R. v. Vagh, 2018 BCPC 349

Citation: R. v. Vagh 2018 BCPC 349 Date: 20181211 File No: 36311-2-C Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JITESH KUMAR VAGH ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE FLEWELLING Counsel for the Crown: C. Gibson Counsel for the Defendant: J.R. Ray, Q.C. Place of Hearing: Courtenay , B.C. Date of Hearing: October 12, 2018 Date of Judgment: December 11, 2018

Introduction: [ 1 ] Mr. Vagh has pleaded guilty to the charge that he unlawfully possessed, for the purpose of trafficking, heroin and fentanyl contrary to section 5 (2) of the Controlled Drugs and Substances Act . Circumstances of the Offence: [ 2 ] On September 20, 2016, an officer with the Campbell River RCMP observed a Dodge Charger in the vicinity of a known drug house which was being investigated. Approximately two and a half hours later, around 12:40 p.m., Corporal Larsen saw the same vehicle and followed it.

That officer observed a pattern of driving that he believed was consistent with someone involved in drug trafficking. Specifically, he saw the vehicle driving down minor roads, changing patterns where the vehicle was going, slowing down at times and proceeding cautiously. The police continued to follow the vehicle. [ 3 ] At 12:45 p.m. the Charger pulled over to the side of the road and the officer observed a man quickly approach it, glance around, and get into the rear passenger side. Based on the previous observations the police believed they were seeing a suspected drug transaction or sale about to take place.

Constables Hert and Stewart were following in an unmarked police vehicle and decided to make an arrest. They stopped quickly in front of the Charger. Both officers were in plain clothes and were not displaying badges. There were no emergency lights activated. Constable Hert ran to the driver's side door handle while Constable Stewart to the passenger side door. Both yelled “Stop - Police”. Mr. Vagh was driving and was also the registered owner of the Charger. His co-accused was the passenger in the right front seat. [ 4 ] As Constable Hert approached the driver's door, Mr.

Vagh quickly reversed the vehicle and drove forward around the stopped police vehicle. The charger accelerated away at a high rate of speed striking Constable Stewart in the process. Constable Stewart was lifted off the ground onto the hood and thrown clear of the vehicle. The vehicle was subsequently seized and Constable Stewart's handprint was found on the front hood. Fortunately, he required no medical attention and was not seriously injured although he was sore for a few days. [ 5 ] As Mr. Vagh sped away at a high rate of speed, he drove by an elementary school and ignored a stop sign in the process.

The officers did not pursue given the danger to the public of engaging in a high speed chase. Police fanned out to locate the Charger. [ 6 ] At 1:00 p.m. another officer, Constable Lingley, located the same Charger parked in a parking lot beside an apartment block. He set up surveillance. At 1:09 p.m. a taxi pulled up in front of the apartment block and Constable Lingley saw Mr. Vagh and his co- accused leave the apartment building and get into the taxi. Mr. Vagh was carrying a backpack. [ 7 ] Additional backup was requested and the officer allowed the taxi to drive a short distance.

When the taxi stopped at a stop sign, two police vehicles stopped at the front and behind the taxi, effectively boxing it in. Both men left the taxi. Mr. Vagh surrendered. His co-accused ran away although was subsequently captured and arrested a short time later. [ 8 ] Mr. Vagh was searched incidental to his arrest. The police located two cell phones in his pants pocket, keys for the Dodge Charger and $350 cash in his wallet.

His co-accused, when searched incidental to arrest, was found in possession of two cell phones and cash in the amount of $1,520. [ 9 ] The taxi driver was interviewed and told the police that he had been called to that location to take the passengers to Nanaimo. Clearly, they were trying to leave Campbell River as quickly as possible. [ 10 ] Following a search of the Dodge Charger, the police found a hotel receipt from late August, 2016 for a local hotel and a tenancy agreement starting September 1, 2016 for an apartment in the complex Mr.

