R. v. Murphy (M.P.), 2011 MBCA 84

Citation: R. v. Murphy (M.P.), 2011 MBCA 84 Date: 20111021 Docket: AR 10-30-07482 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Richard J. Chartier Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin BETWEEN : ) S. J. D. Christie and HER MAJESTY THE QUEEN ) J. S. Kliewer ) for the Appellant Appellant ) ) M. S. Minuk - and - ) for the Respondent ) ) Appeal heard: MICHAEL PATRICK MURPHY ) May 13, 2011 ) (Accused) Respondent ) Judgment delivered: ) October 21, 2011 MONNIN J.A. 1 Stemming from events occurring in October 2006, Mr.

Murphy was convicted after a trial of three counts of possession for the purpose of trafficking, one count of simple possession and one count of possession of proceeds of crime. The Crown appeals from the sentence imposed in November 2010 of 18 months in jail, followed by 24 months of supervised probation. 2 The Crown contends that the sentence should be doubled to three years.

It argues that the sentencing judge erred in principle by focussing solely on the quantity and value of the drugs, while failing to pay heed to the significance of the accused’s degree of responsibility as the independent driving force of the enterprise. BACKGROUND 3 Mr. Murphy was arrested and charged following the execution of a search warrant at his residence. The search led to the seizure of 45 grams of powder cocaine, approximately 649 grams of marihuana, 70 tablets of ecstasy and approximately 11.8 grams of psilocybin, as well as over $12,000 in cash in small denominations.

In addition to the drugs and money, the police found scales, one with cocaine residue, and assorted packaging material. 4 The accused challenged the validity of the search warrant. When the search warrant was upheld, the trial proceeded by an agreed statement of facts. The accused called no evidence in response nor was any submission made in opposition to a conviction. He was convicted on all counts. 5 At the time of his arrest in 2006, he was 27 years of age and had no criminal record. However, within ten months he was arrested again. He subsequently pled guilty to possession of cocaine, receiving a $5,000 fine.

During the three years that followed that incident, he appeared to change his lifestyle. Apart from two breaches of the conditions of his release, which were unrelated to the drug offences and for which he received small fines, his conduct has been positive. With the help of a brother, he has been involved in building and renovation work. He lives with his brother in his brother’s house and, as the sentencing judge noted, there has been a steady and focussed improvement in his life with the support of his brother.

The pre-sentence report places him at a low risk to reoffend, although the probation officer believes this is in part subject to the continued assistance of his sibling. 6 The Crown’s submission on sentencing at trial, which was repeated before us, was that an appropriate sentence would have been a penitentiary term of at least three years. At trial, defence counsel took the position that, given the low risk to reoffend and

the potential for rehabilitation, a conditional sentence was appropriate. DECISION UNDER APPEAL 7 In his review of the factual background, the sentencing judge noted that while a number of different drugs werefound, the bulk of them were not

Schedule I drugs, viewed as hard drugs and considered to be the most dangerous. He also found thatthe accused was involved in the sale of drugs as a purely profit-based commercial enterprise and not to support an addiction. 8 The sentencing judge recognized that, based on the amount and variety of the drugs found, denunciation anddeterrence were important considerations. However, this being a first offence, he viewed rehabilitation as an important consideration. 9 The sentencing judge reviewed the jurisprudence submitted by both Crown and defence.

He distinguished some ofthe Crown’s cases on the basis that, contrary to the nature of the drugs in this case, the bulk of the drugs in the cases cited were ScheduleI drugs. He also considered that the cases put forward by defence counsel indicated that a non-penitentiary term was within the range ofpossible sentences. 10 The sentencing judge concluded that, due to the profit-based nature of the accused’s drug activity, the principle ofgeneral deterrence required the imposition of a period of incarceration to prevent this type of activity from becoming an easy lifestylechoice.

Further, it was his view that while the period of incarceration should not be in the form of a conditional sentence since it was afirst offence, the length of sentence need not be as long as for repeat offenders. He imposed a sentence of 18 months to be served in aninstitution, followed by two years’ supervised probation. STANDARD OF REVIEW 11 This court’s power to vary a sentence on appeal is limited.

