficking - In October 2014, the sentencing judge imposed a conditional sentence of two years less a day - He found that the length of time between Racca's arrest and sentence made the case an exception to the established sentencing range given that, inter alia, Racca was "effectively rehabilitated" - The Manitoba Court of Appeal allowed the Crown's sentence appeal - The sentencing judge placed undue emphasis on the passage of time and overemphasized rehabilitation at the expense of deterrence and denunciation - While a guilty plea was always a mitigating factor, it should have little impact on sentence when entered four years after being charged in the face of an overwhelming case - There was no evidence of rehabilitation - Complying with conditions and obeying the law while on judicial interim release did not constitute rehabilitation; it was the standard expected of persons released on their own recognizance - Racca was a mid-level commercial trafficker who not only delivered drugs but stashed them in his residence - A conditional sentence was clearly inadequate - Racca was sentenced to 36 months' imprisonment with credit for time served conditionally.

Cases Noticed:

R. v. Grant (I.M.) (2009), 236 Man.R.(2d) 54; 448 W.A.C. 54; 2009 MBCA 9, refd to. [para. 3].

R. v. Voong (D.M.) et al. (2015), 374 B.C.A.C. 166; 642 W.A.C. 166; 2015 BCCA 285, refd to. [para. 3].

R. v. Oates (K.A.L.) (2015), 373 B.C.A.C. 123; 641 W.A.C. 123; 2015 BCCA 259, refd to. [para. 4].

R. v. Rocha (S.) (2009), 236 Man.R.(2d) 213; 448 W.A.C. 213; 2009 MBCA 26, refd to. [para. 10].

R. v. Tran (A.) (2015), 323 Man.R.(2d) 293; 657 W.A.C. 293; 2015 MBCA 120, dist. [para. 11].

R. v. Peters (R.N.) (2015), 323 Man.R.(2d) 237; 657 W.A.C. 237; 2015 MBCA 119, dist. [para. 11].

R. v. Barrett, 2013 QCCA 1351, refd to. [para. 14].

R. v. Traimany (P.) (2011), 270 Man.R.(2d) 291; 524 W.A.C. 291; 2011 MBCA 104, refd to. [para. 17].

R. v. Brown (T.C.) (2012), 280 Man.R.(2d) 205; 548 W.A.C. 205; 2012 MBCA 60, refd to. [para. 17].

R. v. Ducharme (W.W.), [2012] Man.R.(2d) Uned. 20; 2012 MBCA 35, refd to. [para. 17].

R. v. Sem (S.) (2005), 197 Man.R.(2d) 47; 2005 MBQB 208, refd to. [para. 19].

R. v. Toorie (G.S.) (2012), 279 Man.R.(2d) 29; 2012 MBQB 135, refd to. [para. 20].

R. v. MacDonald (K.) (2009), 236 Man.R.(2d) 239; 448 W.A.C. 239; 2009 MBCA 36, refd to. [para. 21].

Counsel:

R.H. Smith and J.S. Kliewer, for the appellant;

J.C. Prober, for the respondent.

This appeal was heard on June 19, 2015, before Monnin, Steel and Burnett, JJ.A., of the Manitoba Court of Appeal. Burnett, J.A., delivered the following judgment for the court on December 17, 2015.