R. v. Nguyen, 2013 BCSC 2320

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Nguyen, 2013 BCSC 2320 Date: 20131010 Docket: 32073-2 Registry: Williams Lake Regina v. Hai Thanh Nguyen Before: The Honourable Madam Justice Ker Oral Reasons for Sentence Counsel for the Crown: C.B. Tait Counsel for the Accused: R. Dick Place and Date of Hearing: New Westminster, B.C. September 10, 2013 Place and Date of Sentence: New Westminster, B.C. October 10, 2013 I. Introduction [ 1 ] THE COURT: On May 9, 2013, Hai Thanh Nguyen appeared in B.C.

Supreme Court in New Westminster and entered a guilty plea to the following charge: Count 1 Hai Thanh Nguyen, on or about the 20 th day of May, 2011, at or near Likely, in the Province of British Columbia, did unlawfully produce a controlled substance, to wit: Cannabis (marijuana), contrary to Section 7(1) of the Controlled Drugs and Substances Act . [ 2 ] The matter was put over for the preparation of a technical suitability report. On September 5, 2013, Lori Parsons, a probation officer with the Surrey East Community Corrections Office, completed a technical suitability report indicating Mr.

Nguyen is a suitable candidate for electronic monitoring should the Court impose a community-based disposition. [ 3 ] Mr. Nguyen, his counsel and Crown counsel appeared for sentencing submissions on September 10, 2013. The matter was put over to today for the imposition of the sentence. II. Circumstances of the Offence [ 4 ] In the spring of 2011, Williams Lake RCMP were engaged in routine patrols of the rural area of Likely, B.C. As they drove past 6211 Keithley Creek Road, they noticed a strong odour of marihuana.

Further investigation through FLIR imagery and Hydro records for the property provided the RCMP with grounds to obtain a search warrant for the property. [ 5 ] They executed the search warrant at 9:30 a.m. on May 20, 2011. Inside the residence there was a strong smell of vegetative marihuana. Mr. Nguyen was found in the bedroom hiding under a blanket on a mattress. [ 6 ] A search of the residence revealed a large-scale, commercial marihuana grow operation in the basement. On the main floor the police located an empty grow room and clone room in the laundry.

The empty grow room was equipped for growing and had approximately 10 bags of dried marihuana bud totalling about 2.8 kilograms. The clone room contained 400 cloned plants under fluorescent lights as well as nutrients, boxes of lights, and other equipment associated with marihuana grow operations. [ 7 ] The kitchen area contained bottles of pH buffer and plastic bags on the table. Four calendars for 2009 and 2010 contained growing instructions. [ 8 ] In the basement there were four growing rooms with plants at various stages of growth through to the budding phase.

A total of 1,336 plants were found in the residence, mainly in the four basement grow rooms. Each room was equipped with timers, ballasts, lighting, plastic sheeting, venting, and other typical paraphernalia found in a grow operation. [ 9 ] Numerous bags of potting soil were located on the back porch of the residence. Inside the residence were a number of large

bags of Promix High Porous Substrate. [ 10 ] The photographs contained in Ex. 2 depict a sophisticated grow operation. The calendars and the presence of four dumping areas on the property where planters were dumped out once the marihuana was harvested established that the grow operation had been in existence for a significant period of time. Indeed, Mr. Nguyen acknowledges that he had been living at the residence for at least two and a half years working largely as a gardener tending to the grow operation. [ 11 ] Although Mr.

Nguyen was the registered owner of the property, he did not actually purchase the property. He was simply put on title in October 2006, no doubt to insulate the true owners of the enterprise from detection. The property was purchased for approximately $90,000 and there was an $80,000 mortgage on it. Mr. Nguyen did not pay for the property; he was simply an owner on paper. [ 12 ] Mr. Nguyen was sent to the property, described as a nine-acre stump farm in a rural locale, to tend to the grow operation.

He was sent there in order to work off a significant debt he had incurred with loan sharks to cover his gambling debts. [ 13 ] Notably there are five features usually present in grow operation cases that are absent in the circumstances of this case. There was no electrical by-pass, there were no booby traps in the house, the grow operation was not in a residential area, no children were living in the house and no weapons were found in the house.

Therefore, apart from the size of the grow operation, none of the aggravating factors enumerated in s. 10(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 [ CDSA ], or the other usual aggravating features found in grow operation cases are present in this case. [ 14 ] I indicated that 1,336 plants were seized in this case. Cst. Palmquist provided an opinion as to the crop’s estimated yield and value. The yield was calculated at three ounces of marihuana bud per plant, representing 4,008 ounces or 250 pounds of marihuana bud.

Even if the yield from the grow operation was reduced to one ounce per plant, the yield would be 1,336 ounces or 83.5 pounds. [ 15 ] The value of the marihuana seized was not insignificant. Prices for marihuana at the pound level at the time was calculated at between $2,000 and $2,800 per pound, or $200 to $300 per ounce. Cst. Palmquist opined that the value of the marihuana seized in this case, assuming a yield of 4,008 ounces or 250 pounds, would have been as follows: if sold at the ounce level, between $801,600 and $1,202,400; and if sold at the pound level, then between $500,000 and $700,000. Counsel for Mr.

Nguyen conceded that this particular grow operation was on the larger side of the commercial spectrum. III. Circumstances of the Offender [ 16 ] Mr. Nguyen is 38 years old. He was born in Vietnam and moved to Canada when he was 11 years old. His father was one of the Vietnamese boat people refugees in the late 1970s or early 1980s. His father arrived first, established himself, and then sponsored his family to come to Canada. This was a five-year process. The family was reunited in British Columbia in approximately 1986. [ 17 ] Mr. Nguyen spoke no English on his arrival.

