R. v. Cheng Date:, 2012 BCPC 493

Citation: R. v. Cheng Date: 20121130 2012 BCPC 0493 File No: 180868-4-CT Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GODWIN KAI-YAN CHENG ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: Federal Crown: C. Greenwood Counsel for the Defendant: M. Jetté Place of Hearing: Surrey , B.C. Date of Hearing: November 5, 13, 2012 Date of Judgment: November 30, 2012 [ 1 ] THE COURT : Godwin Kai-Yan Cheng has pled guilty to the single count on Information 62304-C4, which is number

180868-4-CT in the Surrey registry, that on or about August 4, 2005 at Abbotsford, British Columbia he did unlawfully possess a controlled substance, Cannabis (marihuana), in an amount exceeding three kilograms, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . [ 2 ] When these proceedings were initially instituted Mr. Cheng was charged jointly on this count with Jonathan David Bacon. There were as well other counts before the court. Originally the matter went to trial in Abbotsford. Mr. Cheng and his co-accused were acquitted.

The Court of Appeal ordered a new trial following a Crown appeal. Since then Mr. Bacon has died. Mr. Cheng entered his plea on what was to have been the first day of his re-trial. [ 3 ] The Crown seeks a custodial sentence of one year to be served in a conventional jail setting and ancillary orders for DNA sampling, firearms prohibition and forfeiture of $10,000 cash. [ 4 ] Mr. Jetté on behalf of Mr. Cheng says that although the 12-month jail sentence proposed by the Crown falls within the appropriate range, he argues that Mr.

Cheng's personal circumstances, including rehabilitative prospects and background, support a conditional sentence order in the 12 to 18-month range. The ancillary orders are not opposed. [ 5 ] The circumstances are the following: Abbotsford Police, acting on a tip, were conducting surveillance of the Bacon residence at 41 - 2068 Winfield Drive, Abbotsford. They had been doing so for six days leading up to the events of August 4, 2005. Police had been surveilling a pickup truck driven by Mr. Bacon. [ 6 ] At 6:12 p.m. that vehicle was parked at the residence. A Honda Civic driven by Mr. Cheng drove up.

He was seen speaking on a telephone. Bacon came out of the residence and got into the Honda and they drove off, Mr. Cheng driving. The Honda returned 12 minutes later, driven by Mr. Cheng. Both individuals got out and Mr. Cheng opened the trunk of his vehicle. Two cardboard boxes and a garbage bag were removed from the Honda and put in the trunk of a Mazda parked on the property, the trunk of which had been opened by Mr. Bacon. Both then got into the Honda and drove away. They were stopped and arrested. A search warrant was obtained for the Mazda.

The subsequent search produced five pounds of marihuana in ten Ziploc bags found in the garbage bag, each Ziploc bag weighing a half-a-pound. A search of the box in the Mazda led to nine Ziploc bags of marihuana, weighing a half-a-pound each and a further half-pound of marihuana was also located. The total weight of the marihuana was therefore ten pounds. [ 7 ] The half-pound lot sizes are common at the wholesale trafficking level in marihuana. The value of the marihuana at the low end is estimated to have been $13,000. Mr. Cheng was also found in possession of $10,000 cash. Mr.

Jetté pointed out that the initial investigation began around March 30th, 2004 and was renewed with a further tip in or about July 20th of 2005 with surveillance beginning July 27th of 2005. He said that although Bacon and a co-accused named Rayleene Melony Burton were seen on various occasions involved in handling various boxes and bags over the period of the investigation and surveillance, Mr. Cheng does not appear until the events of August 4th, 2005, which I have just described at the very end of the investigation. The Crown earlier stayed proceedings against Ms.

Burton on other charges arising in the course of the investigation. [ 8 ] In seeking a conventional jail sentence the Crown points out the predominant concern that any sentence for an offence like this carries a strong statement of deterrence and denunciation. The Crown says that the societal concerns which justify a conventional jail sentence to address these sentencing objectives are set out by the Court of Appeal in cases such as R. v. Hill in 2007.

