R. v. Nguyen, 2023 BCPC 276

Citation: R. v. Nguyen 2023 BCPC 276 Date: 20231201 File No: 101550-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. TIEN PHI NGUYEN ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE A. BROWN Counsel for the Crown: P. Bachra Counsel for the Accused: Z. Myers Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: July 13, 2023 and December 1, 2023 Date of Judgment: December 1, 2023

[ 1 ] THE COURT: Today is the continuation of Tien Nguyen's sentencing, which began on July the 13 th , 2021. The sentencing was scheduled to continue on November 1 st , 2021, and Mr. Nguyen failed to attend Court. A warrant was issued. [ 2 ] Mr. Nguyen lives in Alberta, and I understand that he failed to return to Court in Port Coquitlam because he found himself without a lawyer and he did not know what to do. When he became aware of the warrant, he tried to turn himself in. At that point, the warrant had not been extended to Alberta and when that did finally occur, he turned himself in again. [ 3 ] Mr.

Nguyen was released from custody on April the 26 th , 2023 and that was with the consent of the Crown. Mr. Nguyen deposited a $5,000 cash deposit and was released on a number of conditions, including a curfew from 6:00 p.m. to 6:00 a.m., with the usual exceptions. [ 4 ] Sentencing was scheduled to continue on August the 22 nd of this year, and, as it turned out, I was not available on that date, so Mr. Nguyen returned to Court today, December 1 st for the conclusion of sentencing. [ 5 ] Because of the long history of this file, and because Mr.

Nguyen has travelled once again from Alberta, I have spent only a few hours writing this decision, so that he knows the outcome today. But I assure Mr. Nguyen and counsel that had I taken the time to write a more fulsome decision, it would not change the outcome. [ 6 ] Mr. Nguyen entered guilty pleas over three years ago on October the 19 th , 2020. At that time, no trial dates had ever been scheduled. [ 7 ] Mr. Nguyen entered guilty pleas on Information 101550, to amended Counts 1 and 7. On Count 1, Mr.

Nguyen pleaded guilty of trafficking in heroin and fentanyl between October the 18 th and November 29 th , 2017, in Coquitlam. [ 8 ] The amended Count 7 was also for trafficking in fentanyl between January 24 th and 31 st , 2018, at or near Burnaby and Coquitlam. [ 9 ] The Information was sworn on February the 26 th , 2019, and Mr. Nguyen's first court appearance was a few months later on April the 11 th , 2019. [ 10 ] The circumstances were set out by the Crown on July the 12 th , 2021. I will summarize those now. [ 11 ] In the fall of 2017, Coquitlam RCMP received information about a drug line.

An undercover investigation ensued, and, as a result of that investigation, Mr. Nguyen came to the attention of the police. [ 12 ] Count 1, which sets out the timeframe of October the 18 th to November 29 th , 2017, covers a period of time when there were six drug buys that an undercover officer engaged in with Mr. Nguyen. Then there were two buys that were captured in amended Count 7. I heard the circumstances about each of those buys. [ 13 ] On October the 18 th , 2017, the undercover officer called the drug line.

An unknown man answered, there was a discussion about purchasing heroin, and a person that was later identified to be Mr. Nguyen was the person that the drugs were purchased from. Analysis thereafter revealed that the purchase, which was about .09 grams, contained heroin and fentanyl. [ 14 ] The second transaction on October the 25 th , 2017, was similar in nature: a call made, an exchange of drugs between an undercover officer and a person that turned out to be Mr.

Nguyen. [ 15 ] On that particular purchase, I heard that a quantitative analysis had not been done as to the percentage of heroin and fentanyl, but the certificate of analysis revealed that the presence of both of those substances. [ 16 ] Then there were subsequent buys in November: the 8 th , the 16 th -- all very similar transactions and the same with the 23 rd and 29 th of November, and then there was a short break. On January the 24 th , 2018, the undercover officer made a call. The person that answered the phone, the officer said, was recognized by their voice to be the same person who turned out to be Mr.

Nguyen. Again, there was a purchase of drugs and an exchange of money. The same also happened on January the 31 st , 2018. [ 17 ] The Crown seeks a federal sentence of three years plus ancillary orders. On July the 12 th , 2021, I heard the submissions of Crown, then defence submissions were adjourned, and are what I heard today. [ 18 ] The Crown said that the three-year sentence was required due to the gravity of the offence, given that Mr.