He has learned English, completed Grade 11 and has part of his Grade 12, but did not graduate. Academics were not Mr. Nguyen’s strength, and upon leaving high school he went to work full-time at McDonald's. In 1996, his parents bought a home in Surrey, B.C., and he moved in. He went to work in a factory making tortillas, where he worked for approximately eight months. Wanting work that was more fulfilling, Mr. Nguyen took a casino card dealing course, and in 1997 he was hired by the casino in Newton. Mr.

Nguyen then moved to the Boulevard Casino in Coquitlam, B.C., where he was a card dealer for eight years until 2005. [ 18 ] Regrettably, some card dealers gamble. Mr. Nguyen gambled a lot and was not very good at it. As his counsel described, he was "horrendously in debt". He borrowed money from loan sharks but was never able to get out of debt. He was threatened and then given limited options to work off his debt. The option he selected was running the marihuana grow operation in this case. [ 19 ] He was not the only person working as a resident gardener on the property.

As a gardener, he did not share in the profits of the enterprise. He received a reduction of his debt, a small stipend to cover his living expenses, and some money to send to his wife. [ 20 ] Mr. Nguyen's involvement in this offence was not greed-based per se ; rather, it was fear-based as he believed he had little choice but to be a gardener to work off his debt. His debt was cancelled on his arrest. His counsel advises that Mr. Nguyen was relieved to be arrested. Despite the motivation to reduce his debt not being greed-based per se , it was certainly rooted in financial circumstances. [ 21 ] Mr.

Nguyen is married and has an eight-year-old daughter. He has no criminal record prior to this offence. With this conviction he can no longer work in casinos. I doubt that this is actually a significant detriment given his predilection for gambling. [ 22 ] Mr. Nguyen, his wife, and daughter live in the basement suite of Mr. Nguyen's parents' home in Surrey. Letters of support from his wife, younger brother, and mother, collectively Ex. 4, indicate the disappointment and shock that the family has experienced by learning of Mr. Nguyen's involvement in crime.

However, they steadfastly support him and urge the Court to consider a community- based disposition so Mr. Nguyen can continue to work and support his young family. [ 23 ] Following his arrest, Mr. Nguyen was released on a promise to appear. He has remained on bail since his release without further incident. Upon his return to the Lower Mainland, he enrolled in a course of study in Nail Technology at the Roggendorf School of Hairdressing and Nails in Surrey. He graduated on September 30, 2011, after successfully completing a 400-hour course of study.

Between November 2011 and January 2012 he took on the duties of a nail instructor at Roggendorf and was described by a colleague as showing "excellent skill in all nail technique and customer service." Since December 2012, Mr. Nguyen and his wife have managed, seven days a week, a nail salon and spa in Tsawwassen, B.C. Collectively, they earn a gross income of approximately $5,000 a month. [ 24 ] Mr. Nguyen's counsel advised the Court that Mr. Nguyen is a man who is motivated to try and make things right. He waived his right to a preliminary hearing.

He waived the charges from Williams Lake to New Westminster for the purposes of pleading guilty.

[ 25 ] Mr. Nguyen has very clear feelings of remorse and no doubt shame in disappointing his family. He advised the Court that he has been through difficult times. He has made mistakes, learned his lesson, and promises he will not be back before the courts again. [ 26 ] Mr. Nguyen has already consented to forfeiture orders in respect of the property and exhibits seized. Those orders, pursuant to s. 16 of the CDSA , were made on September 10, 2013. [ 27 ] It is clear Mr. Nguyen is remorseful for his involvement in this enterprise.

Moreover, he has taken significant steps towards rehabilitation and becoming a productive member of the community through his re-education and now his work in the nail salon/spa business. IV. Impact of the Offence on the Community [ 28 ] The impact of marihuana grow operations on the community is well-known. Marihuana grow operations involve the use of high-intensity, heat-generating lighting, exposed electrical wiring, and Hydro by-passes.

These carry with them the risk of fire, both for the occupants of the building where the grow operation is conducted, where the hydro diversion is located and potentially for adjacent residential property owners. I hasten to add that in this case there was no Hydro by-pass and the grow operation was in a rural area, not in close proximity to other residential properties. [ 29 ] However, there is also the potential for violence where the grow operation's product becomes the target of theft.

Substantial police resources which could be otherwise deployed are dedicated to the investigation of marihuana grow operations, an increasingly ubiquitous form of criminal activity plaguing not only the Lower Mainland, but also the Cariboo region of British Columbia. [ 30 ] In R. v.

Wallis , 2007 BCCA 377 , Madam Justice Levine, writing for the majority of the Court, outlined the concerns the courts have as to the impact of this offence on the community, stating at paras. 29 and 30: [29] Concern for the effect on the community of grow operations is also reflected in Van Santvoord (at para. 42), where Ryan J.A. for the Court said: ... over the years other cases of marihuana production have demonstrated that its illegal production creates the risk that it will attract other illegal activities and dangerous consequences to the community in which it takes place. [30] See also R. v.

Hill , 2007 BCCA 309 at para. 25 where Smith J.A., for the Court, held that it was appropriate for a sentencing judge to take judicial notice of the existence in this province of a significant and lucrative marihuana industry: That there is a significant and lucrative illegal marihuana industry in this province and that it has grown in scale and pervasiveness in recent years can hardly have escaped the notice of any informed citizen of the province. These aggravating facts are within the first class mentioned in R. v. Find [2001 SCC 32 at para. 48] and the sentencing judge did not err in judicially noticing them.

