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.

Aboriginal status briefly mentioned

Canadian judges are obliged to consider an Aboriginal person'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 is Mi'kmaq and a member of the newly recognized Qalipu First Nation during a statement to the court.

A sentence of almost three years is disproportionate to the number and gravity of the offences and the degree of responsibility of the offender. - Justice Gale Welsh

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."

Ancestry, misconduct not related

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.

"Many people of Aboriginal heritage may legitimately claim Qalipu or other Aboriginal status, yet their Aboriginal heritage or status may have played no role in bringing them before the courts and would not provide a basis for a sanction or sentencing procedure that would address their particular Aboriginal circumstances," said Hoegg.

"Accordingly, in my view something more than self-identification as Aboriginal, like Mr. Bennett's bald statement that he was native and a member of the local Qalipu band, is required."

In my view the sentencing judge was very fair to Mr. Bennett. - Justice Lois Hoegg

Hoegg said Bennett's "serious" crime involved trafficking drugs in a sparsely populated rural area and the original sentence was appropriate. She noted some of the drugs were found individually packaged in a suitcase bearing tags from a flight Bennett had recently taken from British Columbia to Deer Lake, N.L.

"In my view the sentencing judge was very fair to Mr. Bennett," said Hoegg.

The appeal court agreed to Bennett's request that he serve a conditional sentence — house arrest.

Welsh said it would not endanger the community, and it "would be consistent with the purpose and principles of sentencing, particularly considering Mr. Bennett's Aboriginal status."

In her dissent, Hoegg disagreed again, noting there is no evidence he even has a house in which to serve house arrest, and she was not satisfied the community would be kept safe in those circumstances.

"A conditional sentence on these facts is, in my view, disproportionate to their gravity, and again, insufficiently denunciatory of Mr. Bennett's repeated criminal conduct," she said.

The sentence for Bennett, a former drug addict who works as an insulation installer, included jail time for several breaches of recognizance.