R v Delacruz, 2017 MBCA 10

Citation: R v Delacruz, 2017 MBCA 10 Date: 20170111 Docket: AR16-30-08564 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Barbara M. Hamilton Madam Justice Janice L. leMaistre BETWEEN : HER MAJESTY THE QUEEN ) E. E. Magas ) for the Appellant Appellant ) ) Z. M.

Jones - and - ) for the Respondent ) REIGHNER DELACRUZ ) Appeal heard and ) Decision pronounced: (Accused) Respondent ) January 11, 2017 ) ) LEMAISTRE JA (for the Court): [ 1 ] This is a Crown sentence appeal against a five-year sentence for trafficking and possession for the purpose of trafficking methamphetamine offences. After hearing the submissions of counsel, we granted leave and allowed the appeal, but only with respect to the victim fine surcharge, with brief reasons to follow.

These are those reasons. [ 2 ] The Crown’s principal ground of appeal was that the sentencing judge erred by finding that the accused should be sentenced as a mere courier. The Crown submitted that the judge committed palpable and overriding error in sentencing the accused as a mid-level courier (where the range of sentence would be three to six years) rather than as an operator of a stash house (where the range of sentence would be five to eight years). See R v Rocha (S) , 2009 MBCA 26 , 236 ManR (2d) 213 . At the sentencing hearing, the Crown had asked for a sentence in the range of seven years.

At the appeal hearing, the Crown conceded that this meant a sentence in the range of six to eight years. The Crown’s argument was that, since a stash house operator is accorded a higher level of trust in the trafficking ring, there is a commensurately greater level of moral culpability, which should attract a higher sentence. [ 3 ] The Crown’s main point of contention with the sentencing judge’s decision was with the following comment: “Further, the accused cannot be considered a mere courier. As such, the sentence in the highest range for couriers is necessary to denounce his actions and deter others.

He was, in all circumstances, accorded a high level of trust.” We agree that this comment appears contradictory; if the accused was accorded a higher level of trust than a mere courier, he should fall within the higher sentence range of five to eight years ( Rocha at paras 63-64 ). [ 4 ] For the reasons that follow, and in keeping with R v Lacasse , 2015 SCC 64 , [2015] 3 SCR 1089; and R v Lloyd , 2016 SCC 13 , [2016] 1 SCR 130 , we are all of the view that the sentencing judge’s apparent misapplication of the sentencing range does not call for appellate intervention. [ 5 ] A fair reading of the sentencing judge’s reasons establishes that he was sentencing the accused as someone trusted with some decision-making responsibility in the network.

He found that the accused was more than “a mere courier”, he “was a key member in the Hildago trafficking network”, and his associates afforded him an “extremely high level of trust”. As such, he should have been sentenced in the higher range. [ 6 ] While sentencing ranges for particular offences encourage consistency “in accordance with the principle of parity . . . they are guidelines rather than hard and fast rules” ( R v Nasogaluak , 2010 SCC 6 at para 44 , [2010] 1 SCR 206 ).

Furthermore, “a deviation from a sentencing range is not synonymous with an error of law or an error in principle” ( Lacasse at para 60 ). See also R v McCowan (KJ) , 2010 MBCA 45 , 251 ManR (2d) 295 .

[ 7 ] The sentencing judge recognized that the accused was a trusted member of the trafficking network. He stated that, while he was not satisfied beyond a reasonable doubt that the accused fell “precisely within the definition of a stash house operator”, he did accept that the accused’s role in the ring was greater than “a mere courier” and sentenced him as such. [ 8 ] He also considered the mitigating and aggravating factors.

While the sentencing judge understood denunciation and deterrence were the key principles of sentencing, he found that the rehabilitative prospects of the accused were high. [ 9 ] In the end, while the sentence imposed may be low considering the circumstances, the sentencing judge gave comprehensive reasons for the sentence he imposed, which ultimately fell within a range of sentence reserved for those who have greater involvement and responsibility in a trafficking network than a mere courier and, therefore, it cannot be said that the sentence is demonstrably unfit.

We see no error that falls within the principles articulated in Lacasse warranting intervention. [ 10 ] The Crown also argued that the sentencing judge erred with respect to the amount of the victim fine surcharge imposed. The accused conceded this point. [ 11 ] Leave to appeal sentence was granted and the appeal was allowed, but only with respect to the surcharge, which was set at $1,200 and which is to be paid within six months after release. JA CJM JA