Court of Appeal for Ontario

Citation: R. v. Murray, 2007 ONCA 799 Date: 2007-11-23 Docket: C45525

Between:

Her Majesty the Queen (Respondent)

and

O'Neil Murray (Applicant/Appellant)

Before: Cronk, Juriansz and Watt JJ.A.

Counsel: Corbin Cawkell for the appellant Carolyn Hayes for the respondent

Heard and released orally: November 16, 2007

On appeal from the sentence imposed by Justice S. Casey Hill of the Superior Court of Justice dated April 13, 2005.

Endorsement

[1] In this case the appellant attacks the sentence he received for two convictions for importing cocaine that was imposed following the acceptance of a joint submission.

[2] In March of 2002, the appellant was arrested after importing some six kilograms of cocaine and granted judicial interim release. He pleaded guilty almost three years later on January 24, 2005. Some fifteen days later, in February 2005, the appellant imported 466 grams of cocaine. Again he pleaded guilty. He was sentenced for both convictions at the same time. The parties jointly submitted to the sentencing judge that he should receive thirty months imprisonment for the first offence and forty months consecutive for the second offence, in addition to pre-trial detention.

[3] The trial judge observed that the sentencing range for the first offence would be six to eight years and, given the aggravating circumstance that the second offence was committed while on release, the second count could well warrant a five-year sentence in and of itself. He noted that the joint submission was for a sentence effectively in the neighbourhood of six years, considerably less than would otherwise be a fit sentence. However, he accepted the joint submission because of the exceptional circumstances of the case. On the first count, the appellant had acted under fear of another drug dealer and had assisted the authorities in prosecuting him.

[4] The appellant now attacks the sentence primarily on the basis that the joint submission did not sufficiently reflect his cooperation with the authorities during the three year period that he was on judicial interim release on the first offence. Accepting the value of his cooperation to the authorities, all the circumstances were known at the time the parties reached agreement on the joint submission, and the court had the information the parties agreed to place before it.

[5] The appellant also submits that his counsel and the Crown mistakenly premised their negotiations on the range of sentence for the second offence being three to five years, whereas the applicable range is actually two to five years. This argument cannot succeed as the lower end of the range did not apply to the facts of the second offence. As noted, the trial judge remarked that it deserved a sentence at the upper end of the range, and the parties agreed that forty months was appropriate.

[6] Finally, the appellant submits that the sentence imposed improperly treated each of the two offences as an aggravating factor on the other. We disagree. The commission of the second offence while on release was an extremely aggravating factor. In our view, the Crown was entitled to revisit its position on the joint submission in light of the appellant's second offence.

[7] It is important to remember that appellant's counsel joined with the Crown in advancing the joint submission. There is no suggestion of ineffectual assistance of counsel. This court will not lightly interfere with a sentence imposed based on the acceptance of a joint submission. We see no basis to interfere with the sentence in this case. The sentence imposed was well within the appropriate range in the circumstances of the case.

[8] Leave to appeal sentence is granted, but the sentence appeal is dismissed.

"E.A. Cronk J.A."

"R. Juriansz J.A."

"David Watt J.A."