R. v. Ban, 2013 BCSC 2393

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Ban, 2013 BCSC 2393 Date: 20131025 Docket: 74298-3 Registry: Nanaimo Regina v. Roy Sambath Ban Before: The Honourable Mr. Justice Johnston Oral Reasons for Sentence Counsel for Crown:: J. Farenholtz Counsel for Defendant: S. Taylor Place and Date of Sentence: Nanaimo, B.C. October 25, 2013 Place and Date of Judgment: Nanaimo, B.C. October 25, 2013 [ 1 ] THE COURT: Mr.

Ban has been found guilty of possession of a controlled substance, cocaine, for the purpose of trafficking after a trial. [ 2 ] The trial proceeded largely on agreed facts and concerned itself almost exclusively to whether or not Mr. Ban's arrest was lawful. The circumstances generally are that Mr. Ban was observed by an off-duty police officer on a British Columbia ferry. That officer thought that Mr. Ban was acting unusually and on closer observation determined that Mr. Ban was behaving somewhat suspiciously. [ 3 ] The officer suspected that Mr. Ban was moving drugs.

He did so largely, I conclude, on the basis of information he had been provided in the course of his duties, largely made up of tip information that Mr. Ban may be involved in the drug trade at the time, and as well, the common knowledge that Mr.

Ban had previously been convicted of moving a kilogram quantity of methamphetamine on the B.C. ferry. [ 4 ] The undercover officer conveyed his suspicions and his observations to the detachment office, where the investigating officer, as it turned out, Constable Charlebois, put together in a relatively short period of time the information relayed by the off-duty officer on the ferry with a variety of tip information bits that he had available to him. [ 5 ] It is notable, according to my recollection of the evidence during the voir dire, that Constable Charlebois conceded in his evidence that the totality of the tip information that was available to him on the day of Mr.

Ban's arrest was not sufficient to permit him to form or to have reasonable and probable grounds to arrest Mr. Ban and that it was the combination of the tip information, inadequate to arrest Mr. Ban, and the observations of the off-duty officer, that together put him over the threshold that persuaded him that his subjective belief in the grounds for arrest were objectively reasonable, as well. [ 6 ] As it turned out Mr. Ban was arrested as he got off the ferry and in the backpack that he was carrying the police found a kilogram of cocaine. Mr.

Ban admitted all of the necessary facts to constitute the conviction and, as I say, once the arrest was ruled by me to have been lawfully made, conviction on the offence was inevitable and conceded by Mr. Ban. [ 7 ] The Crown suggests in this case that the tip information to which I have just referred, while not proved on this sentencing as an aggravating circumstance, can be taken by me at least as sufficient to eliminate or to discount, if not eliminate entirely, any explanation from Mr.

Ban that this trip was a one-op enterprise by him. [ 8 ] The reason that becomes somewhat important is based in part on the explanation advanced by Mr. Ban as to why he came to be carrying a kilogram of cocaine on the B.C. ferry on the day in question and that is that when, in 2008, Mr. Ban was arrested, charged and convicted for possession of methamphetamine for the purpose of trafficking and he was sentenced to two years' imprisonment, Mr. Ban says he incurred in the drug underworld an obligation or a debt that he has told the author of the pre-sentence report amounted to about $20,000. [ 9 ] Mr.

Ban's position is that the 2008 offence occurred when he was moving the methamphetamine for a boyhood friend of his named Phan, and that when he got out of jail, having served whatever portion of his two years he served, Mr. Phan began to indicate, I gather in more strenuous terms as the time went by, that Mr. Ban owed him the value of the methamphetamine that had been seized from him on his arrest. It is Mr. Ban's position on this sentencing that when he was arrested on this occasion with the kilogram of cocaine, that he was doing that to repay the debt that Mr. Phan was claiming from him.

[ 10 ] The Crown says that is inconsistent with the tip information that Constable Charlebois relayed in the voir dire at the trial and that because of that inconsistency I ought not to accept it. [ 11 ] This puts the tip information in a somewhat dubious position, it seems to me, that if it is not proved as a aggravating circumstance by the Crown it cannot be accepted, given the vagaries usually associated with tip information, sufficiently by me to say that Mr.