Vagh and his co-accused were leaving when observed by the police. [ 11 ] Following a search of the apartment, the police observed sparse furniture, used packaging material, a cash counter, sales ledgers for drugs but no drugs were located. [ 12 ] A search of Mr. Vagh’s backpack resulted in the seizure of a large quantity of cash and drugs. Cash totalling $47,475 was seized. It was wrapped and packaged in a variety of different bundles some containing notes and score sheets or drug ledgers written on the bundles.

One of the bundles had “C River” written on it. [ 13 ] In addition, the police found 410 spitballs of a heroin and fentanyl mix weighing a total of 72.28 grams.

Also found were 30 spitballs of powder cocaine, 74 spitballs of crack cocaine weighing 11.37 grams and 23.42 grams respectively. [ 14 ] They also found 39 spitballs of crystal meth weighing 13.3 grams. [ 15 ] By far, the vast majority of the drugs located and seized was the heroin and fentanyl mixture. [ 16 ] A sample of text messages from only one of the seized cell phones clearly indicated that people were asking to meet and purchase drugs. [ 17 ] All the drugs were packaged into what are referred to as “spitballs”. This is the method by which smaller portions of drugs may be delivered to customers.

The drug is wrapped in portions of plastic bags or balloons which can be stored in a dealer’s mouth (or customer for that matter) and swallowed quickly if the person is arrested or robbed to avoid the drug being detected or stolen. The “spitball” containing the drug is then excreted at a later time. [ 18 ] Constable Ickringill is a member of the RCMP and is an expert for the purpose of providing opinion evidence regarding drug trafficking techniques, dial-a-dope methods and methods of packaging and concealment. He provided a report to assist the Court.

[ 19 ] According to Constable Ickringill: “Spitballs” are often used to hold smaller portions of drugs so they may be delivered to customers. Spitballs are portions of plastic bags or balloons used to wrap drugs in so they can be stored in a dealer’s mouth or swallowed quickly if a dealer is robbed or arrested. Should this occur they can ingest these non-corrodible items to avoid detection and excrete them at a later time with no loss of profit for the dealer.

These smaller portions of drugs are usually pre-measured by the dealer (using a scale) and placed into the spitball wrappers so are ready to be delivered in short visits by drug users to the dealer’s home or “hand to hand” contacts on the street. [ 20 ] He also states that: During the search all of the drugs possessed by (Mr.) Vagh (and his co-accused) were pre-packaged in a huge volume of spitballs ready for individual sales on the street. [ 21 ] As described by Constable Ickringill, the street value of the seized drugs would depend on whether it was being sold in smaller or larger quantities.

At the time of these offences, if sold at the street level, one ounce (28.3 grams) of cocaine would sell for $1,400 to $1,700. The same quantity of methamphetamine would sell for $1,000 to $1,200.

Rather astonishingly, one ounce of fentanyl would sell for $3,000 to $4,000; more than twice the same amount of cocaine and three times the cost of methamphetamine (if sold at the ounce level). [ 22 ] The cocaine seized (34.79 grams) would be worth approximately $1,850 if sold by the ounce or $3,500 if sold in smaller quantities and by the gram. [ 23 ] The methamphetamine (13.3 grams) would be worth approximately $470 if sold by the ounce or $930 if sold by the gram. [ 24 ] The heroin/fentanyl mixture (72.28 grams) would be worth approximately $8,900 if sold by the ounce and $13,000 if sold by the gram. [ 25 ] The total street value of all the drugs would be worth between $11,200 if sold by the ounce or approximately $17,400 if sold by the gram.

Position of Counsel: [ 26 ] Crown counsel describes this as being a mid-level operation. He seeks a sentence of four years less credit for pre-sentence custody. [ 27 ] Counsel for Mr. Vagh describes this as a street level trafficking operation taking place at the “street level” and asserts that the appropriate sentence is two years less one day. This would be further reduced by the time Mr.

Vagh has spent in a remand facility while awaiting sentencing. [ 28 ] However, Constable Ickringill’s opinion is that based on the amount of cash, and the manner in which it was packaged in different bundles, indicated that Mr. Vagh (and his co accused) had: … a series of personnel working under them to sell drugs for them and the personnel report back to (Mr.) Vagh and (his co-accused) to provide payment for the drugs they have sold. [ 29 ] While Mr. Vagh’s products were reaching people at the street level, he is not a street level dealer himself.

