R. v. Tsang Date:, 2011 BCPC 191

Citation: R. v. Tsang Date: 20110714 2011 BCPC 0191 File No: 201800-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHI LING ADRIAN TSANG REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. L. BAGNALL Counsel for the Crown: C. W. Bruce Counsel for the Defendant: R. Sidhu Place of Hearing: Vancouver , B.C. Date of Judgment: July 14, 2011 [ 1 ] THE COURT: Chi Ling Adrian Tsang is before the court for sentencing respecting one charge of possession of cocaine for the purpose of trafficking and one charge of possession of heroin for the purpose of trafficking.

The events which gave rise to these charges occurred on July the 2nd, 2009, just over two years ago. [ 2 ] The trial commenced on February the 17th, 2011. The accused applied under s. 24(2) of the Charter of Rights and Freedoms for an order excluding the evidence of a search of his person, which application was ultimately denied on April the 20th, 2011. The relevant evidence heard on the voir dire with respect to that application was admitted on the trial. The defence called no evidence. [ 3 ] The Crown having proved its case, Mr. Tsang was convicted.

A Pre-Sentence report was ordered and the matter was adjourned again until June the 30th, 2011. Submissions were heard on that date and I reserved my decision with respect to the appropriate sentence until today. [ 4 ] The circumstances which gave rise to the two charges on the Information were set out in greater detail in my ruling on the voir dire which was delivered on April the 20th, 2011. Briefly, a police officer recognized someone he knew as a user of drugs. He followed that person.

He observed him to apparently make a telephone call at a payphone and then to walk a few blocks away and to approach the accused who was sitting in the driver's seat of a vehicle which was idling by the side of the road. There was a brief interaction between the two men. They extended their hands towards one another. The man then left and the accused drove away.

[ 5 ] The officer followed the accused, approached the driver's side of his vehicle as he was stopped in traffic and arrested him. There was a baggie containing rocks of crack cocaine and flaps of heroin in Mr. Tsang's lap and there was a cellphone in the car. Ultimately, Mr. Tsang was found to be in possession of five-and-a-half grams of cocaine valued at approximately $550 and 1.6 grams of heroin valued at approximately $320. [ 6 ] The cellphone which had been in his possession rang frequently for about 90 minutes after his arrest.

When answered by the officer, the conversations centred around requests for drugs. One caller asked for a person named Adrian. [ 7 ] In sentencing Mr. Tsang, I must address the question of whether it is appropriate to allow an offender to serve a sentence of incarceration in the community by way of a conditional sentence order where the offences he or she committed involve what is commonly known as dial-a-dope trafficking of drugs.

Every sentencing must, of course, involve a consideration of the unique circumstances of the offence and the offender and, therefore, is an individualized process. [ 8 ] The general question arises here, in my view, because Mr. Tsang is representative of many persons who become involved in this sort of crime. He is young, he is impressionable, he has no criminal record, and he committed the offences in question for financial gain, albeit not very much financial gain, apparently. [ 9 ] The Pre-Sentence report which has been prepared and filed sets out the antecedents and the present circumstances of the offender.

He was born in Vancouver in 1989. He was raised in China until the age of five by his grandparents. He was then brought to Canada to reside with his mother. She was not a successful parent and Mr. Tsang was moved at the age of seven to reside with his aunt. [ 10 ] His aunt and her two children remain supportive of Mr. Tsang, consider him part of their nuclear family, and he continues to reside with them. He has a girlfriend. This relationship is now of five years duration. [ 11 ] Mr.

Tsang left school in grade 11, but is now enrolled in courses at an adult education centre with the goal of obtaining his high school diploma. He does not use illegal substances and consumes alcohol infrequently. As I have indicated, he has no criminal record. [ 12 ] Mr. Tsang expressed remorse respecting his involvement in these offences to the author of the Pre-Sentence report.

