R. v. Lau - RFS Date:, 2011 BCPC 215

Citation: R. v. Lau - RFS Date: 20110516 2011 BCPC 0215 File No: 169846-3C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. YUN FUK LAU REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. B. HICKS Counsel for the Crown: C. Stanley Counsel for the Defendant: M. Sanders Place of Hearing: Surrey , B.C.

Dates of Hearing: May 2, 3, 4, 2011 Date of Judgment: May 16, 2011 [ 1 ] THE COURT : Yun Fuk Lau has pled guilty to the single count on Information 169846-C3 that on September 17 of 2008 at Surrey, British Columbia, he did unlawfully produce cannabis marihuana, contrary to s. 7(1) of the Controlled Drugs and Substances Act . He is before the court today to be sentenced. [ 2 ] The Crown is seeking a conventional jail sentence of 12 months together with ancillary orders. Mr.

Sanders on behalf of this offender argues that a conditional sentence order with strict conditions reflects the proper balancing of the objectives of sentencing in this particular circumstance, and in respect to this particular offender. [ 3 ] On September 12th of 2008, the RCMP received a report documenting theft of hydro at 10857 - 157A Street in Surrey. That is a single-family residence owned jointly by this offender and his aunt, Ying Que Li. She was not a party to this offence. That report documented 20,387 watts of electricity to have been stolen.

Police executed a search warrant at the residence at 7:20 a.m. on September 17th of 2008. Mr. Lau was arrested in the home. His father was also arrested, but the Crown has stayed proceedings against that gentleman. A search of the residence revealed a substantial three-stage commercial marihuana grow operation in four grow rooms in the basement. In those four grow rooms were 556 clones, 268 marihuana plants at the vegetative stage up to 18 inches in height, and 515 plants at the flowering stage totalling 1,338 plants. In a clone room were 336 clones under halogen lighting.

Also present were three- and-a-half pounds of harvested marihuana buds in boxes. There were also on site supplies of soil, pots, gardening tools, bamboo support poles and nutrients.

[ 4 ] An electrical room had been set up in the basement to supply electricity to the lights and fans needed to grow the marihuana. The electricity was obtained by way of a bypass set up in the garage allowing the diversion of the necessary power to the grow operation and in order to avoid detection and ultimate payment. The electrical board is visible in photographs provided in the book of photographs, which was marked Exhibit 1 on the sentencing. It is an extensive and complex electrical circuit with a number of complex electrical accessories. Two timing boards control the timers which activate the equipment.

There are 19 electrical ballasts, 12 relays and these supply a variety of lights and fans and pumps. The bypass is also visible in photographs provided in the exhibit. This grow operation was manually maintained by way of watering and application of nutrients. Barrels were used for that purpose. Calendars and grow logs were also present and were seized. [ 5 ] The Crown called Cst. James Hooker of the RCMP, who was qualified as an expert in various aspects of marihuana production, packaging and pricing.

He said that this crop, were it to grow to market and average two ounces of bud per plant, would generate revenue between $300,000 and $468,000 if sold at the pound level and $669,000 to $936,000 if sold at the ounce level. In cross- examination he agreed that not all plants grow and produce bud or produce two ounces per plant. There are a variety of risks that may affect yield. Cst. Hooker did not himself see this crop. He has only viewed it by way of the photographs. He agreed his pricing is based on the price the crop would be sold to a distributor and that price is greater than the price a grower like Mr.

Lau would receive when selling to a broker or middleman as is usually the case. Thus the value of the crop to Mr. Lau might be less than $300,000. The value of the crop as it moves into the distribution chain and is sold off in lots is much greater, perhaps reaching the $936,000 figure, assuming the full yield from all of the plants over the grow cycle. [ 6 ] The evidence is consistent with this operation being an ongoing concern, bearing in mind the supplies, the three-stage operation, the extensive equipment and electrical facilities which had been installed in this home.

The photographs show a well furnished and lived-in home on the upper floors. The kitchen is well stocked. A can of bear spray was found in the kitchen. Three ceremonial swords were found in the upstairs bedroom. Otherwise, no weapons nor security devices were present on this property. [ 7 ] I am told that the property was purchased in 2006 and that Mr. Lau moved into the residence in January of that year. His cousin moved in as well in late 2007. Her name appears on the utility bills. Mr. Lau is 27 years of age today. He was 24 at the time the charge arose. He was born in China. He came to Canada eight years ago.

He is a Canadian citizen. He has a grade 12 education. He began a mechanics program at BCIT, but he did not finish that program. He worked in a casino commencing in 2006 and he took a second job working in a sushi restaurant. During this period he installed the marihuana grow operation in the residence. He hired someone with the expertise to do the electrical work which was required. [ 8 ] When these charges were laid he was required to leave his employment at the casino. He has since continued to work in the sushi restaurant business and has risen through the learning process to become a chef.