Although Constable Ickringill did not opine as to the size or level of this drug trafficking operation, I accept Crown counsel’s description that this was a mid- level operation.

I base my finding on the following facts which were not disputed at the hearing: • the significant amount of cash found; • the significant amount of drugs, particularly the heroin and fentanyl mixture packaged in 410 spitballs; • all the drugs were packaged into smaller “spit-balls” for easy and convenient sale; • there were a variety of drugs found which is not consistent with keeping drugs merely for personal use or selling small quantities to support a personal drug addiction; • a tenancy agreement had been entered into by Mr. Vagh for the apartment they were seen leaving when arrested.

Although it was sparsely furnished, I accept that this indicates Mr. Vagh has set up an operation which was to be managed from this apartment in Campbell River; • a cash counter was among the items found - people selling drugs on the street usually to support their own addiction, do not generally have cash counters; • Constable Ickringill’s opinion that Mr. Vagh and his co-accused had other personnel selling drugs and reporting back to them with cash for drugs sold. Mr. Vagh: [ 30 ] Mr. Vagh is 37 years of age and does not have a prior criminal record.

He is educated and studied Information Technology Management and obtained a Bachelor of Business Administration in approximately 2005. He has been employed and most recently, prior to the offence, was employed with a start-up internet company. He was able to purchase a condominium but then found himself

unemployed. In early 2016 his debt was mounting and "friends" lent him money and asked him to take

part in these activities - selling drugs - which ultimately led to his arrest. [ 31 ] Mr. Vagh does not have an addiction problem. The sole reason he was involved in this operation was for profit. [ 32 ] He has strong family support and his parents provided a letter of support to the Court. They were not aware that he was undergoing significant financial pressure and indicate that he made a very bad choice leading him down the wrong path.

They describe that their son "made a grave error in judgment.” The Law: [ 33 ] When determining a fit, just and proper sentence, the task of a judge is to consider how best to advance the objectives of a sentence taking into account the circumstances of the offence and of the particular person before the court. It is a very individualized process. [ 34 ] The objectives of our laws, including imposition of a sentence, is to protect society and to contribute to the maintenance of a just, peaceful and safe society, through the imposition of a just sentence.

A just sentence will reflect a number of objectives: denunciation of the unlawful conduct, deterrence both of the offender or others who may be inclined to engage in similar illegal conduct, separation from society where necessary, rehabilitation of the offender, to provide reparation for harm done to victims or to the community, and to promote a sense of responsibility in offenders as well as acknowledgement of the harm done to victims or the community:

section 718 of the Criminal Code . [ 35 ] These objectives are also mirrored in section 10(1) the Controlled Drugs and Substances Act. [ 36 ] A just sentence must reflect the gravity or seriousness of the offence and must be proportional to the offender’s own moral culpability or blameworthiness. It must also be similar to sentences imposed on others who have committed offences in similar circumstances:

section 718.1 and

section 718.2 (

b) respectively. [ 37 ] Finally, the court must consider all factors that would tend to increase a sentence (aggravating factors) as well as those that would tend to decrease a sentence (mitigating factors):

section 718.2 of the Criminal Code . [ 38 ] How those objectives are applied is a matter of assessment by the sentencing judge. Since 2015, courts in British Columbia, indeed across Canada, have had to respond to the skyrocketing rate of illicit drug overdose deaths in which the drug fentanyl was involved.

The Fentanyl Crisis: [ 39 ] According to the British Columbia Coroners Service, the deaths related to illicit drugs has increased substantially since 2015 and by late 2015, had overtaken all other deaths such as from suicide, homicide, motor vehicle accidents and prescription drugs: page 2/21, report posted September 27, 2018. Since at least 2016, illicit drugs are the leading cause of deaths in BC .