Ban's explanation for this offence, and I note it's not an excuse -- it is an explanation and there is a difference -- ought to be discounted or disbelieved by me. [ 12 ] It seems to me that that is not what I ought to do and that I ought to and I do accept Mr. Ban's explanation for this offence being that he was moving this quantity of cocaine on the day in question at the insistence of Mr. Phan and because Mr.

Phan was asserting the debt arising out of the previous arrest and the interdiction of the methamphetamine. [ 13 ] In saying that I recognize the complete illogicality of the reasoning in the drug underworld that someone who can be arrested with a quantity of somebody else's drugs and have those drugs seized by the police, then incurs the debt for the value of the drugs in addition to having to serve the sentence arising out of the arrest. [ 14 ] But I am not here to decide what is logical. I simply accept the explanation of the offence as proffered by Mr. Ban before me. [ 15 ] Mr. Ban himself is 25 years old.

He has graduated from high school. He is now back in school taking a trades course in automobile mechanics. [ 16 ] He had an uneventful, a conventional upbringing. There is nothing in his history by way of abuse, substance abuse by him or anyone else, or any of those other indicia that all too often explain criminal conduct, at least as a background factor. [ 17 ] I note that Mr. Ban, since leaving high school, has not had a good employment history and I share with counsel for the Crown some concern that Mr. Ban has somehow managed to support himself since leaving high school without any clear employment history.

And to the extent that that might suggest ongoing criminal conduct or involvement in the drug trade, I can see the logic of that. But it does seem to me that the suspicion that that is the case is not something that I ought to, on this sentencing, hold against Mr. Ban. [ 18 ] I have already indicated that he was sentenced to two years in jail for the previous offence. That sentencing took place in 2008. There are also three convictions in addition to that for -- two of them, I think, for obstructing a peace officer at about the same time. [ 19 ] Personally Mr.

Ban is currently living with his mother and stepfather. He has a long-term stable relationship with his girlfriend. That relationship has been interrupted, at least in a physical sense, by the fact that his girlfriend is now living in the lower mainland, according to the pre-sentence report and I note that one of Mr. Ban's bail conditions since his arrest has prevented him from travelling on the B.C. ferries, which may have made his ability to visit with his girlfriend problematic. [ 20 ] Mr.

Ban's attitude toward the offence is that he has acknowledged to the author of the pre-sentence report his involvement and his responsibility for the offence, which is commendable. His attitude toward the charge is neutral. That is he did not plead guilty so there is no mitigation there. But his approach to the charge, which is to challenge, quite reasonably in my view, the lawfulness of the arrest, is entirely understandable. In any event, not pleading guilty is in no circumstance an aggravating factor, which is why I say the whole matter is neutral. Mr.

Ban's expression of remorse tendered in this courtroom I accept as genuine. [ 21 ] The Crown and the defence have each tendered a number of case authorities. [ 22 ] Case authorities are of value primarily as they put forward the principles to be applied on a sentencing. They are of lesser value in terms of being able to draw a direct parallel between an individual before the court and any of the individuals who were before other judges on other charges on other occasions. [ 23 ] Sentencing, it has often been said, is an acutely individual process. My job is not to sentence the offence.

My job is to sentence this offender for having committed this offence. [ 24 ] I should deal with some of the authorities tendered. [ 25 ] The defence points to R. v. Charlie, which involved an Aboriginal offender who was convicted of what is commonly called a dial-a-dope offence while he was already serving a conditional sentence for another dial-a-dope offence. [ 26 ] Charlie is a case that obviously involves somewhat lower moral culpability. Dial-a-dope is at the lower end of the drugs trafficking spectrum.

