R v Le, 2018 MBCA 58

Citation: R v Le, 2018 MBCA 58 Date: 20180508 Docket: AR17-30-08959 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Christopher J. Mainella Madam Justice Janice L. leMaistre BETWEEN : her majesty the queen ) W. Y. Martin White and ) M. R. Katsanos Respondent ) for the Appellant ) - and - ) R. L. Rankin ) for the Respondent thanH ngoan le ) ) Appeal heard and (Accused) Appellant ) Decision pronounced: ) May 8 , 2018 mainella JA (for the Court): [ 1 ] The accused appeals his sentence of 255 days’ imprisonment (i.e., 8.5 months) following his guilty plea to possession of marihuana for the purpose of trafficking ( sections 5(2) and 5(3) (

a) of the Controlled Drugs and Substances Act , SC 1996, c 19). [ 2 ] By way of background, he was in possession of 44 pounds of marihuana worth $88,000. His role in the drug trade was to receive and store, until contacted, parcels of marihuana shipped via Federal Express from British Columbia to Winnipeg. He received $300 for each parcel. He had done this three to five times over the course of a few months and said he was willfully blind as to the extent of what he had gotten himself into. At the time of his arrest in 2016, he was 43 years old, separated, had no prior record and was a low risk to reoffend.

While he was a recreational drug user, there is no evidence of him having any addiction; his motive was purely to profit, albeit minimally. [ 3 ] On the first ground of appeal, we have not been persuaded that the judge erred in principle by overemphasising the nature of the offence in his weighing of the relevant factors of the case (see R v Lacasse , 2015 SCC 64 at para 49 ).

The accused argued that the judge did not give adequate weight to his mitigating personal circumstances, his being willfully blind as to the extent of the operation, or serious consideration to a suspended sentence as an alternative to custody because of exceptional circumstances (see R v Peters , 2015 MBCA 119 ; R v Tran (A) , 2015 MBCA 120 at para 2 ; R v Racca , 2015 MBCA 121 ; and R v Sass; R v Zammit , 2018 MBCA 46 ). [ 4 ] We disagree.

When the judge’s reasons are read in their entirety, it is evident that he carefully weighed both the circumstances of the offence and the offender in determining an appropriate sentence. It is not uncommon for those at the bottom of a drug organization like a courier or stashperson to have little knowledge of the extent of the operation or decision-making authority. Storing drugs for others is morally blameworthy behaviour because of the trust reposed to such individuals to keep the valuable contraband safe and to protect higher-level traffickers from being apprehended by the authorities.

As noted in R v Price , 2007 ABCA 242 , “helping conceal the role of the trafficker from the police is a serious and essential part of the business” (at para 6). In addition, while marihuana is a “soft drug”, the nature of the commercial operation here was organised, on a mid-to-large scale, and was interprovincial.

In such circumstances, the sentencing objectives of denunciation and general deterrence take on particular importance and the judge did not err by emphasising them in the accused’s sentence (see R v Hill , 2007 BCCA 309 at para 22 ; and R v Chinh Le , 2013 SKCA 9 at paras 7-10 ). [ 5 ] As to the other ground of appeal, we are not convinced the length of sentence was demonstrably unfit.

A custodial sentence was entirely appropriate; in fact, an 8.5-month sentence for a first offender playing a low-level role in an interprovincial marihuana operation of the scale here is lenient (see R v Nickerson , 1997 CarswellMan 503 at para 2 (CA) ; R v Dhaliwal et al , 2011 MBQB 156 at paras 32 , 41; Chinh Le at para 13 ; R v Pelletier , 2013 MBCA 35 at para 2 ; R v Molnar (24 April 2017) Winnipeg, File No CR15-01-34586 at p 6 (Man QB); and R v Neary , 2017 SKCA 29 at para 57 ).

[ 6 ] In our view, the judge’s decision that there were no exceptional circumstances in this case to justify a non-custodial sentence, as well as his decision regarding the appropriate sentence, are entitled to “great deference” (see R v Burnett , 2017 MBCA 122 at para 31 ; see also Lacasse at paras 11, 39-41, 48-49, 52 ). Leave to appeal was previously granted by a judge in chambers. The appeal, however, is dismissed. JA JA JA