Indeed, this Court has taken judicial notice of the illegal drug trade in previous cases. For example, in R. v. Chang (2002), 179 B.C.A.C. 72, 2002 BCCA 644 , Esson J.A. referred, at paragraph 12, to "the serious social problems that have been and are being created by the great level of drug distribution going on in our community and throughout this province"; in R. v. Aitkens (2004), 202 B.C.A.C. 167, 2004 BCCA 411 , Newbury J.A. remarked at paragraph 7 that "[d]rug trafficking has become a blight in our society in general"; and in R. v.

Van Santvoord , 2007 BCCA 23 , Ryan J.A. said at paragraph 42 that "over the years other cases of marihuana production have demonstrated that its illegal production creates the risk that it will attract other illegal activities and dangerous consequences to the community in which it takes place". [ 31 ] Counsel for Mr. Nguyen has argued that I should not take judicial notice of the fact that production of marihuana is on the increase, arguing that rather it is on the decline. No evidence was adduced to support this proposition. [ 32 ] In R. v.

Laird , 2013 BCSC 59 at paras. 45-55 , Madam Justice Watchuk comprehensively reviews a number of sentencing cases from the Cariboo region in addressing the local circumstances of this community. The decisions cited therein, and relied on by the Crown in this case, all comment on the scourge of marihuana grow operations proliferating in the Cariboo and imperilling the safety of the community. The three Provincial Court judges involved in those decisions are based in the community or sit there regularly. They are no doubt clearly attuned to the prevailing trends in that area.

In Laird the offence occurred in March 2011, in R. v. Chiu, 2010 BCPC 42 , the offence occurred in April 2009, and in R. v. Chen , 2011 BCPC 297 , the offence occurred in March 2009. In R. v. Tsui (September 5, 2012), Williams Lake 32060-1 (P.C.), the offence occurred in January 2011. In Tsui the Honourable Judge Bayliff, in reviewing the need to deter illegal conduct, stated at paras. 22 and 23: [22] Another consideration is the magnitude of the problem. Large commercial marihuana production of the sort that Mr.

Tsui was involved in is a serious issue in the Cariboo, as it would appear it is in many other parts of this province. The court sees many of these cases here in the Cariboo, and it seems that there has been a rather dramatic increase in the numbers since about 2007 or 2008, almost as if there were a wave moving north. This fact leads, I believe, to at least two findings. First, the sentences that have been imposed to date are not acting as a deterrent. Second, the investigation of such matters and their progress or process through the court system is a large drain on limited public funds.

There is a significant cost to the community in the dollar amount required for the police to investigate these matters and for the justice system to process them. [23] There is a cost as well in the reduced opportunity for other citizens to access these same public resources such as police services and court services.

For these reasons as well, it seems to me that it is important to deter persons from getting involved in the marihuana industry. [ 33 ] Although in 2013 it may be unclear whether marihuana grow operation cases are currently on the rise or in decline, certainly between 2008 and 2011 the marihuana production files were a ubiquitous problem in the Cariboo region, creating a high demand on limited local police and judicial resources: R. v. Chen at para. 69 .

[ 34 ] As in Wallis at para. 30 , it is appropriate to take note of the fact that there remains, at the very least in 2011 when this offence occurred, a significant and lucrative marihuana industry in this province. V. Legal Parameters [ 35 ] Parliament has prescribed a maximum penalty of seven years imprisonment for the offence of producing marihuana. There is no minimum sentence in this case, but I note that since November 6, 2012, there is a mandatory minimum sentence of six months imprisonment for this offence.

This new provision is not retrospective; consequently, I proceed with the sentencing provisions in effect at the time of the offence. [ 36 ] Section 10(1) of the CDSA explains the purpose of sentencing for an offence under that Act : 10.

(1) Without restricting the generality of the Criminal Code , the fundamental purpose of any sentence for an offence under this

Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [ 37 ] Section 10(2) sets out a number of factors that are to be treated as aggravating factors. None of those statutorily enumerated factors are present in this case. VI. Positions of Counsel [ 38 ] Crown counsel submits that a fit and appropriate sentence is an 18-month term of imprisonment served in a correctional facility.

Crown also seeks a mandatory s. 109 firearms prohibition order and a DNA Databank order, as production of marihuana is a secondary designated offence under s. 487.04 of the Code . As I noted earlier, forfeiture orders pursuant to s. 16 of the CDSA were sought and made on September 10, 2013. [ 39 ] In support of his position, Crown counsel relies upon the following authorities: 1. R. v. Koenders , 2007 BCCA 378 , where the Court of Appeal upheld a sentence of two years less a day imprisonment and two years’ probation for a 40-year-old offender with a criminal record.

He was one of the principals in running a grow operation on a rural property outside Courtenay where approximately 2,124 plants in various stages of growth were found in what was described as an ongoing, large- scale, commercial operation. A conditional sentence order was not substituted on appeal although Ryan J.A. did note at para. 12 that there was no presumption in favour or against a conditional sentence including for offences related to the production of marihuana. 2.

Laird, where a 52-year-old ostensibly first offender received a one-year jail sentence for a grow operation in the Cariboo area that had 502 marihuana plants in various stages of growth. It was a second crop. The commercial grow operation was set up to grow medical marihuana for three family members who needed it, but also for Mr. Laird to earn extra money because his financial circumstances were difficult. Mr. Laird was the owner and operator of the enterprise and involved his wife and son in it. 3.

Chiu, where a one-year sentence of imprisonment, not a conditional sentence order, was imposed upon a 51-year-old live-in gardener who was found in a grow operation in a residential area in Williams Lake. 1,331 plants were found. Mr. Chiu was a first offender. The offence involved a Hydro by-pass, but no security measures. Mr. Chiu was under financial pressure to pay medical bills for his ailing mother who still lived in China. 4. Tsui , where a 54-year-old first offender was sentenced to ten months in jail, not a conditional sentence order, followed by one year probation. Mr.