He works long hours five days a week. Mr. Lau has no criminal record. Mr. Lau decided to grow marihuana in January of 2008. He studied the subject in books and on-line. He was unsuccessful at first. However, he eventually produced a crop, which is the marihuana buds which were found in the boxes at the residence and are depicted in the photographs. He was looking for a buyer at the time he was arrested. He had not yet earned a profit from this grow operation. I am told that Mr. Lau was an unsophisticated participant in this endeavour.

He did not appreciate the hazards these operations create for violence in the community, nor the risk of fire, particularly created through the hydro bypass. [ 9 ] Mr. Sanders frankly states that Mr. Lau was in this to make money. He noted that Mr. Lau's father, against whom the Crown has stayed proceedings, now faces immigration problems due to the involvement of his son in this endeavour. Mr. Lau expressed his remorse and regret for having done this. He said he now understood the risks referred to and that he would not do this again.

He has fully repaid the hydro account in the amount of $5,411. [ 10 ] The purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code govern the determination of a fit sentence in this case. The Court of Appeal in this province has said that the risks created by a commercial size marihuana grow operation located in the midst of a residential community are so significant that the dominant sentencing objective must be general and specific deterrence and denunciation.

That court has noted what is commonly known that such operations invite criminal elements into neighbourhoods, that the risk of violent crime is elevated and innocent third parties either living within the target residence or nearby are placed in danger. There is a significant fire risk associated with these operations, principally arising from the poorly installed electrical gear and jerry-rigged hydro bypasses.

These operations once established are lucrative and invite the interest of organized crime, who are enriched through the profits. [ 11 ] I must also consider restorative and rehabilitative objectives because each sentencing must address the particular circumstances of the offence and the offender. Any sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The sentence should be similar to sentences imposed on similarly positioned offenders in similar circumstances.

An offender should not be deprived of his liberty if less restrictive sanctions would be appropriate. All available sanctions other than imprisonment should be considered. [ 12 ] In the present case the offender asks that I impose a conditional sentence order.

Section 742.1 sets out the basis upon which this might occur. First, a sentence of less than two years must be imposed. A sentence in that range is appropriate based on the decisions of the superior courts in this province and indeed neither party is suggesting that a sentence exceeding two years be imposed in this case. [ 13 ] I must then be satisfied that under properly structured conditions the offender will not endanger the safety of the community. In the present case Mr. Lau has no prior record. He has not violated bail or committed any new offences since his arrest.

He is fully employed and I am satisfied that he would not be a risk in the community under proper conditions. [ 14 ] The final requirement is that a sentence served in the community on strict conditions including a likely house arrest condition be consistent with the governing purpose and principles of sentencing which were referred to a moment ago. [ 15 ] I note here his plea of guilty, his expression of regret and remorse, his good conduct since his arrest, his positive lifestyle currently and the absence of any record and the fact that I am satisfied as I have concluded that specific deterrence is not a significant consideration in his case.

As is usually the case in these situations, the decision whether a conditional sentence order should be imposed

or the offender sentenced to a term of conventional jail involves in the particular circumstances of the case a balancing of the need for a sentence which expresses in strong terms the community's denunciation of this activity and provides a strong statement of general deterrence with restorative and rehabilitative principles. [ 16 ] In the case of R. v.

Su in the British Columbia Court of Appeal in 2000, Madam Justice Ryan confirmed the proposition that the sentencing principles of deterrence and denunciation will generally call for a sentence of conventional jail for the owner of a commercial marihuana grow operation and that a conditional sentence order will generally be unsuitable. [ 17 ] In R. v.

Proulx , which is a decision of the Supreme Court of Canada in 2000 and is a well-known case addressing conditional sentence issues, the court there noted that a conditional sentence order can have significant deterrent and denunciatory value when properly structured and is available for consideration in any case where no minimum penalty is set, and the court would impose a sentence of less than two years incarceration. [ 18 ] The Court of Appeal has outlined the considerations to be taken into account in assessing the appropriateness of a conditional sentence order for the offence of production of marihuana.

In R. v. Wallis in 2007 the Court of Appeal stated: This Court has not precluded the imposition of a conditional sentence order (sic) for production of marihuana where the circumstances of the offence or the offender demonstrate that principles of sentencing other than denunciation and deterrence should be given more consideration. These include rehabilitation and restorative objectives, including reparation for harm done and acknowledgment of responsibility.

In every case, consideration of the fundamental principle that "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender" as set out in s. 718.2 of the Code , is of major importance, and may lead to the conclusion that a conditional sentence is appropriate in the particular circumstances. [ 19 ] Mr. Lau has committed a serious criminal offence which is deplored in the community. This was an operation of some size and income potential, although, I must accept, that no profit had yet been earned.