Moreover: Illicit fentanyl-detected deaths appear to account for the increase in illicit drug overdose deaths since 2012 as the number of illicit drug overdose deaths excluding fentanyl-detected has remained relatively stable since 2011 (average of 292 deaths per year). [ 40 ] By the end of 2017, the number of deaths in British Columbia in which fentanyl was detected had risen to 1,452 – that is almost four people every day.

Between 2016 and 2018, a review indicated that the top four detected drugs relevant to illicit drug overdose deaths were fentanyl (76%), cocaine (48%), methamphetamine/amphetamine (31%), and heroin (23%): Table entitled Illicit Drug Overdose Deaths including and excluding Fentanyl, 2007 - 2017 page 4/21. [ 41 ] As of August 31, 2018, the total number of deaths in British Columbia was 972 and is very close to the number of deaths in 2017 at that time (1,058). [ 42 ] As a result of the ever increasing death rates, deaths from drugs involving fentanyl was declared a public health emergency.

Sentences that had been previously imposed for drug trafficking offences in the past had to be adjusted to take account of this public health crisis and the ever increasing death rate. [ 43 ] As was said by Madam Justice Newbury in R. v. Smith , 2017 BCCA 112 , at paragraph 37 : On this occasion, the change we must consider is the proliferation of Fentanyl and the fatal consequences of its illegal sale and distribution. These consequences inform the “circumstances of the offence” and the culpability of the offender.

The Crown submits that the sentence imposed in this case was clearly unfit given these circumstances. It also argues that a substantial discrepancy exists between sentences and sentencing ranges in cases involving the sale or distribution of Fentanyl by courts in this province, and those pronounced elsewhere in Canada. [ 44 ] And she said this at paragraph 45: I agree with the many judges who have stated that denunciation and deterrence must generally be given primacy in sentencing in cases involving Fentanyl. To this end, I would suggest a normal range beginning at 18 months’ imprisonment, as the Crown suggests.

I would place Mr. Smith’s offences at the bottom of this range, in light of the mitigating factors discussed by the court below. I do not believe it is necessary for us to specify the top of the range, although I would suggest it might well exceed 36 months, especially where the offender has a substantial record involving the sale of Fentanyl or otherwise demonstrates an indifference to the human lives he or she is putting at risk. This is a matter that can be worked out in future cases.

Obviously, the “range” may also increase beyond 36 months, or a different range will apply, where the offender is higher up the chain of sale or distribution.

[ 45 ] Mr. Smith was initially given a sentence of six months by the sentencing judge. He was found with about 2.6 grams of fentanyl, 4.2 grams of powdered cocaine and rocks of crack cocaine weighing 3.2 grams in total. He was arrested while trying to sell drugs to an undercover police officer. He was a first time offender and his primary motivation for selling drugs was to support his own drug dependency to opioids. At the time of sentencing he had taken positive steps towards rehabilitation. The majority of the Court of Appeal upheld the sentence based primarily on the fact that Mr.

Smith’s offences occurred in January 2015, before the extent of the fentanyl crisis was known. [ 46 ] Mr. Justice Harris, at paragraph 48 of the decision, agreed with the suggested range of 18 months imprisonment and which may exceed 36 months depending on the circumstances.

He expressed the widely held concern that street drugs often have fentanyl cut into them making it impossible for the drug user to know which drugs they buy have fentanyl and that even tiny amounts of fentanyl mixed into drugs such as cocaine or heroin can be fatal. [ 47 ] Selling fentanyl laced drugs has been aptly described by Judge Dhillon as “inviting an addict to play a lethal game … akin to “Russian Roulette”: R. v. Fletcher, 2018 BCPC 290 , paragraph 49 . I could not agree more. [ 48 ] The gravity or seriousness of Mr. Vagh’s offence is high and his level of blameworthiness is also high.

He was well aware of the kind of business he was involved in. He was motivated by money. He would certainly have been aware of the escalating death toll as a result of fentanyl related drug overdoses. [ 49 ] Crown referred me to a number of cases in which jail sentences for trafficking in drugs were imposed. [ 50 ] A sentence of 30 months was given for selling 10 ounces of cocaine to an undercover officer. A search resulted in police finding 230 grams of powdered cocaine and 79 grams of crack cocaine in what was described as a mid-level drug trafficking operation.