Tsui was the caretaker and gardener of a large, commercial grow operation at a rural property on the outskirts of Williams Lake. A total of 1,608 marihuana plants in various stages of growth were found inside the residence. 5. R. v. Lam , 2011 BCPC 321 , where a first offender caretaker and gardener had travelled from the Lower Mainland to Hixon near Quesnel, B.C., to look after a large scale commercial grow operation. In that case, 1,264 marihuana plants were found in a multi-stage grow operation located on a rural property. [ 40 ] Defence counsel submits that Mr.

Nguyen should receive a conditional sentence order since one of the factors that led to his participation as a gardener and on-paper owner of the property was that he was forced to do this to repay gambling debts to loan sharks, but he has since turned his life around and once again is legitimately employed and supporting his family. [ 41 ] Defence counsel consented to the forfeiture order under s. 16 of the CDSA , consents to the s. 109 mandatory firearms prohibition order, and takes no position on the imposition of a DNA Databank order. [ 42 ] The defence relies upon a number of cases to support his position, including: 1.

In R. v. Neubert , 2001 BCCA 371 , the Court of Appeal reduced the offender's sentence from two years less a day to one year imprisonment to be served by means of a conditional sentence order. The 31-year old offender was convicted of operating a grow operation, where approximately 1,100 marihuana plants were discovered upon the execution of a search warrant.

At para. 5 of Neubert, the Court reiterated the observation of Madam Justice Southin, who had commented in another sentence appeal that "there are so many differing sentences for marihuana offences in this Province that it cannot be said that there is any common judicial opinion as to what is the right thing to do.” [ 43 ] I note that in the 12 years since Neubert, there has been considerable judicial ink employed to try to reconcile the sentences for production cases in this province.

One of the most recent masterful and comprehensive analyses of the jurisprudence can be found in Bayliff P.C.J.'s compendious treatise in Chen , and the Appendix to her judgment in which she reviews 37 Court of Appeal sentencing

decisions for marihuana production offences rendered between 2000 and 2011. Overall, the trend of that body of case law supports the Crown's position that a jail sentence is appropriate. [ 44 ] Of the 37 Court of Appeal decisions in Appendix ‘A’ of Chen, 24 either substitute a jail sentence for a conditional sentence order or uphold a jail sentence. The remaining 13 decisions either substituted a conditional sentence order for a jail sentence or uphold a conditional sentence order. These decisions are, with two exceptions, for considerably smaller enterprises of 85 to 660 plants.

Only two deal with operations that were similar in size to, or larger than, the case at bar. Those decisions were rendered in the early 2000s, pre- Koenders . The authorities in Appendix ‘A’ of Chen therefore support the proposition that although a conditional sentence order is available, the larger the commercial operation, the greater likelihood a traditional jail sentence will be imposed. [ 45 ] I return to the authorities relied on by the defence: 2. In R. v.

Leech , 2013 BCSC 1157 , a 32-year-old first offender with steady employment was sentenced following a conviction for one count of possession of marihuana for the purpose of trafficking, and one count of production of marihuana. 666 plants were found and Mr. Justice Joyce described the venture as a rather unsophisticated, mid-sized operation with no evidence of prior crops having been taken from the site. Mr. Leech was an aider by providing the area where the operation could be carried out but he had no other involvement. Nevertheless, he remained a critical component of the overall venture.

A 15-month conditional sentence order was imposed on each count to be served concurrently. I note Mr. Leech's role was less involved and of a shorter duration than Mr. Nguyen’s. 3. In R. v. Lee , 2013 BCSC 61 , Mr. Justice Romilly imposed a 15-month conditional sentence order on a 49-year-old offender for a small-scale grow operation. There were 247 marihuana plants found inside the home owned by Mr. Lee and his wife. Mr. Lee was steadily employed and supported his family. The operation in Lee was considerably smaller in size than that in the case at bar. 4. In R. v.

Nguyen, 2011 BCSC 1596 , Joyce J. imposed a 15-month conditional sentence order on a 38-year-old first offender for a moderate-sized grow operation of 478 marihuana plants inside the home he and his wife rented. In that case, the offender was in financial difficulty and agreed to let his residence be used for the marihuana grow operation.

He was neither the principal operator nor the gardener, and he did not share in the profits except to the extent that he received free or subsidized rent. [ 46 ] Apart from the size of the grow operation, which was significantly smaller, the personal circumstances of the accused before Joyce J. and the offender before me are somewhat similar. Both men were in difficult financial circumstances; the offender before me facing a significant debt from gambling owed to loan sharks. However, the offender before me was more involved.

He tended the grow operation for as much as four and a half years, as he started his debt repayment services after being placed on title in October 2006. He did not, however, share in the profits. [ 47 ] The next cases the defence relies on are: 5. R. v. Giang , 2010 BCSC 1016 , where Mr. Justice Pearlman imposed 15-month and 10-month conditional sentence orders on a couple, both 51-year-old first offenders, for the mid-sized, relatively sophisticated commercial marihuana grow operation located in their home in a residential area of Burnaby, B.C.

There was a Hydro by-pass, but no weapons or booby traps in the house. 402 plants in various stages of growth were located in six rooms on the third floor of the house. 6. In R. v. DiPalma , 2007 BCSC 879 , Mr. Justice Ehrcke imposed an 18-month conditional sentence order on a 34-year-old first offender that had a mid-sized grow operation in his condominium in Burnaby. 355 plants were located on the premises and he acknowledged that there had been a previous crop. Had there been no forfeiture order in respect of Mr.

