R. v. Yang Date:, 2011 BCPC 148

Citation: R. v. Yang Date: 20110620 2011 BCPC 0148 File No: 146871 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JIMMY OU-YANG REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE BLAKE Counsel for the Crown: Mr. P. Eccles & Mr. T. Johnson Counsel for the Defendant: Mr. M. Klein Place of Hearing: Victoria, B.C. Date of Hearing: June 13, 2011 Date of Judgment: June 20, 2011 [ 1 ] The accused person, Jimmy Ou -Yang, was convicted after trial on a charge of conspiring to traffic in cocaine, contrary to section 5 (1) of the Controlled Drugs and Substances Act. I am now called upon to sentence Mr.

Ou -Yang, having heard detailed submissions and having now had an opportunity to review the extensive written materials submitted by counsel at the sentencing hearing. [ 2 ] When considering the appropriateness of any sentence, the Court must take into account the general seriousness of the offence charged, the particular circumstances in which the offence was committed, and the circumstances of the offender.

Consideration of each of those factors must take place bearing in mind the general sentencing principles set forth in sections 718 through 718.2 of the Criminal Code . [ 3 ] The offence of trafficking in cocaine is, of course, extremely serious in nature. That is apparent from the penalty which the law provides in the event of conviction. As usual in this respect, the law speaks only in terms of maximum penalties.

The maximum penalty for trafficking in cocaine is life imprisonment, ranking it in the same category as offences of extreme violence, such as robbery or sexual assault. [ 4 ] The insidious effects of drug use and abuse in the community, especially involving “hard” drugs such as cocaine, are so well- known as not to require extensive elaboration. I will content myself with a simple endorsement of the words used by my brother Judge Higinbotham in the cocaine-trafficking case of R. v. Bains , 2008 BCPC 261 (CanLII) , 2008 BCPC 0261 , at paragraph 2 :

[The accused] contributed in an important way to the infliction of untold damage on human lives through his distribution of this harmful drug. When I refer to this drug as harmful, I do not just refer to its impact upon individual users; I also refer to its impact upon society as a whole. Cocaine is not a purely “recreational` drug, as it was once thought to be. For many years now it has been capable of transformation into crack, a cheap and highly addictive form of cocaine that renders the addict incapable of little else but the all- consuming drive to get more.

It leads to property and other crimes which affect all of society. The crack addict is unlikely to afford to feed this craving without resort to theft, breaking and entry, or robbery. There is a trickle-down effect resulting from the accused`s conduct that hits the community as a whole. [ 5 ] Cocaine trafficking ultimately results in wreaking havoc upon individuals and upon whole communities, as anyone who spends any time in our criminal courts can see on a daily basis.

It is only to be expected, therefore, that the Courts will place considerable emphasis on the elements of denunciation and deterrence when sentencing those convicted of contributing in any substantial way to this sad state of affairs. [ 6 ] In the present case, the sequence of events which occurred on September 2, 2008, leading to the charge before the Court, are outlined in some detail in the Reasons for Judgment which I delivered on April 21, 2011. I do not think it would be particularly helpful if I were to repeat now what I wrote in those Reasons.

Certain aspects of the broader fact pattern need to be highlighted, however. [ 7 ] Mr. Ou -Yang agreed to sell a kilogram of cocaine to a purchaser on Vancouver Island. He did so for no reason other than financial gain. The telephone intercepts reveal that he conducted himself in a careful and calm fashion throughout, indicating that this particular transaction was not an isolated incident in his life. Indeed, several of the telephone discussions intercepted by the police investigators contain specific references from which it can reasonably be inferred that Mr.

Ou -Yang was comfortable engaging in cocaine transactions of a magnitude equal to and even greater than that which occurred in this case. [ 8 ] The series of events which occurred in the days leading up to September 2, 2008, and the events on that day itself, show that Mr. Ou -Yang operated his drug business in a sophisticated way. For example, he engaged the services of Mr. Tran to act as a middle man in the transaction itself, intending to insulate himself from direct involvement.

He may well have achieved that objective if it were not for the use of wiretaps in this case. [ 9 ] The use of the `middle man`` technique as being indicative of sophisticated criminal behaviour and therefore an aggravating factor on sentencing was noted in R. v. Garafoulis (1998), 1998 CanLII 6203 (MB CA) , 131 CCC (3d) 242 (Man CA) at paragraph 7 : The accused in this case was the principal in a sophisticated operation. He did not handle the cocaine himself and was never present when it was delivered to a purchaser. By the use of intermediaries, he isolated himself from detection.

Detection of such crimes is so difficult and costly to achieve that many engaged in them believe they can avoid the penal consequences of their nefarious activity. It is therefore important that they know that, once caught and convicted, the law will deal with them severely. [ 10 ] I wish to make reference to one other, rather more subtle indicator of the high level at which drug transactions were being conducted by Mr. Ou -Yang. I note that his intermediary, Mr. Tran, did not receive any money from Mr. Timmerman when he delivered the kilogram of cocaine to him.

