R. v. Nguyen, 2012 MBCA 72

Citation: R. v. Nguyen, 2012 MBCA 72 Date: 20120628 Docket: AR 12-30-07740 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Freda M. Steel Madam Justice Holly C. Beard BETWEEN : HER MAJESTY THE QUEEN ) S. A. Inness ) for the Appellant Respondent ) ) S. J. Christie and ) C. L.

Cheater - and - ) for the Respondent ) ) Appeal heard: VAN HUNG NGUYEN ) June 1, 2012 ) (Accused) Appellant ) Judgment delivered: ) June 28, 2012 MONNIN J.A. 1 The accused seeks leave to appeal from a sentence of two years less a day plus 18 months’ probation imposed following a guilty plea to a charge of possession of marijuana for the purpose of trafficking. 2 The accused alleges that the sentencing judge erred in failing to impose a conditional sentence or, in the alternative, that he erred in failing to consider the principles of sentencing when he imposed the incarceratory sentence that he did and that the sentence imposed was excessive. 3 The accused was 54 years of age at the time of sentencing.

He was single and was employed. He has one prior conviction in 2007 for trafficking in a scheduled substance, for which he received a one-year conditional sentence. 4 The present conviction arises from the accused’s role as the gardener in a large grow operation, consisting of 690 plants with an estimated street value of $739,000. He received $1,500 for his services prior to being arrested.

The Crown sought a period of imprisonment of 30 months while the accused argued that the interests of justice could be served with the imposition of a conditional sentence. 5 The sentencing judge concluded that, on the basis of the accused’s minimal record, a sentence of less than two years would be appropriate. He also concluded that, if the accused served his sentence in the community, he would not pose a danger. However, in denying the accused’s request for a conditional sentence, he said: Mr.

Nguyen has demonstrated, by becoming re-involved, that a lesser form of punishment would not be sufficient to deter him from becoming re-involved. In my view, this is the type of circumstance in which the step-up principle is applicable. 6 Without stating anything further, the sentencing judge then imposed the sentence that he did. 7 The sentencing judge cannot be faulted for denying the accused a conditional sentence and there is no merit to that ground of appeal.

In coming to the conclusion that a conditional sentence was not appropriate, the sentencing judge conducted a proper analysis of the facts and of the accused’s background. He decided that, although there was no risk to the community, deterrence required an incarceratory sentence. He committed no error in principle in arriving at his decision and there is no basis for appellate intervention. 8 As an alternate argument, the accused argues that the sentence was harsh and excessive.

In argument, his counsel refined that position to allege that the sentencing judge erred in law when, after declining to impose a conditional sentence, he failed to conduct a further analysis to specifically consider the principles of sentencing in arriving at a period of incarceration that would be fit and proper.

9 Having thus committed an error in law, the accused argues that no deference is then due to the sentence imposed and that this court can now impose what it considers to be a fit and proper sentence.

According to the accused, that should be a period of incarceration ranging from 12 to 15 months. 10 To the accused’s argument, the Crown replies that the sentencing judge performed the required analysis under the Criminal Code (the Code ) in considering whether a conditional sentence was appropriate or not and that there is no requirement or need to do so again when considering the length of the incarceratory sentence which he decided to impose.

There being no error in law, the Crown argues that deference is owed to the sentence imposed as it was within an acceptable range and that the appeal therefore ought to be dismissed. 11 Absent an error in law, I would not consider interfering with the sentence imposed. I consider the sentence to be in the high range of an acceptable sentence, but nonetheless fit and proper and therefore not subject to appellate intervention. 12 I would have found it useful had the sentencing judge specifically set out why he considered the length of sentence he imposed to be appropriate as opposed to a shorter period of time.

However, that is not to say that his failure to do so is an error in law when his reasons are considered as a whole. His reasoning when considering the imposition of a conditional sentence clearly indicates that his concerns dealt with the specific deterrence of the accused and that concern is reflected in the sentence imposed. 13 Furthermore, I am also not prepared to say that he erred in law by specifically failing to refer to the sentencing principles of the Code when deciding the length of sentence to be imposed.

He considered those principles when deciding whether or not to impose a conditional sentence and, clearly, they must have informed his decision as to the appropriate period of incarceration. As well, as stated in the previous paragraph, it would have been useful had he said so, but that failure, in and of itself, is not, in my view, an error in law. 14 There being no error in law and the sentence imposed being within an acceptable range, there is no basis for appellate interference. 15 I would therefore grant the accused leave to appeal his sentence, but deny the appeal itself. J.A. I agree: J.A. I agree: J.A.