R. v. Ugay Date:, 2013 BCPC 159

Citation: R. v. Ugay Date: 20130429 2013 BCPC 0159 File No: 187535-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHRISTOPHER ALLAN UGAY ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R.N. HAMILTON Counsel for the Crown: N. Namazi Counsel for the Defendant: S. Hutchison Place of Hearing: Surrey , B.C. Date of Hearing: April 29, 2013 Date of Judgment: April 29, 2013 [ 1 ] THE COURT : Christopher Allan Ugay is charged on a two-count indictment with unlawfully importing cocaine to Canada,

and with possession of cocaine for the purpose of trafficking. On February the 7th of this year, Mr. Ugay entered a guilty plea to the unlawful importing charge, and sentencing was put over to today's date. [ 2 ] Mr. Ugay is 33 years old. He is not married. He lives in a home with members of his extended family. He has a fiancée who lives in the Philippines, and Mr. Ugay was planning on travelling to the Philippines to get married at some point in the near future. Mr. Ugay's father, mother and brother all live here in Metro Vancouver. Mr. Ugay's mother is presently experiencing some health problems. [ 3 ] Mr.

Ugay completed high school and some courses as a heavy-duty mechanic at BCIT. At some point he decided to start work in the trucking business, and for approximately five years was driving his truck locally. In approximately May of 2010, Mr. Ugay began long-haul trucking, driving goods between Canada and the United States. [ 4 ] On December 10th, 2010 as Mr. Ugay was returning to Canada across the Canada/U.S. border his vehicle was searched in a secondary inspection and the border security officer discovered 36 kilograms of cocaine in two duffle bags under the bed in the sleeping compartment of the truck. Mr.

Ugay was arrested on the scene, released, and then ultimately charged about six months later in June of 2011. This matter was set for trial, but Mr. Ugay entered his guilty plea, thus not taking the matter through to trial. [ 5 ] A pre-sentence report was prepared, and as both counsel fairly put in their submissions, Mr. Ugay has had a normal or unremarkable life to this point. He enjoys the support of a close family, he is educated, he had a well-paying job, he had a fiancée, he had plans and he had a future. Indeed, he had many things going for him that a lot of people in our society do not have.

He certainly had more things going for him than most people coming before the courts charged with a serious crime. [ 6 ] Mr. Ugay has no criminal record. There is no evidence of any run-ins with the law. He has been described as a trusted, reliable, hard-working employee, and a good friend, son and brother. [ 7 ] For reasons that only Mr. Ugay knows, he decided that the allure of quick money was a stronger draw than he could resist. He chose to try and bring into Canada a substantial amount of cocaine and he got caught.

As the case law that I was referred to in submissions points out, this offence carries with it serious punishment, a significant Federal penitentiary prison sentence. [ 8 ] Counsel placed before me a joint book of authorities in which are found prior judgments with sentences that range from six to 12 years in prison. On this sentencing hearing the Crown seeks a sentence of nine years. Mr. Ugay, through counsel, seeks a sentence of somewhere between seven and eight years.

Counsel before me agree, and the case law establishes, that general deterrence and denunciation are the two key sentencing principles to keep in mind when determining an appropriate and fit sentence for Mr. Ugay. Rehabilitation also plays a role, but more so in the notion of holding out some hope for Mr. Ugay that he will get out of prison in time to rejoin society in a productive way. [ 9 ] Specific deterrence, that is, deterring Mr. Ugay from committing this or other crimes in the future, is not, frankly, applicable. The psychologist who prepared the report for sentencing has concluded, after assessing Mr.

Ugay, that he poses a very low risk to commit further crimes in the future. [ 10 ] A number of the cases that I was referred to talk about the destructive and lethal consequences of having cocaine on our streets. It breeds violence, crimes, families and individuals are ruined for life, young babies are born drug addicted, assets even fortunes are lost, people's lives are ruined, and there is the addiction that kills people. Enough cannot be said to bring home how awful cocaine is, yet it still makes it onto our streets and into our society. How? Because people like Mr.

Ugay agree to help those in the criminal world bring that drug here. [ 11 ] I agree that general deterrence must be the number one principle I keep in mind when considering a fit sentence in this case.

The message must be sent to others who are offered the opportunity to make money by importing drugs, that if you agree to import the drugs and you get caught, no amount of money will be enough to compensate you for the loss of liberty that you will suffer. [ 12 ] Turning briefly to the case law, almost all of the cases that I was referred to involved long-haul truckers bringing drugs across our border, and in virtually all the cases I was referred to, none of the accused had a criminal record. The leading British Columbia case is a case from our Court of Appeal R. v. Epp .