Nguyen was trafficking in extremely dangerous drugs during the public health opioid crisis, declared in 2016 and continues today; that he was part of a dial-a-dope operation, which is an aggravating factor; and also that there were a number of transactions over a period of months. The Crown said that this increased Mr.

Nguyen's moral blameworthiness, and that being part of a dial-a-dope operation, he was part of an organized scheme. [ 19 ] The Crown said that anything less than three years would not properly reflect the primary sentencing principles of denunciation and deterrence. [ 20 ] A book of authorities was provided at that time in support of the Crown sentence. I note that in the last two years there have been changes to the law since then with respect to trafficking offences, including that there is no longer a requirement that a defendant

demonstrate exceptional circumstances in order to warrant the imposition of a noncustodial sentence. [ 21 ] On Mr. Nguyen's behalf, Mr. Myers is urging me to impose a conditional sentence order of two years less a day. He says in submissions that Mr. Nguyen has demonstrated through his conduct over the last six years since committing the offences that he does not pose a risk to society, that he has dealt with the substance use disorder that underlies his offences, and that he has taken significant and verifiable steps to rehabilitate himself. [PROCEEDINGS] [ 22 ] THE COURT: All right.

Three exhibits were filed. [ 23 ] Exhibit 1 is a Birth Certificate from the Province of Alberta, confirming that Mr. Nguyen and his partner very recently had a baby girl. Congratulations to you, Mr. Nguyen. [ 24 ] Exhibit 2 is a letter from Mike Garrett (phonetic), the operations coordinator at Irwin's Safety, where Mr. Nguyen works. The letter is undated and unsigned. Mr. Myers advised that he spoke with Mr. Garrett yesterday and confirmed the contents of the letter - that it was written recently, and reflects Mr. Nguyen's current state of involvement and employment with the company. The letter is very positive.

It talks about how important, in Mr. Garrett's words, Mr. Nguyen is to their team; that he has been readily available for last minute opportunities; that he has been utilized as a team lead on occasion; that he has demonstrated great leadership abilities; and that Mr. Garrett believes that Mr. Nguyen is very committed to staying with the company and working towards a better life for himself and his family. [ 25 ] Exhibit 3 contains a number of letters, including also a letter from Jay Coupland, who is the resource manager at Irwin's Safety. That letter is also undated, but it confirms that Mr.

Nguyen started with the company on February 23 rd , 2023, and provides information about his work, including his rate of pay, and that that work requires him to work out of town at a camp. [ 26 ] The other letters are from family members, including Mr. Nguyen's aunt, his partner Christina, his younger sister, and also his stepdaughter. They are all positive letters talking about the changes that Mr. Nguyen has made since the time of the charges.

In the letter from his aunt, which was written a while ago -- it was written in April of 2021 – firstly, she says that she is aware of the charges, and I find that is important because sometimes it is not clear when we get these letters of support whether the person writing them is actually aware of the charges. But it is clear here that Ms. Dang (phonetic) is aware. She writes about what happened being a life-changing event for Mr.

Nguyen and the various positive steps that he has taken since then, that she will continue to be by his side until the charges are resolved, and that she is committed to supporting Mr. Nguyen, because she believes that he has changed for the better. That is the general tenor of most of the letters. [ 27 ] I also heard in submissions that these offences were an eye-opener for Mr. Nguyen. [ 28 ] Now, there have been a number of Pre-Sentence Reports prepared, with the most recent update completed on July 11 th , 2023, by Mr. Gribbons (phonetic) who has been Mr. Nguyen's bail supervisor throughout this period.

The report was extremely positive. [ 29 ] I heard that Mr. Gribbons and Mr. Nguyen have a good working relationship. The Crown confirmed this as well, having reached out to Mr. Gribbons yesterday. The information that she received was that Mr. Nguyen has been very diligent in reporting; he has been providing his work schedule; he has been providing proof of employment such as pay stubs; and has kept in regular touch so that the bail supervisor can do what he needs to do to ensure that the police are aware of Mr. Nguyen's whereabouts. [ 30 ] Mr. Gribbons confirms in his Pre-Sentence Report, that Mr.

