R. v. Tran Date:, 2013 BCPC 170

Citation: R. v. Tran Date: 20130118 2013 BCPC 0170 File No: 202703-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. THANH TAM TRAN EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. ST. PIERRE Counsel for the Crown: S. Davey Counsel for the Defendant: K. Bastow Place of Hearing: Vancouver , B.C. Date of Hearing: January 18, 2013 Date of Judgment: January 18, 2013

[ 1 ] THE COURT: Mr. Tran is being sentenced for an offence that was committed from March 24th to March 25th, 2011.

That offence is that he unlawfully produced marihuana contrary to the Controlled Drugs and Substances Act , s. 7(1). [ 2 ] The case is a relatively straightforward case of its kind, too common in these courts many would say; hopefully they become less common if I am to accept the submissions of counsel that these new minimum jail sentences that are in place for these offences will have some kind of deterrent effect on would-be caretakers and would-be principal operators alike. [ 3 ] In any event, in this particular case, Crown counsel suggests that a 12-month jail sentence is the appropriate sentence taking into account the principles of general deterrence and denunciation as being primary factors. [ 4 ] Defence suggests that a conditional sentence order is the appropriate sentence somewhere in the range of 12 to 18 months. [ 5 ] The police officers were effecting an arrest warrant apparently at the residence where this grow operation was ultimately found, and when they arrived they noticed the typical odour associated with growing marihuana, cameras that were placed around the house, other indicia of a grow operation, and having formed a belief that there was a grow operation inside this residential property in Burnaby -- and there is a picture of it, it is quite a nice house; it is a large, relatively new house out in Burnaby -- a search warrant was obtained. [ 6 ] That house was searched or surveilled at first.

During the surveillance, Mr. Tran arrived at the house. Once the warrant was effected, his van was found to have plant residue in it. [ 7 ] It was a rented house. By his account it had been rented for some -- the grow operation only had been in place for a couple of months. It was a three-stage grow operation, there was a bypass in place, an electrical bypass that was not put in by Mr. Tran, but some other individuals. [ 8 ] There was a statement by Mr.

Tran to the police initially that he had some belief that the proprietors of this operation bore some kind of licence to do what they were doing, but, in the end, he is certainly taking responsibility for being at least willfully blind or reckless to that fact. [ 9 ] He says that he was simply a caretaker of this operation and that he only attended there a couple of days a week to make sure the plants were not dying. [ 10 ] The operation is relatively sophisticated; it is not of high sophistication, but, you know, it has some elements of sophistication, but it is certainly not the most sophisticated because there is no CO 2 burners and it appeared from my photos, in any event, to be a hand- watered operation, at least, portions of it.

Is that fair? [ 11 ] MS. DAVEY: Yes, Your Honour. [ 12 ] MS. BASTOW: Mid-range, Your Honour, I think is what we said. [ 13 ] MS. DAVEY: Yes. [ 14 ] THE COURT: Yes. [ 15 ] The Crown's expert, and it is accepted, that the value of the marihuana that is contained in this operation if sold at a wholesale level would be about $114,000.

If sold at its smallest commercial quantities would net about $356,000. [ 16 ] Crown has provided a book of photographs and referred to several cases standing for the proposition that real jail sentence is an available sentence for this kind of criminal activity even in the case of individuals that have no records. [ 17 ] Mr. Tran has no criminal record before these courts, he is a first-time offender, and those cases are -- the quintessential case that -- I do not think I have ever had a case where Crown has not -- well, at least after 2000 -- where Crown has not directed me towards R. v.

Su and appropriately because it is a B.C. Court of Appeal case where Justice Stewart attempted to up the ante, as it were, with respect to sentences for these kind of offences, and the Court of Appeal said he was entitled to impose a jail sentence, they just reduced it from two years less a day to 12 months' imprisonment in the case of Mr. Su. There was about 300 marihuana plants. [ 18 ] The case of Ford , 2010 BCCA 105 , about 385 plants in that case, and in that case, firearms were found in the house as well. Mr.

Ford had no criminal record, no ties with organized crime. [ 19 ] The question was the fitness of the sentence which was an eight-month jail sentence.

The Court of Appeal declined to interfere with that sentence and said that one of the tests -- having some regard to the test for interfering with the jail sentence which was succinctly put in the case of C.A.M. from the Supreme Court of Canada where they said there has to be: ... an error in principle, failure to consider a relevant factor or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

And they took great pains to outline that Parliament had vested sentencing judges with the discretion to determine the appropriate degree of punishment and there are strong reasons to defer to a sentencing judge. [ 20 ] And that is what happened in R. v. Budd , as well, 2010 BCCA 214 . Mr.