Charlie also had Aboriginal status which while it does not qualify an accused for what has been referred to in the Supreme Court of Canada as a race-based discount of sentence, is a factor that must be considered when sentencing. And clearly in the Charlie case the Aboriginal status was considered. Mr. Charlie was 25 years old. He was sentenced on his second go-around to 18 months, to be served conditionally. [ 27 ] The defence -- sorry, the Crown tenders authorities up to a case called Fraser. Mr. Fraser was an older accused. Mr. Fraser had some $375,000 worth of drugs in his house. Mr.

Fraser was fairly clearly involved in a pretty substantial retail or wholesale drug-selling operation. [ 28 ] Mr. Fraser was sentenced on seven counts to five years imprisonment. One of the factors in Mr. Fraser's case was the finding that he showed little or no remorse for his offending conduct. [ 29 ] There are a large number of authorities tendered by both counsel that fall somewhere in between those two extremes. What the authorities confirm is that there is a wide range of sentence open to me with respect to Mr. Ban.

They confirm that sentencing is and must remain the individual process that I previously mentioned.

[ 30 ] The sentence must be fit for this offender for this offence, in all of the circumstances. [ 31 ] The Huber case was one that defence counsel simply said -- had nothing much to say about. It involved a somewhat unusual circumstance, some similarities, some differences. Mr. Huber sold a kilogram of cocaine to an undercover officer, I believe through an intermediary. [ 32 ] Mr. Huber had no previous criminal record. Mr. Huber came to be sentenced some seven years after he had sold the kilogram of cocaine and the explanation for that was that he had been convicted of two counts.

It went to the Court of Appeal, and the Court of Appeal ordered a new trial on both counts. And when it came back to trial Mr. Huber pleaded guilty to one of the two counts. [ 33 ] Mr. Huber's sentence was two years in jail and that was after considering five months pre-trial custody. And that five months apparently most of it was spent serving the sentence that was imposed after the first trial, that was later turned over by the Court of Appeal. [ 34 ] I note that the trial judge in Huber , the one before whom Mr. Huber pleaded guilty, rejected a conditional sentence.

And he did that largely on the quantity of drug involved, which was the same one kilogram of cocaine involved here. [ 35 ] But he also did it partly on his conclusion that the offence committed by Mr. Huber was motivated by greed. And I should say, having indicated what I do accept by way of Mr. Ban's explanation for this offence, that this was not an offence motivated by greed so much as a need to satisfy the illogical debt asserted by Mr. Phan. [ 36 ] In that regard I note the information tendered by counsel for Mr.

Ban, a photocopy of a newspaper clipping, I presume taken off the internet, that indicates that Mr. Phan has not that long ago come to an untimely end and the suggestion has been made that to the extent there is any lingering suspicion that when he gets out of this sentence Mr. Ban will be facing continued pressure from Mr. Phan for the old debt or any new debt arising out of the loss of this one kilogram of cocaine, the inference I should draw and I do draw is that any ongoing debt to Mr. Phan died when Mr. Phan died. [ 37 ] The sentencing process often involves a balance of aggravating and mitigating factors.

In aggravation here is the drug involved, cocaine. It's a terrible drug that does terrible damage to society. There's no question about that. [ 38 ] The quantity of drug, a kilogram. The very amount of it can do terrible damage to society and, in particular, to a community the size of Nanaimo. [ 39 ] That this offence happened not long after Mr. Ban got out of jail from the last possession for the purpose of trafficking, I consider to be an aggravating factor. [ 40 ] In mitigation, Mr. Ban is still relatively young. He has complied with strict bail conditions since his arrest. He has support from his employer.

He has support from the coordinator of a Blade Runner Program he completed in 2012, and he has support from his girlfriend and from her mother. [ 41 ]

Section 718 and the following sections of the Criminal Code establish the principles and objectives that I must apply in arriving at a fit sentence. Of the principles in this case, given the amount of drug and the nature of the offence, clearly denunciation and deterrence are the principles that assume the greatest importance. That does not mean the others, such as rehabilitation, fall by the wayside. It just means denunciation and deterrence, deterrence of Mr.

