R. v. Galang Date:, 2014 BCPC 240

Citation: R. v. Galang Date: 20141015 2014 BCPC 0240 File No: 202932-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JONATHAN JOHN GALANG REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P.D. GULBRANSEN Counsel for the Crown: J. Pellerin Counsel for the Defendant: C. Sicotte Place of Hearing: Surrey , B.C. Date of Hearing: September 15, 2014

Date of Judgment: October 15, 2014 Introduction [1] Jonathan Galang sold $100 worth of cocaine to an undercover police officer. He has now pleaded guilty to a charge oftrafficking in that drug. The Crown says that because the accused sold the drugs as part of a "dial-a-dope" operation that he should besentenced to six months in prison. Mr. Galang argues that his youth, otherwise good character, steady employment history and lack ofcriminal record, all support the imposition of a suspended sentence or a short intermittent prison term. (A conditional sentence is nolonger available for this offence.) [2] Mr.

Galang points to several recent decisions of trial courts that have imposed suspended sentences in similar cases. However,the Crown has referred me to several decisions from the British Columbia Court of Appeal, which consistently uphold the propositionthat a fit sentence for a first time offender convicted of trafficking cocaine as part of a “dial-a-dope” operation will usually be 6 to 9months in prison. [3] As in most sentencing proceedings, this decision must focus on the application of general legal principles to the specificcircumstances of the offence and the offender.

The focus is not on determining whether the sentence imposed in another case shouldapply in this case. Rather, the question is far more general: In the circumstances of this case and this offender, do the important goals ofdeterring and denouncing those who would traffic in cocaine as part of a “dial-a-dope” scheme, outweigh the goals of rehabilitating theoffender and reintegrating him into the community? Circumstances of the Offence [4] On December 11, 2013, an undercover police officer called a suspected "dial-a-dope" phone number and ordered a "half ball"of cocaine.

Shortly afterwards, the accused arrived at the officer's location, driving a car. He delivered three rocks of cocaine to theofficer and received $100 in return. Mr. Galang drove away, but was arrested nearby. He had $190 on his person including the $100used to purchase the cocaine. The police found no other drugs on the accused or in the car. The total weight of the drugs sold was 1.04g. Circumstances of the Offender [5] Mr. Galang is now 22 years old. He has no criminal record and has complied with all the terms of his release on bail.

He has agood work record, having been employed steadily at various jobs since he left high school. Through his counsel, he explained that hegot involved in trafficking drugs to help a friend whom he met while the accused was working at a gym in Surrey. The friend told himthat he had got himself in trouble while selling drugs. He had lost some of the drugs and was being "taxed" by his superiors. He neededmoney quickly. Mr. Galang said that he agreed to sell drugs to help out his friend and had only been on the job for a few days before hewas arrested. The accused is not addicted to any drugs. [6] Mr.

Galang and two other young men have taken over the business that operated out of the gymnasium where he once workedas an employee. They have begun to specialize in training persons who participate in mixed martial arts competitions. Relevant Legal Principles [7] Canadian law provides a wide discretion to a judge imposing sentence. The judge must engage in a balancing process to assessthe relative importance of the applicable goals and principles of sentencing. Achieving a balance in such circumstances is not a preciseprocess.

The unifying principle in the imposition of a criminal sanction was referred to by Lamer C.J. in R. v. M.(C.A.) (SCC), 105 CCC (3d) 327 as “retribution.” This does not mean revenge. [8] Lamer C.J. stated at paragraph 80: …Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriatepunishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, theconsequential harm caused by the offender, and the normative character of the offender’s conduct.

Furthermore, unlike vengeance,retribution incorporates a principle of restraint; retribution requires imposition of a just and appropriate punishment and nothing more. [9] This concept of a balanced and restrained approach to sentencing is also expressed in

section 718.1 of the Criminal Code: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [10] A judge should not impose a prison sentence unless it is unavoidable. This is reflected in S. 718.2(

e) of the Criminal Code,which states: "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders."

[11] Section 5(3)(

a) of the Controlled Drugs and Substances Act provides that a person who traffics in any amount of cocaine ispunishable by a maximum penalty of life imprisonment, and, in some circumstances to a minimum punishment of one or two years inprison. A one-year minimum applies if the person committed the offence on behalf of a criminal organization; used or threatened to useviolence or carried, used or threatened to use a weapon while committing the offence; or the person has a prior drug traffickingconviction.

A two-year minimum applies if the person committed the offence at or near a school or near any public place usuallyfrequented by persons under the age of 18; committed the offence in a prison or used the services of a person under the age of 18 whencommitting the offence. [12] None of the circumstances listed above exist in the case at bar. Thus, the accused is not subject to a minimum sentence ofimprisonment.

Suspended Sentences [13] S. 731(1) of the Criminal Code provides that if there is no minimum sentence prescribed for an offence, a court may suspendthe passing of sentence and place the offender on probation.

The court may suspend the passing sentence after “…having regard to theage and character of the offender, the nature of the offence and the circumstances surrounding its commission.” [14] S. 732.2(5) of the Criminal Code provides that if a person who is subject to a suspended sentence is convicted of anotheroffence during the probation term, including a breach of the probation order, the court that made the order may revoke the ordersuspending sentence and “…impose any sentence that could have been imposed if the passing of sentence had not been suspended…” [15] It is rare that the sentencing court is ever asked to revoke a suspended sentence, but it has happened.

See, for example R. v.Moore, [1982] S.C.J. No. 416 (BCAA) where the trial judge imposed a five-year sentence on a charge of theft from an estate. The judgehad originally suspended sentence, but revoked it after it had been proved that the accused had been subsequently convicted of forgery. See also R. v.