DiPalma's strata unit, Ehrcke J. would have imposed a jail sentence of 12 months. [ 48 ] DiPalma predates the trilogy of decisions from the Supreme Court of Canada, most particularly R. v. Craig , 2009 SCC 23 , which establishes that sentencing and forfeiture are two separate enquiries, and that the availability of a conditional sentence order cannot be contingent on whether an offender has property subject to forfeiture. [ 49 ] The final decision the defence relies on is one that I wrote: 7. In R. v.

Petrie , 2013 BCSC 1185 , I acceded to a joint submission that a 12-month conditional sentence order followed by a six- month probation order be imposed. Mr. Petrie was 50 years old, he had no prior criminal record, and he had been employed but fell on difficult times. He became attracted to the Sovereign Man movement and felt he was not bound by the statutory laws of Canada. He was the principal operator of the grow operation located in the basement of his rental home in Maple Ridge.

His 14-year-old son lived there at the time, a Hydro by-pass was in place, and 320 marihuana plants were located in a moderate-sized commercial grow operation in the basement of the residence. [ 50 ] All of the cases relied upon by the defence involve significantly smaller commercial operations than the one Mr. Nguyen was involved in as a caretaker and gardener. [ 51 ] One final case of significant assistance for the comprehensive review of the jurisprudence is Bayliff P.C.J.’s decision in Chen to which I previously referred. In that case, the offender was 40 years old with no prior criminal record.

He was the caretaker and gardener of a large-scale commercial grow operation in a residential area in Williams Lake. In that case, 1,139 plants in various stages of growth were found in the house that had been devoted to the grow operation. A 12-month jail sentence followed by 12 months of probation was imposed. Mr. Chen's plea for a conditional sentence order was rejected. [ 52 ] Collectively the cases I have reviewed demonstrate that a conditional sentence order is not beyond question, even when a large- scale operation is involved.

However, more recently the trend in the appellate and trial authorities has been to reject the appropriateness of a conditional sentence order for a large-scale commercial operation. [ 53 ] Bayliff P.C.J. in Chen , helpfully distilled the key principles from the jurisprudence stating at para. 49:

[49] Key principles that emerge from all of the cases I have reviewed are as follows: 1. Just as it is an error to presume that a conditional sentence is never appropriate for some offences (such as marihuana production)or always appropriate in other situations (such as for first time offender gardeners/caretakers), it is an error to conclude that, because thegrow operation is particularly large or capable of producing a great deal of money, a conditional sentence is not an available sentencingsanction.

A conditional sentence must always be given serious consideration for any offender who meets the pre-conditions set out in s.742.1: Su (2000), Neubert (2001), Innes (2001), Trinh (2001), Shah (2003), Vu (2003). 2. A conditional sentence can have significant denunciatory, deterrent and punitive effects and it is an error to fail to consider thiswhen deciding on an appropriate sanction: R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61, McLennan & Munro (2001), Trinh(2001), Whyte (2002). 3.

It is an error to place either too much or too little emphasis on denunciation and deterrence on the one hand and rehabilitative andrestorative objectives on the other: McLennan & Munro (2001), Neubert (2001), Whyte (2002), Tran (2005), Copeland (2004). 4. It is a common law principle of sentencing that, where possible, courts will not incarcerate first time offenders: Whyte (2002),Trinh (2001), Nguyen (2002). 5.

As it concerns evidentiary findings, a sentencing judge may take judicial notice of the fact that there is a significant and lucrativeillegal marihuana industry in this province and that it has grown in scale and pervasiveness in recent years: Hill (2007) at para 25. Asentencing judge may take account of local conditions when imposing sentence: Wallis (2007), para. 31, Ford (2010), para. 64. 6. Sentences for commercial production of marihuana are heavier than sentences for non-commercial production: Koenders (2007),para 13. 7.

Where the accused is the "caretaker" or "gardener" and has no prior record - this is Mr. Chen's situation - the sentencing optionoften chosen is a conditional sentence. These have ranged in length from 4 months to 20 months with most being either 1 year or 18months in length: Nguyen (2001), Trinh (2001), Nguyen (2002), Godwin (2005), R. v. Huynh, 2006 BCPC 582, Gan (2007), Ngo (2009),R. v. Giang, 2010 BCSC 1016, R. v. Howitt, 2010 BCSC 1475.

However, on other occasions, jail sentences ranging between 9 monthsand 1 year in jail, sometimes with probation to follow, have been imposed for caretakers with no prior record. See Anderson (2007),Kwiatkowski (2010), Lee (2011) and R. v. Nguyen, 1 March, 2011, Vancouver Registry # 202972-1-T (BCPC). 8. Where the accused is the "principal operator" or "directing mind" of the grow operation and has no prior record, conditionalsentences in the range of 1 year to 2 years less 1 day have been imposed. See McLennan & Munro (2001), Neubert (2001), Whyte(2002), Shah (2003), Shaw (2005) and Huon (2010).

In one particularly unusual case, Evers (2011), there was a suspended sentence anda fine of $3,000. In many more cases jail sentences have been imposed, sometimes with probation to follow. The range is from 4 monthsto 2 years less 1 day with most sentences between 8 months and 1 year in jail. See Su (2000), Innes (2001), Vu (2003), Tran (2005), VanSantvoord (2005), Wallis (2007), Koenders (2007), Luu (2007), Vo (2007), Ford (2010), Budd (2010), Kwiatkowski (2010), Au-Yeung(2010), Buller (2011), and Bi (2011). 9.

