R. v. Nguyen Date:, 2013 BCPC 226

Citation: R. v. Nguyen Date: 20130705 2013 BCPC 0226 File No: 189645-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HOANG NGUYEN ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: Federal Crown: S. Gill Counsel for the Defendant: M. Foster Place of Hearing: Surrey , B.C. Dates of Hearing: July 2, 3, 2013 Date of Judgment: July 5, 2013 [ 1 ] THE COURT : Mr. Nguyen, you are before the court today to be sentenced. Over the next few minutes, I am going to explain

to you how I reached the sentence which I will impose at the end of my remarks. [ 2 ] Hoang Nguyen has pled guilty to the charge on Information 189645-1 that on October 20, 2011, at Delta, British Columbia, he did unlawfully produce cannabis marihuana, contrary to s. 7(1) of the Controlled Drugs and Substances Act.

He is before the court today to have sentence imposed following submissions on July 3rd. [ 3 ] The Crown seeks a conventional jail sentence of 12 months incarceration, emphasizing the importance of deterrence and denunciation in cases like this. [ 4 ] The offender seeks a conditional sentence order which reflects the importance of deterrence and denunciation but also supports rehabilitative and restorative principles in the case of this first offender. [ 5 ] The Crown seeks a firearms prohibition order under s. 109 and a DNA databank order, together with forfeiture of grow-related equipment seized by police.

Those orders are not opposed and I have signed the forfeiture order. [ 6 ] The circumstances are the following. Investigators were conducting surveillance at a residence in Delta and observed a vehicle at that residence registered to this offender. They then focused their attention on a residential property he owned at 8642 Delcrest Drive in Delta. Over several days, they saw Mr. Nguyen come and go from that residence. They also observed the co-accused, his spouse, and a teenager. [ 7 ] A search warrant was obtained for execution on October 20th. Mr.

Nguyen's vehicle was stopped as he drove away with the co-accused and his three-month-old child in the vehicle. The search warrant was then executed at the residence. [ 8 ] The building is a single-family home. In the basement was a moderate-sized marihuana grow operation in two rooms, totalling 275 plants in the vegetative and budding stages. Photographs filed on the sentencing show the grow operation was set up with lighting, ballasts and venting electrically, and powered through alterations to some of the basement's electrical outlets.

Tubing delivered carbon monoxide from the furnace to the grow room to enhance growth. This presented a health risk to those living in the house. Waste air was vented into the sewage outlet. The basement was readily accessible from the main floor of the house. A basement access door, which would have provided access to the outside, was barred. [ 9 ] The Crown takes the position that the house was lived in by Mr. Nguyen's family, including two teenage children and a three- month-old child, as well as his spouse, the co-accused.

The Crown argues that this is an aggravating factor in assessing a fit sentence. [ 10 ] Photographs of the living area on the upper floors include three bedrooms, kitchen, family room and bathroom, having the appearance of being fully occupied. The kitchen is well stocked. The living areas have a lived-in appearance. The bedrooms include clothing suitable for two adults and two teenagers. Toiletries are present in quantity in the bathroom. Infant-care items: diapers, crib and similar child-related articles, are present. Photographs and other family keepsakes were present.

Documents, including utility bills and documents which relate to the residence itself were also present. [ 11 ] The defence says that the children and the co-accused, Ms. Bui, were not in fact living in the house full time. At the time, Mr. Nguyen says he and Ms.

Bui had separated and the children lived at her home, although they visited and stayed over with him from time to time at that Delcrest residence, thus explaining the large quantity of clothing and personal items otherwise suggestive of full-time residence. [ 12 ] The defence acknowledges that it is aggravating when family, particularly children, live in a residence that houses a grow operation, but says that that aggravating feature is mitigated to a degree here because they were not living there full time. The property was bought by Mr. Nguyen about five months before his arrest.

The grow operation was then set up, and thereafter the parties separated. There is certainly strong evidence that all were living in the residence. School books were present as well. The individuals were seen moving about that residence. A quantity, as I indicated, of infant-care gear was also there. The evidence, however, is insufficient to determine with assurance that they lived there full time.

I concluded, however, that they spent a considerable amount of time there, based on the evidence, and so I conclude that the strength of this factor as aggravating is mitigated only minimally. [ 13 ] The crop was valued by an expert between $134,000 and $170,800 if sold at the pound level, and $198,000 and $247,500 when sold at the ounce level. [ 14 ] There was no hydro theft.

No bypass was in place, although the electrical alterations at the outlets depicted in the photographs would suggest, to a layperson, safety concerns. [ 15 ] The sentencing objectives in cases of this nature involving commercial marihuana grow operations are the predominant concerns of deterrence and general and specific denunciation. These are illegal operations with the potential for large profit. They frequently invite organized criminal involvement.

Their presence in a residential area places others at risk, as well as the occupants, because they can be targets for home invasions, robberies and enforcement-related activity by criminals who may be armed. In this way, operations like this destabilize the social fabric of communities and neighbourhoods.

