R v Racca, 2015 MBCA 121

Citation: R v Racca, 2015 MBCA 121 Date: 20151217 Docket: AR14-30-08280 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Freda M. Steel Mr. Justice William J. Burnett BETWEEN: ) R. H. Smith andHER MAJESTY THE QUEEN ) J. S. Kliewer ) for the Appellant Appellant ) ) J. C.

Prober- and - ) for the Respondent ) REYNALDO ASCALONA RACCA ) Appeal heard: ) June 19, 2015 (Accused) Respondent ) ) Judgment delivered: ) December 17, 2015 BURNETT JA [1] The Crown seeks leave to appeal and appeals a sentence of two years less a day to be served conditionally on a chargeof possession of cocaine for the purpose of trafficking. [2] This is one of three sentence appeals by the Crown, all heard at the same time and all dealing with sentences imposedon charges of possession of cocaine for the purpose of trafficking in which a conditional sentence or a suspended sentence was imposedby the sentencing judge.

The common issue raised in these appeals is whether there were “exceptional circumstances” to warrant adeparture from the established sentencing range. [3] In R v Grant (IM), 2009 MBCA 9, 236 ManR (2d) 54, Chartier JA (as he then was) described the standard of reviewfor a sentence appeal in the following terms (at para 93): As was stated in L.M. [2008 SCC 31, [2008] 2 SCR 163], an appellate court must show great deference when reviewing a sentencingdecision.

An appellate court ought to interfere with a sentence only in two circumstances: when the sentence is demonstrably unfit, or ithas been arrived at as a result of an error in principle. An error in principle includes a failure to consider a relevant factor or anoveremphasis of the appropriate factors. See R. v. Shropshire (M.T.), (SCC), [1995] 4 S.C.R. 227; 188 N.R. 284; 65B.C.A.C. 37; 106 W.A.C. 37, and R. v.

C.A.M., (SCC), [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120W.A.C. 81. (See also R v Voong (DM) et al, 2015 BCCA 285 at para 14, 374 BCAC 166.) [4] In R v Oates (KAL), 2015 BCCA 259, 373 BCAC 123, Saunders JA neatly described the questions to be addressed onan appeal of this nature (at para 4): [T]he questions for us are whether an error in principle is demonstrated and, if so, whether the sentence is unfit and, if not, whether the

sentence is demonstrably unfit. Being outside the regular range of appropriate sentences does not make the sentence, by definition, unfit, but where there is a substantial and marked departure from the range of sentence imposed for similar offences and similar offenders, it becomes more likely the sentence is unfit, absent distinctive circumstances. Background [ 5 ] Briefly stated, the facts are that when the accused was arrested in his vehicle on October 4, 2010, he had in his possession one ounce of cocaine and $480 in cash.

Following execution of a search warrant at his residence, police seized 30 individually wrapped ounces of cocaine, $160 in cash and a digital scale.

The wholesale value of the cocaine was between $30,000 and $45,000. [ 6 ] On April 2, 2014, the accused pled guilty to possession of cocaine for the purpose of trafficking, and on October 29, 2014, he was sentenced. [ 7 ] The accused was 50 years old at the time of sentence; he had been gainfully employed for more than 20 years; he had a dated, but unrelated record for assault (1993); there was a positive pre-sentence report in which he was assessed as a very low risk to reoffend; he had no alcohol or drug addiction issues and no mental health issues; and while on judicial interim release for approximately four years, the accused had no criminal re-involvement. [ 8 ] At the sentencing hearing, the Crown sought a sentence of three to three and one-half years, and counsel for the accused submitted that a conditional sentence of two years less a day would be appropriate. [ 9 ] The sentencing judge imposed a conditional sentence of two years less a day, subject to terms which included house arrest except for time to attend work and to attend church on Sundays.

The sentencing judge was of the view that “the length of time between arrest and sentence [four years] makes the case an exception to the range given his very positive pre-sentence report”, that the accused was “effectively rehabilitated”, that “house arrest is punitive” and that “to jail someone when they have demonstrated their rehabilitation is most likely to undo the positive progress that they have demonstrated over four years.” Analysis and Decision [ 10 ] In R v Rocha (S) , 2009 MBCA 26 , 236 ManR (2d) 213 , this Court concluded (at para 64): Those that are trusted beyond a mere courier at the mid-level group should normally expect a sentence in the range of five to eight years. . . .

Those who are mere couriers involved at the mid-level and whose sole purpose is to transport the drugs for their boss in order to prevent the latter from being detected should expect a sentence in the range of three to six years. [ 11 ] Unlike the accused in the companion decisions of R v Tran , 2015 MBCA 120 ; and R v Peters , 2015 MBCA 119 , there is no question that this accused was involved in a commercial drug operation given the significant amount of cocaine which was seized and the fact that it had been broken down for distribution.

