R. v. Dang Date:, 2013 BCPC 390

Citation: R. v. Dang Date: 20131202 2013 BCPC 0390 File No: 197776-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SEDRICK DANG REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K.D. SKILNICK Counsel for the Crown: A. Adams Counsel for the Accused: R. Basra Place of Hearing: Surrey , B.C.

Dates of Hearing: November 4 and 5, 2013 Date of Judgment: December 2, 2013 [ 1 ] THE COURT : Sedrick Dang has pled guilty on Surrey court file 197776 to Counts 1 and 2, which are his admission of guilt to offences which took place between March 18th, 2011 and November 14th, 2012. The offences occurred at the Surrey Pre-Trial Remand Centre, a custodial facility operated by the BC Corrections Branch, and the offences for which Mr.

Dang has pled guilty to are one count of corruptly accepting for himself a sum of money with intent to interfere with the administration of justice by bringing into the Surrey Pre-Trial Service Centre, for delivery to an inmate or inmates, contraband, including a screwdriver, a BlackBerry cellular telephone, a battery for that telephone, a charger for the telephone, as well as substances that were represented or held out to be controlled substances under the Controlled Drugs and Substances Act , anabolic steroids. [ 2 ] Mr.

Dang has also pled guilty over the same period of time and in the same setting to the offence of committing a breach of trust in connection with his duties of his office as a Corrections Officer by bringing into the Surrey Pre-Trial Services Centre for delivery to an inmate or inmates contraband as I have described in the previous count. These are offences contrary to s. 120 and s. 122 of the Criminal Code respectively. [ 3 ] The Crown has set out the circumstances and I am grateful to Crown and defence for reaching agreement on the facts in this matter.

I will not repeat the facts as set out in the Agreed Statement of Facts but, of course, the most aggravating circumstances are the fact that in return for the sum of approximately $30,000 Mr. Dang willingly participated in bringing contraband into the Surrey Pre-Trial Services Centre, and while there was some wilful blindness on Mr. Dang's part as to precisely what was being brought in, we now know that smuggled into the institution were drugs, recreational drugs, steroids.

We are told that four knives were found in connection with the search, cellular telephones and the means to operate those phones, to charge the batteries and a battery and so forth, enabling members of a criminal organization to not only have the use of the banned substances while incarcerated, but also to communicate to the outside world possibly with the ability of enabling harm to come to others. [ 4 ] To me the most aggravating feature of these offences, in addition to the breach of trust, which is in itself, obviously a very major, significant factor, but the most significant factor to me is the jeopardy that the offences placed the lives and the safety of Mr.

Dang's fellow officers, the other Corrections Officers in the institution. We subsequently learned that knives were found, and one can only imagine the use that could have been put by the persons to whom those knives were intended to be smuggled, and the potential injury and risk that the smuggling of these items presented for other Corrections Officers and for other inmates as well. That is a very significant offence because of the harm that Mr. Dang participated in that might have befallen his fellow officers, who not only deserve protection, but of course who place their trust in Mr. Dang.

This is a serious breach and a serious offence and one that calls for strong deterrence by the court. [ 5 ] I am sentencing Mr. Dang in his capacity as an officer who was bestowed with the trust of the public and, as decisions of other courts have stated in the authorities that counsel have provided to me, as a person in that position Mr. Dang was discharging his public duties and occupied a special position of trust in the community. [ 6 ] In sentencing Mr. Dang I am taking into account a number of factors and I am taking into account the considerations that are set out in the Criminal Code .

Section 718 of the Criminal Code sets out the purpose of sentencing criminal offences and the Criminal Code says that s. 718 of the Criminal Code says that: The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have ... the following objectives.

The first being "to denounce unlawful conduct"; the second being to deter this offender and other like-minded persons from committing offences; the third being "to separate offenders from society, where necessary"; the fourth being "to assist in rehabilitating offenders"; fifth being "to provide reparations for harm done to victims or to the community"; and the final, "to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community." [ 7 ] This was an offence which, though detected prior to the use of any weapons, detected prior to the use of the cell phones which Mr.

Dang certainly knew he was a party to smuggling in, these are offences that affected not only the individuals within the institution, but the community as a whole and the trust that the community places on the Corrections Services in this province. Mr.

Dang's fellow Corrections officers were entitled to believe that he had their backs, not that he was helping to smuggle knives to stab them in the back. [ 8 ] I am grateful for the Victim Impact Statement which was provided, and while much has been read today, I just want to repeat what Warden Davis has said about the impact that this offence has had on the staff of the Surrey Pre-Trial Centre. Warden Davis concludes in his Victim Impact Statement that: Mr. Dang used the trust of his fellow staff and supervisors for his personal gain and betrayed his job and his fellow staff at Surrey Pre- Trial Services Centre.