In that case the trial judge had sentenced Mr. Epp to a prison term of 14 years, and that sentence was reduced to ten years by the Court of Appeal. In the Epp case the accused had transported a hundred kilograms of cocaine into Canada. The Court of Appeal set aside the 14-year sentence, concluding that the trial judge felt that the individual driving the drugs across the border had committed a crime as serious as the actual traffickers, and the Court of Appeal felt that the trial judge fell into error by analyzing that case in that fashion.

The Court of Appeal also found that the trial judge focused too closely on the volume of cocaine that was brought into Canada. [ 13 ] I believe that the Epp decision stands for the proposition that you do not base your sentence on the amount of drugs coming across our border when the volume of drugs is in the tens of kilos. [ 14 ] In R. v. Pocasangre , a decision from January of this year by Mr. Justice Melnick, the accused was sentenced to eight years in prison after putting the Crown through a trial.

In Pocasangre , the accused had a relatively small amount of cocaine in that he was transporting only nine kilograms. [ 15 ] In R. v. Sibrian , the accused was sentenced to eight years in prison after pleading guilty. In that case, Mr. Justice Grist felt that nine years was the starting point for the sentence, and then reduced the sentence to eight years, taking into account the brief period of time that Mr. Sibrian spent in custody prior to trial, and then further reducing the sentence by nine-and-a-half months to give Mr.

Sibrian credit for his guilty plea. [ 16 ] The next decision I was referred to is the decision of R. v. Kang . It is a decision of Mr. Justice Schultes', and in my view it is one of the more helpful cases. In R. v. Kang the accused again was importing a hundred kilograms of cocaine, and Justice Schultes engages in a helpful review of the law and the sentencing principles that should apply in cases like this. In Kang , Mr. Justice Schultes sentenced the accused, after trial, to eight years in prison.

[ 17 ] The final case that I will refer to is R. v. Sandhu . It is a case that is often referred to by the other judgments that I have referred to in these reasons. It is a decision of Mr. Justice Williams in which Mr. Justice Williams sentenced the accused to nine years in prison after trial. The Sandhu case predates the Epp decision. Mr. Sandhu was transporting a hundred pounds of cocaine which, by my rough calculation, translates to somewhere between 35 and 40 kilograms. [ 18 ] Many of the accused in the cases I have just referred to have similarities with Mr.

Ugay, and many of those accused have differences in their cases from Mr. Ugay. The amounts of cocaine vary from nine kilograms to a hundred kilograms, but as I have indicated, I would fall into error by the reasoning in R. v.

Epp , if I focus too much on the volume of cocaine in this case. [ 19 ] While noting the Court of Appeal is of the view that there is no actual range of sentence for this kind of crime, most of the cases I have reviewed above make reference to a range of sentence, and what I will say is this: The accused that were sentenced in the cases that I have referred to received sentences of anywhere between seven and ten years in custody. [ 20 ] I have concluded, based on those authorities, that the starting point for a sentence where the accused puts the Crown through a trial, is approximately nine years.

I say that based on the Sandhu case and the Epp case. I acknowledge that in Pocasangre that accused received eight years after trial, but in that case that accused only had nine kilograms, and I do think that that was a factor in the judge's decision in that case. [ 21 ] So taking the starting point as nine years for an accused that puts the Crown through a trial, I am satisfied that Mr. Ugay should receive some credit for his guilty plea. [ 22 ] So, Mr. Ugay, could you stand up, please? Looking at all of the facts in this case and taking into account your guilty plea, I sentence you to eight years in prison.

Along with that there will be the s. 109 weapons prohibition, and is that a lifetime prohibition? [ 23 ] MS. NAMAZI: Ten years, Your Honour, for the first conviction, yes. [ 24 ] THE COURT: Ten years, okay. And I will order that a sample be taken for the DNA database. [ 25 ] MS. NAMAZI: And I have directed a stay of proceedings, off the record, of Count 2. I just wanted to confirm that on the record. [ 26 ] THE COURT: And is there a victim fine surcharge, because if there is, that would be waived. [ 27 ] MR. HUTCHISON: Thank you, Your Honour. [ 28 ] MS. NAMAZI: Thank you. (REASONS FOR SENTENCE CONCLUDED)