An appellate court must show “great deference” whenreviewing a sentencing decision and not intervene unless it is convinced that the sentencing judge committed an error in principle or thatthe sentence was demonstrably unfit. See, R. v. Luff (M.P.), 2002 MBCA 173 at para. 40, 170 Man.R. (2d) 117, citing Lamer C.J.C. inR. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500 at para. 90; R. v. L.M., 2008 SCC 31 at para. 14, [2008] 2 S.C.R. 163; andmore recently in R. v. Muthoka, 2011 MBCA 40.

ANALYSIS 12 The Crown argues that the sentencing judge failed to give sufficient weight to the commercial nature of the accused’senterprise and, hence, his moral culpability.

In the Crown’s submission, the wide range of drugs, coupled with the substantial amount ofcash found on the premises, indicate that the scale of the accused’s drug trafficking operation was more substantial than found by thesentencing judge and, as a result, his degree of responsibility was greater. 13 The Crown also argues that the sentence is outside of the range of sentences imposed on similar offenders for similaroffences and is clearly unfit. In its submission, a penitentiary term was warranted. 14 The Crown contends the sentencing judge erred in distinguishing this court’s decisions in R. v.

Gilchrist (R.), 2004MBCA 21, 184 Man.R. (2d) 23; and R. v. Stebeleski (B.R.) et al., 2007 MBCA 1, 212 Man.R. (2d) 120. The sentencing judge did so onthe grounds that both the Gilchrist and Stebeleski decisions involved a significantly larger quantity of a

Schedule I drug. On that score,he was correct. In Gilchrist, the accused was found with 175 grams of crack cocaine in half-gram rocks, over four times the amount ofcocaine found with Mr. Murphy.

Similar amounts of crack cocaine were involved in the Stebeleski case. 15 While the presence of an array of drugs in this case raises the seriousness of the offence, the sentencing judge was aliveto that fact as well as to the commercial nature of the enterprise, both of which he commented upon. 16 Neither Gilchrist nor Stebeleski stands for the proposition that a non-penitentiary sentence cannot be considered for astreet-level trafficker (which was the level of involvement conceded by the Crown and upon which the sentencing judge proceeded).

Both cases involve the court affirming sentences imposed by the sentencing court (four years in Gilchrist and three-and-a-half years inStebeleski). In neither case was the court asked to set the lower level of a range of sentences for this type of offence. To use the court’sown words, Freedman J.A. stated (Gilchrist at para. 27): The range for this type of offence, and for this type of offender, may start at less than two and a half years but it is certainly wide, andextends beyond four years. …. In fact, this court has affirmed sentences of less than two years for offences involving trafficking cocaine.

See R. v. Panko (D.), 2000MBCA 45, 148 Man.R. (2d) 138; R. v. Reid (B.A.C.) (1998), (MB CA), 131 Man.R. (2d) 153; and R. v. Champagne(D.A.), 2000 MBCA 66, 148 Man.R. (2d) 104. 17 Even if one could argue that this court’s decisions in Gilchrist and Stebeleski suggest a range of two years and upwardsfor trafficking, that does not preclude a judge from sentencing outside of the range so long as he does so in accordance with the principlesand objectives of sentencing. As stated by LeBel J. in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 (at para. 44): The wide discretion granted to sentencing judges has limits.

It is fettered in part by the case law that has set down, in somecircumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in

accordance with the principle of parity enshrined in the Code . But it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. See also this court’s decisions in R. v.

McCowan (K.J.) , 2010 MBCA 45 , 251 Man.R. (2d) 295 ; and R. v. Sinclair (W.J.) , 2009 MBCA 91 , 245 Man.R. (2d) 237 . 18 The sentencing judge reviewed the various cases of this court dealing with the range of sentences. He carefully reviewed the relevant facts surrounding the convictions, including the amount and variety of drugs available, the apparent success of the enterprise and its scope.

He was alive to the issue of deterrence, but he balanced the need for deterrence against the accused’s apparently successful rehabilitation during the three years preceding the sentencing hearing, the low risk to reoffend and the lack of criminal antecedents. After thoughtful consideration, he found that a term of incarceration less than a penitentiary term was appropriate for this offender and these offences. Having considered the relevant evidence and balanced the appropriate factors, I am unable to conclude that he committed an error of principle.

