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Convicted trafficker wins sentence appeal over deportation concern

VANCOUVER — he B.C. Court of Appeal has reduced the sentence of a convicted cocaine trafficker so he won’t be automatically deported to his native Brazil. B.C.

 

VANCOUVER — he B.C. Court of Appeal has reduced the sentence of a convicted cocaine trafficker so he won’t be automatically deported to his native Brazil.

B.C.’s highest court said the trial judge who sentenced Iury Martins De Aquino to 12 months in jail didn’t factor in “the collateral immigration consequences of imposing a sentence exceeding six months.”

And Justice Lauri Ann Fenlon said the trial judge also erred by underestimating the 10-year-period that De Aquino lived crime-free in B.C.

She set aside the year-long term and imposed a sentence of six months less a day, followed by 12 months’ probation.

Appeal Court Justices Mary Saunders and Richard Goepel agreed in a written decision released Friday.

When non-Canadians get sentenced to six months or more, they are subject to a removal order with few avenues of appeal.

De Aquino, a permanent resident and father of B.C.-born twins, was in a minor car accident at Victoria in July 2013.

“Just before police arrived on the scene, a bystander saw Mr. De Aquino place his hand into some nearby bushes,” Fenlon noted. “When the police checked that spot, they located 26 small bags, each containing 0.75 grams of cocaine.”

The coke had a street value of between $1,500 and $2,000.

There was no evidence presented at his trial — such as cellphones or cash — indicating that De Aquino was involved in a dial-a-dope ring. The trial judge concluded he was likely transporting or delivering the cocaine.

At the time of De Aquino’s sentencing, possession of cocaine for the purpose of trafficking carried a mandatory minimum sentence of a year if the offender had a similar conviction within the previous decade. The trial judge miscalculated the offence date of De Aquino’s earlier conviction for marijuana trafficking and imposed the year-long sentence.

Letters were submitted on behalf of De Aquino, calling his crime out of character and describing him as a committed family man employed full-time as a concrete finisher.

Fenlon granted De Aquino’s appeal because she said “the trial judge in the present case failed to consider two relevant circumstances: first, the almost 10-year gap since Mr. De Aquino’s last offence, and second, the collateral immigration consequences of a sentence exceeding six months.”

“In my view, the substantial period without convictions was a factor that should have been taken into account by the sentencing judge. It was a relevant circumstance both to Mr. De Aquino’s prospects for rehabilitation and the weight to be given to protection of the public,” Fenlon said. “The two errors I have identified had a material impact on the sentence imposed and have led to a sentence that is unfit in the circumstances.”