R. v. Pham, 2011 ABQB 647

Court of Queen ’ s Bench of Alberta Citation: R. v. Pham, 2011 ABQB 647 Date: 20111026 Docket: 980607161Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Le Anh Pham Accused _______________________________________________________ Reasons for Sentence of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] Le Anh Pham has plead guilty to one count of trafficking in cocaine and one count of possession of the proceeds of crime. The charges are very dated. They arise out of two incidents, one on March 6, 1998 when Mr.

Pham sold 1 gram of cocaine to an undercover police officer for $80, and the second on April 28, 1998 when he sold 1 gram of cocaine also to an undercover police officer, also for $80. On the second occasion he was arrested and searched. He was found to be in possession of the police buy money he had received from the officer, a further $150 and 2 further grams of cocaine. [ 2 ] Mr. Pham was committed to stand trial on February 3, 2000. On September 18, 2000 he appeared before Murray J. and plead guilty to the two counts mentioned above. Sentencing was adjourned to January 31, 2001. Mr.

Pham was ordered to turn himself in at the Edmonton Remand Centre by Tuesday, January 30, 2001. He did so. On January 31, 2001 Mr. Pham’s counsel was not available to proceed with the sentencing hearing. The Crown consented to the Defence application for an adjournment to March 2, 2001. Mr. Pham was directed to turn himself into the Edmonton Remand Centre on March 1, 2001. He did so. On March 2, 2001, the Crown consented to the Defence application to adjourn sentencing to April 3, 2001. Mr. Pham was directed to turn himself into the

Edmonton Remand Centre on April 2, 2001. He did not do so. He did not appear on April 3, 2001. A warrant was issued for his arrest. [3] Mr. Pham remained at large for 10 years. He was arrested on the warrant in June, 2011. On July 22, 2011 he appearedbefore me, Murray J. having retired from the Court. He confirmed the guilty pleas he had entered in September 2000. Counsel askedthat a pre-sentence report be prepared. Sentencing was adjourned for that purpose. [4] A pre-sentence report was prepared. It indicates that Mr. Pham is presently 39 years old. He was 26 at the time of theoffences.

He has no criminal record. He was born in North Vietnam in December 1971. His mother died when he was 5 years old andhe has no memory of her. He was raised in poverty by his father who did not re-marry and had a close and supportive relationship withvarious aunts and uncles. In 1980 he relocated with his father to Hong Kong. In 1981 he and his father, sponsored by a church group,emigrated to Calgary. He obtained Canadian citizenship in 1984. He experienced difficulties adjusting to life in Canada because oflanguage difficulties. He was the victim of racism and bullying as a child in Canada.

However by the time he reached adolescence hehad learned English and had a positive peer group. [5] Mr. Pham attended the University of Alberta after high school. He obtained a B. Sc. in 1991. In 1996 he obtained aChemical Engineering Technology Diploma from NAIT after a 3-year course of studies. [6] Not long after the commission of the subject offences in the spring of 1998, he began dating Penny Chubb. Shortly aftertheir relationship began, Ms. Chubb suffered a miscarriage. They separated and Mr. Pham returned to Vietnam where he remained forseveral years working with his father.

By 2003 he returned to Canada, reconciled with Ms. Chubb and she again became pregnant. Theyhave two children together, currently aged 7 and 4. They separated in 2010. They continue to have an amicable relationship and sharejoint custody of their children. Ms. Chubb was interviewed for the purpose of the pre-sentence report and was in court during thesentencing hearing. She reported to the probation officer that Mr. Pham is a good father. He provides appropriate financial support forhis children. [7] Mr. Pham is employed full time with a large industrial concern in Edmonton.

He has been so employed for about 2 years. He earns approximately $90,000 a year. He has debts in an amount typical for people of his age and income level. There is noindication of any present involvement in any form of criminal activity. His employment requires that he submit to random drug testing. [8] The author of the pre-sentence report concluded: The subject maintains stable employment, is actively involved in his parental role and appears to have suitable community supports. Therefore, the writer respectfully recommends the subject be deemed suitable for a community based disposition. [9] Ms.

Dion, for the Crown, submits that Mr. Pham was engaged in cocaine trafficking of a commercial nature and that thestarting point for determining a fit sentence is therefore 3 years incarceration. She submits that whereas Mr. Pham’s guilty plea mightordinarily have justified retreating from the starting point by as much as 1/3, that is not justified in Mr. Pham’s case because as a result ofhis absconding, a delay of 10 years in dealing with the charges has elapsed. [10] In support of her submission Ms. Dion cites R. v. Thompson (1989) 1989 ABCA 212 , 50 C.C.C. (3d) 126 (Alta.C.A.).