Nguyen has been on a positive trajectory. When I read the Pre- Sentence Report, it seemed to me that Mr. Nguyen was being very candid and upfront with Mr. Gribbons about his struggles, about his drug dependency, and about the relapses; he also demonstrated insight into what led to the relapses. [ 31 ] Unfortunately, Mr. Nguyen has suffered a number of deaths fairly recently, including the death of one of his close uncles and a friend. It was this friend who saved Mr. Nguyen from a drug poisoning, and then the next day, he himself died from drug use. And then, not long after that, Mr.

Nguyen's former partner lost their baby girl that she was pregnant with. So these were periods of time where Mr. Nguyen relapsed. [ 32 ] In terms of Mr. Nguyen's personal circumstances, he is 30 years old now, still a relatively -- a very young man, actually. He was even younger -- 24, 25, at the time of the offences. He is before the Court without a criminal record. He has got a highly supportive family, including his partner and the new baby I already mentioned. [ 33 ] The Pre-Sentence Report indicates that Mr.

Nguyen started struggling with a substance use disorder, about the age of 18, and he was experimenting with drugs before then. Significantly, he has been drug free since the summer of 2022. [ 34 ] His employers obviously value him, based on the letters that they have written. Mr. Nguyen has been subject to random drug testing through that employer, and so far has been tested twice, both times with negative results. All of this was confirmed by Mr. Gribbons when he spoke with Mr. Garrett. [ 35 ] One of the things that Mr.

Nguyen has done was to distance himself from the peers that he was involved with during the time that he committed these offences, and he left British Columbia to join his parents and his sister in Alberta. [ 36 ] Mr. Nguyen has not committed any new offences. [ 37 ] Mr. Myers provided a book of authorities where noncustodial sentences -conditional sentence orders or suspended sentence - were granted even in cases where the defendants had previous criminal records, including for trafficking, and where the circumstances were even more aggravating than Mr.

Nguyen's, for example, where there were larger amounts of illicit drugs involved. Some of the cases, as well, showed a lesser degree of rehabilitative effort made by the defendants than what Mr. Nguyen has been doing.

[ 38 ] I simply did not have time go into detail today regarding the authorities, but I listened to Mr. Myers' submissions and I had an opportunity to review the cases as well as the Crown's cases that were previously provided. [ 39 ] It is well-understood that sentencing is an individualized process. The fundamental principle of sentencing is proportionality. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Here, there is no dispute that the offences that Mr.

Nguyen pleaded guilty to are extremely serious. [ 40 ] The sentence must also take into account mitigating and aggravating factors, and parity, that the sentence I impose must be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 41 ] The mitigating factors are Mr. Nguyen's guilty plea, which, as I have already said, was before trial dates were set. That indicates that he is taking responsibility for his actions. That is also reflected in what he told Mr.

Gribbons and what I heard in submissions today, and also what his family members have expressed. [ 42 ] Mr. Nguyen is before the Court as a young man without a criminal record. He was struggling with a drug dependency during the time that he committed the offences. His conduct since the offences has been extremely positive. There are no new offences. [ 43 ] The aggravating factors are the serious nature of the offences given the lethal nature of the drugs that Mr.

Nguyen was dealing, that it was dial-a-dope operation, and also that there were a number of transactions. [ 44 ] I am mindful of s. 718.2(d)(e), which sets out the principles relating to the restraint that I need to take into account when imposing a sentence.

I also take into account s. 10 of the Controlled Drugs and Substances Act , which points out the fundamental purpose of any sentence for offences such as these is to contribute to respect for the law; maintenance of a just, peaceful and safe society; while encouraging rehabilitation and treatment in appropriate circumstances; and also acknowledging the harm done to victims and to the community. [ 45 ] Mr. Nguyen knows, I am sure, better than any of us about the harm to victims and to the community. He, himself, almost fell victim to his drug use, and one of his close friends did. By trafficking in drugs, Mr.

Nguyen may also have contributed to similar harm to other people that were dependant on drugs, as he was at the time. [ 46 ] Section 10(2) of the Controlled Drugs and Substances Act enumerates a number of aggravating factors, and none of those apply to Mr.