The absence of a monetary transfer at that point would suggest that Mr. Ou -Yang and his purchasers were comfortable dealing with one another, demonstrating a level of trust which could only have been reached through familiarity in handling such transactions. [ 11 ] Mr. Ou -Yang does not advance any mitigating reason for his involvement in the cocaine trade. He is obviously an intelligent and articulate man.

I can only conclude that for a time in 2008 he deliberately chose to accept the risks of engaging in drug trafficking, calculating that the personal and social damage to which he was contributing was of less importance than the financial gain that would come his way so long as his activities went undetected. As Crown Counsel points out, there is a disturbing arrogance implicit in that form of calculation. [ 12 ] To his credit, though, Mr. Ou -Yang has reached the age of 29 years without acquiring any history before the Courts. I have received many letters of reference which attest to his general character.

It appears that he grew up in Vancouver and that his parents separated when he was a child. After the parental separation, according to his sister, he became devoted to ensuring that his younger siblings were properly cared for. He remains on close terms with his family, who recognize the depth of his legal transgressions but nonetheless remain supportive. [ 13 ] Mr. Ou -Yang completed high school and then drifted into a life as a professional poker player. It is said that he was successful in that vocation and made significant sums of money.

Unfortunately, I suspect that in the process perhaps he came to overlook the fact that earning an income involves more than merely calculating the odds and taking any route to financial success, legal or otherwise, so long as the risks can be minimized. [ 14 ] In the time that has elapsed since he turned himself in to answer the charge in this case, Mr. Ou -Yang has been on a fairly generous form of bail release and has made good use of his time. He has completed courses to qualify as a gas appliance service person, and he has invested in a clothing business.

He has a stable and long-lasting relationship with his girlfriend. [ 15 ] In short, it seems to me that Mr. Ou -Yang`s prospects for rehabilitation are good. Although the nature of the conviction in this case requires that, as I have already said, other sentencing principles be given significant weight, the rehabilitative aspect of the sentencing process ought not to be lightly cast aside in the case of a person who has never before been before the courts.

It has been frequently pointed out that for the first offender, the process of being prosecuted as a criminal and publicly denounced by the trial outcome is itself a significant form of deterrence. It would be unfortunate indeed if overly-long exposure to a penal institution served to reverse that positive transformation.

[ 16 ] Crown Counsel has submitted that an appropriate sentence in this case falls in the range of five years to ten years in prison. The defence submits that a sentence in the range of three to five years would be more fitting. Not surprisingly, both counsel have found case authorities to support their respective positions. [ 17 ] I have read all of the authorities provided to me, together with a number of other cases referred to in those authorities.

In the end, though, I have concluded that most of the cases provided are only of general assistance at best in helping to reach a conclusion in the specific matter before me. Indeed, counsel have conceded that I would likely find that to be so, since each case depends on its own particular facts and the particular circumstances of the offender before the Court. [ 18 ] I do wish to make specific, albeit brief, reference to the following cases because I find that they appear to me to at least bracket an applicable range of sentence better than any of the others: R. v. Camera 2008 BCCA 308 ; R. v.

Vanderheide 2010 YKTC 55 ; R. v. Turner 2010 BCSC 1690 ; and R. v. Doyle 2006 BCSC 2041 . Even after `narrowing the field`` somewhat, however, it is no easy task to translate the results from one matrix to another. [ 19 ] Taking all factors into account as best I can, I have determined that the appropriate sentence in this case is a period of imprisonment of four and a half years, and I so order. [ 20 ] In addition to the term of incarceration, I will make an Order requiring Mr.

Ou -Yang to provide a sample or samples of bodily substances to a peace officer for purposes of DNA analysis and registration, pursuant to

section 487.051 of the Criminal Code . The offence of trafficking in cocaine is a secondary designated offence for purposes of the DNA provisions of the Code. I consider the serious nature of the offence and the secretive way in which it was committed in this case to be important factors in deciding that a DNA Order is appropriate. I also bear in mind that since Mr.

Ou -Yang is likely to be in custody for a considerable period of time as a result of this conviction the requirement that he provide DNA samples is not likely to constitute any significant additional deprivation of his liberty or security of the person. [ 21 ] In addition, I will make a mandatory weapons prohibition order pursuant to

section 109 of the Criminal Code . Mr. Ou -Yang is hereby prohibited, for a period of ten years after his release from custody, from possessing any of the following items: any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. He is prohibited, for the rest of his life, from possessing these items: any prohibited firearm, restricted firearm, prohibited weapon, prohibited device or prohibited ammunition. [ 22 ] I will leave it to counsel to explain to Mr.

Ou -Yang in more detail the nature of the DNA Order and the weapons prohibition Order which I have made. [ 23 ] I would like to close by expressing my gratitude to counsel for their focused and helpful submissions on this sentencing proceeding. ________________________ E.C.Blake Provincial Court Judge