R. v. Diep, 2013 BCSC 1587

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Diep, 2013 BCSC 1587 Date: 20130822 Docket: 32080-2 Registry: Williams Lake Her Majesty The Queen v. Mai Van Diep Before: The Honourable Madam Justice Watchuk Oral Reasons for Sentence Counsel for the Crown: H. Pineo Counsel for the Accused: S. Sugarman Place and Date of Hearing: Vancouver, B.C. August 9, 2013 Place and Date of Judgment: Vancouver, B.C.

August 22, 2013 INTRODUCTION [ 1 ] Mai Van Diep has been found guilty of the offences of production of marihuana and possession for the purpose of trafficking marihuana. [ 2 ] On this sentencing hearing the issue is whether Mr. Diep should serve a jail sentence in an institution or in the community.

CIRCUMSTANCES OF THE OFFENCE [ 3 ] On July 13, 2011, members of the RCMP under the authority of a search warrant for the offence of theft of hydro, entered and searched the property at 6136 Likely Road in Likely, B.C. (the “Property”). [ 4 ] The Property consists of a trailer and a three-level building on five acres of land. [ 5 ] The trailer was uninhabitable and used only for storage. In the building there were bare living accommodations in the attic area on the third level of the building. Mr.

Diep was located hiding there when the search warrant was executed. [ 6 ] The search of the building located 2,632 marihuana plants in various stages of growth. There were five grow rooms with plants in the vegetative state, early bud stage and budding stage. There was also a drying room. [ 7 ] On the first floor of the building was located some bear spray and grow chemicals. Equipment and supplies for the grow operation were also located throughout the building. [ 8 ] There was no vehicle found on the property. [ 9 ] The living quarters of the building were sparse.

The attic bedroom had a mattress on the floor, a television, and a chamber pot instead of a washroom. The kitchen area contained a single stove element, a microwave and kitchen utensils, a shelf with food, and a homemade shower area. There was no heat in the building other than that generated from the grow lights. [ 10 ] A large amount of alcohol was located in the building. There were many large bottles of Canadian Club whiskey, some in boxes of bottles, in the kitchen and bedroom areas, as well as on all three floors of the building.

Multiple cases of beer were also noted. [ 11 ] Counsel filed admissions with regard to the quantity and value of the marihuana: 1. When harvested the two thousand six hundred and thirty two marihuana plants seized from Mr. Diep upon maturity would have a yield of, at minimum if plant is not healthy, 2632 ounces or 124 pounds or 73,696 grams and at maximum, if plant is healthy, 7896 ounces or 493 pounds or 221,088 grams. 2. Marihuana is sold in the Caribou Region, specifically Williams Lake for the following:

i. 1 pound from $2000 to $2800 ii. 1 ounce from $200 to $300 3. The value of these plants when sold at the ounce level would be between $526,400 and $2,368,800. 4. The value of these plants when sold at the pound level would be between $347,200 and $1,380,400. CIRCUMSTANCES OF THE OFFENDER [ 12 ] Mr.

Diep has a criminal record with the following convictions: • 1987 - Kamloops Provincial Court - theft under $1000, fine of $250; • 1991 - Surrey Provincial Court - theft under $1000, fine of $400; • 2000 - Surrey Provincial Court - theft and production of a controlled substance, jail of six months on each charge and probation of one year; and • 2001 - Vancouver Provincial Court - assault, probation of one year. [ 13 ] The Pre-Sentence Report as corrected and amended by defence counsel was of assistance regarding the background and situation of Mr. Diep. [ 14 ] Mr. Diep is 46 years old.

He was born in Vietnam and was the youngest of nine children. When he left Vietnam age age 14 to emigrate to Canada, he spent two years in a camp in Thailand. [ 15 ] In 1983 he was legally sponsored to come to Canada by an older brother who lived in Kamloops. His work history in Canada commenced with work in a bakery for one year and then harvesting cucumbers for one year in Kamloops. [ 16 ] At age 20 he moved from Kamloops to Toronto where he lived for four years. There he worked in factories. [ 17 ] He returned to British Columbia to live with an older sister in Surrey at age 24 in 1991.

From 1991 to 1999 he was doing well working as a welder. [ 18 ] However in 1999 his marriage deteriorated and he started drinking. In the two years from 1999 to 2001 he was drinking heavily. In those years he was divorced, convicted of assault, quit his job, and convicted of the first grow operation offence. [ 19 ] From 2003 to 2006 he was again working as a welder but was laid off due to his alcoholism. For two years thereafter he worked in a recycling plant in Richmond where because of his small size he needed to work hard.