Where the evidence proves that the accused is involved at the mid to high level of the marihuana trade, courts have generallyimposed jail sentences in the range of 2 years less 1 day to 3 years in jail: Aslam, (2007), Heidarian, (2007), Hill (2007). 10. Where the accused has one or more prior convictions for production or trafficking in drugs this is seen as a serious aggravatingfactor and has generally resulted in sentences of 1 year to 2 years less a day in jail: Tran (2005), Copeland (2004), Readhead (2008), Le(2007). 11.

Where a husband and wife are co-accused the female spouse has generally received a conditional sentence on evidence that shewas less involved and because of ongoing child care responsibilities. These have ranged in length from 9 months to 18 months. See Shaw(2005), Vo (2009), Huon (2010), Buller (2011) and Bi (2011).

The parity principle requires that persons co-accused as the result of thesame grow operation (often these have been spouses) receive similar sentences unless the evidence clearly indicates that they haddifferent levels of responsibility: Huon (2010), Bi (2011). [54] Similar distillations of the animating principles can be found in Joyce J.'s decision in Nguyen at para. 28, and the HonourableJudge Morgan's decision in Chiu at para. 85. VII.

Aggravating and Mitigating Circumstances [55] Before addressing the principles of sentencing applicable to this case, I will enumerate the aggravating and mitigatingcircumstances. [56] The aggravating circumstances include that this was a large-scale, sophisticated, commercial grow operation of which Mr.Nguyen was the caretaker for a number of years, and was certainly on title for the property since October 2006. The absence of a Hydroby-pass, weapons, or booby traps is simply the absence of those aggravating factors. [57] The mitigating circumstances include Mr.

Nguyen's guilty plea, that he did not contest the charges at any stage, the absence of acriminal record, his expressed remorse, the support from his family, and that Mr. Nguyen was released on a promise to appear and hasbeen on bail without incident for two and a half years. VIII. Principles of Sentencing

[58]

Section 718 of the Criminal Code provides that the fundamental purpose of sentencing “is to contribute … to respect for the lawand the maintenance of a just, peaceful and safe society”. This is to be achieved by imposing sentences which have, among others, thefollowing objectives: • separation of offenders from society where necessary; • denunciation of unlawful conduct; • general and specific deterrence; • rehabilitation; and • promotion of a “sense of responsibility in offenders and the acknowledgement of the harm done to the victims and thecommunity.” [59]

Section 718. 2(

d) of the Code states that “an offender should not be deprived of liberty, if less restrictive sanctions may beappropriate in the circumstances” and s. 718.2(

e) of the Code states that “all available sanctions other than imprisonment that arereasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginaloffenders.” [60] In R. v.

Nasogaluak, 2010 SCC 6, the Supreme Court of Canada reviewed the principles of sentencing enumerated in the Codeand held that any sentence imposed, regardless of the weight given to the factors set out in s. 718.1 to 718.2 of the Code, must “respectthe fundamental principle of proportionality”, stating: [40] The objectives of sentencing are given sharper focus in s. 718.1, which mandates that a sentence be "proportionate to the gravityof the offence and the degree of responsibility of the offender".

Thus, whatever weight a judge may wish to accord to the objectiveslisted above, the resulting sentence must respect the fundamental principle of proportionality.

Section 718.2 provides a non-exhaustivelist of secondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parityand totality, and the instruction to consider "all available sanctions other than imprisonment that are reasonable in the circumstances",with particular attention paid to the circumstances of aboriginal offenders. [61]

Section 718.1 of the Code mandates that any sentence imposed must be “proportionate to the gravity of the offence and thedegree of responsibility of the offender.” This is the fundamental principle of sentencing in Canada: Nasogaluak at para. 41. [62] The expectation of reasonable and fair-minded people is that punishment will bear some direct proportionality to the moralculpability of the offence: Lee at para. 16.

A legal system that condones excessively harsh, or for that matter, lenient sentences, willeventually lose the support of many members of the community. [63] Nasogaluak at para. 42 considers what is meant by proportionality in the context of sentencing: [42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender andthe gravity of the offence. In this sense, the principle serves a limiting or restraining function.

However, the rights-based, protectiveangle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure thatoffenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and theharm they caused (R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 81; Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, at pp. 533-34, per Wilson J., concurring). Understood in this latter sense, sentencing is a form of judicialand social censure (J. V. Roberts and D. P.

Cole, "Introduction to Sentencing and Parole", in Roberts and Cole, eds., Making Sense ofSentencing (1999), 3, at p. 10). Whatever the rationale for proportionality, however, the degree of censure required to express society'scondemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moralculpability, and not greater than it.

The two perspectives on proportionality thus converge in a sentence that both speaks out against theoffence and punishes the offender no more than is necessary. [64] In Nasogaluak the Supreme Court of Canada also considered the “range of sentence” concept and indicated, at para. 44, thatsentences constitute "guidelines rather than hard and fast rules": [44] The wide discretion granted to sentencing judges has limits.

It is fettered in part by the case law that has set down, in somecircumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions inaccordance with the principle of parity enshrined in the Code. But it must be remembered that, while courts should pay heed to theseranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordancewith the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is notnecessarily unfit.

Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community inwhich the offence occurred. [65] In this case, the principle of deterrence and denunciation must receive primary emphasis. However, the principles ofrehabilitation and restraint are equally important in this case. [66] Because the defence seeks a conditional sentence order, I must address the pre-conditions for such a disposition. In this case,the appropriate sentence is less than two years. Serving the sentence in the community will not endanger the safety of the community.Mr.

