R. v. Chiponski Date:, 2011 BCPC 216

Citation: R. v. Chiponski Date: 20110715 2011 BCPC 0216 File No: 186328-2C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KYLE LARRY CHIPONSKI REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. B. HICKS Counsel for the Crown: P. Bachra Counsel for the Defendant: P. Hoare Place of Hearing: Surrey , B.C. Date of Hearing: July 5, 2011 Date of Judgment: July 15, 2011 [ 1 ] THE COURT : Kyle Larry Chiponski is before the court today to be sentenced following his plea of guilty to the charge that on April 11th of 2011 at Surrey, British Columbia, he possessed cocaine for the purpose of trafficking.

Mr. Chiponski has been in custody since his arrest on the date of the offence which, by my count, totals 96 days. [ 2 ] The Crown seeks a sentence of four years incarceration, less pre-sentence custody, and various ancillary orders. Mr. Hoare, on behalf of this offender, says an appropriate sentence is three years, reduced to reflect credit for the pre-sentence time. [ 3 ] The circumstances are the following: On April 10th of 2011, Mr. Chiponski flew to Vancouver from Winnipeg, Manitoba.

He picked up a Volkswagen motor vehicle with Manitoba plates at a hotel in Vancouver, and he then began to drive the vehicle back to Manitoba. He was relying on a GPS unit to guide him out of the city area. For some reason, the GPS led him onto Highway 99 towards the Canada/ U.S. border. As he approached the U.S. border checkpoint for the Douglas crossing south of Vancouver, he suddenly realized where he was. He turned around. Although he had not entered the U.S. he had reached a point that required him, in order to get back on his route, to pass through the Canadian border inspection.

He properly identified himself to a Canada Border Services officer there but his answers to other questions raised suspicion and he was referred for a secondary inspection. He provided inconsistent answers to questions about where he was coming from and where he was going. His vehicle was then searched. A plate or access panel of some sort inside the vehicle was removed and four bricks of cocaine totally four kilos were located in a shopping bag behind the plate.

[4] Mr. Chiponski is 27 years of age. He is in a six-year common-law relationship. He is the father of a 15-month-old daughter. Heis from Portage La Prairie, Manitoba. His mother lives there and is not well. He has completed grade 12 through an adult educationprogram. He has worked as a concrete finisher. Recently, I understand, he began an apprenticeship as a pipe fitter in Winnipeg. Mr.Chiponski's spouse is employed and has had to take on two jobs in order to address the family's financial circumstances arising from Mr.Chiponski's incarceration. [5] Mr.

Chiponski began consuming alcohol, I understand, at the age of 12 or 13, and has been using cocaine for six or seven years,including crack cocaine. He undertook this role as a courier in order to pay a drug debt he owed in Manitoba. He had previously beenthreatened, and two weeks earlier he had been stabbed, all arising from this debt. The stab wound was visible on arrest. He had $400cash at the time of his arrest. From this information, which is not contested by the Crown, I take it that Mr. Chiponski was not any kindof guiding force in this venture, but rather a courier on a one-time basis. [6] Mr.

Chiponski has a prior criminal conviction as an adult in 2004 for robbery. He served a 12-month conditional sentence at thattime. [7] On remand, Mr. Chiponski has undertaken a program through the Alpha Canada organization addressing forgiveness, justice andfaith. John Kreklow, the program facilitator, has provided a letter which attests to Mr. Chiponski's diligent and positive participation inthe program. He confirmed that Mr. Chiponski has a desire, on release, to become a productive member of the community and tosupport his family. [8] Mr.

Chiponski spoke, following submissions of counsel, and expressed his remorse. He apologized for his involvement in thisoffence, and he referred to the impact his actions will have on his family. He said he is now participating in AA programs as well as theAlpha program, all while on remand awaiting conclusion of this matter. [9] The Court of Appeal in British Columbia has reminded sentencing courts that the predominant objective of sentencing in drugtrafficking cases, including cases of possession for the purpose of trafficking, is deterrence, both general and specific, and denunciation.