The accused in the present case was a mature adult who admitted that he transported the drugs, and the sentencing judge agreed that the accused was at the mid-level in the drug-trafficking hierarchy and held a position of trust with his superiors. [ 12 ] There is also no question that the accused was motivated solely by financial gain. [ 13 ] As noted in Grant (at para 108 ), this Court and other appellate courts in Canada (see , for example, Voong at para 18 ) have consistently stated that denunciation and deterrence are the paramount considerations when sentencing offenders trafficking in hard drugs. [ 14 ] I agree with the Crown’s submission that the sentencing judge placed undue emphasis on the passage of time between the offence and sentencing, that he overemphasized the principle of rehabilitation at the expense of the principles of deterrence and denunciation, and that a conditional sentence was outside the range of appropriate sentences.

The passage of time by itself is not sufficient. While a guilty plea is always a mitigating factor in the determination of a sentence, a guilty plea entered four years after being charged in the face of an overwhelming case should have had little impact on the sentence imposed ( see R v Barrett , 2013 QCCA 1351 at paras 18-22 (QL) ). [ 15 ] In Tran , the accused was a youthful, immature young offender who continued his education, obtained full-time employment and completed his house arrest and community service. Here there was no evidence of rehabilitation, no allegation that

section 11(

b) of the Canadian Charter of Rights and Freedoms was violated and no evidence that the accused was prejudiced by the delay. As the Crown points out, complying with conditions and obeying the law, even for a lengthy period of time while on judicial interim release, does not constitute rehabilitation; it is the standard expected of persons released on their own recognizance. [ 16 ] In Voong , Bennett JA commenced her reasons with the observations that those who embark in drug trafficking engage in serious criminal conduct, and absent exceptional circumstances, they should expect to be sent to prison (see para 1).

Later in her reasons, she described the “exceptional circumstances” that would justify a non-custodial sentence, and she observed that it will be the rare case where that standard is met (at para 59):

Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught. This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a non-custodial sentence.

There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded that CSO [conditional sentence order] sentences are not available.

Thus, it will be the rare case where the standard of exceptional circumstances is met. [emphasis added] [ 17 ] In my view, there is absolutely no reason in the circumstances of this case to depart from the sentencing range described in Rocha . In particular, there are no exceptional circumstances sufficient to overcome the application of the main sentencing principles of denunciation and deterrence by way of a prison sentence ( Voong at para 45 ).

Nor can a conditional sentence be reconciled with any of the recent decisions of this Court. (See R v Traimany (P) , 2011 MBCA 104 , 270 ManR (2d) 291 ; R v Brown (TC) , 2012 MBCA 60 , 280 ManR (2d) 205 ; and R v Ducharme , 2012 MBCA 35 .) [ 18 ] Simply put, a conditional sentence was clearly inadequate and disproportionate to the gravity of the offence and the accused’s degree of responsibility. The gravity of the offence was significant as it involved mid-level commercial trafficking of a highly addictive hard drug.

Moreover, the degree of responsibility of the accused was slightly more than a “mere courier” ( Rocha at para 64 ). Here, the accused was not only delivering drugs on one occasion, as was the situation in Rocha , he was stashing them in his residence as well for future deliveries. Therefore, the accused’s moral culpability for the purposes of

section 718.1 of the Criminal Code was at least as great as was the case in Rocha , if not more so.

Indeed, had there been a little more evidence of the accused having decision-making responsibility for the distribution of the cocaine, the appropriate range would have been five to eight years as opposed to three to six years ( see Rocha at paras 63-64 ). [ 19 ] As MacInnes J (as he then was) observed in R v Sem (S) , 2005 MBQB 208 , 197 ManR (2d) 47 (at para 49 ): [T]hose who choose to undertake the risk of trafficking in cocaine, particularly on a continuing and/or escalating basis, must understand that while the reward may be easy money and material benefits, the risk when caught entails a sentence of incarceration in the penitentiary. [ 20 ] In R v Toorie (GS) , 2012 MBQB 135 , 279 ManR (2d) 29 , the facts were remarkably similar to the case at hand.

The accused had an unrelated youth criminal record, owned and operated two businesses, had a strong family support base, accepted responsibility for his actions, had no known gang affiliation, was financially motivated and had no addiction issues. After reviewing numerous authorities, McKelvey J concluded (at para 34): I am satisfied that since Rocha , only the “exceptional” case as referenced in Calanza [2010 MBQB 240 , 257 Man.R. (2d) 298 ] will escape a period of incarceration in a federal penitentiary for these types of circumstances.

This conclusion is supported by a review of the recent and relevant case law. Consequently, the facts of this case, the PSR [pre-sentence report], and the submissions of counsel, have led me to the conclusion that a sentence of imprisonment of less than two years is inappropriate in this case. Toorie was engaged as a trusted mid-level courier who was in possession of 30 ounces of cocaine with an estimated street value of between $30,000 and $45,000.

The accused in Toorie was sentenced to 36 months’ incarceration, and in my view, a similar sentence is appropriate in the present case. [ 21 ] As was the situation in R v MacDonald (K) , 2009 MBCA 36 , 236 ManR (2d) 239 , this result raises the issue as to the credit, if any, to be given for the time served by the accused in the community. In keeping with that decision, I would credit the accused on a 1:1 basis for the time he has served conditionally since October 29, 2014. [ 22 ] Leave to appeal is therefore granted, and the sentence appeal by the Crown is allowed.

The accused is sentenced to 36 months’ incarceration with credit for time served conditionally since October 29, 2014. JA I agree: JA

I agree: JA