Nguyen has been on bail for two and a half years without incident, he is gainfully employed and supporting his family, and he isunder the watchful eye of his parents. The pre-conditions for a conditional sentence order are therefore met. [67] The real issue is whether a conditional sentence order in the circumstances of this case and with this offender would beconsistent with the fundamental purpose and principles of sentencing contained in s. 718 to 718.2 of the Code.

[68] In this particular case, the sentencing objectives of denunciation and general and specific deterrence contained in s. 718(

a) and(

b) of the Code are very significant for persons like Mr. Nguyen who participate in marihuana grow operations, even for relief of debt.This is still a form of financial gain, albeit desperation-based not greed-based per se. These objectives are becoming more and morecompelling given the increasing proliferation of such operations, the large profits to be made from them, and the risks they pose to thehealth and safety of those directly involved and to those living nearby.

However, it is well accepted that the imposition of a conditionalsentence with strict conditions may reflect a significant measure of deterrence and denunciation: R. v. Proulx, 2005 SCC 5 at para. 127;Nguyen; and Lee. [69] I have carefully considered whether there is a need in the present case to separate Mr. Nguyen from society in the context of s.718(

c) of the Code and I conclude that because of his unique individual circumstances and the circumstances of the offence that he isable to serve his sentence in the community. [70] In terms of the sentencing objective of rehabilitation, in the context of s. 718(

d) Mr. Nguyen has not had any further problemswith the law since the commission of this offence in 2011, which is now almost two and a half years ago. In that regard it may be saidthat he is substantially rehabilitated. He has gone back to school to learn a new trade and is now gainfully employed. [71] In the context of s. 718(

e) of the Code I am mindful that this type of offence causes real harm to the community to which I havealready referred. Further, the sentence imposed must take into account reparation for harms done to the victims or, in a case like this, tothe community. Community service would satisfy this sentencing objective. [72] As well, s. 718(

f) requires that the Court consider the sentencing objective of the need to promote a sense of responsibility inoffenders and acknowledgement of the harm done to victims and to the community. This objective may be met in the appropriate casesuch as this one through the rigours of a conditional sentence order. [73] In addition, as set out in s. 718.1 of the Code, the sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. In this regard, I take into account the nature of the offence, the production of the controlled substance ofmarihuana, and Mr.

Nguyen's involvement in this grow operation as a caretaker. [74] The appellate authorities indicate a trend away from conditional sentence orders for large-scale grow operations. However, inthe recent sentence appeal decision in R. v. Scott, 2013 BCCA 397, the Court of Appeal dismissed a Crown sentence appeal and upheld asentence for conspiracy to traffic in cocaine that fell below the generally-accepted range for such offences. The Court recognized andconfirmed the jurisprudence that permits judges, in the proper exercise of their discretion, to depart from general ranges in appropriatecases.

Unique circumstances such as a demonstrated path towards rehabilitation can support a sentence below the range: Scott at paras.37-42, 57-59. [75] Although I am not sentencing below the range per se, I am mindful that most of the sentences for large scale operations involvereal jail not conditional sentence orders. I am mindful however that a conditional sentence is not necessarily a lenient sentence.

Supportfor this proposition can be found in Romilly J.'s analysis in Lee at paras. 33-35: [33] In imposing a conditional sentence on this accused for this offence, I have instructed myself on the teachings of the SupremeCourt of Canada that a conditional sentence is not a lenient sentence. In R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 atpara. 72, Cory and Iacobucci JJ. stated: ... in our view a sentence focussed on restorative justice is not necessarily a "lighter" punishment.

Some proponents of restorativejustice argue that when it is combined with probationary conditions it may in some circumstances impose a greater burden on theoffender than a custodial sentence. [34] In Proulx, the Court stated at para. 41: A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where theoffender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the whileliving in the community under tight controls. [35] In Proulx, the Court also drew a distinction between custodial sentences and conditional sentences and pointed out that theconditional sentence is not subject to reduction through parole.

The Court stated at para. 42: ... This would seem to follow from s. 112(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, which gives the provincialparole board jurisdiction in respect of the parole of offenders "serving sentences of imprisonment in provincial correctional facilities" (R.v. Wismayer (1997), (ON CA), 115 C.C.C. (3d) 18 (Ont. C.A.) at p. 33). [76] Having regard to all the circumstances, including Mr.

Nguyen's genuine remorse, his demonstrated efforts at rehabilitation, thefact that he did not profit from this offence apart from relief from his gambling debt, that he was not the principal operator but a caretakerof the enterprise, that he has support from his family, and that he contributes to the financial support of his family through hisemployment, and bearing in mind the jurisprudence from the authorities reviewed, I am satisfied that this is one of those rare cases wherea conditional sentence should be imposed on this offender for this offence.

The imposition of a conditional sentence in this case isconsistent with the fundamental purpose and principles of sentencing. [77] Mr. Nguyen, would you please stand up. [78] Mr. Nguyen, I sentence you to two years less a day imprisonment which is to be served in the community as a conditionalsentence subject to the following conditions: 1. To keep the peace and be of good behaviour.

2. To appear before this Court when required to do so by the Court. 3. To report to a supervisor at 80A Sixth Street in New Westminster within two business days after the making of this order, and thereafter to report to the supervisor as and when directed by the supervisor. 4. Remain within the jurisdiction of the Court unless written permission to go outside the jurisdiction is obtained from the Court or your supervisor. 5. You are to reside at XXXX 93A Avenue in Surrey, British Columbia, and not change your address without the prior written permission of your supervisor. 6.

You are to notify your supervisor of your residential telephone number and do not change that telephone number without prior notice to your supervisor. 7. If you are employed, notify your supervisor of the address and telephone number of your employer. 8. Notify the Court or your supervisor in advance of any change of name and notify your supervisor of any change of business, employment or occupation. 9. Under the direction of your supervisor, you shall perform 200 hours of community work service during the first 18 months of your sentence. 10.