Nguyen. [ 47 ] Now, in order to impose a conditional sentence order, I need to be satisfied that the preconditions that are set out in s. 742.1 are satisfied, including that a conditional sentence order, which is a jail sentence served in the community, would not endanger the safety of the community, and that it would be consistent with the fundamental purpose and principles of sentencing that I have just referred to. [ 48 ] Proulx , from the Supreme Court of Canada, has pointed out that a conditional sentence as a sentence of imprisonment, is intended to address punitive and rehabilitative sentencing objectives, and that in circumstances where a conditional sentence order can address both punitive and restorative objectives, it may be more appropriate than incarceration. [ 49 ] Justice Lamer, in Proulx , also said that a conditional sentence order can be as onerous or even more onerous than a jail term, particularly in circumstances where the offender needs to take reasonability for their actions and make reparations to both the victim and the community.

The other feature, as well, is that a conditional sentence is not subject to reduction through parole, the way a custodial sentence is. [ 50 ] Proulx , at paragraph 107, pointed out that Courts should take care to not place too much emphasis on deterrence when choosing between a conditional sentence and incarceration, because the deterrent effect of incarceration is uncertain, and that with punitive conditions, conditional sentences can effectively address the principle of deterrence. [ 51 ] All the steps Mr.

Nguyen has taken, his work, his stable housing, his stable family life, that he has been in recovery for over a year, show that he has been on a clearly prosocial trajectory. In my view, sending Mr. Nguyen to jail would be counterproductive because it would essentially undo everything positive that he has been doing and would not be in the public interest. [ 52 ] Through Mr. Nguyen's conduct in the last six years, he has shown, even without a court order, that he can be law abiding and productive. I find it significant that he has stopped using illicit drugs. In the past seven months, Mr.

Nguyen has been bound by a strict release order, and he has shown that he can and will abide by court orders. [ 53 ] Everything that I have heard about Mr. Nguyen through the Pre-Sentence Report, the information from the bail supervisor and in the defence’s submissions is uniformly positive and encouraging. Therefore I have concluded, under all the circumstances, that a lengthy conditional sentence order -- the one that has been proposed, 24 months less a day - two years less a day - is fit and appropriate. It meets the principles of sentencing. It is in alignment with the authorities. It conforms with parity.

It takes into account the aggravating factors, as well as Mr. Nguyen's mitigating factors.

It will also satisfy the paramount principles of denunciation and deterrence, and exercises restraint for this young, adult man who genuinely appears to have turned his life around. [ 54 ] And so I will go through the conditions of the conditional sentence order now, and then when we get to it, I will invite counsel to suggest what we should do about the one mandatory condition. [ 55 ] So you must comply with the conditional sentence order for a term of 24 months less one day. [ 56 ] The conditions are, first of all, the mandatory condition is to keep the peace and be of good behaviour.

That means to do what you have been doing for most of your life, except for that time when you were committing the offences, and to abide by the conditional sentence order. You must appear before the Court when you are required to do so by the Court. You must notify the Court or your conditional sentence supervisor in advance of any change of name or address and promptly notify the Court or your supervisor of any

change in employment. [ 57 ] Then the next term is that you must remain in British Columbia, unless you have prior written permission from the Court, or your conditional sentence supervisor to leave the province. So I can give you that permission now, Mr. Nguyen. [ 58 ] The next term will be that Mr. Nguyen has permission to leave the Province of British Columbia and return to Alberta. [PROCEEDINGS] [ 59 ] THE COURT: You must report by telephone to a conditional sentence supervisor at the Tri-Cities Community Corrections Office at (604) 927-2207, by 3:00 p.m. on Monday – [PROCEEDINGS] [ 60 ] THE COURT: Okay.

By Tuesday, December 5th, 2023. If the office is closed, you must continue calling daily, during regular business hours until you have spoken to a supervisor and receive further direction to report.

After that, you must report as directed by your supervisor. [ 61 ] When you first report to your conditional sentence supervisor, you must provide them with the address where you live and your phone number, and you must not change your address or phone number without prior written permission from your supervisor. [ 62 ] For the first three months of this order, you must obey house arrest by being inside your residence or on its lot 24 hours, every day.

You must present yourself immediately at the door to your residence or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the house arrest. You may be away from your residence during the house arrest with the written permission of your conditional sentence supervisor. Such permission is to be given only for employment or other compelling reasons. You must carry the permission with you when you are outside your residence. [ 63 ] You may also be away from your residence during the house arrest hours: (

c) while at or going directly to or returning from a healthcare facility because of a medical emergency. If asked, you must provide your conditional sentence supervisor with proof of your attendance at the facility. [ 64 ] For the 21 months following your house arrest, you must obey a curfew by being inside your residence or on its lots between 6:00 p.m. and 6:00 a.m. every day. You must present yourself immediately at the door to your residence or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the house arrest.

