R v Thiessen, 2016 MBCA 110

Citation: R v Thiessen, 2016 MBCA 110 Date: 20161121 Docket: AR16-30-08631 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Barbara M. Hamilton Madam Justice Diana M. Cameron BETWEEN : ) HER MAJESTY THE QUEEN ) E. A. Wach ) for the Appellant Respondent ) ) J. A. Hyman - and - ) for the Respondent ) JOHAN MARTENS THIESSEN ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) November 21, 2016 STEEL JA for the Court): [ 1 ] This is an application for leave to appeal and appeal as to sentence.

The accused pled guilty to possession of marihuana for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19 (the CDSA), and was sentenced to a conditional sentence order of two years less a day. [ 2 ] Counsel made a joint recommendation as to sentence, which the judge accepted. During submissions, the sentencing judge was advised that the accused was in remand custody awaiting disposition on other charges.

He was also advised that the conditional sentence order would commence once the accused had disposed of his other charges, served his sentence on those charges and was released. [ 3 ] This was incorrect. Pursuant to section 719(1) of the Criminal Code , a sentence commences when it is imposed, except where an enactment otherwise provides. After sentencing, the accused was taken back into remand custody, but because his conditional sentence had begun, the accused was not credited for any time in custody towards his other pending charges.

Additionally, he did not receive any earned remission for the time he was serving, once again because he was serving a conditional sentence, albeit within a correctional institution. [ 4 ] The reality of this situation was clearly not within the spirit of the joint recommendation of counsel. The sentencing judge committed an error in principle when imposing the sentence.

Consequently, Crown counsel quite correctly consented to this appeal. [ 5 ] Both counsel (who were not counsel at the time of the sentencing) have now recommended that an appropriate sentence, considering the offence and the offender, is a custodial sentence of one year. Taking into account the loss of remission of the accused, they ask that the effective sentence that should be imposed is one of eight and one-half months.

Conclusion [ 6 ] The Crown is consenting to this appeal on the basis that the sentencing judge committed an error in principle by misapprehending when the conditional sentence order would commence, and that, as a result, the sentence is demonstrably unfit. We agree. Where there has been a significant error in principle, the court can look at the matter from a fresh perspective and impose a sentence that is fit and proper in the circumstances. [ 7 ] We would grant leave to appeal and allow the appeal.

Instead of the two-year conditional sentence, we would substitute an incarceratory sentence of eight and one-half months as of the date of sentencing, March 8, 2016.

JA JA JA