While there is no doubt that the sentence imposed by the sentencing judge in this case is at the very low end of the range of sentences available, the Crown has not convinced me that the sentence is demonstrably unfit. It would therefore be wrong for this court to interfere in this decision. 19 In R. v. Ramage , 2010 ONCA 488 , 257 C.C.C. (3d) 261 , Doherty J.A. had this to say on appellate deference (at para. 70): Appellate deference to the trial judge’s sentencing decision makes good sense. Sentencing is a fact-specific exercise of judicial discretion. It is anything but an exact science.

In the vast majority of cases, there is no single sentence that is clearly preferable to all others. Instead, there is a range of reasonable options from which the trial judge must make his or her selection. That selection is driven by the judge’s evaluation of the sentence that best reflects his or her assessment of the combined effect of the many variables inevitably at play when imposing a sentence.

Absent the discipline of deference, sentence appeals would invite the appellate court to repeat the same exercise performed by the trial judge, with no realistic prospect that the appellate court would arrive at a more appropriate sentence. Appellate repetition of the exercise of judicial discretion by the trial judge, without any reason to think that the second effort will improve upon the results of the first, is a misuse of judicial resources.

The exercise also delays the final resolution of the criminal process, without any countervailing benefit to the process. 20 Upholding the sentence on this appeal and choosing not to interfere with the discretion exercised by the sentencing judge, is not an endorsement of the specific sentence or moving the goal posts with respect to the range of sentences for offences involving street dealers.

It is but another example of applying a deferential standard of review. 21 My colleague, in her dissenting reasons, concludes that the sentencing judge committed three errors in principle and that, as a result, this court can impose a sentence without deference to the one imposed by the sentencing judge.

I respectfully disagree. 22 My colleague is of the view, in the first order, that the sentencing judge improperly distinguished this court’s decisions in Gilchrist and Stebeleski by mischaracterizing the scale of the accused’s operation and by focussing on the amount of drugs as compared to the profitability of the operation. As indicated above, I am of the view that the sentencing judge properly distinguished Gilchrist and Stebeleski on the basis that the accused in those cases were found with substantial amounts of crack cocaine while the bulk of the drugs found with this accused were non-Schedule I drugs.

To determine the size of the drug operation based upon the monies found on the scene is fraught with uncertainty. While it is a factor to be considered in the overall discretion of the sentencing judge, it was not an error in this case for him to consider the fact that most of the drugs were not

Schedule I drugs as a distinguishing factor. 23 My colleague also concludes that the sentencing judge erred when he referred to the cases of R. v. Byrne (M.E.) , 2009 NLCA 3 , 281 Nfld. & P.E.I.R. 353 ; and R. v. Biery (R.M.) et al. , 2002 BCCA 552 , 173 B.C.A.C. 277 , without recognizing the difference in the range of sentence for drug offences between Manitoba and other jurisdictions. With respect, the sentencing judge did not rely upon Byrne to support his conclusion that an 18-month sentence was appropriate. He only referred to the Byrne case in reviewing the cases cited by defence counsel.

As to Biery , the sentencing judge referred to it as a case which “illustrate[d] that a non-penitentiary term cannot be ruled out in a case such as this.” He also referred to it as being a case which accorded with his view that a conditional sentence was not appropriate for individuals caught running a drug business. On the first count, it would be incorrect to say that the sentencing judge preferred a line of sentencing principles not in accord with decisions of our court throughout the years.

As indicated previously, our court has, in cases involving the trafficking of cocaine, confirmed or imposed sentences of less than a penitentiary term. After giving due regard to the general directions given by this court on any specific issue, it is not an error of principle for a sentencing judge to have regard to cases emanating from outside of our jurisdiction where the facts and circumstances more approximate those at hand in any particular case.

The use made by the sentencing judge of the Byrne and Biery cases does not amount to an error in principle. 24 Finally, my colleague also takes the position that the sentencing judge used Luff as a case supporting the sentencing range that he set. In fact, the sentencing judge only referred to Luff for the purpose of indicating that it was a case proposed by defence counsel as one in which a conditional sentence could be imposed and where the value of the drugs where less than those found with the accused.

There is no error of principle to be found in those comments. 25 For these reasons, I would grant leave to appeal, but dismiss the appeal. _____________________________ J.A.