His physical state as a result of the continued daily drinking made the work impossible for him. [ 20 ] From 2009 to 2011 he was unemployed. It was during that time that he was arrested at this grow operation. [ 21 ] From the time of his divorce until 2010, he and his former wife continued the relationship off-and-on. In the fall of 2010 he decided to leave the Lower Mainland to distance himself from his former wife. He then took the job working at the grow operation in Likely in order to leave the Lower Mainland and to save some money to return to Vietnam.

It was his opportunity to move away from the Lower Mainland. [ 22 ] At the time he was drinking heavily. His employer, when he came to the grow operation, would deliver cases of whiskey for Mr. Diep. [ 23 ] After Mr. Diep was charged with the offences here at issue, he moved back to Surrey to live with his sister in the summer of 2011. He met his second and current wife, and now lives with her and her son. He quit drinking. Since April 2012 he has worked full- time with Accurate Aluminum. He regularly pays support to the two children of his first marriage.

He has remained sober and promised his wife that he will continue to do so. [ 24 ] In his statement to the court, Mr. Diep said that the things he did in the past he was very sorry for and very remorseful. He promised that it would not happen for the rest of his life because now he has a good wife, a stable job, and he loves his job. He wants to continue in his job and live a good life. POSITION OF THE PARTIES [ 25 ] It is the submission of the Crown that a fit sentence in the circumstances is jail of two years less one day.

The Crown strongly opposes the granting of a conditional sentence order. [ 26 ] On behalf of Mr. Diep, it is submitted that the fit sentence is a conditional sentence. It is submitted that in all of the circumstances, given Mr. Diep’s background, the motivation at the time that he became employed at the grow operation, and the steps that he has taken since then in furtherance of his rehabilitation, a sentence lower than the usual range is appropriate.

AGGRAVATING AND MITIGATING CIRCUMSTANCES [ 27 ] The aggravating circumstances of these offences are: • Mr. Diep has a previous conviction for trafficking and production of marijuana. This is a statutory aggravating factor pursuant to s. 10(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19. • The nature of this grow operation is an aggravating circumstance. It was large, with 2632 healthy looking plants in all stages which took an entire building, had a significant value per crop, and was the second crop to be grown after one harvest.

It was mid-range in sophistication with an electrical bypass and light timers, but manually watered. The only weapon located was the bear spray. • With regard to the geographical area, Mr. Diep moved to the remote area of Likely in order to work at the grow operation. This is a concern to the local residents. [ 28 ] The following are the mitigating circumstances: • Mr. Diep was co-operative with the police from the outset. He provided a long statement to the police at the Detachment after his arrest. He was then released without conditions. • Mr. Diep has expressed sincere regret and remorse.

He has shown insight into alcohol as a major contributing factor to his involvement in this criminal enterprise. • He has, on his own, stopped drinking. He has been sober for approximately two years. He has a stable job and a family with his new wife and her son. He also supports his children from his first marriage. [ 29 ] Although the Crown submits that Mr. Diep was aware of the hydro bypass and that his knowledge is an aggravating factor, the defence disputes the allegation. It has not been proven beyond a reasonable doubt. [ 30 ] It is not in dispute that Mr.

Diep played a role which is commonly referred to as “the gardener”. Although he was neither a principal nor the directing mind of the enterprise, he played an essential role in the cultivation process as the only person who regularly attended to the marihuana crop. DISCUSSION [ 31 ] In this sentencing hearing, there is no issue that Mr. Diep should be sentenced to a period of jail for his role in the grow operation in Likely.

The issue is whether that jail sentence should be served in an institution or in the community by way of a conditional sentence. [ 32 ] There is also no issue that, with regard to the requirements for eligibility for a conditional sentence in this case as stated in s. 742.1 of the Criminal Code , R.S.C. 1985, c. C-46, Mr. Diep meets the first two main requirements. The fit sentence for this offence is less than two years, and the community is not endangered by Mr.

Diep serving a sentence in it. [ 33 ] The third requirement for the imposition of or eligibility for a conditional sentence is the issue: Is a conditional sentence consistent with the purposes and principles of sentencing including denunciation and general deterrence? [ 34 ] With regard to general deterrence, the Crown submits that the sentence should address the stronger need for general deterrence because of the size of the grow operation and its location in this specific geographic area where grow operations are a recognized problem. Crown counsel also points out that this is Mr.