You may be away from your residence during the house arrest with the written permission of your conditional sentence supervisor. Such permission is to be given only for employment or other compelling reasons. You must carry the permission with you when you are outside your residence. [ 65 ] You may also be away from your residence during the curfew hours while at or going directly to or returning from a healthcare facility because of a medical emergency.

If asked, you must provide your conditional sentence supervisor with proof of your attendance at the facility. [ 66 ] You must not possess or consume alcohol, drugs, or any other intoxicating substance, except with a medical prescription. [ 67 ] You must attend, participate in and complete any intake, assessment, counselling, or education program directed by your conditional sentence supervisor, which may include counselling through a private care provider. This may include but is not limited to alcohol or drug dependency. [ 68 ] I am putting in that term, given that you have dealt with a lot of grief, Mr.

Nguyen, and although you have managed to stop using on your own, it seems to me that it will be helpful for you to have some professional help with a relapse plan and, perhaps, to have you work through whatever the issues were that were causing you to use and to help you be aware of triggers. So I am hoping that it will be helpful to you. [ 69 ] You must complete 60 hours of community work under the direction of your conditional sentence supervisor within 18 months from the date of this order.

So some community work service, with quite a bit of time to do it, as a way for you to give back to the community. [ 70 ] The final term, the short version will be that you must not possess directly or indirectly any weapon as defined by the Criminal Code . [ 71 ] And so before I move on to the ancillary orders, I will check with you Mr. Nguyen. Do you understand the terms of your conditional sentence order? [ 72 ] THE ACCUSED: Yes. I do, Your Honour. [ 73 ] THE COURT: All right. [ 74 ] CNSL Z. MYERS: And I didn't see any issues with anything either. [ 75 ] THE COURT: All right. And, as I am sure Mr.

Myers told you, a conditional sentence is considered to be a period of incarceration served in a community. Should there be a breach -- and I do not have any reason to think there will be, but I need to tell you that if there is a breach, there is a possibility that you can find yourself serving the balance in an actual jail. [ 76 ] I will dispense with Mr. Nguyen's signature on the conditional sentence order, unless it is your preference, Mr. Myers that he go to the registry and get a copy –

[PROCEEDINGS] [ 77 ] THE COURT: Yes. I will dispense with your signature, but you will need to go the registry after this to get a copy. Okay? [PROCEEDINGS] [ 78 ] THE COURT: So the weapons prohibition is mandatory pursuant to s. 109 of the Criminal Code . You are prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of ten years from today; and (

b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 79 ] And then the DNA order, I am satisfied that it ought to be made. I have taken into account the factors that are set out 487.051(3), including that Mr. Nguyen does not have a criminal record, but given the nature of the offences that he has pleaded guilty to, I am satisfied that the order ought to be made and that the intrusion on Mr. Nguyen's privacy is minimal. [ 80 ] Counts 1 and 7 on Information 101550 are secondary designated offences.

After considering the factors set out in s. 487.051(3) of the Criminal Code , I am satisfied that it is in the best interests of administration of justice to authorize the taking of samples of bodily substances from you. Now, ordinarily, that would happen at the Coquitlam RCMP, so w hat are the suggestions in terms of how Mr. Nguyen is going to comply with that? [ 81 ] CNSL Z. MYERS: I could try to look up the station in Calgary, Your Honour. [ 82 ] THE COURT: Okay -- [ 83 ] CNSL Z. MYERS: That's the only solution I can think of. I'm sorry I didn't entertain that until now.

It is 7575 8 Street NE, Calgary, Alberta. [PROCEEDINGS] [ 84 ] THE COURT: All right. And is that the RCMP station? [ 85 ] CNSL Z. MYERS: Yes. That appears to be their main headquarters -- [ 86 ] THE COURT: Okay. So you will need to go to the RCMP station in Calgary -- and by what date do you propose Mr. Myers? [PROCEEDINGS] [ 87 ] THE COURT: Okay. By February 29th, 2024. [PROCEEDINGS] [ 88 ] THE COURT: Okay. So the victim fine surcharge will be payable -- I will make that by February 29th, 2024. (ORAL REASONS FOR SENTENCE CONCLUDED)