



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Perez-Membreno, 2019 ONCA 997

DATE: 20191218

DOCKET: C66983

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

BETWEEN

Her Majesty the Queen

Respondent

and

Jonathan Perez-Membreno

Appellant

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
    appellants 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 appellants 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 Im 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 dont  you dont 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. Mayorgas charges, the basic facts, and the
    reasons for the sentence.

[10]

In his sentencing reasons,
    the sentencing judge said: I know from Justice Mitchells 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 judges 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. Mayorgas 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. Mayorgas sentence on the appellants
    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. Mayorgas sentence, the sentencing judge erred
    in principle by considering the application of the parity principle without details
    of Mr. Mayorgas charges, the basic facts, and the reasons for the sentence. In
    our view, the sentencing judges erroneous consideration of Mr. Mayorgas
    sentence as a factor impacted on the appellants 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.