The presence of a grow operation with jury-rigged electrical connections and venting, for example, that set up to handle carbon-monoxide, present health risks to people, including children in the home. [ 16 ] The courts have said that sentences which address general deterrence in strong terms are required in order to deliver a message that there is a substantial price to pay for involvement in activities such as this. That message may make it more difficult for the next level of operator in the production and trafficking chain to convince other people to take part by growing marihuana in their homes.

In appropriate cases, courts have imposed sentences of conventional jail in respect of first offenders in order to deliver that message in strong terms. Courts have also viewed as aggravating the fact that the offender before the court is the principal in the operation, as is the case here. There is no suggestion Mr. Nguyen was simply maintaining a grow operation for someone else. He stood to earn any profit from the operation. The Crown says there is in such circumstances a need for specific deterrence to be addressed in order to ensure Mr. Nguyen is not tempted to return to this lucrative income source.

Courts have also recognized that rehabilitation and restorative principles

must be considered and balanced with deterrence and denunciation in order to determine a fit sentence. [17] Superior courts have recognized that there will be cases in which denunciation and deterrence can be effectively achievedthrough, for example, a conditional sentence order where specific deterrence is well in hand, the offender is not a risk in the communityand such an outcome allows rehabilitation, which is moving ahead positively, to continue on that path and not be unduly set back orinterrupted. [18] Mr. Justice Joyce, in R. v.

Nguyen 2011 BCSC 1596, summarized considerations in this regard at paragraph 28 of his decisionas follows: I derive the following principles from the authorities: 1. Denunciation and deterrence are important sentencing principles with regard to the offence of production of marihuana. 2. Notwithstanding the significance of denunciation and deterrence, a conditional sentence is not precluded if the other statutoryconditions for a conditional sentence are satisfied.

The Court must give serious consideration as to whether a conditional sentence maysatisfy those principles taking into account other principles of sentencing including: (

a) rehabilitation and restorative objectives including reparation for harm done and an acknowledgement of responsibility; (

b) a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender; and (

c) incarceration is a last resort for all offenders. 3. A conditional sentence that has strict conditions can achieve the principles of denunciation and deterrence. 4. Sentencing is an individualized process in which both the nature of the offence, the degree of responsibility of the offender, andthe other circumstances of the offender must be considered when fashioning an appropriate sentence. 5.

If the offender is the primary operator of the operation or is involved in a substantial way in its establishment and operation, then aconditional sentence will likely not be appropriate unless there are compelling circumstances regarding the offender's situation. 6. If the offender has played only a subordinate role in the operation, is a first time offender, and has good prospects forrehabilitation, then a conditional sentence may be appropriate. [19] Mr. Nguyen is 50 years of age. He came to Canada in 1989 from Vietnam. He has a Grade 10 education. He is a Canadiancitizen.

In Canada, he has taken English courses in order to attempt to upgrade his English skills, although he is not at this time fluent. He also took a drafting program. Steady work has been difficult for Mr. Nguyen to achieve, but he has worked in carpentry and as a nailtechnician over the years, usually combining those two forms of employment to achieve virtual full employment. [20] He and Ms. Bui have been in a 20-year relationship and have now reconciled, although they were separated at the time of theseevents.

They have three children, a 19-year-old daughter at university, a 17-year-old son, also at university, and an infant approachingnow two years of age. [21] Mr. Nguyen was able to buy a home and then to upgrade to the house at issue in this proceeding through his and his spouse'slegitimate employment, but he struggled with the mortgage payments on this home. He was introduced to the opportunity to make extramoney with the grow operation and he took that opportunity. Mr.

Foster told me it was the desire to maintain this home for his familyand not the desire to develop a lavish lifestyle that motivated him to take on the grow operation. He had not earned any money from thegrow operation at the time of his arrest. The property has since been foreclosed and I am advised that he has lost his equity in the home. [22] Mr. Nguyen is now essentially back to where he had been years ago. He has no prior record. He continues to work as steadilyas he is able to do.

There is no suggestion that he has violated his bail or otherwise been brought before the court in respect to newoffences since these charges were laid. [23] The Crown has referred to four decisions, R. v. Nguyen 2002 BCCA 12 , 2002 BCCA 012, R. v. Pham and Vu 2008BCPC 142 , 2008 BCPC 0142 (Dyer PCJ), and two further decisions in the Court of Appeal which are well known in thesecases, R. v. Su BCCA 480, and R. v. Koenders 2007 BCCA 378. In all of those cases conventional jail sentences were imposed. Theaggravating features I have referred to were present.

The Court of Appeal decisions cited uphold jail sentences as fit in thecircumstances. [24] Sentencing requires a careful assessment of each particular offence and offender to reach a fit sentence in each case. It is not anarbitrary process. In numerous cases, courts in this province at the superior court level and in the Provincial Court have determined thata conventional jail sentence is not required in the particular circumstances at issue.

