R. v. Brown (T.C.), 2012 MBCA 60

Citation: R. v. Brown (T.C.), 2012 MBCA 60 Date: 20120529 Docket: AR 12-30-07744 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Martin H. Freedman Mr. Justice Alan D. MacInnes BETWEEN : HER MAJESTY THE QUEEN ) Z. I. Garber ) for the Appellant Respondent ) ) C. J.

Mainella - and - ) for the Respondent ) TIMOTHY CAMERON BROWN ) ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) May 29, 2012 HAMILTON J.A. (for the Court): 1 T he accused appeals his effective sentence of five years for one count of trafficking arising from the sale of five ounces of cocaine to an undercover police agent during Project Divide. The accused pled guilty and was sentenced after a three-day contested sentencing hearing.

The Crown called a member of the Winnipeg Police Service as an expert witness, who testified that, in his opinion, the accused was a mid-level dealer. 2 The sentencing judge accepted the expert’s opinion and explained why. Her written reasons demonstrate that she was alive to the accused’s submissions as to why she should not accept the expert’s opinion. The accused has not demonstrated that the sentencing judge made any palpable and overriding error in finding that he was “a mid-level cocaine dealer” (at para. 30). 3 As a result, the effective sentence of five years is unassailable, given R. v.

Rocha (S.) , 2009 MBCA 26 , 236 Man.R. (2d) 213. 4 In imposing the sentence to be served, the sentencing judge credited the accused for his pre-sentence custody on the basis of “one and a half-for-one” (at para. 44). The accused argues that she erred in principle by not giving him double credit, which he says was the applicable “norm” for him, given the date of his offence.

In reaching her conclusion, the sentencing judge took into account the programming the accused availed himself of at Headingley Correctional Centre, Brandon Correctional Centre and the Winnipeg Remand Centre, that he “may well be a candidate for early remission,” and that “of considerable significance is the fact that he chose not to make a bail application for a period of over two years” ( ibid. ). She had earlier expressed the view that judicial interim release for the accused was a “viable possibility” (at para. 41).

She also noted that the accused’s “sentencing hearing did not proceed earlier despite his having decided to plead guilty over a year ago” and stated that “[p]arity is also a consideration” (at para. 44). In regard to parity, she was referring to the one-to-one credit given to 33 other offenders arrested in Project Divide who pled guilty and were sentenced under joint recommendations. 5 We are of the view that the one and one-half to one credit should not be disturbed and is owed deference given the sentencing judge’s findings with respect to the programming provided to the accused.

As a result, we see no need to comment on the judge’s consideration of the accused’s failure to make a bail application or to proceed to sentencing earlier, which the accused argued were inappropriate considerations for her to take into account in her decision to credit pre-sentence custody on a one and one-half to one basis. 6 Leave having been granted earlier, the appeal is dismissed.

J.A. J.A. J.A.