2013 NBCA 19, 2013 NBCA 19

COURT OF APPEAL OF NEW BRUNSWICK 97-12-CA CHRISTOPHER ALLEN LENNON APPELLANT CHRISTOPHER ALLEN LENNON APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Lennon v. R., 2013 NBCA 19 Lennon c.

R., 2013 NBCA 19 CORAM: The Honourable Justice Bell The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge Bell L’honorable juge Quigg L’honorable juge Green Appeal from a decision of the Provincial Court: June 29, 2012 (conviction and sentence) Appel d’une décision de la Cour provinciale : Le 29 juin 2012 (déclaration de culpabilité et sentence) History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: February 13, 2013 Appel entendu : Le 13 février 2013 Judgment rendered: March 7, 2013 Jugement rendu : Le 7 mars 2013

Counsel at hearing: For the appellant: Mathieu Boutet For the respondent: Bernard S. Roux Avocats à l’audience : Pour l’appelant : Mathieu Boutet Pour l’intimée : Bernard S. Roux THE COURT The application for leave to appeal sentence is dismissed. The following is the judgment delivered by THE COURT [1] On June 29, 2012, Christopher Allen Lennon pled guilty to trafficking in cocaine, contrary to s.5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c.19. Mr. Lennon also pled guilty to breaching a probation order contraryto s. 733.1(1)(

a) of the Criminal Code. A Provincial Court judge imposed a sentence of 30 months incarceration for the traffickingcharge, and 30 days concurrent for the breach of probation. Mr. Lennon filed an application for leave to appeal his sentence unders. 675(1)(

b) of the Criminal Code. Mr. Lennon submits his sentence is unduly harsh and disproportionate to the gravity of the offence.For the reasons which follow, we would dismiss the leave application. [2] In R. v. R.K.J. (1998), (NB CA), 207 N.B.R. (2d) 24, [1998] N.B.J. No.483 (C.A.) (QL), Drapeau J.A. (as he then was) sets out the analytical framework that should be applied to the determination ofapplications for leave to appeal sentence: It is the undoubted duty of this Court to review the fitness of any sentence imposed.

That it must do so bearing in mind the privilegedposition occupied by the trial judge is settled law. All agree that the sentencing process is hardly an exact science. It is a subjectiveprocess which features a large measure of discretion. The intrinsically discretionary nature of the sentence decision explains, at least inpart, the Supreme Court's insistence on a deferential approach to all sentence reviews. See R. v. Shropshire, (SCC),[1995] 4 S.C.R. 227, R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500, and R. v. MacDonnell, (SCC),[1997] 1 S.C.R. 305.

Nevertheless, deference has its limits, and this Court is duty bound to vary a sentence in appropriate circumstances. Indeed, if thesentencing court commits an error of law or an error in principle, or if the sentence imposed is clearly unreasonable, there is no longerroom for deference and this court is required to impose the sentence which it considers fit. See R. v. F.S.A. (1996), (NB CA), 182 N.B.R. (2d) 20; 463 A.P.R. 20 (C.A.), and R. v. Melanson (E.R.) (1998), (NB CA), 199 N.B.R. (2d)338; 510 A.P.R. 338 (C.A.).

In this context, an error in law most commonly occurs as a result of a misapprehension of the evidence or a misapplication of judicialprecedents. As for an error in principle, it typically involves one or more of the following: the application of wrong sentencing principles,a failure to consider relevant factors or the taking into account of irrelevant considerations. As well, there will be cases where the failureto give proper weight to each relevant circumstance will amount to an error in principle. (Our court will necessarily be slow to find an

error of this nature for, if it was otherwise, professions of deference would soon ring hollow.) Finally, a sentence will be clearlyunreasonable where it is either inordinately long or inordinately short. It will reach this level only if it is a substantial and markeddeparture from the sentence customarily imposed for similarly situated offenders committing similar crimes. [paras. 11-13] This standard of review was applied in R. v. Collier, 2006 NBCA 92, 303 N.B.R. (2d) 369 and R. v. Gallon, 2006 NBCA 31, 297 N.B.R.(2d) 317. For further discussion and amplification of this framework see R. v.

Basque (1999), (NB CA), 211 N.B.R.(2d) 273, [1999] N.B.J. No. 211 (C.A.) (QL); R. v. Kuriya, 2003 NBCA 63, 261 N.B.R. (2d) 153; R. v. R.T.S., 2006 NBCA 65, 301N.B.R. (2d) 338; R. v. Veysey, 2006 NBCA 55, [2006] N.B.J. No. 365 (QL); R. v. Melanson, 2009 NBCA 41, 347 N.B.R. (2d) 201; R. v.Frost, 2012 NBCA 94, 396 N.B.R. (2d) 305; and R. v. Martin, 2012 NBCA 95, 396 N.B.R. (2d) 343. [3] In our view, Mr. Lennon has failed to show the Provincial Court judge committed an error oflaw or an error in the application of the principles of sentencing in the sentence he imposed.

A review of the transcript reveals the judgeaddressed the principles of sentencing, as set out in s. 718 of the Criminal Code. The judge did not fail to consider any relevant factors.Although Mr. Lennon is 22 years of age, he has a lengthy criminal record, both as a youth and an adult. Mr. Lennon has a previous drug-related conviction, and he was on probation at the time of the offence. As such, the sentence imposed is not demonstrably unfit. We see no error on the part of the judge which warrants appellate intervention, and we dismiss theapplication for leave to appeal sentence. _____________________________ B.

RICHARD BELL, J.A. ______________________________ KATHLEEN A. QUIGG, J.A. ______________________________ BRADLEY V. GREEN, J.A.