R. v. Do Date:, 2013 BCPC 111

Citation: R. v. Do Date: 20130123 2013 BCPC 0111 File No: 179485-2C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. VAN TRONG DO REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. B. HICKS Counsel for the Crown: L. Jomori for D. Jahani Counsel for the Defendant: G. Jose, for G. DelBigio, Q.C. Place of Hearing: Surrey , B.C. Date of Hearing: January 23, 2013 Date of Judgment: January 23, 2013

[ 1 ] THE COURT : On November 7 of 2012, I convicted Van Trong Do following a trial on four drug-related offences set out in Information 179485-C2. He is before the court today to be sentenced. The convictions entered on Counts 1, 2, 3 and 5 were respectively for possession of cocaine for the purpose of trafficking, trafficking in cocaine, possession of heroin for the purpose of trafficking and possession of marihuana for the purpose of trafficking. He was acquitted on Count 4 of the charge that he was in possession of Oxycodone for the purpose of trafficking. [ 2 ] The events occurred on March 10, 2010.

The Crown seeks a 12-month global sentence of incarceration in a conventional jail setting, that being at the upper end of the nine to 12-month range which the Crown says applies here and emphasizing the concern for denunciation and deterrence as overriding sentencing objectives in cases of this type. The defence proposes a conditional sentence order reflecting greater weight to be given to rehabilitation, bearing in mind Mr. Do's relatively young age and the absence of any criminal record.

The Crown is opposed to a conditional sentence order. [ 3 ] The circumstances are that police received information that drug trafficking activity was occurring from a suite in a building on 93rd Street, Surrey, British Columbia, utilizing a particular cell phone number. Mr. Do was the subscriber to that cell phone number and the tenant and occupant of the suite. On March 10 of 2010, police conducted surveillance of the suite and set up an undercover purchase of cocaine through the cell phone number identified. [ 4 ] Dylan Bastian Herman was co-accused with Mr. Do.

He was observed leaving the suite, attending and selling two rocks of cocaine to an undercover officer and returning to the suite. Mr. Do left the suite moments later. The search warrant was obtained and Mr. Herman was arrested inside the suite at the time the warrant was executed. Mr. Do was arrested just over two hours later as he returned to the suite. The evidence established that Mr. Do lived in the suite based upon the presence there of Mr.

Do's personal documents, including his passport, his citizenship card, his driver's licence, investment and mutual fund material in his name and various bills, including bills from Rogers Communication in his name as the subscriber to the cell phone, as well as bedding and some food items. Although Mr. Herman was found in the suite there is no evidence that he lived there. [ 5 ] The suite was in a messy state.

Scattered about the kitchen were 1.61 grams of heroin in 23 baggies, 28.02 grams of cocaine in chips, cakes and rocks, 14.28 grams of marihuana bud was found in the bedroom, a digital scale, mixing and straining implements all with drug residue, packaging and cutting materials were located in the kitchen. Cash in the total amount of $4,790 was located in the unit. The bait money used to effect the undercover purchase and the cell phone used to set up the transaction were also found in the unit.

There can be no doubt that the suite was being used to conduct a drug trafficking operation, including a dial-a-dope operation. There is no information suggesting other than that Mr. Do played a principal role in that operation. [ 6 ] Mr. Herman pled guilty at an earlier time to the single count of trafficking in cocaine on March 10th, 2010, and he was placed on an 18-month conditional sentence order. [ 7 ] A Presentence Report was not requested in respect to Mr. Do. I was told that Mr. Do is 26 years of age, 24 at the time of these events. He has no prior criminal record.

He came to Canada from Vietnam at age six with his family. His mother and sister eventually moved to the United States. He lived with his father and went to school in Courtenay. He did not complete high school. His father died five years ago. He sees his mother about once a year, but with this conviction I am told he is unlikely to be able to visit her in the United States and I am told that he will now be separated from her. It appears he has no other close family in this area. [ 8 ] Mr.

Do has some past experience as a crab fisherman, but no specific details were provided and no other work experience was outlined. No information was provided about steps he could have taken or has taken to upgrade his education, find employment, separate himself from past associations, or otherwise address rehabilitation in the almost three years since the offences were committed. When I asked what he was now doing I was told he was staying out of trouble. I was told he feels his life has been on hold and he now wishes to complete Grade 12.

No specific expression of regret or remorse for his involvement in this activity was provided, thus there is no basis on which I could conclude that Mr. Do has acquired or is acquiring any particular insight into the implications of this serious criminal conduct. It appears he is before the court pursuant to a summons and there is no suggestion of new charges arising since these events occurred. [ 9 ]

Section 718 of the Criminal Code states that, "The fundamental purpose of sentencing" in criminal cases "is to contribute ... to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions ..." addressing specific objectives. Here the relevant objectives to consider are denunciation of unlawful conduct, general and specific deterrence and the rehabilitation of this offender. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. I must consider aggravating and mitigating factors.