I agree: J.A. BEARD J.A. (dissenting) I. THE ISSUES 26 This is an appeal by the Crown from the sentence imposed by the sentencing judge on this accused. The accused was convicted, following a trial, of three counts of possession for the purpose of trafficking of just under two ounces of powder cocaine, approximately one and a half pounds of marihuana and 70 tablets of ecstasy, of one count of possession of almost half an ounce of psilocybin (magic mushrooms) and of one count of unlawful possession of the proceeds of crime over $5,000 for which he received a global sentence of 18 months’ incarceration and 24 months’ probation. 27 The issues to be determined are: (

i) whether the sentencing judge erred in principle; and (ii) whether the sentence that was imposed by the sentencing judge was an unfit sentence. 28 My colleague has concluded that the sentencing judge did not commit any error in principle and that the sentence that he imposed was fit. I am not in agreement with those conclusions for the reasons that follow. II. THE FACTS 29 While I don’t disagree with my colleague’s

summary of the facts, there are the following additional facts that are important to explain the nature and degree of this accused’s involvement in the sale of illegal drugs: - the drugs found in the accused’s pocket and at his residence were all packaged for sale, most at the street level; - the street value of those drugs was between $6,914 and $14,435, depending on the size of the quantities in which they were sold; - the drugs, together with the $12,695 cash found at the accused’s residence, resulted in a drug operation with a value of between $19,609 and $27,120; - in addition to scales, the police found a grinder, bowl and tray for processing the drugs and jewellery bags and other packaging material, all contaminated with drug residue; - the police also seized five cell phones, one of which was ringing continually with customers calling for drugs; and - the sentencing judge found that the accused did not suffer from any addictions, but rather was involved in the street-level drug enterprise purely for commercial reasons.

III. STANDARD OF REVIEW 30 I agree with the

summary of the standard of review as set out in the reasons of the majority. IV. ANALYSIS 31 In R. v. L.M. , 2008 SCC 31 , [2008] 2 S.C.R. 163 , LeBel J., for the majority, paraphrased the principles of sentencing, as set out in the Criminal Code , as follows (at para. 17): ….

To arrive at an appropriate sentence in light of the complexity of the factors related to the nature of the offence and the personal characteristics of the offender, the judge must weigh the normative principles set out by Parliament in the Criminal Code : - the objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgment of and reparations for the harm they have done (s. 718 Cr. C. ) … ; - the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1 Cr.

C. ); and - the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that a sentence should be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identified and that available sanctions other than imprisonment should be considered (s. 718.2 Cr. C. ). 32 This court has had the opportunity to consider these principles, as they relate to a conviction for drug offences involving

the sale of cocaine and other hard drugs, on many occasions. I note, in particular, the following decisions, all from this court: R. v.Seman (R.B.) (1996), (MB CA), 110 Man.R. (2d) 72; R. v. Lebras (A.J.) (1996), (MB CA), 110Man.R. (2d) 69; R. v. Andrews (D.) (1996), (MB CA), 110 Man.R. (2d) 67; R. v. Vermette (I.M.), 2001 MBCA 64,156 Man.R. (2d) 120; R. v. Kosanouvong (L.), 2002 MBCA 144, 170 Man.R. (2d) 287; R. v. Luff (M.P.), 2002 MBCA 173, 170 Man.R.(2d) 117; R. v. Gilchrist (R.), 2004 MBCA 21, 184 Man.R. (2d) 23; R. v.

Bercier (T.J.), 2004 MBCA 51, 184 Man.R. (2d) 106; R. v.Stebeleski (B.R.) et al., 2007 MBCA 1, 212 Man.R. (2d) 120; R. v.