The circumstances of that case are more aggravated than the circumstances before me; however, the Crown says, and I agree, that the underlying concerns are the same and I am going to quote from paragraphs 21, 22 and 25 of the decision in R. v. Hill as follows: 21. …it is true that the courts have often drawn a distinction between "hard" and "soft" drugs when sentencing. The consequences for users of hard drugs in terms of addiction and criminal lifestyle have been seen to be more severe than those for users of marihuana.

However, as the sentencing judge noted, the marihuana industry in this province has become pervasive. It is a lucrative business permeated by organized crime and it is often accompanied by violence and danger to innocent citizens and other "vile and destructive consequences," to use the words of the sentencing judge. In my view, as one progresses up the chain of the illegal drug industry from the user to the upper levels of trafficking, the effects on sentencing of the consequences at the user-level should carry less weight in relation to the malignant consequences of the industry generally. 22.

I do not regard Sopinka J.'s statement in R. v. Kokesch as a rule of law that offences involving marihuana must always be treated less seriously than offences involving hard drugs. Rather, the determination of a fit sentence is a subjective exercise that will depend upon the particular circumstances of the case under consideration. The sentencing judge referred to a number of cases, some involving marihuana, some other drugs. She drew from these cases that denunciation and general and specific deterrence weigh heavily in the sentencing of non-addicted offenders engaged in the illegal drug trade purely for profit.

She emphasized the harm caused to society by drug trafficking generally and stressed that this was an ongoing sophisticated, mid to high level trafficking operation. In my view, she did not err in concluding that the nature of the drugs (sic) involved was of secondary importance in these circumstances. And paragraph 25: That there is a significant and lucrative illegal marihuana industry in this province and that it has grown in scale and pervasiveness in recent years can hardly have escaped the notice of any informed citizen of the province. These aggravating facts are within the first class mentioned in R. v.

Find and the sentencing judge did not err in judicially noticing them. Indeed, this Court has taken judicial notice of the illegal drug trade in previous cases. For example, in R. v. Chang 2002 BCCA 644 , Esson J.A. referred to "the serious societal problems that have been and are being created by the great level of drug distribution going on in our community and throughout the province"; in R. v. Aitkens 2004 BCCA 411 , Newbury J.A. remarked that "[d]rug trafficking has become a blight in our society in general"; and in R. v.

Van Sandvoord 2007 BCCA 23 , Ryan J.A. said that “over the years other cases of marihuana production have demonstrated that its illegal production creates the risk that it will attract other illegal activities and dangerous consequences to the community in which it takes place."

[9] In R. v. Hill at paragraph 31 the court also referred to concerns which were expressed in a case called R. v. Aslam in 2007 inthe Court of Appeal, and stated following: I note first that in R. v. Aslam 2007 BCCA 122, a decision handed down since sentence was passed in this case, this Court concludedthat a sentence of two years' imprisonment for possession for the purpose of trafficking was not unfit for a courier of a substantialquantity of bulk marihuana involved in a wholesale distribution scheme.

The appellant's motive was profit and the sentencing judge hadremarked that "[t]he scourge of such large criminal enterprises cannot be eradicated unless those who are tempted and recruited toparticipate are deterred by the consequence they might face if caught." Again, the circumstances were more aggravated in R. v. Aslam, but the underlying concern and the need to impose a deterrent sentence isclear. [10] In determining the appropriate sentence in this case, I must consider the relevant purpose and principles of sentencing set out ins. 718 to 718.2 of the Criminal Code.

In doing so I have in mind that the fundamental purpose of sentencing is to contribute to respectfor the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that address one or more of the relevantobjectives, in this case general and specific deterrence, denunciation, rehabilitation of the offender, reparation for harm done, and thepromotion of a sense of responsibility in the offender. The sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. I must take account of aggravating and mitigating factors.