He was able to explain, and I am quoting from the report, "ways he can decrease the possibility of future offences." He told the author of the report that he committed the offences in an impulsive manner to earn money in order to help his aunt financially. Mr. Tsang described his aunt as the person who gave him his life and indicated that he would like to support her financially for the rest of his life if he were able to do so. [ 13 ] The Crown seeks a sentence of nine months incarceration and also that Mr. Tsang be placed on probation for a period of time.

Counsel for the offender submitted that a conditional sentence order should be the result. [ 14 ] The defence filed four letters written by Mr. Tsang's girlfriend, a friend of his, an ex-employer of his, and a teacher at the school that he was attending in 2006. All of these correspondents write of Mr. Tsang's willingness to help those close to him, his good nature, and his general good character. [ 15 ] Ms. Sidhu, in her submissions to the court, highlighted Mr. Tsang's youth. He was 20 years of age at the time of the offence. Ms.

Sidhu submitted that he became involved in the dial-a-dope operation at its lowest level as a result of some antisocial associations that he had at the time. [ 16 ] Most tellingly, Mr. Tsang addressed the court during the sentencing hearing. It was clear to me that he has a great deal of insight into the criminal acts that he committed and his remorse was very clear. [ 17 ] Each counsel referred to a number of cases. I intend to file lists of the names of the cases and their citations rather than read them into the record.

I have read and considered all of the cases, although I do not intend to refer to each of them in the course of delivering these reasons. [ 18 ] I begin with the frequently-cited case of R. v. Franklin , 2001 BCSC 706 . In that case, the accused sold four grams of cocaine to an undercover police officer. He was arrested and the vehicle he was driving was searched. In the vehicle, the police found six more grams of cocaine and 14 grams of marihuana.

The accused in that case was 26 years old, he had a minor criminal record for property offences, and he told the court that he got involved in the dial-a-dope operation to assist his girlfriend in repaying a debt. Mr. Franklin was not addicted to drugs. [ 19 ] Mr. Justice Henderson reviewed the law respecting drug offences and conditional sentence orders, referring to R. v. Kozma , 2000 BCCA 440 and R. v. Edgar , 2000 BCCA 521 .

The justice opined that these cases should be viewed as "relatively rare instances of cases where unusual circumstances have led the court to the conclusion that a conditional sentence is appropriate." [ 20 ] In

summary, Mr. Justice Henderson said this, and I am commencing to read at paragraph 45: ... it must be said that the Lower Mainland of British Columbia is overrun with cocaine and heroin. Those who are willing to disseminate drugs through the community by Dial-A-Dope operations are responsible for the ready availability of these drugs. People such as Mr. Franklin, who engage in Dial-A-Dope operations, are lured into them by the high profits available with little effort.

It is easy money. [46] The destructive potential of these drugs is so well known as not to require comment. [47] It is my view that this is the sort of offence where general deterrence has an impact. One does not enter into a Dial-A-Dope operation impulsively or spontaneously. It is necessary to obtain a supplier, to outfit oneself with a pager and a cell phone and a vehicle, and to make sure the word gets around. It is a calculated decision to engage in a particular type of business.

It is reasonable to think that those who are considering that decision will take into account the likely penalty they would receive upon conviction. In other words,

general deterrence is a genuine consideration in cases of this sort. [48] It is also my view that general deterrence is entitled to very considerable weight when imposing sentence for trafficking in hard drugs.

When I weigh the need for general and specific deterrence, the need to protect the public, the need to rehabilitate this offender, and the need to denounce his conduct; and when I take into account the injunction in the Criminal Code that incarceration should not be imposed unless and until all other alternate forms of sentencing have been considered, I find myself of the view that a term of true imprisonment is necessary in this case. [ 21 ] I want to highlight, in particular, Mr. Justice Henderson's comments about the fact that one does not enter into a dial-a-dope operation impulsively or spontaneously.

That is an assumption he made in determining the appropriate sentence in R. v. Franklin . [ 22 ] In R. v. Tran , 2007 BCCA 613 , the Court dealt with circumstances remarkably similar to those in the case at bar in terms of the facts. The 28-year-old not-addicted offender who had no record appealed the sentence of nine months incarceration which he received at trial.

