R. v. Carrillo Date:, 2014 BCPC 330

Citation: R. v. Carrillo Date: 20141202 2014 BCPC 0330 File No: 199995-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. OSCAR ORLANDO CARRILLO ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D.R. GARDNER Counsel for the Federal Crown: L. Jomori Counsel for the Defendant: J. Buchanan Place of Hearing: Surrey , B.C. Date of Hearing: December 2, 2014 Date of Judgment: December 2, 2014 [ 1 ] THE COURT : Oscar Orlando Carrillo has pled guilty that on the 17th day of April 2013, here in Surrey, he did unlawfully

possess a controlled substance; to wit, cocaine, for the purpose of trafficking. [ 2 ] In this case, the RCMP were involved in a two-month investigation where they were surveilling a basement suite residence in Surrey. Based on information received, and as a result of their own observations of numerous people coming and going to the residence consistent with the purchasing of narcotics, they obtained a search warrant of Mr. Carrillo's basement suite.

They discovered three ounces of cocaine, as well as items consistent with the packaging and sale of cocaine. [ 3 ] The Crown has characterized this as the actions of a mid-level trafficker.

The police also seized $1,760 in cash from the accused. [ 4 ] The Crown is seeking a period of incarceration of 18 to 24 months. [ 5 ] The Crown has referred to several appeal court decisions that support the proposition that a significant period of incarceration is the norm for this type of offence. [ 6 ] Our courts have emphasized that denunciation and deterrence are the primary sentencing principles to be adhered to in these types of cases, having consistently pointed to the misery and suffering caused by people who engage in drug trafficking and the misery they inflict upon those addicted to such substances. [ 7 ] The Crown argues that there are not any exceptional or unusually compelling circumstances in the present case that would warrant the imposition of a community-based sentence. [ 8 ] Mr.

Buchanan, counsel for the accused, has submitted that the principles of sentencing can be properly addressed by the imposition of a suspended sentence, with conditions that would mirror those of a conditional sentence order which, the defence acknowledges, is no longer open to the court in these circumstances. [ 9 ] Mr. Carrillo is 51 years old. He was born in Colombia and came to Canada in 2005. He has no criminal record. As Mr. Buchanan points out, his client was, in a rare circumstance, granted refugee status by the Canadian Government while still living in Colombia.

Apparently the Canadian authorities recognized the very real possibility of Mr. Carrillo being subjected to persecution in his own country. He moved here with his son and daughter, who are now both young adults and continue to live with him. Mr. Carrillo was living in a common-law relationship between 1987 and 1994. [ 10 ] Mr. Buchanan has provided medical letters which speak to Mr.

Carrillo's inability to engage in employment requiring physical exertion, although the accused was working as a drywaller after his arrest on these charges, that being between November of 2013 to May of 2014. [ 11 ] The defence acknowledges that Mr. Carrillo cannot be characterized as an addict who sells drugs simply to support his own habit.

He has suffered serious medical setbacks that led him to use cocaine to treat the severe and chronic pain he was suffering as a result of a significant motor-vehicle collision where, as I understand it, he was rear-ended by a vehicle where the brakes were not applied prior to the collision. The resulting civil action is ongoing. [ 12 ] The accused also woke up in July of this year with Bell's Palsy, which resulted in partial paralysis of one side of his face. [ 13 ] As a result of his medical ailments, Mr.

Carrillo has been prescribed numerous medications, including Oxycodone, which is normally reserved to treat moderate-to-severe pain, as well as Amitriptyline, which addresses anxiety and depression. [ 14 ] Defence counsel also points to a number of mitigating factors such as the entering of a very early guilty plea. As his counsel points out, Mr. Carrillo could have dragged this matter out for a couple of years by electing to have a preliminary hearing and a Supreme Court trial. There were approximately 20 police witnesses involved in this investigation, and Mr.

Carrillo has not attempted to avail himself of any potential Charter arguments that may or may not have been successful. [ 15 ] In support of Mr. Carrillo's physical maladies, the court has been referred to letters provided by his treating physician. His family doctor writes a letter dated April 30th, 2014. She writes: Mr. Carrillo is a 51-year-old man who moved to Canada from Colombia in the past decade. He was referred to our clinic with symptoms of depression, anxiety and post-traumatic stress disorder. He was found to be extremely agoraphobic.

He described terrible experiences with paramilitary persecution of him in Colombia. He came to Canada with a refugee status. Apparently in Colombia, he maintained a good standard of living, owning a car dealership. In contrast, he arrived in Canada, unable to speak English, poor, and felt himself a target of discrimination. He had great difficulty becoming employed. His subsequent marked health problems developed and kept this man isolated at home, often with his children. He was a very vulnerable man that was at risk for exploitation, due to his language, socio- economic and health challenges. Mr.