I should impose a sentence similar to sentences imposed on similar offenders in similar circumstances. All available sanctions other than incarceration should be considered if reasonable and I should only deprive Mr. Do of his liberty to the extent necessary to achieve the relevant sentencing objectives. Thus I must balance the relevant objectives in the particular circumstances of these offences and this offender in determining a fit sentence. [ 10 ] Sentencing considerations in drug trafficking cases frequently must address the tension between conventional jail and a conditional sentence order.

This is often the case where the offender is youthful, with no prior record. A conventional jail sentence emphasizes the seriousness of the offence and the overriding need to deter and denounce such conduct and to protect communities.

A conditional sentence order recognizes these ever-present considerations but takes account of the particular circumstances of the offence and this offender and argues for greater weight to be given in the balance to rehabilitation and restorative values. [ 11 ] The Supreme Court of Canada and superior courts in this province have pointed out that a properly constructed conditional sentence order can carry a strong message of deterrence and denunciation where rehabilitation and restorative factors demand greater voice in the particular circumstances.

Section 742.1 of the Criminal Code sets out the circumstances in which a conditional sentence order can be considered. Because the offences before me carry no minimum jail sentence and a fit sentence would be less than two years imprisonment, a conditional sentence order is available for consideration. I must consider whether such a sentence served in the community under conditions would endanger the safety of the community and whether it would be consistent with the purpose and

principles of sentencing as I earlier outlined them. [12] Drug trafficking and drug trafficking activity has a significant negative affect on communities. It is a significant criminalactivity in the Lower Mainland of British Columbia. It is highly lucrative and for this reason attracts the interest of organized criminalgroups. It fosters other criminal activity, including violence and the threat of violence by and among those who carry out these crimes. The drugs themselves are highly addictive and often lead to increased criminal activity among those who are addicted.

All of thisactivity and the effects of addiction on individuals tear at the social fabric of communities. A dial-a-dope operation is particularlyinsidious. (R. v. Franklin 2001 BCSC 706) [13] In R. v. Sidhu, Mr. Justice Smart of the Supreme Court in this province in 2007 described the impact of this form of traffickingas follows. He stated this: The method by which the accused committed the offence is what is colloquially known as a dial-a-dope operation.

This is a morepernicious method of selling drugs for it enhances the trafficker's ability to distribute drugs over a wide area through the use of a cellphone and a vehicle. It applies the efficiency, convenience, and commercial advantages of home delivery to the drug-traffickingbusiness. (R. v.

Sidhu 2007 BCSC 876) [14] I would add that it can be more difficult to detect trafficking in these circumstances and it makes drugs more easily accessible toyoung people or others who would find it difficult to access drugs on the street. [15] After referring to the statutory considerations respecting conditional sentence orders, Mr. Justice Smart continued in R. andSidhu at paragraphs 39 and 43 by saying the following: 39. As Mr. Justice Doherty explains in Hamilton, although each case is unique, the fundamental principle of sentencing isproportionality.

The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Because of the seriousness of this offence, denunciation and deterrence are the paramount purposes that must be served by any sentenceimposed. This is why jail is necessary even for a first-time offender. However, the other purposes of sentencing, includingrehabilitation, are still factors that I should attempt to balance in arriving at a fit sentence. 43.

The more serious the offence and the more aggravating the circumstances surrounding the commission of the offence or thecircumstances of the offender, the more deterrence and denunciation dominate the balancing of the purposes that a sentence seeks tobalance. We know that a conditional sentence does have a deterrent and denunciatory effect when it is imposed with strict conditionsamounting to house arrest. It does not, however, have the same consequences and the same effect as actual jail.

So here I must considerthe circumstances of this offence and this offender to decide if the right balance in this case for this offender is a conditional sentenceorder. I will not repeat the seriousness of the offence. It is why jail is necessary. [16] In imposing a conditional sentence order in that case, Mr. Justice Smart noted the offender who had pled guilty was aged 22 atthe time of the offence. He was not the principal in the operation. The total value of the drugs found in the vehicle was $460. He wasashamed of his conduct.

He had ended his connection with illicit activity and had family support and employment. He had taken stepstowards rehabilitation which would be set back by incarceration. [17] Similar circumstances were present in R. v. Tsang 2011 BCPC 191 , 2011 BCPC 0191, in which Judge Bagnall of thiscourt in 2011 imposed a nine-month conditional sentence order. In that case the offender was arrested in the driver's seat of a motorvehicle with five-and-a-half grams of cocaine and 1.6 grams of heroin, worth about $900, packaged for sale, and a cell phone ringingrepeatedly. The offender was 20 at the time with no record.

The court had the benefit of a Presentence Report which confirmed hisremorse, the support of his family and in the community, and efforts underway to upgrade education. Although not an addict andinvolved to earn an income, the court concluded that a conditional sentence order best addressed the balancing of deterrence anddenunciation with ongoing rehabilitation. [18] Each of the decisions provided in support of the argument for a conditional sentence order in the case before me demonstratedactive steps taken to address insight into the offending conduct and initiative in undertaking rehabilitation.