At paragraph 6 of the decision of the Court of Appeal, the court said: There is a line, fairly long now, of cases from this Court in which, absent an out of the ordinary circumstance, a custodial sentence has been found to be a fit sentence on a conviction of trafficking in a hard drug in what is referred to as a “dial-a-dope” scheme, where the offender is not an addict and has participated simply for profit. [ 23 ] At paragraph 12, the court clearly equated involvement in a dial-a-dope operation as equivalent to engaging in a "sophisticated form of trafficking," and distinguished the actions of a courier, for example.

This approach would be consistent with the description given by Mr. Justice Henderson of the preparation necessary in order to engage in the sale of the drugs using a cellphone and a vehicle. [ 24 ] It is clear from recent cases that a sentence of actual incarceration is considered fit, or not unfit, for those who engage in this sort of trafficking. An example is R. v. Luong , 2010 BCCA 283 . There, the court upheld a sentence of nine months incarceration for a 30- year-old offender who had no criminal record and was not addicted to any illegal substance.

The offender was in possession of cocaine valued at $8,100 and also $1,240 cash. [ 25 ] The cases provided to me by the defence show the other side of this issue. There are, of course, numerous cases in which conditional sentence orders have resulted for offenders who were involved in dial-a-dope operations. [ 26 ] I am going to refer in particular to R. v. Sidhu , 2007 BCSC 876 . The circumstances of the offence in this case were similar to those in the case at bar. Mr. Sidhu entered a guilty plea on the first day scheduled for his trial in Supreme Court, having had a preliminary inquiry in Provincial Court.

The antecedents and circumstances at the time of sentencing of Mr. Sidhu were very similar to those of Mr. Tsang. [ 27 ] The court began with this comment about dial-a-dope operations: The method by which [the accused] committed the offence is what is colloquially known as a dial-a-dope operation. This is a more pernicious method of selling drugs for it enhances the trafficker’s ability to distribute drugs over a wide area, through the use of a cell phone and a vehicle.

It applies the efficiency, convenience, and commercial advantages of home delivery to the drug-trafficking business. [ 28 ] Having reviewed the authorities referred to by counsel and the first two requirements for the imposition of a conditional sentence order, Mr. Justice Smart went on to say this at paragraph 38: The real issue at this sentencing is the third requirement - would a conditional sentence be consistent with the fundamental purpose and principles of sentencing as set out in ss. 718 through 718.2?

What has to be balanced are the interests of society in deterring and denouncing dial-a-dope trafficking and the interests of society in assisting offenders to rehabilitate themselves and to be productive contributing members of the community. [39] As Mr. Justice Doherty explains in Hamilton , although each case is unique, the fundamental principle of sentencing is proportionality. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Because of the seriousness of this offence, denunciation and deterrence are the paramount purposes that must be served by any sentence imposed. This is why jail is necessary even for a first-time offender. However, the other purposes of sentencing, including rehabilitation, are still factors that I should attempt to balance in arriving at a fit sentence. [ 29 ] Mr.

Justice Smart concluded his decision in the following way at paragraph 43: The more serious the offence and the more aggravating the circumstances surrounding the commission of the offence or the circumstances of the offender, the more deterrence and denunciation dominate the balancing of the purposes that a sentence seeks to balance. We know that a conditional sentence does have a deterrent and denunciatory effect when it is imposed with strict conditions amounting to house arrest. It does not, however, have the same consequences and the same effect as actual jail.

So here I must consider the circumstances of this offence and this offender to decide if the right balance in this case for this offender is a conditional sentence. I will not repeat the seriousness of the offence. It is why jail is necessary. [44] Before me, I have a first offender who had just turned 22 years of age at the time of the offence. The offence occurred during a difficult time in his life. It appears that he was assisting others, not running the business himself. The total amount of drugs in the vehicle was approximately $460 in street value.