Budd was 26 years old at the time of the offence, and his motive was the desire to make money; he had some financial need. [ 21 ] The court there confirmed that, generally speaking, principals of large-scale commercial operations with few, if any, mitigating factors in their personal circumstances, generally speaking, those kind of situations will result in the imposition of a real jail sentence.

[22] R. v. Lee, 2011 BCCA 73, 327 plants. That was a more sophisticated operation; there was CO2 burners in that case. It was also,again, a hand-watered operation. [23] The sentencing judge there noted all of the aggravating factors, and in her discretion simply found that a conditional sentenceorder would be inconsistent with the fundamental purposes and principles of sentencing, and the Court of Appeal, again, simply found onthe test that the -- that is -- that they are bound to follow under C.A.M. for interfering, could not find that the judge made a reversibleerror in that case. [24] Mr.

Tran is 43 years old, he is a roofer by trade, but he only works necessarily in that business in the summertime. He makespretty good money when he is working, over $30 an hour. He has got four children he has to provide for. [25] He came here to Canada in 1989 from Vietnam. His motivation for doing this was financial need, he tells me, because it wasafter a winter of not working. He says he did not have any money; it is that simple. [26] His role in this matter has been asserted, and it is not contradicted anywhere, is a part-time caretaker.

He was there a couple ofdays a week to take care of these plants. [27] He had no investment in this operation, it was the first time he had been involved in anything like this, and, in fact, thisparticular operation was only a couple of months old, there had not been harvesting yet. [28] New legislation is in place, and Mr. Tran is not subject to that new legislation which will require judges to impose jail sentenceson first-time offenders for even small amounts of plants that are being produced under this

section of the Controlled Drugs andSubstances Act. [29] Until that time, I am obligated to consider s. 718.2 of the Criminal Code, and the Supreme Court of Canada that the conditionalsentence provisions are not simply a codification of existing sentencing principles. They are intended to be remedial, it applies alloffenders.

Imprisonment should be the penal sanction of last resort, and that is what our Supreme Court of Canada said in Gladue in1999. [30] They said in Proulx a year later that even if restorative objectives cannot be readily satisfied by a conditional sentence order, itis still preferable where the conditional sentence order can achieve the objectives of denunciation and deterrence as effectively asincarceration in view of the principles of restraint set out in

Section 718.2(

d) and (e). [31] Intelligent people and informed people disagree about the seriousness of these offences, and they are entitled to. Obviously, itmakes it more difficult when judicial officers that are placed, as far as superiority level, above this court, disagree, and they have overthe years. [32] In R. v.

Whyte, 2002 BCCA 293, when sentencing a first-time offender for a grow operation, an appeal, Madam Justice Southin,a very experienced member of the Court of Appeal, commented at paragraph 5: For many years it has been an important consideration in sentencing in this province to avoid, if possible, incarcerating first offenders fornon-violent crimes and this is such a case. I think one of the aspects of conditional sentences is to continue that approach which the lawhas taken in recent years, I would say since the Second World War.

In that case, Justice Low and Justice Smith concurred. [33] I have been handed the case R. v. Gan which is the sentencing of a relatively older offender, no record, 69 years old. Mr. Ganwas growing marihuana for profit. He was given a jail sentence, albeit a shorter intermittent jail sentence, 90 days, I believe it was, but the Court of Appeal on appeal substituted a conditional sentence of one year. [34] Our Court of Appeal in R. v. Shaw, 2005 BCCA 380 , [2005] B.C.J.

No. 1648, made these comments: By British Columbia standards a sentence of two years' incarceration for a moderately sized marihuana grow operation operated by aperson with virtually no criminal history is harsh and excessive. While there are some cases like R. v.

Su (2000), 142 B.C.A.C. 306,2000 BCCA 480, where a sentence of two years less a day incarceration for cultivation of marihuana and possession of marihuana for thepurpose of trafficking was reduced to 12 months' incarceration for a first time offender, there are many other instances where this Court -- And they are talking about themselves, the Court of Appeal -- -- has ruled that that kind of offender having been convicted of that kind of offence should receive a conditional sentence . . . And they refer to not an insubstantial number of cases that stand for that proposition, all Court of Appeal cases.