Ban and deterrence generally of others, are the most important factors to consider. [ 42 ] Coming right to the issue that substantially divides, or one of the two main issues that substantially divide the Crown and the defence here, the Crown says the range ought to be three to five years. That means that Mr. Ban ought to go to jail. Defence says this is not a case for which a conditional sentence is out of the question. [ 43 ] The Supreme Court of Canada in a case called Proulx put to rest any lingering doubt whether or not a conditional sentence is a jail sentence. It is a sentence.

It is to be treated as a jail sentence, whether or not it is served in the community. There is also ample authority that there is no offence of offence category that puts conditional sentences out of the questions. And those are principles that I have to bear in mind. [ 44 ] I also have to consider moral blameworthiness which includes the seriousness of the offence and the degree of responsibility of the offender. Now here I come back to Mr. Ban's explanation that he was carrying this kilogram of cocaine because of Mr. Phan's debt claim and I say that does not let Mr.

Ban off the hook, because if there was this illogical claim of debt, it arose out of an earlier act of criminality by Mr. Ban carrying the one kilogram of methamphetamine for Mr. Phan. [ 45 ] So if there is any claimed reduction in moral culpability because he was pressured into carrying the cocaine because of the debt claim, that reduction is slight. [ 46 ] But I also have to consider Mr. Ban's position as I find it to be in this drugs enterprise on this occasion. He is above a street- level dealer in small quantities of cocaine. I conclude that he was a courier or a mule.

That puts him somewhat below the kilogram-level dealer or seller of cocaine. [ 47 ] This is a case that is on the line, it seems to me; a line that divides those who should go to the penitentiary for a good, long time and those who are not quite at the point of being able to say it is time to throw you away, that you are without hope of rehabilitation. [ 48 ] I shall refer to what the Crown and counsel have called the step-up principle and that deals with the fact that the last time around Mr. Ban was sentenced to two years in jail, 24 months. Ordinarily the next time around the sentence should be higher.

That is what the step-up principle says.

[ 49 ] It does no good for denunciation and deterrence if someone convicted of the same offence over and over and over again gets the same sentence over and over and over again. So logically you just keep increasing the sentence until somebody gets the point and until the community realizes that repeated criminality has consequences. [ 50 ] But the step-up principle is not inflexible.

It does not overcome the balancing of all of the principles set out in s. 718 and the following sections of the Criminal Code , including the proportionality principle in s. 718.1 . [ 51 ] The first step is what do I conclude is the fit sentence in all of the circumstances of this case, for Mr. Ban, given what he has done?

Having looked at the authorities, having looked back at some of my notes of the trial and having considered the matter, I have concluded that a fit sentencing, one that satisfies those principles and objectives set out in s. 718 and the following sections of the Criminal Code is a sentence of two years less one day. [ 52 ] I then turn to the request that that be served in the community and that requires consideration of somewhat different questions.

Having looked at s. 742, I think it is, in the Criminal Code , I have concluded that a sentence of two years less one day, if served in the community, would not expose the community to danger. And I say that largely because I accept Mr. Ban's assurance that his involvement in illegal drugs is over. [ 53 ] I am also satisfied that a conditional sentence, which I again remind myself is a custodial sentence -- it is just a difference place of serving it -- is consistent with the fundamental principles and purposes of sentencing set out in s. 718 to 718.2. [ 54 ] So Mr.

Ban, stand up, please. [ 55 ] I sentence you to two years less one day to be served conditionally on the standard conditions, to which I add: for the first 12 months you will obey a curfew; you will be inside your residence between the hours of 9 p.m. and 7 a.m., seven days a week; you will be outside of your residence during those hours only with the prior approval of your sentence supervisor, and that will be in writing; and if you are outside between those hours you will have the writing on your person and produce it to a police officer. [ 56 ] After the expiry of the two years less one day conditional sentence, you will serve a further two years of probation.

The terms to be added to the standard probation terms are those terms set out on pages 4 and 5 of the pre-sentence report.