This betrayal continues to haunt and demoralize the majority of officers who perform a difficult job with diligence and professionalism. I would just pause there and certainly say that I strongly concur with Warden Davis' sentiment, that it has been the experience of this court that the vast majority of Corrections Officers who perform their duty do so with diligence and with professionalism. [ 9 ] Warden Davis goes on to say that: Corrections Officers rely on one another for their security and their physical safety on the job.

The knowledge that a fellow officer deliberately disregarded their safety and the safety of the public is difficult for many officers to comprehend. These staff now question the authenticity of trust that they place in fellow officers and continue to wonder if there is further contraband in the centre that is yet to

be found, despite the numerous ongoing risks. Warden Davis concludes by saying: Mr. Dang's act of betrayal undermines the professional image of Correctional Officers and also significantly impacts the professional reputation of the BC Corrections Branch and the Surrey Pre-Trial Service Centre as our hiring and training practices, as well as the integrity of our staff will surely be questioned. [ 10 ] The Criminal Code goes on to indicate a number of other factors that I have to take into account.

Section 718.1 states that, "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." And I have already commented on why I consider this to be a very grave offence. [ 11 ] The Criminal Codes goes on to say that under s. 718.2 that, "A court that imposes a sentence shall also take into consideration the following principles:" and Crown counsel has alluded to two in particular, the first under subsection (iii), "evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim" is to be deemed an aggravating circumstance.

And also paragraph (iv), "evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization" is also to be deemed to be an aggravating circumstance. [ 12 ] The Code goes on to say in that

section that a sentence that I impose "should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances." It also says that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances." But in my view this is not a case where less restrictive sanctions present themselves owing to the gravity of the offence and the circumstances under which they were committed, and the risk that they put to the persons who were placed at risk. [ 13 ] Counsel have provided a variety of authorities, and while counsel concede no two cases are ever alike, they are a fair selection of authorities indicating the range of sentence for this type of offence, even for someone in Mr.

Dang's position who has no previous record, and the range has been anywhere from three years to five-and-a-half years. In my view the range suggested by counsel is certainly supported by the precedents that this court will be required to follow. [ 14 ] In taking into account the sentence of Mr. Dang, I take into account both mitigating and aggravating circumstances. As his counsel points out, he entered an early guilty plea and I certainly accept counsel's submissions that if it were up to Mr.

Dang he would have probably pled guilty on his first appearance, but counsel wisely instructed him to give counsel an opportunity to review the disclosure prior to entry of a plea.

So, this is an early guilty plea in any event, but I do take into account counsel's submissions that the instructions were to enter a plea at the earliest opportunity and that is certainly indicative of someone willing to accept responsibility for a wrong that they have done. [ 15 ] Counsel have also pointed out that this offence, if it had proceeded to trial, would have involved a significant amount of public resources and that by pleading guilty Mr. Dang has spared the community and the taxpayers of British Columbia the cost of those resources.

And I would also say that further damage might be done to the reputation of the Corrections Branch, wrongly so in my opinion, but nevertheless that perception may have resulted if this matter had been aired out in the course of a trial, and I do give Mr. Dang some credit for the early guilty plea. [ 16 ] Mr.

Dang has an absence of record, though, as Crown counsel has pointed out in offences for breach of trust that is less of a factor because, of course, it is the absence of a record, the past good character that induces the placing of trust into that person and makes it all the more shocking when that trust is violated, because the community and the fellow officers that Mr. Dang works with view him as someone in whom they can place that trust, and when that trust is found not to be well-founded then, of course, it converts to an aggravating factor. [ 17 ] I take into account in mitigation as well Mr. Dang's youth.

He is now 26 years of age. As his counsel pointed out he was between 23 and 25 years of age when these offences were committed. As the courts have said in a number of the cases that have been put before me, rehabilitation is not a factor that should be disregarded, even for an offence as serious as this, and I do accept not only from the material in the Presentence Report but from his expression of remorse in court today that Mr. Dang is someone who is capable of being rehabilitated. I also take into account his cooperation with the authorities upon detection of this offence.

He provided a voluntary statement of significant length, 300 pages I am told, he consented to searches, and in many respects was cooperative. I am mindful that there are some of the statements made to police which were initially untrue and from which it took some prodding before Mr. Dang came clean on what in fact the truth was, but overall I take into account his cooperative nature when confronted with this offence to be a mitigating circumstance. [ 18 ] There are, of course, a number of aggravating circumstances.

As I have said, the most significant in my view is the risk that these offences placed on the safety of the fellow officers, as well as the other inmates in the institution.