The sentence should be similar to sentencesimposed on similar offenders in similar circumstances and all sanctions short of imprisonment that are reasonable in the circumstancesshould be considered. [11] When I consider whether a conditional sentence order would be fit, I must consider whether to allow Mr. Cheng to serve hissentence in the community under conditions would place the security of the community at risk.

This consideration will often addressissues such as his remorse, his conduct on bail, his response to past supervision, his current living and working circumstances andprogress to date addressing his specific deterrence.

The second consideration addresses whether such a sentence is consistent with thepurpose and principles of sentencing earlier referred to, which brings to bear the balance to be struck between conventional jail as acompelling statement of general and specific deterrence and denunciation on the one hand and restorative and rehabilitativeconsiderations on the other with the background of this offender and this offence in mind. The argument may be strengthened for aconditional sentence order when specific deterrence is no longer as compelling a concern.

Superior courts in this province and theSupreme Court of Canada have stated that where the particular circumstances of the offence and the offender support greater weightbeing given in the balance to restorative and rehabilitative objectives, a properly structured conditional sentence order can provide asignificant statement of general deterrence and denunciation. (See for example R. v. Koenders 2007 BCCA 378 , 2007 BCJ No.1543 BCCA, Ryan, J.A. at para. 42; R. v. Wallis 2007 BCCA 377 at para. 32.) [12] Mr. Cheng is just about to turn 38 years of age. He was 31 at the time of this offence.

He grew up with his mother, father andbrother in Abbotsford. His parents are both registered psychiatric nurses. He graduated high school in 1992 and attended the UniversityCollege of the Fraser Valley for two years, but he did not finish his degree. He has worked steadily in the electronic sales andinstallation field for a number of employers. He is now employed selling and installing alarm systems. He has attempted to open anunrelated business which failed and he has some debts flowing from that. Mr. Cheng's parents were both in court to support him duringsentencing submissions several weeks ago.

His mother is on a disability. Mr. Cheng's father has retired, at least in part, I am told,because of the distress he has suffered over these events involving his son. Both of his parents have health issues. [13] Mr. Cheng was married in 1997 and subsequently divorced. He is the father of a child born in 1998 and he pays support for thatchild. He is also the father of a child born of a common-law relationship which predated his marriage and he pays child support inrespect of that child as well. Mr. Jetté has said that Mr.

Cheng, despite his more modest role in the events surrounding this investigation,has suffered the stigma of being associated with the more notorious Mr. Bacon, which has had some effect on his employmentcircumstances over the past seven years. [14] Mr. Cheng has a prior criminal record beginning in 1994. There are three driving-related offences in the early years. There arethree property offences, the last in 1999, for which he served four months and probation.

He has a conviction for uttering threats in 1997and three breach offences, the last in 2001, which was his last offence before this offence which, of course, occurred in 2005. He has noprior drug offences. He has never been placed on a conditional sentence order. Mr. Cheng was released following his arrest for thisoffence on a substantial surety bail provided by his parents. He has fully complied with bail obligations over the seven years since thedate of this offence. [15] I have reviewed the 16 letters from family, friends and co-workers filed in support of Mr. Cheng. From those letters I concludeMr.

Cheng is a hard worker, supportive and encouraging to co-workers, and an important support to his parents. His father points outthat Mr. Cheng assists with transport for both his mother and father to medical appointments. He has taken on a greater role in the life ofhis children. He is remorseful. Family and friends have noted that he is a changed person since his arrest and over the years since. Hehas their support. [16] I have reviewed all of the cases provided by counsel.

The variety of circumstances set out in those cases and the challengesfaced by the sentencing judges and the reviewing courts are a reminder that no single formula can be applied to determine a fit sentence,nor to determine whether that sentence is served conventionally or on a conditional sentence order. Each case must be assessed based onits own particular complex of circumstances surrounding the offence and the offender. [17] This is a serious criminal offence. Mr. Cheng's involvement was for the income he could earn. There is no suggestion he wasaddicted or even a particular user of the substance himself.