Conditional sentence orders have been imposed andupheld where the balancing of objectives in light of the particular facts allows proper attention to predominant principles of denunciationand deterrence, while giving voice to rehabilitation. Mr. Foster has provided a casebook including 12 such decisions. [25] The Court of Appeal has pointed out that despite aggravating features, rehabilitation must be evaluated and may tip the balancein favour of a conditional sentence order. (e.g. R. v. Trinh, 2001 BCCA 677) [26] Here I note that Mr.

Nguyen is the principal in the operation and that children were frequently present in the home, but I alsonote that he has taken responsibility and pled guilty. He has no other record. He has complied with bail conditions. He was motivated

to make money, but not to live a lavish lifestyle; rather, to assist in meeting the mortgage payments on his family home. His work skills and job prospects are relatively modest. His specific deterrence is well in hand. He is not a risk in the community. [ 27 ] I conclude that this is one of those cases in which deterrence and denunciation can be adequately addressed through a conditional sentence order which allows Mr. Nguyen to continue to work and, with his spouse, support his family, particularly their two- year-old child. [ 28 ] Mr.

Nguyen, if you could stand up now, please? [ 29 ] There will be a conditional sentence order for a period of 15 months. The conditions are that you keep the peace and be of good behaviour. Statutory conditions of course will apply, and they will be reviewed with you by a justice of the peace. [ 30 ] Following your release from court today, you are to travel directly to your residence. I am going to ask Mr. Foster to provide that address in a moment and it will be included in this condition.

You are to travel directly to that residence and you are not to leave that residence before six o'clock in the morning tomorrow, the 6th of July 2013. [ 31 ] You are to report to a conditional sentence supervisor before 12 noon on Monday, which is July the 8th, 2013, and thereafter as directed by the supervisor. [ 32 ] You will reside at the specified residential address or such other address as is directed by the supervisor, and you will not change that address without the prior written approval of the supervisor. [ 33 ] You will inform your supervisor of the name, address and contact information for your employer at your first meeting with the supervisor, and you will update that information for the supervisor forthwith, should it change. [ 34 ] During the first nine months of the conditional sentence order, you will be bound by a house arrest condition.

You must not be outside of your place of residence except for the following purposes: to attend court when required to do so, to attend to your legal counsel, to attend to your supervisor, to attend to community work service as directed by the supervisor, to attend to your employment pursuant to a

schedule of employment provided on the letterhead of your employer and approved by the supervisor, when attending a medical or dental appointment. [ 35 ] You may be away from your residence between ten o'clock in the morning and noon on one or other, but not both, Saturday or Sunday of each weekend for the purpose of attending to banking and similar personal business. [ 36 ] You may be away from your residence where you have the prior written approval of the supervisor which you must carry with you and produce on request of a peace officer or supervisor.

You may be away from your residence when travelling directly to or from any of these commitments. [ 37 ] During the balance of the conditional sentence order you will be bound by a curfew.

You must not be outside of your residence between 11 o'clock in the evening and five o'clock in the morning seven days a week, unless you have the prior approval in writing of the supervisor, which you must carry with you and produce on request of a peace officer, or in the event of a medical emergency involving yourself or a member of your immediate family. [ 38 ] You will attend the door of your residence or by telephone to confirm compliance with any condition in this order, if requested to do so by a peace officer. [ 39 ] You will abstain from the possession or consumption of alcohol or non-prescription drugs or substances controlled under the Controlled Drugs and Substances Act unless you have a medical prescription for that substance. [ 40 ] You will complete 30 hours of community work service before the end of the tenth month of the conditional sentence order to the satisfaction of the supervisor. [ 41 ] You are not to possess any weapon as defined in the Criminal Code . [ 42 ] Those are the conditions in the conditional sentence order, subject to comment in a moment by counsel. [ 43 ] There will be a ten-year firearms prohibition order under s. 109 of the Criminal Code . [ 44 ] I am going to direct that Mr.

Nguyen supply a sample of his DNA to the National Databank. He is to attend the Surrey detachment of the RCMP for that purpose on Thursday of next week, which is July the 11th, 2013, between ten o'clock in the morning and two o'clock in the afternoon. [ 45 ] The victim fine surcharge, Mr. Foster, bearing in mind his circumstances, I will waive, and the forfeiture order I signed on the last day. [ 46 ] MR. FOSTER: And the address, Your Honour, is 8838 - 113 Street, Delta. [ 47 ] THE COURT: And that will be included as the address specified in the conditional sentence order. [ 48 ] MS.

GILL: Yes, Your Honour, I have no comments with respect to the conditions that you have given. The only aspect of the sentencing hearing that needs to be dealt with, and that will not happen today, is forfeiture regarding the house, the equity in the house. (DISCUSSION) [ 49 ] THE COURT: Mr. Nguyen, I am going to vary the location for you to provide the DNA sample. It will be at the Delta Police

office on Wednesday of next week, which is the 10th of July, and you must attend there at one o'clock in the afternoon. (REASONS FOR SENTENCE CONCLUDED)