Ap­peal court re­duces man’s drug sen­tence

The Guardian (Charlottetown) - - ATLANTIC -

New­found­land and Labrador’s high­est court is di­vided over how to ad­dress the abo­rig­i­nal sta­tus of a man who only briefly men­tioned he was Mi’kmaq at his sen­tenc­ing on drug charges.

The prov­ince’s Court of Ap­peal re­duced Joshua Aaron Ben­nett’s jail term from 39 months to 23 months, saying the sen­tenc­ing judge hadn’t con­sid­ered Ben­nett’s abo­rig­i­nal sta­tus.

Ben­nett pleaded guilty to mul­ti­ple drug charges after be­ing found with two pounds of mar­i­juana, 1,300 ec­stasy tablets, 135 grams of co­caine and crack co­caine, and about $18,000 cash, over two oc­ca­sions in 2010 and 2011.

Cana­dian judges are obliged to con­sider an abo­rig­i­nal’s sta­tus be­fore sen­tenc­ing, but Ben­nett’s lawyer hadn’t sought the usual re­port on the is­sue — known as a Gladue re­port — that lays out an abo­rig­i­nal of­fender’s per­sonal cir­cum­stances. Ben­nett, who is in his late 20s, only briefly men­tioned that he was Mi’kmaq and a mem­ber of the newly rec­og­nized Qalipu First Na­tion dur­ing a state­ment to the court.

In its de­ci­sion, handed down re­cently, the three-judge ap­peal panel said Ben­nett “did not ex­pressly waive his right to have his abo­rig­i­nal sta­tus con­sid­ered,” and the pro­vin­cial court judge erred in not ei­ther seek­ing such a waiver or con­sid­er­ing it in sen­tenc­ing.

“As a re­sult of the trial judge’s er­ror, Mr. Ben­nett’s abo­rig­i­nal sta­tus ... must be ad­dressed,” said the ap­peal court de­ci­sion, writ­ten by Jus­tice Gale Welsh.

“A sen­tence of al­most three years is dis­pro­por­tion­ate to the num­ber and grav­ity of the of­fences and the de­gree of re­spon­si­bil­ity of the of­fender,” said Welsh. “Fur­ther, I would take ac­count of Mr. Ben­nett’s abo­rig­i­nal sta­tus and his prospects for re­ha­bil­i­ta­tion par­tic­u­larly given the sup­port be­ing pro­vided by the Qalipu com­mu­nity.”

But one of the three ap­peal judges filed a dis­sent­ing opin­ion. Jus­tice Lois Hoegg agreed the trial judge should have con­sid­ered Ben­nett’s abo­rig­i­nal sta­tus, but said no con­nec­tion had been es­tab­lished be­tween Ben­nett’s an­ces­try and his crim­i­nal mis­con­duct.

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