The offender was not the leader but was very involved in the operation: R. v. Allen, [2014] B.C.J. No. 1133 . However, this offence occurred in 2010, well before the current fentanyl crisis arose and did not involve the sale of heroin and fentanyl. [ 51 ] A sentence of 36 months was given to a 42 year old with no prior relevant record who sold a total of 12 ounces of cocaine over two weeks to undercover police.

A search of his residence resulted in the seizure of 26 to 28 ounces of cocaine packaged for resale at the ounce level as well as over $60,000 in cash and other drug trafficking accessories such as scales, baggies, etc. He was under financial pressures and for that reason became a mid-level drug trafficker. He had much family and community support and was remorseful. This case did not involve fentanyl. R. v. Davidson , [2014] B.C.J.

No. 317 . [ 52 ] An effective sentence of two years less one day was imposed on an offender who was found guilty of possession for the purpose of trafficking of 6.3 grams of fentanyl with an approximate street value of $864 to $1,224. The offender was also given a concurrent sentence of one year for possession of 39.7 grams of cocaine for the purpose of trafficking with a value between $2,064 and $4,210. A relatively modest amount of cash – $864 – was also seized. He was a street level trafficker selling drugs to support his own addiction and had prior convictions for trafficking in a controlled substance.

The offence occurred in February 2016 and the judge was concerned that the awareness of the increasing death rates from fentanyl did not become fully apparent until late 2016 and declined to apply the new sentencing range suggested by the court in Smith . ( R. v. Aldridge , File No. 167625-2-C, Victoria Registry). [ 53 ] A global sentence in the range of two and a half years was imposed upon an offender who pled guilty to five counts of possession and possession for the purpose of trafficking in cocaine, methamphetamine, and a mixture containing heroin, fentanyl and methamphetamine.

The fentanyl, heroin and methamphetamine mixture weighed .28 grams. He had $235 cash. The total quantity of drugs and money in that case was far less than the case before me. ( R. v Johnson , [2017] B.C.J. No. 1712 (BCSC) . [ 54 ] A sentence of four years was imposed for possession of fentanyl for the purpose of trafficking. I was not able to determine the actual quantity of drugs involved. The offender had a prior record for trafficking in an uncontrolled substance which was treated as a significant aggravating factor.

He knew he was selling fentanyl and while he was also an addict selling drugs to support his addiction, he was also selling for profit. Of particular importance to the decision, the fentanyl he was selling was particularly lethal - up to three times larger than a two percent dosage which even at the lower level was sufficient to be fatal. His guilty plea was a mitigating factor ( R. v. Forsberg , File No. 167638-4-C; 167641-2, Victoria Registry September 27, 2017). [ 55 ] In Mr. Vagh’s case, there was no evidence about the strength or amount of fentanyl contained in the heroin mixture.

However, I accept that a lethal amount of fentanyl will vary according to an individual’s tolerance level and fentanyl mixed with any drug may be lethal. [ 56 ] A sentence of three years was given to a 34 year old convicted of possession of 1,098 fentanyl and heroin pills. If sold at the street level, they were valued between $32,940 and $65,880. If sold at wholesale rates, the estimated value was between $5,490 and $10,980. He was also found in possession of crack cocaine weighing 70.2 grams with a value between $5,220 and $7,200. Bundles of cash were also seized totalling $48,535.

Drug trafficking materials were also located including packaging materials, score sheet, etc. The sentencing judge accepted as an aggravating factor the nature of the drugs involved (fentanyl), that the offender was a mid-level trafficker supplying street-level traffickers and he had an improperly stored firearm in his home with ammunition. It was mitigating that while he had a prior criminal record it was not for drug trafficking, he had made efforts to rehabilitate himself, had family support and had pleaded guilty. ( R. v. Chin , [2017] B.C.J.