Diep’s second marihuana-related offence. [ 35 ] It is submitted on behalf of the defence that because Mr. Diep has made great strides towards his rehabilitation, that principle of sentencing supports a conditional sentence. [ 36 ] The development of the law of eligibility for a conditional sentence in marihuana grow operations has been well set out in many cases at all levels of court. Of particular assistance are the cases, including the case summaries, in R. v. Chen , a decision of Judge Bayliff of the Provincial Court in Williams Lake indexed at 2011 BCPC 297 ; R. v.

Koenders , 2007 BCCA 378 , where Madam Justice Ryan provided a detailed review of the jurisprudence; and R. v.

Farewell , 2007 BCSC 160 , which reviews the case law. [ 37 ] It is not necessary to cite the extensive summaries provided in these and other cases other than to quote from Koenders where Madam Justice Ryan stated in paras. 12, 13, 22, 37 and 42: [12] These passages clearly show that there is no presumption in favour of or against a conditional sentence, including offences related to the production of marihuana. [13] That being said, it is my view that a discernible range and approach to sentence has developed in this Court with respect to production of marihuana and related offences that turns most crucially on the commercial nature of the offence and the personal circumstances of the offender. … [22] Obviously there are cases that are not driven solely by commercial benefits.

Purely non-commercial marihuana grow operations are generally regarded as being the least serious manifestations of the offence of production. Production solely for personal use or solely for the medical use of others will often attract a non-custodial sentence. Thus, as the level of commerciality increases, so does the

seriousness of the offence . ... [37] As these cases indicate, there are multiple factors that go into the determination of whether conventional incarceration or a conditional sentence is appropriate. However, I will not review all of the other cases that have made their way to this Court. Where conditional sentences or very short sentences of incarceration have been imposed for the commercial production of marihuana it is possible to find a collection of mitigating personal circumstances. In many cases, there has been a guilty plea coupled with a joint submission. In other cases, there are health or age issues.

Yet again in others the appellant has played a very minor role. ... [42] In the end, the gravity of the offence must be examined along with the personal circumstances of the offender. The cases reveal, with some anomalies, that when dealing with the principal of a large scale, purely commercial operation, with few if any mitigating factors in the personal circumstances, this Court has imposed or sustained a period of at least one year of conventional incarceration.

Where less serious offences are involved, and there are mitigating circumstances, this Court has determined that a strict conditional sentence can properly address the goals of denunciation and deterrence. [Emphasis added] [ 38 ] It is the able submission of defence counsel that although this is a serious offence, there are significant mitigating circumstances for Mr. Diep. His state of mind at the time that he was living and working at the grow operation was determined by his heavy addiction to alcohol.

For two to three hours a day he would water and tend the plants; for the balance of the day living alone in the wilderness in an unheated house with no car and little food, he would drink. The whiskey and beer were delivered by his employer who would occasionally come to the property in Likely. [ 39 ] I accept that Mr. Diep took the job in Likely because he wanted to leave the Lower Mainland in order to sever the unhealthy relationship with his former wife. He was not primarily motivated by financial considerations. [ 40 ] The addiction to alcohol affected his life negatively from 1999 until this arrest.

During the two years after he started drinking, the most recent three of four prior offences on his criminal record were committed, including the prior production conviction. There has been a 13-year gap since that prior offence, and a 12-year gap with no further convictions. [ 41 ] Rehabilitation is the principle most relied on by the defence. Since his arrest for these offences, Mr. Diep has become sober, remarried, has a good relationship with a supportive wife, and has a good job that he loves. He accomplished this on his own and is motivated to continue with his rehabilitation.

He is remorseful and insightful as to the reasons for his offending. [ 42 ] The cases relied upon by the defence to support the submission that the court can impose a sentence below the usual range of one to two years jail include R. v. La , 2002 BCCA 197 , which states: “That is not to say that being a first time offender is a condition precedent to receiving a conditional sentence. Clearly, it is not.” (at para. 10). [ 43 ] The principle of proportionality is discussed by Mr. Justice Romilly in R. v. Lee , 2013 BCSC 61 . He states at paras. 14 and 15: [14]

Section 718.1 of the Criminal Code states that any sentence imposed must be “proportionate to the gravity of the offence and the degree of responsibility of the offender.” This is the fundamental principle of sentencing in Canada: [citations omitted]. [15] The primacy of the proportionality principle to the imposition of just sanctions and its constitutional underpinning cannot be doubted: [citations omitted]. Careful adherence to the proportionality principle ensures that any particular offender is not unjustly dealt with for the sake of the common good: [citations omitted]. [ 44 ] At para. 18 of R. v.