In that case the accused agreed in August 1979 to sell 7 ounces of cocaine which was in his possession for $19,600 to anundercover police officer. He failed to appear for his trial in April 1981. He absconded to the U.S.A. where he overcame his drug andalcohol addictions, and lectured to narcotics abuse organizations. He became a respected businessman in the U.S.A. He wassubstantially rehabilitated. He surrendered to authorities in March 1989 and was arrested on the warrant issued in 1981. He plead guilty. He was sentenced at trial to 9 months.

The Crown appealed. [11] The Court of Appeal held that it was not appropriate to give the fact that the accused had substantially rehabilitated himselfprior to sentencing the usual mitigating effect it would have had, had the accused been legally at large during that time. To give therehabilitation mitigating effect would be to encourage accused persons to violate their bail conditions and not appear in court to deal withtheir charges until they had substantially rehabilitated themselves.

[12] Even so, starting from the same starting point as the Crown submits is appropriate in the case before me, 3 years, and givingno mitigating effect to rehabilitation effected during the period the accused was unlawfully at large, but giving mitigating effect to theguilty plea, the voluntary return to Canada and surrender, and pretrial custody, the Court of Appeal held that a fit sentence was 2 yearsless a day. The Court did not consider whether a conditional sentence order was appropriate because the possibility of a conditionalsentence order did not exist in 1989 when the case was decided.

If the same case were decided today, a conditional sentence order mightwell have been considered appropriate. [13] Mr. O’Neill observes that while the trafficking in which Mr. Pham engaged was commercial, it was nonetheless of a smallamount. If Mr. Pham’s cocaine trafficking is accurately described as being “more than a minimal scale” it was only slightly more. Thecocaine trafficking in which Mr. Pham engaged is of the same character as the cocaine trafficking of the 5 accused for whom conditionalsentences were held fit by 5 members of the Alberta Court of Appeal in R. v.

Rahime 2001 ABCA 203 , [2001] 10 W.W.R. 428;156 C.C.C. (3d) 349. Mr. O’Neill submits that a sentence of less than 2 years incarceration subject to a conditional sentence order is fitin the circumstances. [14] I accept that it is not appropriate to give mitigating effect to positive features of Mr. Pham’s circumstances which occurredduring and because of his being unlawfully at large. There is no “rehabilitation” in Mr. Pham’s case comparable to the rehabilitationdescribed in Thompson. There is no suggestion that Mr. Pham ever had a drug or alcohol addiction from which he needed torehabilitate. Mr.

Pham was not involved in criminal activity during the time he was unlawfully at large. He became a responsiblemember of society, a valuable employee and a good parent to two children. On the authority of Thompson I will not give effect to themitigating effect that would otherwise flow from these features of his circumstances in adjusting the sentence from the starting point. [15] However, I do not agree with the Crown’s submission that as a result of having absconded Mr. Pham is not entitled to thenormal mitigating effect of his guilty plea. Neither, in my view, would it be right to ignore Mr.

Pham’s present circumstances indetermining whether the Code requirements for a conditional sentence are present, though those circumstances came into existenceduring the time he was unlawfully at large. [16] In the result, given that Mr.

Pham’s criminal activity is only slightly within the territory to which the 3 year starting pointapplies, given the difficult circumstances of his upbringing and the significant struggle that was necessary for him to adapt to life inCanada, given the lack of any criminal record, given his early guilty plea, I find that a fit sentence is 2 years less a day. [17] I also find that the prerequisites for a conditional sentence order are clearly present. [18] I therefore sentence Mr. Pham to 2 years less a day incarceration to be served pursuant to a conditional sentence order, theterms of which will be that Mr.

Pham: 1. keep the peace and be of good behaviour, 2. appear before the Court when required to do so by the Court, 3. report to a supervisor within 2 working days and thereafter when required by the supervisor and in the manner directed by thesupervisor, 4. remain in Alberta unless written permission to go outside Alberta is obtained from the Court or the supervisor, 5. notify the Court or the supervisor in advance of any change of name or address, and promptly notify the Court or the supervisorof any change of employment or occupation, and 6. until March 31, 2012 be in his residence from 9:00 p.m. to 6:00 a.m every day except if required to be away from his residence:

a) to carry out the duties of his employment as advised to his supervisor in advance,

b) as a result of a medical emergency in respect of himself, his children, or their mother, in which case he shall report the absence from his residence to his supervisor in writing within 48 hours of its commencement, and

c) to attend a religious service, which attendance he shall report to his supervisor within 48 hours of its occurrence. Heard on the 3 rd day of October 2011. Dated at the City of Edmonton, Alberta this 25 th day of October 2011. Brian R. Burrows J.C.Q.B.A. Appearances: Monique B. Dion for the Crown Edmond J. O’Neill for the Accused