No. 598 BCSC). [ 57 ] A four year sentence was given to a 52 year old offender following a conviction for possession for purpose of trafficking fentanyl, in addition to concurrent lesser sentences for possession for purpose of trafficking of methamphetamine and cocaine. Of significance was his prior record for two trafficking convictions in addition to other serious convictions for robbery and fraud. He was on probation at the time of he committed this offence. Those factors took the sentence beyond the range of sentence outlined in Smith . ( R. v.

Brown , File No. 170716-2-C, Victoria Registry, September 18, 2018). [ 58 ] Counsel for Mr. Vagh also provided case law. A sentence of 18 months followed by two years’ probation was given for possession of cocaine for the purpose of trafficking including two one kilogram bricks, plus smaller amounts. This did not involve fentanyl. Furthermore, there were exceptional circumstances. ( R. v. Grandison , 2018 BCSC 1607 ).

[ 59 ] A sentence of two years less one day was imposed for a conviction for possession for the purpose of trafficking in cocaine - again, this case did not involve fentanyl. ( R v. Gill , 2018 BCSC 1635 ). [ 60 ] A sentence of one year was imposed for possession of cocaine, fentanyl, and marihuana for the purpose of trafficking. However, the amounts there were small. The street value of the crack cocaine was $50 and the fentanyl was $635. He was a street level trafficker at the lowest rung of the hierarchy and he was selling drugs to support his own addiction. ( R v.

Henry , 2017 BCSC 1627 ). [ 61 ] A sentence of 19 months followed by 18 months of probation was given to a 41 year old for possession for purpose of trafficking 8.3 grams of fentanyl/cocaine mixture and 7.2 grams of methamphetamine. He had $50 in cash and was clearly a street level drug dealer. He has a significant prior record which reflected his long standing drug addiction ( R v. Butler, 2017 BCPC 315 ). [ 62 ] Lastly, an effective sentence of 26 months was imposed for possession for purpose of trafficking in methamphetamine, cocaine and 5.55 grams of a combination of heroin and fentanyl.

The drugs were valued at around $1,661. She had $842 in cash and was a low- level dealer. The sentence imposed for trafficking in methamphetamine and cocaine was one year on each count, but was to be served concurrently to the 26 months imposed for the heroin/fentanyl mixture. ( R v. Montgomery , [2018] B.C.J. No. 3324 ). Discussion and Analysis: [ 63 ] Turning to the mitigating factors, Mr. Vagh has pleaded guilty to the offence. He has no prior criminal record and has the support of his family.

He achieved a post-secondary education and has, in the past, been a productive member of the community. [ 64 ] The aggravating factors must include the particular circumstances here. [ 65 ] First, during the initial attempted arrest of Mr. Vagh and his passenger, Mr. Vagh drove off at a high rate of speed, striking Constable Stewart as he did. Fortunately, the officer was not seriously injured. Mr. Vagh, through his counsel, indicated that the reason he fled the scene was because he may have had some concern that the officers in the unmarked car were not police but other unsavoury individuals.

That is inconsistent with the non-contested submission of Crown that as the officers approached the doors of the Charger, they yelled at Mr. Vagh, identified themselves as police officers and ordered Mr. Vagh to stop. The Crown must prove the existence of aggravating factors beyond a reasonable doubt. I find that it has established this to the requisite standard. [ 66 ] Also aggravating is that Mr. Vagh was in the process of trying to flee Campbell River at the time he was located and arrested, having stepped into a taxi with instructions to the driver to take him and his co-accused to Nanaimo. [ 67 ] Mr.

Vagh’s circumstances are not similar to the street level drug addict who is selling small quantities of drugs to support a drug habit. Although he has an education, he chose not to pursue legitimate employment and instead was in the business of selling drugs, some of which may well have been lethal. His motive was purely for profit and this is aggravating. [ 68 ] He had a significant amount of cash - over $47,000 - which were in bundles. One of those was an envelope entitled “Campbell River”.

He had rented an apartment in Campbell River and Constable Ickringill’s opinion was that other personnel were reporting back to him and providing cash from their drug sales. This has all the hallmarks of a relatively sophisticated operation and one I would characterize as mid-level. [ 69 ] The case authorities provided by counsel for Mr.

