R. v. Sosnowsky, 2011 MBCA 55

Citation: R. v. Sosnowsky, 2011 MBCA 55 Date: 20110616 Docket: AR 11-30-07525 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Holly C. Beard Mr. Justice Alan D. MacInnes BETWEEN: HER MAJESTY THE QUEEN ) D. V. Gunn ) for the Appellant Respondent ) ) S. C. Cawley and- and - ) K. M.

Lafreniere ) for the RespondentSEAN WILLIAM GERALD SOSNOWSKY ) ) Appeal heard and (Accused) Appellant ) Decision pronounced: ) June 16, 2011 STEEL J.A. (for the Court): 1 This is the appeal of a sentence of 27 months following a guilty plea on two counts of possession for the purpose oftrafficking in cocaine. 2 The two offences occurred one year apart and were quite separate and distinct. Normally, one would have thoughtthat they would have been treated as consecutive counts. The sentencing judge did not address the issue until it was raised by the clerk atthe end of his reasons.

In all fairness to the sentencing judge, all of the submissions by counsel were directed to a global sentence. 3 It is true that there is a high degree of deference owed to the sentencing judge on the determination of whetheroffences are to be treated as concurrent or consecutive (see R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948; and R. v.Arbuthnot (S.M.), 2009 MBCA 106, 245 Man.R. (2d) 244). However, given the different and separate facts related to the two counts, wewould have expected the judge to at least address the issue in his reasons (see R. v. Wozny (C.P.), 2010 MBCA 115, 262 Man.R. (2d) 75;R. v.

Maroti (M.), 2010 MBCA 54, 255 Man.R. (2d) 115; R. v. Draper (T.G.), 2010 MBCA 35, 251 Man.R. (2d) 267; and Arbuthnot). 4 Assuming the judge erred in law in failing to address the issue of concurrent as opposed to consecutive sentences, wewould be entitled to sentence afresh, with no deference being awarded to the decision of the sentencing judge. 5 However, the crux of this appeal rests on the nexus between the alleged error and the resulting sentence.

It isacknowledged that 27 months’ incarceration is in the range for two counts of possession for the purpose of trafficking in cocaine, evenfor a youthful first offender (see R. v. Gilchrist (R.), 2004 MBCA 21 at para. 27, 184 Man.R. (2d) 23). The ground of appeal that thesentence was harsh and excessive was dismissed in chambers at the time of the accused`s application for judicial interim release ashaving no merit.

The only minimal change since the sentencing in March is the birth of a child, whose imminent birth was noted in thepre-sentence report and therefore considered at the time of sentencing. 6 The sentencing judge carefully weighed all the relevant facts. For him, as for us, it is a concern that the secondoffence occurred a year later while the accused was on bail for the first offence. The police seized two ounces of powder cocaine and$10,315 in cash on that second arrest.

There is no dispute that the motivation here was greed and not addiction. 7 While we are aware that we could sentence differently, we do not believe we should do so on the facts of this case. This court has often expressed its concern for the rehabilitation of youthful first offenders. However, the court must balance thatobjective with the other sentencing objectives and, in an appellate context particularly, those of parity and consistency.

8 The appeal is dismissed. J.A. J.A. J.A.