Ramos (Z.M.), 2007 MBCA 87, 214 Man.R. (2d) 280; and R. v.Rocha (S.), 2009 MBCA 26, 236 Man.R. (2d) 213. 33 The following principles can be taken from these cases: - the appropriate range of sentence for a drug offence is determined by several factors, including the type and amount of drugs andthe nature and level of the accused’s involvement; - the seriousness of the offence will increase the longer that the accused has been involved in the sale of drugs and the greater theamount of drugs involved; - whether the accused was selling to support a drug addiction or solely as commercial seller for profit is a significant factor; - denunciation and deterrence are always important principles where the sale of hard drugs is involved, such that a period ofincarceration is required; and - rehabilitation remains a relevant factor for consideration. 34 The nature of the sale and the involvement of an accused have led to the recognition of the following categories orlevels of involvement: - courier or delivery person for another at the street level; - selling a few rocks or a small amount at the street level; - operating a business at the street level, including cutting larger amounts and repackaging for sale at the street level; - acting as a mule or delivery person for a mid-level seller, to deliver larger amounts from a supplier to someone selling at the streetlevel; - supplying larger amounts of drugs to someone operating at the street level; and - importing drugs into the country. 35 This court has also considered the range of sentences for cocaine trafficking in Manitoba as compared to otherjurisdictions.

A large-scale police drug operation conducted in Manitoba in the 1990’s led to a significant number of drug prosecutionsand, eventually, sentencings, some of which ended up in this court. This court undertook a review of some 75 cases from across Canadadealing with trafficking in cocaine and conspiracy to traffic. While some of those accused were involved at a higher level than thisaccused, this court’s conclusions regarding drug sentences across Canada are relevant to this case.

In Lebras, Huband J.A., for the court,stated as follows (at para. 11): Assuming I have correctly identified the general range of sentences in comparable cases, I confess my mild surprise that penalties fortrading in such a dangerous drug are not greater.

I think it is proper for the Court of Appeal of this province to maintain a high thresholdof severity in sentencing for those who traffic in cocaine in this jurisdiction. …. 36 In Seman, this court made the following statement (at para. 14): Cases like this one and the others now being decided present the court with the difficult task of applying logic and a degree ofconsistency to the sentencing of those traffickers and conspirators who ply their sordid trade in this province.

My brother Huband inLebras referred to the large number of cocaine cases which we reviewed and made some observations about the rather wide range ofsentences which had been imposed across Canada. That same review indicates that Manitoba has tended to be at the high end of therange.

Whether or not this is a matter of conscious policy, it is a position from which I see no reason to retreat. 37 Keeping these comments in mind, considering cases from other jurisdictions on the issue of range of sentence forcocaine trafficking is interesting, but of less assistance than Manitoba cases. 38 What, then, is the range of sentence for an accused who is operating a commercial drug business, wherein he cuts andrepackages cocaine and sells at the street level, for profit? The most obvious recent decision is that of Gilchrist.

In that case, the policeexecuted a search warrant at the accused’s residence and found 351 rocks of cocaine at one-half gram each (a total of 171.5 grams) withan approximate value of $14,000, as well as $7,640 in cash, for a total of $21,640, and, in addition, drug-related paraphernalia. Thesentencing judge found that the accused was in a higher category than an ordinary street-level dealer, which she defined as a person whosells a few rocks at the street level to support his own habit.

39 The sentencing judge sentenced Mr. Gilchrist to four years in jail and the defence appealed on the basis that the range included high provincial time and that the accused should have received a sentence of high-end provincial time to be served in the community. In commenting on the appropriate range of sentence for this type of offence, Freedman J.A., for the court, stated as follows (at para. 27): The range for this type of offence, and for this type of offender, may start at less than two and a half years but it certainly is wide, and extends beyond four years.

In Pacheco [unreported], when Conner P.J., said, “ Sentences of three to five years incarceration are appropriate sentences for street level cocaine traffickers”, he continued with, “This is true even for first time offenders” (at p. 5). I see no error by the judge in identifying the range. …. [emphasis added] 40 The sentencing judge found that Mr. Gilchrist was not at the lower end of the range, which range he identified as being three to five years’ incarceration, because he was involved at a higher street level than someone selling only a few rocks to support his own habit.

This court found no error in that range of sentence, upheld the four-year sentence and dismissed the appeal. 41 The sentencing judge in this case distinguished and summarily dismissed Gilchrist on the basis that Gilchrist involved a significantly larger quantity of cocaine. When one takes a closer look at the facts, this distinction is fallacious and does not hold up. Mr. Gilchrist had drugs and cash, which was found to be the proceeds of crime and was presumably from the sale of cocaine, totalling $21,640. The accused in this case had drugs and cash totalling between $19,608 and $27,120.