He was fully capable of earning and had consistently been earning an incomelawfully. He chose to make additional money by participating in an unlawful enterprise, rather than by using his considerableexperience, knowledge and the respect he had earned in his legitimate occupation. This motivation for participating in commercial scaledrug trafficking operations has supported conventional jail sentence in marihuana cases in order to deter other people.

[ 18 ] Without minimizing Mr. Cheng's conduct I note there is no evidence of a lavish lifestyle. No circumstances have been put before me defining his overall role in this criminal enterprise. He is seen just the one time delivering ten pounds of marihuana. However, it is reasonable to conclude, bearing in mind the quantity of cash recovered and the circumstances, that he had some involvement beyond this single delivery. [ 19 ] The courts have pointed out that a courier has a vital role to play in such an enterprise ( R. v. Aslam 2007 BCCA 122 at para. 6 ; R. v. Epp 2006 BCCA 570 ).

On the other hand, I take account of Mr. Cheng's remorse demonstrated, albeit at a very late stage, by his plea of guilty, his good conduct since his arrest, the support he has in the community and the contribution he is making to his parents' welfare and to his children. Were it not for the fact of Mr. Cheng's prior criminal history I would readily conclude that in all the circumstances restorative and rehabilitative objectives weighed the balance in favour of a conditional sentence order. I found the considerations not unlike those dealt with by Mr.

Justice Sigurdson in the Supreme Court in a decision in 2012 called R. v. Huy Van Dao 2012 BCSC 1627 , in which a 15-month conditional sentence order was imposed with house arrest. The fact of a past criminal record does not preclude a conditional sentence order, but it raises concerns about Mr.

Cheng's specific deterrence and it compels the question whether a subsequent serious criminal offence, in this case possession of marihuana for the purpose of trafficking in a commercial context, calls for more onerous and denunciatory sentencing which sends a strong message to the community and overtakes in the analysis the affect of positive rehabilitative factors. [ 20 ] I will comment on those concerns now. A past, dated and unrelated record could be put aside in the balance. As I earlier noted, Mr. Cheng's record was not dated at the time of the offence. It did not, however, include any past drug offences.

Three prior breach offences are a concern when assessing the security of the community. In my view the absence of past drug offences is important, particularly considering the circumstances that have taken place over the past seven years during which he has been before the court and during which no further offences have taken place or breaches. Further, there have been no further offences since and he has complied fully with bail. The evidence of remorse and the support he has in the community satisfy me that Mr. Cheng's specific deterrence is well in hand.

Despite the now-dated breach convictions, the security of the community would not be placed at risk were he to be placed on a conditional sentence order. [ 21 ] I have concluded that despite the past record, a conditional sentence order can effectively address general deterrence and denunciation while allowing Mr. Cheng to continue to contribute in the community and to his family by maintaining his employment. Rehabilitation and restorative objectives should carry, in my view, greater weight in this case. [ 22 ] Mr. Cheng, if you could stand, please.

There will be a conditional sentence order for a period of 18 months. The conditions will be the statutory conditions and I place you upon the following conditions: [ 23 ] Upon your release you must travel directly to your residence, and I am going to have Mr. Jetté provide that address in a moment. It will be inserted in this condition. And you must not leave that residence except as set out in this order.

You will report to your conditional sentence supervisor at the address to be provided before you leave the courthouse today before 12 noon, Monday, December 4, 2012 and thereafter as directed by the supervisor. You will reside at the address Mr. Jetté is going to be providing and which will be inserted in this third condition.