He has ended his connection with drug trafficking and those who traffic in drugs. He has a supportive family, is employed, lives at home with his family and is recently married. His family was present at the sentencing, which demonstrates their concern and support. He has a positive psychological report, which is consistent with his conduct since the offence. He has taken steps to rehabilitate himself. Jail will only interfere with that rehabilitation. He is remorseful and ashamed of his conduct. He has admitted his guilt.

[45] I have concluded that the purposes of sentencing can be met by a conditional sentence that will include house arrest. The court in that case imposed a sentence of 10 months to be served by way of a conditional sentence order. [ 30 ] Regina v. Sidhu has been the subject of comment in two cases in our Court of Appeal which were not referred to by counsel. The first is R. v. Rastgoei , 2008 BCCA 242 .

The offender in that case was 21 years old at the time of the events which gave rise to the charges, had no criminal record, and was not addicted to any hard drugs, but he was a daily user of marihuana. [ 31 ] He sold cocaine and marihuana to an undercover police officer 11 times between September 2005 and February 2006 including one sale of one pound of marihuana and two sales of two pounds of marihuana and a number of sales of cocaine in excess of four grams. The sentencing judge likened the circumstances to those of the offender and the offence in R. v. Sidhu .

The circumstances are, of course, completely different. [ 32 ] The Court of Appeal overturned the 18-month conditional sentence order imposed by the sentencing judge and substituted a 12- month sentence of actual incarceration noting, as well, that the offender admitted numerous breaches of the terms of his conditional sentence order committed before the appeal had been heard.

The court noted that some dial-a-dope cases in both the Supreme Court and the Court of Appeal have resulted in conditional sentence orders, but opined at paragraph 38 that in recent years conditional sentence orders "have not been favoured." [ 33 ] I do not think that Mr. Justice Bauman (as he then was) meant by this comment to imply that a conditional sentence order is an unfit sentence for an offence based on involvement in a dial-a-dope operation.

The court in Rastgoei was concerned with a young man who "engaged in repeated cocaine trafficking transactions over a significant period of time in a role which can only be described as entrepreneurial," (paragraph 52). [ 34 ] Regina v. Sidhu was also referred to by the sentencing judge, Madam Justice Martinson, in R. v. Ash .

She said in that case in considering whether a conditional sentence order would be consistent with the fundamental purpose and principles of sentencing, at paragraph 47: In my opinion, the principles of denunciation and specific and general deterrence are particularly important in this case. It is true that, as my colleague Mr. Justice Smart said in Sidhu , the principles of deterrence and denunciation can be advanced by the stigma that society imposes on people who have a criminal record. By his conviction, society has stigmatized Mr.

Ash as a person who has committed a serious offence and has denounced his offence. The law also says that the more serious the offence and the more aggravating the circumstances surrounding the commission of the offence or the circumstances of the offender, the more deterrence and denunciation dominates the balancing of the purposes that a sentence seeks to balance. [ 35 ] That segment of the judge's comments on sentencing was quoted by the B.C. Court of Appeal ( 2010 BCCA 604 ).

The accused received a sentence of 12 months incarceration and appealed that sentence and that is how the matter ended up in the Court of Appeal. The court said this at paragraph 22: As the judge observed early in her reasons, without ruling out conditional sentences for the appropriate case, this Court has indicated in the past that dial-a-dope operations are generally a more aggravated form of drug business and often will attract a sentence of incarceration. A useful

summary of this line of cases is found in R. v. Rastgoei [and the citation is given] wherein Mr. Justice Bauman canvassed some of the authorities from this Court.

Aspects of a dial-a-dope operation which may be of particular concern to a sentencing judge are the degree of sophistication of the enterprise, the degree of marketing required to sustain the business, the level of planning and committed endeavour that may be demonstrated by the nature of the business, the extra difficulty that may be posed for police investigation into a dial-a-dope scheme, and the profit aspect which is often present in cases involving such schemes. [ 36 ] The circumstances in Ash were significantly more serious than those in the case at bar.

