R. v. Traimany (P.), 2011 MBCA 104

Citation: R. v. Traimany (P.), 2011 MBCA 104 Date: 20111209 Docket: AR 11-30-07578 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Mr. Justice Richard J. Chartier Madam Justice Holly C. Beard BETWEEN : HER MAJESTY THE QUEEN ) S. A. Bond ) for the Appellant Appellant ) ) M. P. Cook - and - ) for the Respondent ) PHAITHONG TRAIMANY ) Appeal heard and ) Decision pronounced: (Accused) Respondent ) December 9, 2011 CHARTIER J.A. (for the Court): 1 This is a Crown sentence appeal.

Following a trial, the accused was convicted of possession of cocaine for the purpose of trafficking, possessing proceeds of a crime and breaching probation on a previous cocaine trafficking sentence. 2 The Crown asked for a sentence in the range of five to six years while the accused asked for a conditional sentence of two years less a day.

The judge imposed a total sentence of three years, broken down as follows: 33 months’ incarceration, concurrent, on the trafficking and proceeds charges, and a further three months to be served consecutively for the breach offence. 3 It was uncontested that the accused was selling cocaine in one-ounce packages to lower-level traffickers. The judge was right to find him to be a mid-level dealer. He recognized that the accused had a prior cocaine trafficking conviction and that he was still serving the probationary term of that sentence when he committed these offences.

He also properly identified that denunciation and deterrence were “the paramount considerations, both specific and general,” for this accused. In addition, he correctly referred to R. v. Rocha (S.) , 2009 MBCA 26 , 236 Man.R. (2d) 213 , which had confirmed that the range of sentence for mid-level or multi-ounce cocaine traffickers was five to eight years for the dealers and three to six for the mere couriers. 4 Nonetheless, when he sentenced the accused, he inexplicably sentenced him in a manner consistent with a sentence for a courier as opposed to the mid-level dealer he was.

In doing so, the sentence imposed with respect to the trafficking and proceeds offences was clearly unreasonable in the circumstances. 5 We grant leave to appeal and vary the sentence on those two convictions from 33 months to 60 months, concurrent on each. In all other respects the sentence remains the same. This includes the three-month sentence on the breach charge, which will continue to be served consecutively to the trafficking and proceeds sentence. J.A. J.A. J.A.