Carrillo also experienced a motor-vehicle accident around November of 2011, which led to disabling chronic back and shoulder pain, for which he frequently receives nerve blocks at a pain clinic to which we referred him. Unfortunately, his response to treatment has been very limited. My patient has a history of gastritis, as well as hypertension, for which he receives treatment. Dr. Lisa Sennewald goes on to say: Mr. Carrillo has significant medical and physical challenges and a horrific background that appears to have caused him significant trauma.

He needs regular ongoing support from a medical and mental-health viewpoint. It is also to his benefit to have his language barriers minimized by both learning more English and by having a primary caregiver who speaks Spanish. He demonstrates an attitude of humility and wishes to make things right. I feel it would be harmful for him to be incarcerated and he shows every sign of benefiting most from our ongoing care, as well as other future programs we may be able to connect him to in order to assist him in healing and

functioning in a positive and productive manner. [ 16 ] Mr. Carrillo has pled guilty to possession for the purpose of trafficking. Does that make him a bad parent? Well, not according to his children. His son writes a letter on his behalf, saying: My father became a single dad since I was eight years old, having my older sister and myself under his care. This task is not easy for a male in our country. For this reason, my dad has been struggling with many emotional issues. As years went by, he conducted himself into wrong ways, years after we came to Canada.

Adapting ourselves to this country was not an easy task for us, especially for my dad. He goes on to say: Now my dad is my inspiration to continue trying hard in life. He has taught me to acknowledge the mistakes we make in life, to repent and to rise up from the bottom under any situation. [ 17 ] He begs the court to give his father another chance.

In his words, "My dad is the only support my sister and I have in this country." [ 18 ] His daughter, Andrea Carrillo, has also written a letter on behalf of her father in which she says: Oscar Carrillo is not only my father, but a friend, a partner, a person that I have always looked up to and still do to this day. He has taught me how to be respectful, humble, honest, hardworking and how a person rises from the ground. The person that my dad is right now is a different person from the past. His illness over the years has only gotten worse.

Coming from a different country, not being able to take care of his family with his trauma from the past, my dad suffers an extreme depression which has led to negative thoughts and wrong decisions. I am afraid that if he is sent to jail, he could harm his life. I would lose my dad for good and the only family and person I have in this country. [ 19 ] In deciding on a fit and proper sentence, I am aware of the higher courts' emphasis on denunciation and deterrence.

However, in my view, they have not dismissed rehabilitation as an important factor in sentencing. [ 20 ] One consistent theme that emerges from the many cases that have dealt with this issue is that sentencing is a highly- individualized exercise. In my view, and as I have stated, there are several factors that place this case in the exceptional circumstances category. I have accepted the defence assertion that the accused was certainly not living an opulent lifestyle which one would associate with a person reaping a monetary benefit from selling narcotics.

I accept the accused's explanation that he engaged in selling drugs because, in view of his highly unfortunate personal circumstances, it led him to unwisely decide to do so to attempt to provide for himself and his two children. [ 21 ] Accordingly, I find that in these exceptional circumstances, the principles of sentencing can be properly addressed by the imposition of a suspended sentence. [ 22 ] Could I have you stand, please, sir? I will suspend the passing of sentence and place you on probation for a period of two years. [ 23 ] The terms are you are to keep the peace and be of good behaviour.

You are to report to a probation officer here in Surrey by 3:00 p.m. tomorrow, December 3rd, and thereafter as and when directed. [ 24 ] You are to provide a residential address to your probation officer and not change that address without the prior written approval of your probation officer. [ 25 ] You shall obey a curfew by being inside your residence between the hours of 8:00 p.m. and 6:00 a.m. daily, with the following exception; with the written permission of your probation officer to be outside your residence, and in such case, you shall carry such permission on your person. [ 26 ] You are to present yourself at the door of your residence to any peace officer who attends your residence to ensure your compliance with the curfew condition of this order. [ 27 ] You are not to possess or consume any alcohol or non-prescribed drugs. [ 28 ] You are to perform and successfully complete, to the satisfaction of your probation officer, 125 hours of community work service, which shall be completed on or before December 31st, 2015. [ 29 ] I am also going to order that you provide a sample of your DNA for inclusion into the National DNA Databank by attending at the Surrey RCMP between the hours of 9:00 a.m. and 3:00 p.m. on Thursday, December 4th. [ 30 ] Also, pursuant to s. 109 of the Code, I am prohibiting you from possessing or owning any firearm, ammunition or explosive substance for a period of ten years. [ 31 ] The victim fine surcharge will apply.

He has until March 31st, 2015 to pay that.

(REASONS FOR SENTENCE CONCLUDED)