Both businesses were in the same order of magnitude – that is, each involved a significant amount of drugs, including hard drugs, both involved the repackaging of larger amounts into smaller amounts for resale and neither could be classified as being at the lowest level of street sales involving only a few rocks. 42 Where the seller is involved in selling drugs on an ongoing basis, the amount of any particular drug, within an array that includes hard drugs, at any specific point in time is less important than the overall magnitude of the business, because the ratio of drugs to cash will vary depending on where the seller is in the sales cycle at the moment of arrest.

He may have just sold a large quantity of drugs and have a small amount of drugs and a large amount of cash on hand, or he may just have received, and paid for, a large shipment of drugs and have a large amount of drugs and little cash on hand, or something in between. Thus, what is telling about the size of the operation, and, therefore, the degree of criminality of the accused, is the overall magnitude of the business and not just the amount of drugs on hand at a specific moment in time. 43 Further, the fact that this accused had less cocaine at the time of arrest than did Mr.

Gilchrist is offset by the fact that this accused had a whole array of other drugs to appeal to a larger segment of drug users – a convenient “one-stop shop,” designed to appeal to a much larger and more diverse group of users. 44 There were other factors that made this accused’s involvement more serious than that of Mr. Gilchrist: - this accused was reinvolved following his release on bail when he was arrested for possession of two grams of powder cocaine and six vials of one gram powder cocaine, to which he ultimately pled guilty; there was no suggestion that Mr.

Gilchrist became reinvolved, although he was on bail for an undisclosed offence at the time of his arrest; - Mr. Gilchrist was only 20 years old at the time of arrest and was a drug addict; this accused was somewhat older, at 27 years of age, and was not a drug addict when he was arrested; and - Mr. Gilchrist pled guilty only one month after he was arrested, which is usually a significant mitigating factor, especially when the plea is made so early following the arrest. 45 Neither Mr. Gilchrist nor this accused had any criminal record at the time of arrest.

While this accused has made significant strides towards changing his lifestyle, there is no information given in the reasons as to Mr. Gilchrist’s activities following his arrest, but that would be explained largely by his very early plea and sentencing. Similarly, while this accused was found to be a low risk to reoffend, there is no reference to the risk of reoffending related to Mr. Gilchrist, again probably because of the early guilty plea. 46 The Gilchrist range of sentence was adopted by this court in Stebeleski , a case that also involved the sale of cocaine at the street-level.

Like the reasons in Gilchrist , those in Stebeleski were distinguished and summarily dismissed by the sentencing judge in this case on the basis that the Stebeleski case involved a greater quantity of hard drugs than the present case. In Stebeleski , the accused had possession of five ounces of powder cocaine and six ounces of crack cocaine with a total value of approximately $12,000 and cash of $850, as well as a pager, three cell phones and score sheets. The overall value of the business in Stebeleski was less by almost 50 per cent, at the moment of arrest, than that in either this case or in Gilchrist .

That said, the order of magnitude appears to be similar, in that all three accused were repackaging larger amounts of drugs for resale and selling more than a few rocks of cocaine at the street level in what was clearly more than a single incident. For the reasons that I set out in paras. 42-43, the distinction related to the amount of cocaine at the moment of arrest that was relied on by the sentencing judge to distinguish Gilchrist and Stebeleski from the present case is not a valid or useful distinction. 47 Mr.

Stebeleski, whose situation was very similar to that of this accused, was sentenced to three and one-half years’ incarceration, which was upheld by this court. At the time of sentencing, he was the owner of a successful business and several people were dependent on him. He, also, had no prior record at the time of his arrest, there is no indication that he was reinvolved following his arrest, and he was a low risk to reoffend.

48 As a comparison, it is instructive to look at those cases in which this court has endorsed a sentence for trafficking incocaine that was less than two years. In Kosanouvong, the accused was arrested for selling one rock of crack cocaine to an undercoverpolice officer for $40. At the time of his arrest, he had five other rocks of crack cocaine individually packed and $80, which included the$40 from the undercover officer. Thus, the total value of the drugs and cash was $280. The accused admitted that he had been sellingdrugs for about a month, and said that he was using marihuana and cocaine for pain.