This reflects what has often been pointed out that drug trafficking in substances, such as cocaine, is a scourge on the communities in thisarea, in this province and, of course, throughout Canada. It is criminal activity frequently controlled by organized criminal groups whichis highly lucrative. The entire trade in illicit substances like cocaine invites a wide range of other criminal activity, including offences ofviolence from the minor to home invasions and much more serious offences, including murder. [10] The drugs involved are highly addicting.

Beyond the terrible impact they have on the health of the addict, they frequently leadto criminal activity carried out by the user in order to finance the addiction. Drug use and the illicit trade threaten the viability of familiesand the social fabric of communities. [11] Mr. Chiponski, of course, is still a relatively young man. His rehabilitation and other restorative values remain importantconsiderations in considering a fit sentence in this case; however, the pursuit of those objectives in this case must occur, at least at theoutset, in the context of confinement in a conventional jail.

I must impose a sentence which reflects aggravating and mitigating factors. That sentence must reflect Mr. Chiponski's level of moral blameworthiness and it must reflect the particular circumstances of theoffence, and the offender, and take account of sentences imposed in similar circumstances involving similar offenders. [12] All these factors reflect the fact that the imposition of sentence is not an arbitrary process. Every case is different, sometimes insubtle ways, and each case must be assessed on its own facts. [13] I have reviewed all of the authorities provided by counsel.

One of those is a case called Lobon-Valencia which is a decision ofthe Court of Appeal in this province in 1999, and involved a 28-year-old first offender who, in a courier role, transported six kilos ofhigh-grade cocaine valued at street level in the range of $400,000. He was in a common-law relationship, with an infant daughter, andoffended on one occasion to obtain money for a family trip to Columbia, his country of origin. The Court of Appeal found that a one-year custodial sentence imposed in that case at the sentencing level was unfit; the sentence was increased to an effective 44-monthsentence. (R. v.

Lobon-Valencia 1999 BCCA 315) [14] Another case which was significant is a case called R. v. Hein in the Court of Appeal in this province in 2008 in which that courtincreased a 15-month sentence to three years and eight months, which is effectively the same sentence as was imposed in the Lobon-Valencia case, in respect to a 38-year-old courier of 6.5 kilos of cocaine. In both cases the sentences imposed reflected credit forcooperation given by the offender to police in their investigations. (R. v. Hein 2008 BCCA 230) [15] Other cases which I found useful were the decisions in R. v.

Ortiz-Toledo 2007 BCPC 28 , 2007 BCPC 0028, R. v.Jenkins 2008 BCPC 286 , 2008 BCPC 0286, and R. v. Martinez-Marte 2008 BCCA 136. [16] This is a serious criminal offence. I have earlier noted the importance of imposing a sentence which expresses a strong statementof general deterrence and denunciation. I am satisfied, based on the submissions that I have heard and Mr. Chiponski's statement, that heis remorseful, that he regrets his actions, and that he wants now to address his own substance-abuse issues. He has pled guilty at a veryearly opportunity.

Specific deterrence is a less significant concern in these circumstances. [17] In all the circumstance, a sentence in the range of 40 months in my view is appropriate. He will have credit for 96 days of pre-sentence custody. Mr. Chiponski, if you could stand up, please? I impose an additional sentence of three years incarceration. [18] In addition to that, there will be a firearms prohibition order under s. 109 of the Criminal Code. Certain firearms addressed underthat

section you will be prohibited from having in your possession for ten years, and others for life. It will be reviewed with you in fullby the justice of the peace. [19] Other issues to address are the DNA databank provisions which are secondary, and Mr. Hoare, do you have any submissions onproviding of a sample to the databank?

[ 20 ] MR. HOARE: I leave it in your hands today, Your Honour. [ 21 ] THE COURT: I am satisfied in the circumstances of this offence, the circumstances in which it was committed, its minimally intrusive nature, that it is appropriate that you provide a sample of your DNA to the databank. I will make the order that you provide a sample of your DNA to the National DNA Databank and that sample to be taken, or samples as required, to be taken during the period of your incarceration by authorized members of the RCMP or the Corrections service. [ 22 ] There is also an application for a forfeiture order.

Any issue with that? [ 23 ] MR. HOARE: There is no issue, Your Honour. [ 24 ] THE COURT: The forfeiture order will be granted as proposed by the Crown, and the victim fine surcharges are waived. (REASONS FOR SENTENCE CONCLUDED)