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SENTENCING - Selling, trafficking and distributing - Suspended sentence - Health (incl. mental health)

Thursday, January 07, 2021 @ 6:06 AM  

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Appeal by 62-year-old McKibbin from the six-month sentence imposed following his guilty plea to one count of trafficking in cocaine. The appellant sold cocaine in a dial-a-dope operation. At the time of sentencing in January 2020, the appellant suffered from chronic obstructive pulmonary disease. He did not have a previous record. The sentencing judge found the appellant’s health issues, which would make a jail sentence harsher on him than if he was healthy, did not amount to an exceptional circumstance that justified a non-custodial sentence. The appellant applied to adduce fresh evidence that updated his current medical condition and suggested he was at greater risk of death if he contracted COVID-19.

HELD: Appeal allowed. But for the fresh evidence, the sentence imposed was without error. If knowledge of a global pandemic with deleterious effects on people with respiratory diseases had been available to the sentencing judge, it could be expected to have affected the result. The fresh evidence was admitted. The appellant’s health condition and increased vulnerability to COVID-19 amounted to circumstances that justified a suspended sentence. Sentence: six-month suspended sentence with probation.

R. v. McKibbin, [2020] B.C.J. No. 1933, British Columbia Court of Appeal, E.A. Bennett, G.B. Butler and J.C. Grauer JJ.A., November 18, 2020. Digest No. TLD-January42021007