The appeal was taken by the accused, who wasasking for a conditional sentence in place of the 18 months’ incarceration that was ordered by the sentencing judge. This courtsubstituted a conditional sentence of two years less one day and endorsed the 18 months’ probation ordered by the sentencing judge, tofollow the conditional sentence. 49 The facts in Kosanouvong are not sufficiently similar to the facts in this case, or in Gilchrist and Stebeleski, to reducethe lower end of the applicable range from “under two and a half years” to 18 months.

The much larger order of magnitude of thebusiness in those latter cases requires a higher range of sentence than in Kosanouvong. 50 In Ramos, where the accused was found in possession of cocaine with a value of between $10,000 and $20,000, thiscourt reduced a 30-month sentence to two years less one day and ordered it to be served conditionally. In that case, however, this courtfound that the judge had erred in finding both that the accused’s involvement was a “mid-level involvement in a ‘criminal distributionnetwork’” (at para. 12) and that it was a much greater involvement than being involved only once.

This court accepted that the onlyevidence was that the accused was only involved once as a conveyor or mule to deliver the drugs, albeit in a large amount, and not as aseller (at para. 13). Clearly, the facts as found in Ramos do not describe this accused’s offence. 51 By further comparison, the Crown also referred to the decisions of this court in Rocha and Vermette, involving sales atthe mid level in the sales chain, where multi-ounce quantities of hard drugs were supplied to street-level sellers.

In Rocha, this courtstated that, at that level, the range of sentence for couriers with no decision-making authority was in the three to six-year range ofincarceration, while the range for sellers with decision-making authority was in the range of five to eight years (see para. 64). 52 In accepting that the sentencing range started below two years, the sentencing judge in this case relied on the authoritiesprovided by the defence. In fact, the only case from this court that was relied on by the accused that involved the sale of cocaine wasthat of Luff.

In that case, the police searched the accused’s residence and found five bags containing a total of 40 grams of cocaine worth$3,000, $590 in cash and packaging material and a scale, which the sentencing judge characterized as a commercial operation. They alsofound several syringes on the bed where the accused’s three-year-old daughter was sitting. The accused had a significant criminalrecord, albeit there was a period of over 10 years with no convictions just before this offence.

The accused acknowledged that he was anaddict at the time of this offence, but had taken both addiction treatment and a parenting course following his arrest and was successful inobtaining the return of his daughter into his care. The sentencing judge sentenced Mr. Luff to a period of incarceration of 15 months,which she said was lower than the range of 24 to 30 months put forth by the Crown, to give credit for Mr. Luff’s rehabilitation. 53 Mr. Luff appealed the sentence on the basis that he should have received a conditional sentence.

This court agreed, andsubstituted a sentence of two years less one day, to be served conditionally in the community, in place of the 15 months’ incarceration. Itis important to note, however, that the Crown did not appeal the original sentence, so this court was not asked to rule on either the rangeof sentence for that offence or whether that sentence was fit or unfit. Rather, the appeal was only on the issue of whether, accepting theoriginal sentence of 15 months, it should have been an equivalent conditional sentence.

Because this court was not asked to rule oneither the appropriateness of the length of the original sentence or whether it was fit, the decision is not a precedent for the issue of theappropriate range of sentence that is now before us. 54 The other two cases relied upon by the defence and referred to by the sentencing judge were R. v. Biery (R.M.) et al.,2002 BCCA 552, 173 B.C.A.C. 277, and R. v. Byrne (M.E.), 2009 NLCA 3, 281 Nfld. & P.E.I.R. 353. While these cases may be ofsome interest, they are not binding on this court and are not in step with this court’s recent decisions in Gilchrist and Stebeleski.

Rather,the decisions in Biery and Byrne are examples of this court’s findings in Seman and Lebras in 1996 (see paras. 32-34 of this decision)that there is a wide range of sentences for drug offences across Canada. This court has not backed away from its earlier finding in Lebrasthat, “it is proper for the Court of Appeal of this province to maintain a high threshold of severity in sentencing for those who traffic incocaine in this jurisdiction” (at para. 11) or in Seman that, “Manitoba has tended to be at the high end of the range.

Whether or not this isa matter of conscious policy, it is a position from which I see no reason to retreat” (at para. 14). Thus, the decisions in Biery and Byrnedo not support the sentencing judge’s finding that a sentence of 18 months is within the range of sentences for this offence in Manitoba. 55 My colleague has raised this court’s decisions in R. v. Panko (D.), 2000 MBCA 45, 148 Man.R. (2d) 138; R. v. Reid(B.A.C.) (1998), (MB CA), 131 Man.R. (2d) 153; and R. v.