You will reside at that specified address or such other address as you are directed to reside at by the supervisor and you will not change that address without the prior written approval of the supervisor. [ 24 ] During the first 15 months of this order you will be bound by a house arrest condition. You will not leave your residence except for the following purposes and when travelling directly to or from any of those obligations: 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 provided on the letterhead of your employer and approved by your employer; to attend to any assessment, treatment or counselling as directed by your supervisor; to attend to community work service; to attend to any medical or dental appointment having informed your supervisor of the date, time and location of that appointment in advance. [ 25 ] You may be away from your residence on either one or other of Saturday or Sunday of each week from 9:00 a.m. to 12 noon to attend to exercise, shopping and similar personal business.

You may be away from your residence where you have the prior written approval of the supervisor, which you must carry with you and produce on request of a peace officer or supervisor. [ 26 ] The next condition, during the balance of the conditional sentence order you will be bound by a curfew.

You are not to be outside of your place of residence between 10:00 p.m. and 6:00 a.m. seven days a week, except where you have the prior written approval of the supervisor, which you must carry with you and produce on request of a peace officer or supervisor, or in the event of a medical emergency involving yourself or a member of your immediate family. [ 27 ] The next condition, you must attend the door of your residence or by telephone if requested to do so by a peace officer or supervisor to confirm compliance with these conditions. [ 28 ] You must abstain from possession of or consumption of alcohol or any substance controlled under the Controlled Drugs and Substances Act unless you have a medical prescription for that substance issued in your name. [ 29 ] You will attend, participate in and complete such assessment, treatment and counselling as directed by the supervisor. [ 30 ] You will complete 50 hours of community work service to be completed on or before November 30th, 2013. [ 31 ] You are not to possess any weapon as defined in the Criminal Code .

You are not to possess knives except to prepare or consume food or at a workplace for the purpose of lawful employment. [ 32 ] You must carry a copy of this order on your person when away from your residence and produce it on request of a peace officer or supervisor. [ 33 ] Those are the conditions on the conditional sentence order.

[ 34 ] There will be an order that you supply a sample of your DNA to the National DNA Data Bank. The offence is a secondary designated offence. You will attend the Surrey detachment of the RCMP to provide that sample on Thursday of next week, which is December 6th, 2012 between the hours of 10:00 a.m. and 2:00 p.m. [ 35 ] The firearms prohibition order under s. 110 of the Criminal Code is imposed for a period of ten years. [ 36 ] The victim fine surcharges apply and the forfeiture order sought by the Crown is made. [ 37 ] MR.

GREENWOOD: Your Honour, I'm just noting that you indicated December as December the 4th, Monday, and I understand it's the 3rd just when you were reading -- [ 38 ] THE COURT: You're right, it is, I'm sorry. You have to report December 3rd before 12 noon. That's the Monday and I said the 4th. Now I've got -- [ 39 ] THE CLERK: Sorry, Your Honour, I did miss the DNA reporting date. [ 40 ] THE COURT: The DNA reporting date is Thursday of next week between 10:00 a.m. and 2:00 p.m. and it is the 6th of December at the Surrey detachment. And those are the handwritten conditions to help you. [ 41 ] MR.

JETTÉ: The address for the order? [ 42 ] THE CLERK: Yes. [ 43 ] MR. JETTÉ: 2286 -- sorry, 2285 -- [ 44 ] THE CLERK: 2285. [ 45 ] MR. JETTÉ: -- Orchard Drive, Abbotsford. [ 46 ] THE COURT: So that address is the address you are to go to directly following your release from the courthouse today and you are now bound by those conditions. Thank you, gentlemen. [ 47 ] MR. GREENWOOD: Thank you, Your Honour. [ 48 ] MR. JETTÉ: Thank you. [ 49 ] THE CLERK: Are there outstanding counts? [ 50 ] MR. GREENWOOD: Oh, yes, there are outstanding counts that haven't formally been stayed.

It was always our intention to stay those at the conclusion of sentencing and I direct a stay on all other counts right now. [ 51 ] THE CLERK: So Counts 3 and 4. (REASONS FOR SENTENCE CONCLUDED)