



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Moore,









2011 BCCA 36




Date: 20110127

Docket: CA037682

Between:

Regina

Respondent

(Plaintiff)

And

Roger Brian Moore

Appellant

(Defendant)




Before:



The Honourable Mr. Justice K. Smith





The Honourable Madam Justice Bennett





The Honourable Madam Justice Garson




On appeal from: 
Supreme Court of British Columbia, 26 June 2009
(
R. v. Moore
, New Westminster Registry X071549)

Oral Reasons for Judgment




Appellant appearing In Person:






Counsel for the Respondent:



W.P. Riley





Place and Date of Hearing:



Vancouver, British
  Columbia

January 27, 2011





Place and Date of Judgment:



Vancouver, British
  Columbia

January 27, 2011








[1]

K. SMITH J.A.
:  Roger Brian Moore appears in person this morning
seeking leave to appeal and, if leave be granted, appeals from his global
sentence of four years imprisonment imposed on June 26, 2009 by the Honourable
Mr. Justice Brown of the Supreme Court of British Columbia after convicting him
following a five-day trial on four counts of trafficking in controlled
substances, contrary to section 5(1) of the
Controlled Drugs and Substances
Act
, 1996, c. 19.

[2]

Mr. Moore, this morning, has eloquently expressed his regret and his
remorse for what he has done and he asks us to treat him leniently by reducing
his sentence to three years. He is now on parole and his warrant of committal
will expire in June 2013.

[3]

I have explained to Mr. Moore the limitations on what this Court can do
on a sentence appeal. The standard of review that we must apply has been
summarized by the Supreme Court of Canada in
R. v. L.M.
, [2008] 2 S.C.R.
163 at para. 14:

14.       In its past decisions, this Court has established
that appellate courts must show great deference in reviewing decisions of trial
judges where appeals against sentence are concerned. An appellate court may not
vary a sentence simply because it would have ordered a different one. The court
must be "convinced it is not fit", that is, "that ... the
sentence [is] clearly unreasonable" (
R. v. Shropshire
, [1995] 4
S.C.R. 227, at para. 46, quoted in
R. v. McDonnell
, [1997] 1 S.C.R. 948,
at para. 15). This Court also made the following comment in
R. v. M. (C.A.)
,
[1996] 1 S.C.R. 500, at para. 90:

... absent an error in principle, failure to consider a
relevant factor, or an overemphasis of the appropriate factors, a court of
appeal should only intervene to vary a sentence imposed at trial if the
sentence is demonstrably unfit.

[4]

At the sentencing hearing the Crown sought a sentence of five years and
Mr. Moore sought a sentence of three years. The sentencing judge gave
comprehensive reasons for sentencing in which he reviewed the circumstances
fully along with the submissions of counsel and Mr. Moores circumstances.

[5]

After considering all the circumstances, the judge said this:

[79]      I cannot agree with the Crowns position that five
years is the right sentence in this case. This fails to give sufficient weight
to rehabilitation. While the facts of this case cry out for denunciation and
deterrence, all the more reason to ensure that these do not then overwhelm fair
consideration of rehabilitation, bearing in mind the heavy burden that Mr.
Moores conviction and sentence will continue to impose on him upon his release.
Although he is not a youthful offender, he was a relatively young man at the
time of the offence without a criminal record, factors that I am required to
give due and fair consideration to. The sentence should strongly denounce and
deter, but not crush the spirit of the convicted person or be so unduly long
that it may impede his rehabilitation.

[80]      The controlled substances involved in this case are
less pernicious than those found in some of the cases cited, however, this
consideration must be somewhat weighed against what I would refer to as the in
for a penny, in for a pound corrupting effect of a Corrections Officer in such
circumstances, as he exposes himself or herself to escalating demands from
inmates, with little recourse on the officers part except to comply or face
exposure by the inmate.

[81]      At the same time, I find a three-year sentence
inadequate. Mr. Moores actions required considerable thought and
discussion with both foresight and planning involving the inmates before
executing the plan. This is clearly not a case of impetuous actions carried out
with little deliberation. Execution of the plan also required contact with
criminal elements outside the prison itself in order to obtain the trafficked
substances.

[82]      Mr. Moore had numerous
opportunities to reflect and numerous opportunities to make different choices
at each step along the way. There is no element of duress as in
Domke
, [
R.
v. Domke,
2006 ABPC 252, 68 Alta. L.R. (4th) 372]. Upon his return to his
unit, Mr. Moore exacerbated the consequences of what he had done by releasing
inmates from their cells, instead of assisting his fellow officers, potentially
jeopardizing the investigation and involving them and the inmates in a
difficult situation.

[6]

He went on to impose sentences amounting to the global sentence that I
mentioned. In my view, the reasons given by the sentencing judge demonstrate
that he applied the proper approach and that he fairly considered all the
relevant circumstances. I am satisfied the sentence he imposed was a fit one in
the circumstances.

[7]

For those reasons I would grant leave to appeal, but I would dismiss the
appeal.

[8]

BENNETT J.A.
:  I agree.

[9]

GARSON J.A.
:  I agree.

[10]

K. SMITH J.A.
: The appeal is dismissed.

The Honourable
Mr. Justice K. Smith


