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SENTENCING - Particular sanctions - Imprisonment - Concurrent sentences - Consecutive sentences - Sentencing considerations - Aggravating factors - Mitigating factors - Totality principle - No previous record

Thursday, December 22, 2016 @ 7:00 PM  

Appeal by the offender, Brodt, from a sentence for drug and gun offences. The offender pled guilty to 15 charges comprised of one count of possession of a restricted firearm with readily accessible ammunition, four breaches of recognizance, and ten counts of possession of drugs for the purpose of trafficking. Of the drug offences, three counts related to methamphetamine, two counts related to cocaine, two counts related to heroin, two counts related to GHB, and one count related to oxycodone. The offences occurred as part of three separate transactions in August 2014, November 2014, and January 2015. The offender was a drug addict with no prior convictions. He was sentenced to 14 years’ imprisonment. The sentencing judge treated the convictions within each of the three transactions as warranting consecutive sentences, and the second and third transactions as warranting sentences consecutive to the first transaction. The result was a 36.5-year sentence that the judge reduced to 14 years on the basis of the totality principle. The offender appealed.

HELD: Appeal allowed. There was no principled basis for the imposition of consecutive sentences for the drug offences within each group of offences. Under common law totality, sentences for drug offences were typically concurrent with one another. The application of statutory totality under s. 718.2(c) of the Code did not obviate the need to consider common law totality. The result was that the sentencing judge started with a disproportionately high notional cumulative sentence. In addition, the sentencing judge erred in considering the addictive nature and potential harm of the drugs sold as an aggravating factor, as such factors were already built into the relevant sentencing starting point. The sentence imposed was unduly harsh. The appropriate global sentence was ten years’ imprisonment, less credit for time served. Sentence: Ten years’ imprisonment.