R. v. Tran (A.), (2015) 323 Man.R.(2d) 293 (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) 293 (CA);2015 MBCA 120

R. v. Tran (A.) (2015), 323 Man.R.(2d) 293 (CA);

      657 W.A.C. 293

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. JA.004

Her Majesty The Queen (appellant) v. Anthony Tran (accused/respondent)

(AR 14-30-08281; 2015 MBCA 120)

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

Manitoba Court of Appeal

Monnin, Steel and Burnett, JJ.A.

December 17, 2015.

Summary:

Tran pled guilty to possession of cocaine for the purpose of trafficking and possession of proceeds of crime under $5,000. At the time of the offence, he was a 19 year old university student with part-time employment. He had no criminal record. The Crown sought a sentence of 36 months' imprisonment. Tran sought a conditional sentence.

The Manitoba Provincial Court, in a decision reported at (2014), 314 Man.R.(2d) 159, sentenced Tran to a conditional sentence of two years less a day for the possession for the purpose of trafficking conviction and three months concurrent for possession of the proceeds of crime, followed by one year of probation including 150 hours of community service. The Crown appealed. The issue was whether there were "exceptional circumstances" warranting a departure from the established sentencing range.

The Manitoba Court of Appeal dismissed the appeal. "This is one of those rare cases where, in my view, it would be counterproductive to send this offender to jail, let alone a penitentiary term. In the long term, society will be best protected and served by having this accused rehabilitated and continuing to be a productive member of the community as opposed to serving time in jail."

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The accused, a university student, pled guilty to possession for the purpose of trafficking in cocaine, and possession of proceeds of crime under $5,000 - The Crown appealed the sentence of two years less a day to be served conditionally, plus three months concurrent, followed by one year of probation including community service - The issue was whether there were "exceptional circumstances" warranting a departure from the established sentencing range - The Manitoba Court of Appeal dismissed the appeal - "I am not convinced that the accused in this case was anything more than a street-level cocaine trafficker. ... [T]he range of prison sentences for low-level cocaine trafficking in Manitoba is 'very wide (anywhere from 12 months to significant penitentiary terms)' ... . That aside, when I consider the reasons of the sentencing judge in the case at bar in light of how courts have considered 'exceptional circumstances', and in light of the deference that is owed to sentencing judges, I am unable to find that he erred in principle in imposing the sentence that he did, or that the sentence he imposed was unfit. The sentencing judge was dealing with a youthful, immature young offender with no prior involvement with the criminal justice system. The sentencing judge accepted the accused's claim that he had sought out the opportunity to become involved in the drug trade to earn money to pay his university tuition. The accused was on bail from the time of the offence in July of 2010 to the time of sentencing on November 4, 2014, with strict conditions and complied with those conditions including serving 12 months of his conditional sentence by way of house arrest. There was, in my view, an inordinate amount of time that passed between the time of the accused's arrest and the time of sentencing. The sentencing judge properly effected a balance between the need for denunciation and deterrence with the accused's more than apparent rehabilitation. The accused has completed the community service imposed as part of his sentence. He has been gainfully employed and has the support of his employer. This is one of those rare cases where, in my view, it would be counterproductive to send this offender to jail, let alone a penitentiary term. In the long term, society will be best protected and served by having this accused rehabilitated and continuing to be a productive member of the community as opposed to serving time in jail." - See paragraphs 30 to 32.

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 5841

Sentencing - Considerations on imposing sentence - Age of accused - [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) - On charges of possession of cocaine for the purpose of trafficking, a conditional sentence was imposed by the sentencing judge - On appeal, the Crown argued that there existed no "exceptional circumstances" that justified the imposition of a sentence outside of the accepted range - The Manitoba Court of Appeal, in dismissing the appeal, stated that " I am no more inclined to provide a detailed definition of 'exceptional circumstances' than other courts dealing with the issue have done in the past, but do glean from previous decisions the elements that courts have considered in finding that 'exceptional circumstances' existed in a particular case. The overriding factor that applies to this finding is that 'exceptional circumstances' invariably involve multiple mitigating factors. ... Another factor to be considered is where incarceration, due to substantial rehabilitation coupled with the length of time since sentencing, would be 'counterproductive'. ... Other cases have demonstrated that, while rehabilitation remains the most commonly articulated factor, appellate courts have referred to many other considerations in the cocktail of factors. Depending on the facts, compliance with strict bail conditions, guilty pleas, co-operation with authorities, health issues, personal characteristics, family concerns, Gladue and Ipeelee considerations, etc., have all had their role to play in the case law ... . However, in this canvass of factors warranting a consideration of 'exceptional circumstances', the aspect of demonstrated rehabilitation over a period of time might be the most persuasive of those factors." - See paragraphs 23 to 27.