They demonstrate theimportance of support in the community which assists the court in concluding that the risk of the offender in the community isameliorated. In each of these cases the specific deterrence of the offender as a sentencing objective was well in hand. (R. v. Kozma 2000BCCA 440, R. v. Kinsey 2007 BCPC 15 , 2007 BCPC 0015 (Gove PCJ), R. v. Reddy 2002 BCPC 146 , 2002 BCPC0146 (Challenger PCJ)) [19] In the present case Mr. Do's role is not simply that of a delivery person. I have concluded he is a much more significant playerin this drug trafficking operation.

It is his apartment and telephone through which the operation is conducted. It is in his kitchen that thedrugs are cut and packaged for sale. He stored a large amount of cash in his suite. There is no information that he is or was otherwiseemployed. A variety of drugs were present in quantities consistent with trafficking. He is not himself an addict. One could onlyconclude that Mr. Do was a principal in a commercial drug trafficking operation conducted for profit and utilizing a dial-a-dope scheme.

It is precisely the kind of planned and organized criminal activity that the courts have said must be denounced in strong terms and whichrequires a strong statement of deterrence through sentencing. [20] In respect of Mr. Do himself I know only the most basic of background information. There is no basis on the informationprovided for me to conclude that Mr. Do accepts responsibility for his conduct, has or is gaining insight or is remorseful. He has madeno efforts to address restorative or rehabilitative concerns, although he has not committed further offences.

There is no clear andunequivocal assertion that he has separated from past negative associates or is determined to do so. There is no outline of a plan in effector to be put into effect which a court could have confidence would provide structure, direction and stability in the community and foster apositive contribution by Mr. Do going forward. There is no expression of commitment by Mr. Do to such a plan. In these circumstancesI cannot conclude that Mr. Do's specific deterrence has been addressed to date. [21] In R. v.

Tran, which is a decision of the Court of Appeal in this province in 2007, in reviewing and upholding a conventionalnine-month jail sentence for a relatively young offender in a dial-a-dope scheme, Madam Justice Saunders stated the following at

paragraph 6: Mr. Silverman says the judge was in error in holding that circumstances called for a custodial sentence, and in failing to recognize that a conditional sentence was available. I respectfully do not agree. It appears to me that the judge accurately captured the theme, as he referred to it, of the many cases he listed.

There is a line, fairly long now, of cases from this Court in which, absent an out of the ordinary circumstance, a custodial sentence has been found to be a fit sentence on a conviction of trafficking in a hard drug in what is referred to as a "dial-a-dope" scheme, where the offender is not an addict and has participated simply for profit. ( R. v. Tran 2007 BCCA 613 ) In R. v. Thompson in 2010, Judge Baird Ellan of this court reached a similar conclusion after reviewing Tran and other decisions of the Court of Appeal. ( R. v.

Thompson 2010 BCPC 285 ) [ 22 ] A conditional sentence order in my view is not appropriate in this case. This is one of those cases in which denunciation and deterrence both general and specific predominate. A strong voice for rehabilitation which might otherwise have tempered the outcome in favour of a conditional sentence order has not been established here. The considerations for the safety of the community and the balance of sentencing objectives contemplated in s. 742.1 are not met. I have taken account of Mr.

Do's relatively young age and the absence of any other record in determining an appropriate custodial period. [ 23 ] Mr. Do, please stand. I impose a sentence of ten months incarceration concurrent on all counts. [ 24 ] Bearing in mind my observations earlier, I view supervision in the community following your release to be appropriate and I place you thereafter on a 12-month probation order with the following conditions. You are to keep the peace and be of good behaviour. You must report forthwith following your release to a probation officer and thereafter as directed by the probation officer.

You will reside where directed by the probation officer. You are not to change that address without the prior written approval of the probation officer. You will attend, participate in and complete to the satisfaction of the probation officer any assessment, treatment or counselling that may be directed by the probation officer. You will seek and maintain employment and/or attend an educational or vocational program as directed by the probation officer.

Those are the conditions that will apply on the probation order. [ 25 ] There will be a firearms prohibition order under s. 109 of the Criminal Code for a period of ten years. [ 26 ] I make an order that you supply a sample of your DNA to the national DNA databank. It is a secondary designated offence, I believe, and that order is made in respect to each of the offences that you have been convicted on. [ 27 ] The victim fine surcharge is waived. You are now in the custody of the sheriff. [ 28 ] Ms. Jomori, I didn't address forfeiture.

I'm not sure if there were any items or materials that the Crown sought that on. I didn't have a note of it in my notes. [ 29 ] MS. JOMORI: I was advised by Ms. Jahani that she had asked for forfeiture. I guess she didn't specify which items she was seeking forfeiture of. [ 30 ] THE COURT: Well, I'll deal with it this way. I intend to grant an order for forfeiture. It can be as agreed between counsel, and if there is any dispute about the form or the content of the order it can be brought back before me to be settled. [ 31 ] MS. JOMORI: Thank you. [ 32 ] MR.

JOSE: Thank you, Your Honour. [ 33 ] THE COURT: You are in the custody of the sheriff, Mr. Do. (REASONS FOR SENTENCE CONCLUDED)