Lee is cited the Supreme Court of Canada’s decision in R. v. Nasogaluak , 2010 SCC 6 , [2010] 1 S.C.R. 206: The wide discretion granted to sentencing judges has limits. It is fettered in part by the case law that has set down, in some circumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code . But it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules.

A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. [ 45 ] Crown counsel relies on the case of R. v. Do , 2012 BCSC 967 , as being a case where a similar offence was committed by a similar offender.

In that case, a sentence of incarceration for two years less one day was imposed. [ 46 ] In Do , the offender was also born in Vietnam. He was 46 which is similar to the age of Mr. Diep at the time of the offence. Mr. Do also had a prior conviction for production, but with a gap of 8½ years. Both circumstances involve a hydro bypass although in neither is there a finding that the offender knew of it. Mr. Do was the gardener of a 2100 plant grow operation in a residential neighbourhood in Pemberton, B.C. He did not live there and was only seen there one time. Mr.

Do was accepted to be a loving and supportive father. [ 47 ] In sentencing Mr. Do, the court stated at paras. 72-75: [72] While I recognize that the size of the grow operation cannot, in isolation, dictate the nature or quantum of the penalty, it is also the case that sentences for larger commercial operations will generally be more severe than those for non-commercial production: see Koenders at paras. 19 - 22 . The greater the size of the operation, the greater the chance that it will attract ancillary crime, including grow

operation rip-offs that too often involve violence. [73] While general deterrence and denunciation are important considerations, they are not the only considerations. All of the principles of sentencing must be taken into account, including Mr. Do's prospects for rehabilitation, which I consider to be favourable. [74] At the end of the day, Mr. Do's moral culpability is quite high. He is a repeat offender. He made a choice to involve himself in a large-scale commercial marihuana grow operation.

The only possible reason for him to have done so is to benefit from the financial rewards the opportunity to participate presented. The need for a sentence that deters others and denounces this type of activity is pressing. [75] In all the circumstances of this case, I conclude that a conditional sentence order would be inconsistent with the fundamental purpose and principles of sentencing.

In my view, such a sentence would not properly reflect the moral culpability of this offender or the need to condemn his conduct and deter like-minded individuals from involving themselves in these serious offences. [ 48 ] In this case it is the submission of the Crown that the principles of general deterrence and denunciation are the primary considerations. [ 49 ] Whether those principles of sentencing can be adequately addressed by a conditional sentence is the issue. Mr. Diep made a decision to work at this grow operation. It was an informed decision particularly given his prior conviction for production.

The decision was implemented over many months at a large grow operation. [ 50 ] In all of the circumstances, including that this was a very large grow operation with 2632 plants in all stages of the second crop of a relatively sophisticated enterprise conducted for commercial purposes, I am not satisfied that this is an appropriate case for a sentence below the range. [ 51 ] The circumstances of the offender are also an important consideration in sentencing. While I accept that Mr.

Diep’s state of mind at the time of the offences reduces his moral culpability, and that rehabilitation plays an important role in this sentencing, I am not of the view that a conditional sentence is the fit sentence. [ 52 ] However, the circumstances of this offender differ from those in the case of Do . Mr. Diep’s primary motivation was not financial gain but a desire to leave the Lower Mainland. His addiction played a significant role in the poor choices he made at that time of his life. His rehabilitation since the offences is dramatic. Mr.

Diep, as a result of his own efforts and hard work, has made great strides in his rehabilitation and sobriety in the two years since the offences. He is now a contributing member of society and part of a healthy family. I am therefore satisfied that a sentence of jail at the lower end of the range is appropriate. [ 53 ] Mr. Diep will you please stand. [ 54 ] I sentence you sir to 14 months in jail. [ 55 ] There will also be the following ancillary orders: 1. There will be a s. 109 weapons prohibition for life; 2. There will be a DNA sample pursuant to s. 487.09; 3.

There will be forfeiture by consent of all equipment and chemicals and the bear spray; and 4. The victim fine surcharge is, of course, waived. [ 56 ] Thank you counsel for your assistance throughout. “The Honourable Madam Justice Watchuk”