Vagh are distinguishable as relating to cases that do not involve fentanyl or where the offender was a street level drug dealer selling small quantities of drugs to support their own addiction. [ 70 ] The case authorities provided by Crown counsel were of some assistance, but the case that is most similar to Mr. Vagh’s case is the decision in Chin. The quantities of cash and drugs seized were similar although the drugs had a higher estimated value. A firearm and ammunition were found in the residence of the accused which were aggravating factors. Those factors are not present in Mr. Vagh’s case. However, Mr.

Vagh fled the scene of an attempted arrest, striking an officer with his car as he sped away and was in the process of making a quick getaway in a taxi when he was arrested. This is more aggravating in my view than the presence of an improperly stored firearm. [ 71 ] The offender in Chin also had no prior drug offences although he had a prior criminal record. [ 72 ] In Chin , at paragraph 66, Madame Justice Ker said this about the negative effects of drugs containing fentanyl,: Cocaine and heroin have been notoriously dangerous and destructive for some time. Of that, there is no issue.

But in approximately the past three years, fentanyl has far eclipsed those other two substances. I agree with the Crown that fentanyl-related offences are now among the most, if not the most, serious drug-related offences – at the pinnacle of the hierarchy of seriousness of hard drug offences. [ 73 ] And at paragraph 68: … I agree completely with the Crown’s analogy of Russian roulette for the purchasers of this substance. [ 74 ] I adopt those comments.

The deadly consequences to people who by virtue of an addiction continue to take drugs, and the callous disregard of those consequences including death by the dealers who sell these drugs, must be given significant weight in assessing a fit sentence. This is so, particularly, when the drug dealer is higher up in the chain and is motivated purely for monetary profit. The street level addict who sells smaller quantities only to be able to continue taking drugs themselves, is not in the same category. [ 75 ] In assessing a fit and just sentence, deterring Mr.

Vagh or anyone else who is inclined to make money in this manner must be given substantial weight. Significant weight must also be given to the community’s abhorrence of this manner of illegal conduct by people who sell drugs, particularly when it involves an organized mid-level operation or higher.

[ 76 ] Mr. Vagh’s rehabilitation is also important. He is intelligent and has been able to obtain an education and will be able to once again become a productive member of society. He also has the support of his family when he is released. Conclusion: [ 77 ] To conclude, a fit and proper sentence must reflect the lethal nature of the heroin/fentanyl mixture he was selling and the fact that this was not a low-level street operation. It must reflect the aggravating and mitigating factors. [ 78 ] Denunciation and deterrence are the primary sentencing principles here. I also believe that Mr.

Vagh has the opportunity to better himself while in custody whether by courses in further education or other programming that will be available. [ 79 ] As established by the BC Court of Appeal in Smith , the range of sentence for first time offenders who are selling fentanyl is between 18 months to 36 months and beyond that in certain circumstances. [ 80 ] A fit and proper sentence in all the circumstances of this case is a sentence of 40 months less credit for time already served in custody. Had Mr. Vagh not pleaded guilty, the sentence would have been higher. [ 81 ] Crown seeks an order pursuant to

section 487.051 of the Criminal Code that on secondary grounds, Mr. Vagh provide a sample of his DNA for registration in the national DNA database. The offence is such that an order is discretionary. I am satisfied that it is in the best interests of the administration of justice that such an order be made and I order that Mr. Vagh provide a sample of his DNA. [ 82 ] There will a mandatory weapons prohibition pursuant to

section 109 of the Criminal Code for 10 years. [ 83 ] Crown is seeking an order that certain items seized during the arrest be forfeited pursuant to

section 16 of the Controlled Drugs and Substances Act . Counsel agreed that this order is appropriate, except as it relates to the Dodge Charger which will be the subject of a further application. Accordingly, all items on the Major Exhibit Flowchart marked as Exhibit 6 - with the exception of items 1 and 2 (Dodge Charger and Keys) and 10 - are to be forfeited to Her Majesty to be disposed of in accordance with the directions of the Attorney General, as defined in

section 2 of the Criminal Code . BY THE COURT _____________________________ The Honourable Judge B. Flewelling