For the first 15 months of the conditional sentence order, you will be bound by house arrest provisions. You may not be outside your residence except for the following purposes: (

a) going directly to, attending at, or returning directly from your place of employment between the hours of 8:00 a.m. and 9:00 p.m., seven days a week or at such other times as may be approved by your supervisor; (

b) attending at your conditional sentence supervisor's office; (

c) attending at your place of community work service or going directly to or from that place; (

d) proceeding to or from or attending court; (

e) medical or dental treatment with the supervisor's prior approval other than for emergency treatment; (

f) attending religious services, or while travelling to or from any such commitment; or (

g) for any other purpose where you have the prior written approval of your supervisor in which case you are to carry that approval on your person and present it at the request of a peace officer. 11. This condition is to be electronically monitored. 12. You must comply with the electronic monitoring regulations. 13. You are to present yourself at the door of your residence when requested by the staff of the Corrections Branch or police officers to confirm compliance with the electronic monitoring conditions. 14. For the last nine months of your conditional sentence order you will be bound by a curfew.

You will abide by the curfew and be within your place of residence between the hours of 9:00 p.m. and 8:00 a.m. daily, except with the prior written permission of your conditional sentence supervisor, and except for employment or community work services purposes, for religious purposes or emergency medical or dental treatments and for any other purpose that your supervisor considers rehabilitative. 15. You are not to consume or possess any controlled substances within the meaning of the CDSA except as prescribed by a qualified medical practitioner. 16.

You are not to possess any fertilizer, hydroponic equipment or other equipment, particularly suited for use in growing cannabis marihuana. 17. You are to take such counselling or treatment as directed by your supervisor including but not limited to counselling and/or treatment for your gambling addiction. [ 79 ] The ancillary orders are as follows: 1. Pursuant to s. 109(1) (

c) of the Criminal Code , I impose a weapons prohibition pursuant to s. 109(2) as it pertains to a case of a first conviction. That prohibits you, Mr. Nguyen, from possessing any firearm other than a prohibited firearm or restricted firearm and any crossbow, restricted weapon, ammunition or explosive substance for a period of ten years from today's date. It also prohibits you from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. 2. With respect to the Crown's application for DNA samples, the offence for which Mr.

Nguyen has been convicted is a secondary designated offence under s. 487.04 of the Criminal Code . In R. v. Awasis , 2009 BCCA 134 , the Court of Appeal held that the interests of the administration of justice, which include investigation of offences and the exoneration of the innocent, are served by the DNA Databank. The taking of a DNA sample is minimally intrusive, and Mr. Nguyen, as a convicted offender, has a reduced expectation of privacy. There will be an order pursuant to s. 487.051(3) of the Criminal Code that Mr.

Nguyen attend within 10 days at the Surrey RCMP Detachment and present himself to a peace officer there who is authorized to take DNA samples for the purpose of providing

those samples. [ 80 ] I have already made forfeiture orders pursuant to s. 16 of the CDSA . [ 81 ] Given Mr. Nguyen's limited financial circumstances, I waive the victim fine surcharge. [ 82 ] When a conditional sentence order is imposed, the Criminal Code requires that certain things be explained to the offender. Pursuant to s. 742.3 of the Criminal Code , I direct that a copy of the conditional sentence order be prepared and given to Mr. Nguyen and that the provisions of ss. 742.4 and 742.6 be explained to him.

I am now going to give some further explanations of the conditional sentence order as required by s. 742.3 of the Code . [ 83 ] First, Mr. Nguyen you or your supervisor or the prosecutor may propose changes in the optional conditions that I have imposed on your conditional sentence order. If your supervisor serves you with written notice of such a proposal, you will have seven days to ask the Court to hold a hearing.

If you do not request a hearing, the proposed change may take effect 14 days after your supervisor files the proposal with the Court. [ 84 ] Second, if you wish to apply for a change in the optional conditions you must file a notice in the Court Registry and serve a copy on Crown counsel setting out what changes you want and the reasons why. A hearing will be held within 30 days.

If you or the prosecutor proposes changes in the optional conditions then the Court must also hold a hearing. [ 85 ] Third, you may be brought before the Court to answer any allegation that you have breached a condition of your conditional sentence order. If you appear before the Court in custody, you will be detained pending the hearing unless you show cause why your detention is not justified. Prior to the hearing you will be served with a written report prepared by your supervisor. Your supervisor may or may not testify at the hearing.

If the Court finds on the balance of probabilities that you have breached a condition of your conditional sentence order, then unless you have a reasonable excuse the Court may do a variety of things -- and this is what you have to understand – including terminating the conditional sentence order and committing you to custody for the balance of the conditional sentence order.

So if you breach your conditional sentence order and you are found to have breached it at, for example, the six month mark, and the appropriate disposition is determined to be cancelling the conditional sentence order and converting it to jail time, then you would have a further 18 months in jail. So you need to understand that. Do you understand? [ 86 ] THE ACCUSED: Yes. [ 87 ] THE COURT: I direct that a copy of the conditional sentence order be read to Mr. Nguyen. I delegate to the Clerk of the Court or a Justice of the Peace the task of taking reasonable measures to ensure that Mr.

Nguyen understands all the terms and conditions. [ 88 ] Is there anything else? [ 89 ] MR. TAIT: The Crown directs a stay of Count 2. [ 90 ] THE COURT: Okay. Thank you very much counsel, I am indebted to you both for your thoughtful and helpful submissions. “Ker J.”