I will not read the rest ofthe paragraph. [35] In R. v. Godwin, a 2005 decision of our Court of Appeal, the court said at paragraph 17: In R. v. Su -- Again, the same case that I have referred to earlier. -- Lambert J.A. clearly stated that there is a need for denunciation and deterrence for this kind of crime. In that case this court imposed aone-year sentence on a first offender whose operation was comparable to the one with which we are concerned.

In doing so, however, henoted that the task of a sentencing judge is always to look at the circumstances of the offender as well as the offence in determining theappropriate sentence. There is and can be no absolute general rule as to minimum or maximum sentences for any set of circumstances . .

. Of course, a caveat for that is unless Parliament decides there is, and that is the exception to that. [36] I recall the case of McLennan, 2001 BCCA 299 , [2001] B.C.J. No. 811, British Columbia Court of Appeal, wherethere was almost 2,500 plants being grown in a barn. Neither of the accused there had criminal records and both were in their fifties withlawful occupations.

The trial judge refused a conditional sentence, relying on the principles of general deterrence. [37] There the Court of Appeal did interfere: The trial judge [had] placed too much emphasis on the principles of general deterrence and failed to properly consider the possibility of aconditional sentence. [38] The court there noted that Parliament did not exclude offences under the conditional sentence provisions and a conditionalsentence was imposed. [39] There are other cases, I will not go on. There is R. v.

Huon, 2010 BCCA 143, where a 12-month conditional sentence wasimposed on the co-accused, the wife of the accused who got 15 months' imprisonment. The trial judge found that the offender who gotthe jail sentence was the driving force behind the operation, but that the other accused was not. [40] It said that one of the aggravating factors is Mr.

Tran's motivation for participating and that is essentially for money, but there isa difference, and it has been commented by the Court of Appeal, and I did not have time to find the case, but there is a differencebetween greed and need, and I do not have sufficient information before me to infer that this is a situation involving greed. In fact, it ismore likely, if I accept Mr. Tran's assertion that it was a need-situation, there is a difference. [41] Even judges disagree about that being a significant factor, and I refer to the case of R. v. Wong, [2011] B.C.J. No. 2704, whereJustice Barrow, B.C.

Supreme Court, was dealing with a -- although in that case it involved ultimately a jail sentence, over 5,000 plantsbeing grown in 15 large greenhouses. Wong was a caretaker, but he was motivated by profit. [42] Justice Barrow said at paragraph 22 the second feature that he considers aggravating, other than the -- the first was the size, justthe massive size of the operation. Secondly, he finds aggravating: . . . but not significantly aggravating, is the motive . . . for participating.

It is not the case where he was attempting to meet any addictionthat he had, nor was it a case where he was faced with any specific financial difficulty. He simply was involved for the money. As Isay, I do not regard that as a significant factor. [43] So some judges take a different viewpoint on that, but it can be said in that case that Mr. Wong was not faced with any specificfinancial difficulty. [44] Here, the inference is that -- there is nothing to contradict it that Mr.

Tran was faced with some financial difficulties because ofthe nature of his seasonal job. [45] Of course, none of that excuses or justifies his actions in any way whatsoever, and that is why he is here today attracting acriminal record for the first time in his life. [46] I will have to say that a criminal record these days, the attraction of a criminal record these days is unlike it was, say, 20 yearsago when people could sneak into court and sneak out of court and go on their -- you know, carry on with their lives relatively unaffectedby the simple status of carrying a criminal record. [47] These days, it is extremely easy, and, in fact, extremely common for employers, for volunteer work organizations, for anyorganization to demand to do criminal records checks or background checks, and I have had cases already where individuals who hadsuch medial labour as a -- you know, a forklift operator, losing that job by virtue of the simple fact that they were required to do acriminal records check, and they just did not pass it. [48] That is a significant part of punishment and denunciation that has to be taken into account. [49] If the informed public knew what the negative effects of a criminal record were, the simple fact of attracting one I think wouldhave much more deterrent effect than it did in the olden days, as it were. [50] But in addition to that, though, I take the Supreme Court of Canada's direction that a conditional sentence order can, and inmany cases does, meet the principles of sentencing even when deterrence and denunciation are the primary considerations, and the factthat our Court of Appeal has, on many occasions, supported that proposition by upholding and imposing and substituting sentences ofconditional sentence orders in these type of cases. [51] I have to say that, in my mind, a conditional sentence order is the appropriate sentence after considering all of the factors here,including Mr.