The motivation for the offences is also an aggravating circumstance, because the motivation was essentially one of greed, and again while there is conflicting evidence and conflicting statements as to whether or not there were pressures of debt or whether and to what extent those pressures were valid, nevertheless the greed is a significant motivating factor in the commission of these offences. [ 19 ] The position of trust I have mentioned previously and that cannot be underscored enough, that is a major aggravating circumstance in this offence, because, of course, the fellow Corrections Officers literally entrust Mr.

Dang with their safety, with their lives, and so the breach of that trust cannot be disregarded. The fellow officers rely on him for their safety and he took actions which jeopardized that safety. [ 20 ] I agree with Crown counsel's submission that the fact that Mr. Dang may have been unconcerned about the contents of what it was that he was delivering or may have been wilfully blind is something that I view as an aggravating circumstance, because it is not correct to suggest that ignoring the risk to fellow officers makes it somehow less reprehensible.

The placing of one's head in the sand as to what it is precisely that is being delivered to the inmates in the remand centre is an aggravating circumstance in my view.

[ 21 ] And finally, as Crown points out, this was an offence that involved a high amount of planning. It also continued to be committed while Mr. Dang was under suspicion. There is some suggestion that Mr. Dang may have committed these offences because of pressure that he was placed under, and while the facts are unclear as to whether or not that was a factor or how significant a factor that was, I cannot disregard the fact that Mr. Dang was someone who was in a position to report those pressures and to have action taken supportive of him as opposed to some more vulnerable member of society.

These are all aggravating circumstances in my view that make this an offence which calls for a period of incarceration and calls for a period of federal time as opposed to provincial time and that is unusual for offences in which an individual has no previous record, an individual as young as Mr. Dang. [ 22 ] Counsel have put forth a joint submission of four years for these offences. The law indicates that I ought not to depart from a joint submission where it is reasonable, where it is within the range of sentence, where it is put forth by competent experienced counsel, as is the case in the matter before me.

In my view, a sentence of four years under these circumstances is a joint submission that the court ought to accede to for a number of reasons. As I say, this is not a case that falls outside of the circumstances where the court should depart from a joint submission. The sentence is within the range of three to five-and-a-half years. It is put forth by competent, experienced counsel. This is case where in my view the Crown has adopted that sentence while acting within its role as a Minister of Justice, and this is also a case where neither side can be said to be taking advantage of the other.

Neither side has picked the other's pocket is the phrase that is often used. It is certainly a reasonable position to be taken for the sentencing of this offence for this offender.

It is a sentence which speaks to the abhorrent nature of the offence, while not losing sight of the potential for rehabilitation of this particular offender. [ 23 ] Taking into account all of those considerations, taking into account the circumstances of this offence as was fairly presented by counsel in significant detail, taking into account the aggravating and mitigating circumstances, the range of sentence in the authorities, I am going to sentence the accused concurrently on each count, on Count 1 and 2, to a sentence of four years.

I do not know that it matters much whether I credit him with the day that he spent in custody, but his counsel has requested that benefit and I will give him that benefit, so the sentence will essentially be one of four years less a day. It is a sentence of four years, but I will credit him with the day that he spent in custody and he can serve four years less a day. [ 24 ] I am going to make the ancillary orders that counsel have requested. I am going to make an order pursuant to s. 487.051(3) and direct that a sample of Mr.

Dang's DNA be taken by a peace officer or other person authorized to take that sample under the Criminal Code . The sample is to be taken forthwith in one of the methods prescribed by the Criminal Code and it is to be taken for inclusion into the national DNA databank. [ 25 ] I am going to make an order pursuant to s. 109 of the Criminal Code which will provide that upon completion of his sentence and upon his release from custody Mr.

Dang will be prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, and that will be for a period of ten years. [ 26 ] Finally, I am also going to make an order pursuant to s. 490.1 of the Criminal Code directing that all of the items which were seized from Mr. Dang in connection with the investigation of this matter be forfeit to Her Majesty the Queen for destruction.

In the event that there is any dispute about that, counsel can either put forth a written order, a consent order in the event that that becomes necessary. [ 27 ] Are there any matters which counsel wish me to address that I haven't spoken to? [ 28 ] MR. BASRA: No, Your Honour. [ 29 ] MS. ADAMS: I just wanted to clarify that that forfeiture order would apply to unclaimed items seized from the prison itself as part of this investigation. [ 30 ] THE COURT: Yes, yes, my order will extend to those items as well. Given the nature of the circumstances, that we have had evidence that Mr.

Dang may have had no knowledge of what was in the packages, I am going to draw a reasonable inference that those items are in some way related to this offence and that those items can be part of the forfeiture order as well. [ 31 ] With respect to Counts 3 and 4? [ 32 ] MS. ADAMS: The Crown directs a stay of proceedings, Your Honour. K.D. SKILNICK Provincial Court Judge