His actions created significant risks to himself, those living in his home and particularly in his neighbourhood. He did so to earn lucrative profits available in this illicit activity. His actions required study and significant planning and preparation, and a significant financial investment. His grow operation supports the downstream criminal activity involved in distributing and trafficking the substance and which supports organized crime.

These are the aggravating features which support the predominant concern for general deterrence and denunciation and which would argue for a conventional jail sentence. [ 20 ] On the other hand, Mr. Lau is a youthful first offender who has accepted responsibility for his criminal conduct through his plea of guilty and expressed his remorse and his determination not to become involved in criminal conduct in the future. He understands better now the risks and dangers he created. He has been fully employed since these events and has advanced his career prospects during that time.

He has fully repaid the hydro account. He has been in the community now since these events occurred and has not violated his bail or committed further offences. A proper balance of these circumstances call for a significant recognition of restorative and rehabilitative objectives and justify the imposition of a conditional sentence order. [ 21 ] Mr. Lau, could you please stand. There will be a conditional sentence order for a period of 15 months. The conditions are the following: That you keep the peace and be of good behaviour.

The statutory conditions will apply and they will be reviewed with you by the justice of the peace. [ 22 ] You are to report before 12 noon tomorrow, which is May 17, 2011, to a conditional sentence supervisor and thereafter as directed by the supervisor. [ 23 ] You will reside where directed by the supervisor. You will not change that address without the prior written approval of the supervisor. [ 24 ] During the first 12 months of the conditional sentence order you will be bound by a house arrest condition.

You are not to be outside of your place of residence except for the following purposes: To attend court when required to do so. To attend to your legal counsel. To attend to your supervisor. To attend to your employment pursuant to a

schedule set out on the letterhead of your employer and provided to your supervisor and confirmed and accepted by your supervisor. To attend to community work service. To attend to any assessment, treatment or counselling that may be directed by the supervisor.

To attend to any medical or dental appointment pursuant to approval of that appointment date and time in advance by the supervisor having provided the name and contact information of the doctor involved. [ 25 ] On either Saturday or Sunday of any weekend you may be away from your residence between the hours of nine o'clock in the morning and noon for the purpose of attending to banking and similar personal business. You may be away from your residence when travelling directly to or from any of these commitments.

You may be away from your residence where you have the prior written approval of the supervisor, which you are to carry with you and produce on request of a peace officer or supervisor. [ 26 ] During the final three months of the conditional sentence order, you will be bound by a curfew. You must not be outside of your place of residence between the hours of ten o'clock in the evening and six o'clock in the morning seven days a week, except when attending to your employment, pursuant to a

schedule provided on the letterhead of your employer and approved by your supervisor, or when travelling directly to or from your employment or where you have the prior written approval of your supervisor, in which case you are to carry that with you and produce it on request of a peace officer or supervisor. [ 27 ] You must attend the door of your residence or by telephone at the request of a peace officer or supervisor to confirm compliance with the house arrest and the curfew conditions. [ 28 ] You are to abstain absolutely from possession or consumption of alcohol or any non-prescription drug or any substance controlled under the Controlled Drugs and Substances Act unless you hold a medical prescription for that substance. [ 29 ] You are to attend, participate in and complete to the satisfaction of your supervisor any assessment, treatment or counselling that

may be directed by the supervisor. [ 30 ] You are to complete 30 hours of community work service to the satisfaction of the supervisor before the end of the fifth month of the conditional sentence order. [ 31 ] You are to seek and maintain employment and/or attend an educational or vocational program as directed by the supervisor. [ 32 ] You are not to possess any weapon as defined in the Criminal Code of Canada . [ 33 ] You are to carry a copy of this order with you when you are away from your residence and produce it on request of a peace officer or supervisor. [ 34 ] Those are the conditions that will apply on the conditional sentence order. [ 35 ] Now, the victim fine surcharge will apply.

If I am not mistaken, there is a ten-year mandatory firearms prohibition order and that will be imposed. You will be bound by an order that you not possess firearms during that period and the full content of that order will be reviewed by the justice of the peace with you. [ 36 ] The DNA databank provisions apply. It is a secondary designated -- [ 37 ] MS. STANLEY: Secondary, Your Honour, yes. [ 38 ] THE COURT: Any submissions, Mr. Sanders? [ 39 ] MR.

SANDERS: I submit that it's disproportionate and doesn't have the rational connection with the offence in this case, Your Honour. [ 40 ] THE COURT: I am satisfied that it is appropriate bearing in mind the seriousness of this offence and the potential dangers it creates and the minimum intrusion involved. There will be an order, sir, that you provide a sample of your DNA to the national DNA databank.

I order that you attend at the Surrey detachment of the RCMP on Thursday of this week, which is the 19th of May, 2011 between ten o'clock in the morning and two o'clock in the afternoon for the purpose of supplying a sample of your DNA to the national databank. (REASONS FOR SENTENCE CONCLUDED)