Tran's role, the grow operation, the circumstances themselves, and his personal circumstances, the fact that he becomesbefore these courts with no record. [52] I would impose a 12-month conditional sentence order with the following terms. I am going to closely follow the terms thatwere given to Mr. Gan, I find that case to be somewhat compelling in that it is not a deference case one way or the other, it is a situationwhere the Court of Appeal was called upon to come up with the appropriate sentence because the sentencing judge had not given enough

reasons to actually scrutinize, and this is the sentence they came up with, so it has some persuasive value to me. [ 53 ] During that time, Mr.

Tran, you are going to keep the peace and be of good behaviour, you are going to appear before the court when required to do so. [ 54 ] You are going to report to a conditional sentence supervisor by Monday at 4 o'clock and then thereafter as directed by the conditional sentence supervisor. [ 55 ] Remain within the jurisdiction of the court unless you have written permission to go outside the jurisdiction. [ 56 ] Notify the court or supervisor in advance of any change in name or address and promptly notify the court or supervisor of any change in employment. [ 57 ] You are not to be found outside your -- [ 58 ] Do you live in a house, Mr.

Tran? [ 59 ] THE ACCUSED (Interpreter): Yes. [ 60 ] THE COURT: Okay. [ 61 ] Not to be found outside of your residence between the hours of 9 p.m. and of 6 a.m., seven days a week other than while employed at your place of employment or going directly to or from, while proceeding to or from or attending court, while proceeding to or from meeting with your supervisor. I cannot imagine them wanting to meet with you in those hours, but...

For medical or dental treatment with the supervisor's approval other than for emergency treatment. [ 62 ] You are to present yourself at the door of your residence during those hours should your supervisor or peace officer attend to determine compliance with this order. [ 63 ] You are not to consume or possess any alcohol or any drugs as defined in the Controlled Drugs and Substances Act . [ 64 ] You are not to possess any fertilizer, hydroponics equipment, or other equipment particularly suited for use in growing cannabis marijuana. [ 65 ] Those are the conditions that the Court of Appeal had come up with.

I am happy to entertain any other suggestions, Ms. Davey. [ 66 ] MS. DAVEY: Nothing else is sought by Crown, Your Honour. [ 67 ] THE COURT: All right. [ 68 ] MS. BASTOW: No, Your Honour. [ 69 ] THE COURT: Yes. I have considered a period of probation, I just do not think it is necessary under the circumstances. [ 70 ] Mr. Tran is employed full-time, at least during the summer hours, and I hope he knows at this point in time with my comments and with Ms.

Bastow's comments about the legislation that is in place, that should he become involved in something like this again, the consequences to him as far as his liberty is concerned, because he has already had to suffer other consequences, but they are going to be pretty drastic to you, and you understand that you will be going to jail next time, and your family will be devastated. You understand that? [ 71 ] THE ACCUSED (Interpreter): Yes. [ 72 ] THE COURT: I am going to sign the forfeiture order. [ 73 ] There is a s. 109 ban for a period of -- [ 74 ] MS. DAVEY: Ten years, Your Honour. [ 75 ] THE COURT: -- 10 years.

Thank you. [ 76 ] There is a -- I will decline to -- [ 77 ] MS. BASTOW: Actually, Your Honour, Mr. Tran advises me that he has to leave for work at 5 a.m. Could we change that to 5 a.m.? [ 78 ] THE COURT: Oh, he is working at 5:00. The curfew time, 5 a.m. them. Do you have that Mr. Registrar? [ 79 ] THE CLERK: [indiscernible] [ 80 ] THE COURT: I will decline to make the DNA order in these circumstances, but if he is working, he has to pay the victim fine surcharge. [ 81 ] MS. BASTOW: That is fine. [ 82 ] THE COURT: Okay, anything else?

[ 83 ] MS. BASTOW: No, thank you. [ 84 ] MS. DAVEY: Thank you, Your Honour. [ 85 ] THE COURT: Okay. [ 86 ] Okay, Mr. Tran, you are getting a shot at redemption here. Do not mess it up. [ 87 ] THE CLERK: Your Honour, time to pay? [ 88 ] THE COURT: Yes, 60 days. [ 89 ] THE SHERIFF: Order in court. [ 90 ] THE COURT: Okay, thanks. [ 91 ] Thank you. (REASONS CONCLUDED)