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 5848.8

Sentencing - Considerations on imposing sentence - First offence - [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 5972

Sentence - Money laundering or proceeds of crime - [See Criminal Law - Topic 5720.4 ].

Cases Noticed:

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

R. v. Luff (M.P.) (2002), 170 Man.R.(2d) 117; 285 W.A.C. 117; 2002 MBCA 173, refd to. [para. 12].

R. v. Scott (J.J.) (2013), 327 N.S.R.(2d) 256; 1036 A.P.R. 256; 2013 NSCA 28, refd to. [paras. 13, 29].

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. 15].

R. v. McCowan (K.J.) (2010), 251 Man.R.(2d) 295; 478 W.A.C. 295; 2010 MBCA 45, refd to. [para. 16].

R. v. Burchnall and Dumont (1980), 24 A.R. 17 (C.A.), refd to. [para. 19].

R. v. M.F.D. (1991), 75 Man.R.(2d) 21; 6 W.A.C. 21 (C.A.), refd to. [para. 20].

R. v. Scanlon (D.J.) (1995), 107 Man.R.(2d) 190; 109 W.A.C. 190 (C.A.), refd to. [para. 21].

R. v. Henderson (J.A.) (2012), 275 Man.R.(2d) 168; 538 W.A.C. 168; 279 C.C.C.(3d) 406; 2012 MBCA 9, refd to. [para. 22].

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. 24].

R. v. MacDougall (B.A.) (1995), 107 Man.R.(2d) 236; 109 W.A.C. 236 (C.A.), refd to. [para. 24].

R. v. Innes (B.D.), [2012] A.R. Uned. 485; 2012 ABCA 283, refd to. [para. 24].

R. v. Kreutziger (W.D.) (2005), 212 B.C.A.C. 32; 350 W.A.C. 32; 2005 BCCA 231, refd to. [para. 25].

R. v. Nesbitt (N.L.) (2012), 322 B.C.A.C. 249; 549 W.A.C. 249; 2012 BCCA 243, refd to. [para. 25].

R. v. Tran (T.H.) (2015), 371 B.C.A.C. 312; 636 W.A.C. 312; 2015 BCCA 212, refd to. [para. 25].

R. v. Datt (R.) (2014), 364 B.C.A.C. 159; 625 W.A.C. 159; 2014 BCCA 484, refd to. [para. 25].

R. v. Carrillo (O.O.) (2015), 371 B.C.A.C. 182; 636 W.A.C. 182; 2015 BCCA 192, refd to. [para. 25].

R. v. Sinclair (T.) et al. (2012), 280 Man.R.(2d) 31; 548 W.A.C. 31; 2012 MBCA 24, refd to. [para. 25].

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, refd to. [para. 26].

R. v. Ipeelee (M.), [2012] 1 S.C.R. 433; 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 2012 SCC 13, refd to. [para. 26].

R. v. Liparoti (O.) (2011), 513 A.R. 97; 530 W.A.C. 97; 2011 ABCA 250, refd to. [para. 26].

R. v. Grammatikos (D.) (2013), 290 Man.R.(2d) 18; 2013 MBQB 44, refd to. [para. 26].

R. v. Rockwell (S.) (2012), 285 Man.R.(2d) 290; 2012 MBQB 280, refd to. [para. 26].

R. v. Ramos (Z.M.) (2007), 214 Man.R.(2d) 280; 395 W.A.C. 280; 2007 MBCA 87, consd. [para. 27].

R. v. Gilchrist (R.) (2004), 184 Man.R.(2d) 23; 318 W.A.C. 23; 2004 MBCA 21, refd to. [para. 30].

Counsel:

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

S.A. Inness, for the respondent.

This sentencing appeal was heard on June 19, 2015, before Monnin, Steel and Burnett, JJ.A., of the Manitoba Court of Appeal. In reasons written by Monnin, J.A., the Court delivered the following judgment, dated December 17, 2015.