Court of Appeal for Ontario

Date: 2019-12-18 Docket: C66983

Judges: Hoy A.C.J.O., Lauwers and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Jonathan Perez-Membreno Appellant

Counsel

James Zegers, for the appellant

Yael Pressman, for the respondent

Heard: December 10, 2019

On appeal from the sentence imposed on February 19, 2019 by Justice Jonathon C. George of the Superior Court of Justice.

Reasons for Decision

[1] The appellant trafficked cocaine to undercover police officers three times within a two-week period and was charged with several offences to which he pleaded guilty. He was sentenced to prison for two years less a day, and appeals his sentence.

[2] The details are that the appellant admitted to trafficking cocaine on three occasions to undercover officers at a London bar. On July 26, 2014, he sold to an undercover officer 0.62 grams of cocaine for $40. On July 30, 2014, he sold to an officer 1.75 grams for $120, and on that occasion his brother, Juan Perez-Membreno, brought the drugs for the transaction to him. On August 8, 2014, the appellant was arrested while trafficking 29 grams of cocaine for $1,700. On that occasion Roberto Lovo Mayorga drove the appellant to the bar and was waiting in the car when he was arrested. Mr. Mayorga was searched incidental to the arrest and 23 grams of crack cocaine were found on him. The appellant conceded that this crack cocaine was in their joint possession.

[3] The appellant's central argument is that the sentencing judge erred in principle in the application of the parity principle as it relates to his co-accused and that this error resulted in an excessive sentence.

[4] Juan Perez-Membreno pleaded guilty to five charges: possession of cocaine for the purposes of trafficking (x2), possession of cocaine, possession of a prohibited weapon and breach of recognisance. He was sentenced to an additional four months custody and 18 months probation, concurrent, after having served 126 days of pre-plea custody. The sentence was roughly equivalent to an eight-month sentence. He is older than the appellant and had no criminal record at the time of sentencing.

[5] Roberto Lovo Mayorga was sentenced for possession of cocaine for the purpose of trafficking (x2) for offences dated October 22, 2015, and an additional count of possession of cocaine for the purpose of trafficking for an offence dated August 8, 2014, in which he was co-accused with the appellant. Mr. Mayorga was ultimately discovered to have possession of 587 grams of cocaine with the street value of $58,700 and other paraphernalia related to the drug trade. Almost all the cocaine was in connection with offences with which the appellant was not charged. Mr. Mayorga received a sentence of three years concurrent.

[6] The appellant observes that Mr. Mayorga was convicted of possession of a quantity of cocaine more than ten times the amount of cocaine in the appellant's possession and yet received a sentence that was only 1.5 times longer than the appellant. He argues that his sentence should be reduced on the basis of parity.

[7] It appears from the transcript of the proceedings that the sentencing judge did not have sufficient information. He said: "I am not sure why I'm having such a difficulty finding what happened to Mr. Mayorga. I appreciate he got three – three years but it would have been broken down how much for each count and this. You don't – you don't know the answer to that question of what happened?" Neither the defence nor the Crown were able to respond to his question.

[8] The Crown noted in submissions to the sentencing judge: "Mr. Mayorga was convicted of, there was, I believe, 23 grams of crack cocaine on his person and received three years' jail. However, he did have another charge before the court, I do not have the file here."

[9] In oral argument the Crown conceded that the sentencing judge should have been given full details about all of Mr. Mayorga's charges, the basic facts, and the reasons for the sentence.

[10] In his sentencing reasons, the sentencing judge said: "I know from Justice Mitchell's endorsement of September 18, 2017 that Mr. Mayorga was youthful, he was 24 years old, and, again according to her endorsement he was a first-time offender. Also he, like Mr. Perez-Membreno, pleaded guilty. For this offence – Count 6 – Mr. Mayorga received three-year sentence which was the result of a joint submission."

[11] In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44, Wagner J. (as he then was) observed that an error in principle in sentencing justifies appellate intervention where the error impacts on the sentence:

In my view, an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor will justify appellate intervention only where it appears from the trial judge's decision that such an error had an impact on the sentence.

[12] In his sentencing reasons, the sentencing judge noted that counsel for the accused "ask[ed] that I be cautious in relying on [Mr. Mayorga's sentence] as it was a concurrent sentence to that on another indictment of which the full details are not known to us. This is a fair point and I will be cautious" (emphasis added). Despite acknowledging the need to be cautious, however, the sentencing judge went on to consider the impact of Mr. Mayorga's sentence on the appellant's sentence: "[I]n my view, the conduct Mr. Perez-Membreno has admitted to could have attracted a sentence in excess of two years, well into the penitentiary range, and his fate would have been quite similar to Mr. Mayorga" (emphasis added).

[13] Having adverted to the need for caution in relying on Mr. Mayorga's sentence, the sentencing judge erred in principle by considering the application of the parity principle without details of Mr. Mayorga's charges, the basic facts, and the reasons for the sentence. In our view, the sentencing judge's erroneous consideration of Mr. Mayorga's sentence as a factor impacted on the appellant's sentence.

[14] As a result, leave to appeal sentence is granted. The appeal is allowed and the sentence of two years less a day is reduced to 12 months. We would not interfere with the other terms of the sentence imposed by the sentencing judge.

"Alexandra Hoy A.C.J.O."

"P. Lauwers J.A."

"I.V.B. Nordheimer J.A."