The offender was 35 years old and had a minor criminal record. He was characterized by the sentencing judge as a mid-level trafficker and the charges he faced included a number of weapons charges. [ 37 ] I turn to the case at bar. Mr. Tsang was 20 years old at the time of the commission of the offences for which he is to be sentenced. He is now 22 years of age. He has led a law-abiding life since he committed the offences which concern me. He has no criminal record. He enjoys the support of his family, his girlfriend, and his peers. He has shown remorse and insight respecting his actions.

His criminal behaviour was the result of impulsive bad decisions influenced by negative peers. He is presently engaged in furthering his education. [ 38 ] His offences involved the possession for sale of relatively small amounts of cocaine and heroin, both highly addictive drugs which are a danger to the community and even more so when made available in a dial-a-dope operation. The vehicle Mr. Tsang was driving belonged to someone else.

The cellphone in his possession rang many times after his arrest and I conclude that those telephone calls had to do with the sale of drugs. [ 39 ] There is no minimum sentence for the offences here. The appropriate jail sentence, in my view, is less than two years. Indeed, the Crown seeks a sentence of nine months.

The offender would not be a danger to the community if he were to serve a sentence of incarceration in the community. [ 40 ] A conditional sentence order, particularly one which includes terms which significantly limit the liberty of the offender, may provide deterrence and denunciation such that, even for this sort of offence, it is consistent with the fundamental purpose and principles of sentencing. I am of the view that here, a combination of punitive and rehabilitative objectives must be addressed. The sentence, therefore, will be as follows. [ 41 ] Mr.

Tsang, you should stand up now, please. [ 42 ] With respect to each of the counts for which you have been convicted, you are going to serve nine months by way of a

conditional sentence order. Those two conditional sentence orders will be concurrent one with the other. [ 43 ] The statutory conditions will apply and I am going to add the following conditions. Listen carefully, Mr. Tsang. If there is anything that you do not understand, you need to let me know. [ 44 ] You will have two days to report to your supervisor. [ 45 ] You will take counselling as directed. Mr.

Tsang, I am not sure what the problem might have been a couple of years ago, but whatever it was, you deal with it with your supervisor and make sure that it is dealt with so that it does not arise in the future. [ 46 ] You are going to obey a curfew, Mr. Tsang, and it will be as follows.

You are not to leave your residence except: 1. with the written permission of your supervisor; 2. while travelling directly to and from and while at your place of employment, your place of education, your supervisor's office, your doctor's office, your dentist's office, and your counsel's office. [ 47 ] You will present yourself at the door of your residence when requested to do so by your supervisor or a peace officer. [ 48 ] You will neither possess nor consume alcohol nor any drugs except those prescribed for you by a doctor or a dentist. [ 49 ] As directed by your supervisor, you will perform 30 hours of community work service within the first six months of this order. [ 50 ] Those are the conditions I am going to add to the conditional sentence order.

Do you understand all of those conditions, Mr. Tsang? [ 51 ] THE ACCUSED: Yes. [ 52 ] THE COURT: In particular, I highlight the condition which is house arrest in colloquial language, it is very important that you abide by that condition.

This is jail in the community. [ 53 ] There will be no surcharges with respect to these matters. [ 54 ] Under s. 109, you will be prohibited from possessing any of the articles in that section, and they will be listed for you when you are released from this building, and that is for a period of 10 years. [ 55 ] I will order forfeiture of the cash and the cellphone that were seized from you at the time of your arrest, Mr. Tsang, and there will be no order with respect to your DNA. I consider it unnecessary in this case. [ 56 ] The conditional sentence order will be prepared in writing.

It will read and explained to you, Mr. Tsang. A copy will be given to you. I delegate to the clerk of the court the other responsibilities I have under the Criminal Code . Thank you. [REASONS FOR SENTENCE CONCLUDED]