Champagne (D.A.), 2000 MBCA 66, 148 Man.R (2d)104, as supporting the fact that this court has affirmed sentences of less than two years for offences involving trafficking in cocaine. Theissue is not whether this court has ever affirmed such sentences – clearly it has. The decisions in Kosanouvong and Luff, to which Ireferred, are other examples of sentences by this court of less than two years for cocaine trafficking.

It must be recognized, however,that there are different degrees of involvement and different levels of criminality in the sale and distribution of cocaine, and thosedifferent levels of involvement should result in different sentences. The issue in this case is whether this court has affirmed, or shouldaffirm, such a sentence for trafficking in cocaine and a variety of other drugs as an ongoing, for-profit commercial enterprise.

None ofthe three cases referred to by my colleague relate to sentencing for a degree of involvement that is this significant. 56 The decision of this court in Panko reveals that the issue in that case was the reliability of the identification evidence. While the facts are sketchy, it appears that there was only one sale of cocaine to an undercover officer. This is much less serious thanthe activity of the accused in this matter, which involves an ongoing commercial venture, so that Panko is of no precedential value to thequestion at issue in this matter.

The decision in Reid makes no reference to the degree or nature of the trafficking at issue, so it, as well,is of no assistance on the issue in this case. Finally, the facts in Champagne are very similar to those in Kosanouvong and Luff and notsimilar to those in this case. In Champagne, the accused was involved in the delivery of small amounts of cocaine to a customer, whoturned out to be an undercover officer, on three occasions.

Thus, Champagne is also not a precedent for the appropriate sentence wherethe accused is voluntarily packaging and selling cocaine and other drugs in his own ongoing commercial enterprise. V. CONCLUSION

57 In

summary, a closer review of the cases shows that the sentencing judge in this case erred in principle in his

interpretation and treatment of the cases to which he was referred. Firstly, he erred when he mischaracterized the scale of this accused’s operation as being less significant than that in Gilchrist and Stebeleski . This error resulted in him incorrectly distinguishing those cases when he should have followed them. Secondly, he erred when he adopted the reasons in Biery and Byrne without recognizing the difference in the range of sentence for drug offences between Manitoba and those other jurisdictions.

Thirdly, he erred in interpreting the decision in Luff as supporting the range of sentence in Biery and Byrne , when the reasons in Luff do not deal with the question of range of sentence at all.

These errors in principle entitle this court to resentence this accused without deference to the sentence of the sentencing judge. 58 On the question of the appropriate range of sentence, the applicable Manitoba decisions of Gilchrist and Stebeleski support the Crown’s position that the appropriate range of sentence for an accused with no record, who is a low risk to reoffend, and who is convicted of operating a drug business repackaging and selling cocaine at the street level, starts with a period of incarceration in a penitentiary, or at something greater than two years.

By sentencing this accused to a period of incarceration of 18 months, the sentencing judge imposed an unfit sentence for cocaine trafficking at this level. It does not recognize the sentencing principles of proportionality, the degree of responsibility of the offender or the similarity to other sentences in similar circumstances. Further, it reduces the responsibility for running a criminal cocaine enterprise to the same level as that for the mere delivery of packaged cocaine in one or a few instances – two very different crimes within the offence of trafficking which deserve different sentences.

The effect is to significantly reduce the seriousness of running a criminal enterprise. 59 As a result of the sentencing judge’s errors in principle and the unfitness of the sentence that he imposed, this court is required to sentence this accused based on the facts and correct precedents.

In keeping with the sentences imposed in the similar cases of Gilchrist (four years) and Stebeleski (three and one-half years), the range of sentences imposed for cases that are factually more serious and those that are less serious and taking into account this accused’s own circumstances and those of the offence, and in accord with the Crown’s argument for a sentence of three years’ incarceration, I would impose a sentence of three years’ incarceration. VI.

DECISION 60 For these reasons, I would grant leave to the Crown to appeal the sentence, I would grant the Crown’s appeal and sentence the accused to a period of incarceration of three years. _____________________________ J.A.