R v Brown (C), 2016 MBCA 115

Citation: R v Brown (C), 2016 MBCA 115 Date: 20161201 Docket: AR15-30-08491 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Madam Justice Diana M. Cameron Madam Justice Jennifer A. Pfuetzner BETWEEN : HER MAJESTY THE QUEEN ) K. L. Jones ) for the Appellant ) Respondent ) ) J. A.

Hyman - and - ) for the Respondent ) TIMOTHY CAMERON BROWN ) ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) December 1, 2016 On appeal from 2015 MBPC 46 , 324 ManR (2d) 35 CAMERON JA (for the Court): [ 1 ] The accused applied for leave to appeal and, if granted, to appeal a total sentence of nine years’ imprisonment.

The accused was sentenced to six years’ incarceration concurrent, less two years and one month of time spent in pre-sentence custody, leaving a sentence of three years and 11 months’ incarceration going forward for one count of trafficking in heroin and one count of possession of heroin for the purpose of trafficking. He was also sentenced to three years’ imprisonment consecutive for one count of possession of a loaded restricted firearm. At the hearing of the matter we granted leave to appeal, but dismissed the appeal with brief reasons to follow. These are those reasons. [ 2 ] The facts are simple.

After arranging for another person to deliver heroin to an undercover police officer for free, the accused then sold heroin to the same undercover officer on three later occasions. He was arrested at the time of a fifth arranged transaction and found to have three points of heroin (one point being one measure or dose for street-level sales), two cell phones and $605 on his person. Police located $660 and a further cell phone in his truck.

A search of his residence, conducted pursuant to a search warrant, resulted in the seizure of 10.87 grams of heroin amounting to 110 points, 228 grams of marihuana, four additional cell phones, a money counter along with $440, packaging material, and four digital scales contaminated with, among other things, cocaine, heroin and fentanyl. [ 3 ] At the time of the offence, the accused had recently finished serving the equivalent of a five-year sentence of imprisonment imposed for one count of trafficking cocaine.

Otherwise, he has a minor, unrelated record. [ 4 ] The accused asserts that the sentencing judge erred in finding him to be a mid-level drug trafficker and, therefore, in sentencing him within the range of five to eight years in accordance with, among other cases, this Court’s decision in R v Rocha (S) , 2009 MBCA 26 , 236 ManR (2d) 213 .

Additionally, he contends that the total effective sentence of nine years is unfit. [ 5 ] The finding of fact by the sentencing judge that the accused was a mid-level trafficker is subject to review on the standard of palpable and overriding error (see R v Thomas (RT) , 2010 MBCA 91 at para 51 , 258 ManR (2d) 146 ). [ 6 ] The reasons of the sentencing judge demonstrate that she was clearly alive to, and carefully considered, the arguments regarding the accused’s level of involvement in trafficking heroin, whether street-level, mid-level or high-level.

She noted that the accused did “not fit precisely into one of the three categories in terms of meeting all criteria for one category” (at para 27). However, at the end of the day, after considering the totality of the evidence, including items seized from his residence such as the quantity of heroin, the cash, the scales, the money counter, the loaded gun, the fact that he had the discretion to waive and to negotiate payment for the heroin and the expert’s testimony, she found that the accused was a mid-level trafficker.

This finding was open to her on these facts and the accused has not shown that she committed a palpable and overriding error in this regard.

[ 7 ] Regarding fitness of sentence, the sentencing judge gave comprehensive reasons justifying the sentence she imposed. She took into account the facts of the case. She rejected the accused’s contention that he was merely dealing drugs to fuel an addiction. Importantly, she considered the jurisprudence regarding sentencing for offences similar to that for which the accused was convicted. Having imposed a consecutive sentence for the weapons offence, she considered totality and exercised her discretion, in our view, correctly by declining to reduce the total sentence.

Moreover, in argument, defence counsel conceded that, if the accused was a mid- level dealer as, in our view, the sentencing judge correctly concluded, then the sentence imposed fell within the range and therefore cannot be demonstrably unfit. [ 8 ] Based on the above, there is no basis for appellate intervention. Leave was granted but the appeal was dismissed. JA JA JA