That is: you report forthwith at the end of your sentence to the probation officer, thereafter as and when directed; you make reasonable efforts to seek and maintain employment, or to attend an education or training institution and provide your probation officer with proof of that as requested; you abstain absolutely from the use, possession or consumption of any illicit or illegal substance as defined by the Controlled Drugs and Substances Act unless you have a valid medical prescription; and you attend, participate in and successfully complete any assessment or counselling as directed by your probation officer. [ 57 ] Now, counsel, are there any other terms of the conditional sentence order that ought to be considered? [ 58 ] MR.

FARENHOLTZ: I wasn't sure -- there was a little -- with the twelve-month curfew. After twelve months there'll be no curfew? Now, you said he wouldn't be outside at any time -- [ 59 ] THE COURT: During the curfew period. [ 60 ] MR. FARENHOLTZ: During the curfew period. So I think he's otherwise free in the day. [ 61 ] I'm wondering about the conditions that you've attached to the probation. Should those be on the CSO, as well? [ 62 ] THE COURT: Any comments? [ 63 ] MR. TAYLOR: There's no objection to that, My Lord. I've always felt that not having drugs in an order was redundant.

It's against the law anyway. [ 64 ] THE COURT: Yes. [ 65 ] MR. TAYLOR: So I don't think it's necessary but it's -- [ 66 ] THE COURT: No harm reminding him. [ 67 ] MR. TAYLOR: It's not a deal breaker. [ 68 ] THE COURT: No. [ 69 ] MR. TAYLOR: Let's put it that way. [ 70 ] I did not catch the time of the curfew, My Lord. I'm sorry? [ 71 ] THE COURT: 9:00 to 7:00. [ 72 ] MR. TAYLOR: Thank you. [ 73 ] MR. FARENHOLTZ: Your Lordship may wish to consider some community work service hours in addition to the terms of the CSO.

Your Lordship did reference the harm to the community that the drugs do and that might be of some benefit to the community, you know, include a significant amount of community work service. [ 74 ] THE COURT: Outside of any schooling, education or -- I am worried about interfering with that.

[ 75 ] MR. FARENHOLTZ: That's what weekends are for and then he's got 24 months of it. [ 76 ] THE COURT: Yes. [ 77 ] MR. FARENHOLTZ: And he's only got 12 months of a curfew. The other -- [ 78 ] THE COURT: Any comment on community service? [ 79 ] MR. TAYLOR: I share your concern about interfering with his education and employment, so I would simply ask that if Your Lordship is considering some work service -- which my friend has a good point about harm to the community -- that it be done in the early parts of the CSO while he's still working, essentially, as an apprentice.

He has to get 1500 hours in, but upon that he would have full-time employment. [ 80 ] So if we're going to have community hours, the sooner the better. [ 81 ] THE COURT: All right. In the first 12 months? [ 82 ] MR. TAYLOR: Yes, please. [ 83 ] THE COURT: All right. I am going to add to the conditional sentence order that Mr. Ban perform 100 hours of community service in the first 12 months of the conditional sentence, the exact nature and time of that to be arranged with the sentence supervisor. [ 84 ] MR. TAYLOR: Thank you, My Lord. [ 85 ] THE COURT: Any of the obligatory conditions applicable? [ 86 ] MR.

TAYLOR: There's the firearms ban and the DNA. [ 87 ] MR. FARENHOLTZ: Yes. The DNA order is secondary but I think it's already been ordered last time. But if it hasn't, I ask that Your Lordship order that. [ 88 ] There's forfeiture of all the items seized on the flow chart. [ 89 ] THE COURT: Yes. All right. Everything seized by the police in this investigation is forfeit and there will be a firearms ban. Is it a ten-year ban? [ 90 ] MR. FARENHOLTZ: It's a lifetime. [ 91 ] MR. TAYLOR:

Section 109. [ 92 ] MR. FARENHOLTZ: Second conviction. [ 93 ] THE COURT: Second conviction? Lifetime? [ 94 ] MR. FARENHOLTZ: Yes, so it's lifetime. [ 95 ] THE COURT: Lifetime firearms prohibition. If DNA has not yet been collected, it will be. R.T.C. Johnston, J.” The Honourable Mr. Justice Johnston