Patrick, [2013] B.C.J. no.1552 (BCCA) where the trial judge revoked a suspended sentence for assault causing bodilyharm and substituted a prison sentence of two years less a day after the accused had been convicted of breaching the probation order. [16] Suspended sentences were first introduced into the Criminal Code in 1900 and were restricted to first-time offenders convictedof relatively minor offences. In 1970 the Code was amended to permit a suspended sentence in any case where there was no minimumsentence.

The amendment also eliminated the precondition that the offender have no prior record. [17] Since those amendments, even in such serious cases as manslaughter, courts have, in exceptional circumstances, imposedsuspended sentences. See R. v. Pettigrew, (BC CA), [1990] B.C.J. No. 996 (BCCA) where the Court refers to threecases in which suspended sentences for manslaughter were imposed.

My point here is, merely, that the courts have recognized that evenin cases such as manslaughter, which normally carry a prison term, a sentence may be suspended in exceptional circumstances. [18] The courts have also recognized that deterrence can be achieved in some cases with a suspended sentence. For example, in R. v.Saunders, [1993] B.C.J. No. 2887 (BCCA) the court overturned a 30-day prison sentence imposed for the offence of assault causingbodily harm and substituted a conditional discharge.

Southin J.A., writing for the court, commented at paragraph 11: Deterrence is an important part of the public interest but there are other ways of deterring some sorts of crime than putting someone inprison who has no criminal record, as this appellant did not. The learned trial judge did not turn her mind to whether deterrence, which isimportant, might be effected by certain terms of a discharge or a suspended sentence such as a lengthy period of community service.

Sentencing for Trafficking in Hard Drugs [19] The courts have long regarded trafficking in drugs such as heroin or cocaine as very serious offences, in which deterrence is aparamount goal in sentencing. In most circumstances, this will involve a prison sentence, but not always. For example, as long ago as1977 in R. v. Harding, [1977] B.C.J. No. 839 (BCCA), the BC Court of Appeal upheld a suspended sentence on four counts oftrafficking in heroin. [20] Bull J.A. (at paragraph 6) reiterated the Court’s view that deterrence is of primary importance in such cases.

He said: This court has been saying for years, and I repeat, that in normal cases involving trafficking or possession for the purpose of trafficking innarcotic drugs, particularly such drugs as heroin, must be treated on the basis that the primary consideration is deterrence rather thanrehabilitation, although, of course, that feature must not be ignored.

We have said on many occasions, and I repeat, that in normalcircumstances of this type a jail sentence is indicated. [21] But, both Bull J.A. and Branca J.A. upheld the trial judge’s decision on the basis that the particular circumstances of theoffender justified the sentence. They both regarded a suspended sentence as having some significant deterrent value. Branca J.A. statedat paragraph 13: I think in the circumstances of this particular case, the rehabilitation of this woman was of prime importance.

It is not, as my brotherpresiding has said, imposing a probation, but this was a suspended sentence with extremely serious conditions, breach of which couldlead to this woman being brought back to the court for sentence. For that reason I would not disturb the order made in the court belowand would dismiss the Crown’s appeal. Dial-a-Dope Sentences

[22] In more recent times the Court of Appeal has consistently upheld prison terms imposed on first-time offenders who have beenconvicted of trafficking in drugs such as cocaine as part of a “dial-a-dope” operation. The Court's decision in R. v. Barrick, 2012 BCCA83 contains a useful compilation of those cases at paragraphs 21 and 22. [23] In R. v. Cisneros, 2014 BCCA 154, the Court overturned a non-custodial sentence imposed on a 27-year-old first-time offenderconvicted of possession of 25 rocks of cocaine for the purpose of trafficking.

He admitted that he was selling the drugs as part of a “dial-a-dope” operation. The trial judge imposed a fine of $2000 and placed the accused on probation for a year. [24] Groberman J.A., writing for the court, noted that the Court of Appeal had on several occasions emphasized the need fordeterrent sentences for those involved in “dial-a-dope” operations because such illegal enterprises make dangerous drugs such as cocainemore readily available and thereby increase their harmful effects on individuals and society.

He also noted that the trial judge had madean error in principle in imposing the sentence because she had not accounted for the need for general deterrence. In fact, she hadexpressed her own opinion that it was doubtful that general deterrence worked at all. [25] At paragraph 14, Groberman J.A. summarized what the proper approach to the case should have been. He said: I agree with the Crown’s assessment that the ordinary sentencing range for a first offender in a crime of the nature involved in this case isapproximately 6 – 9 months in prison.

Even before the option of giving a conditional sentence of imprisonment for such offences wasremoved by amendment to the Criminal Code, such sentences “were very much the exception.” [26] He therefore held that the sentence imposed by the trial judge was a “marked departure from the norm.” The appeal wasallowed and the Court substituted a sentence of six months in prison. Re-emergence of Suspended Sentences in Drug Trafficking Cases [27] There was a dearth of jurisprudence, until recently, on the issue of whether a suspended sentence was appropriate for "dial-a-dope" cases.

Such arguments have arisen more frequently since the Criminal Code was amended to eliminate the availability ofconditional sentences. [28] See for example, R. v. Voss, 2014 BCPC 43 , 2014 BCPC 0043; R. v. Owens, 2014 BCSC 32; R. v. Sandhu, BCProvincial Court (unreported) April 27 2014 Surrey Registry No. 201693-1. The circumstances in each of these cases all differ fromeach other and from the case at bar. Nonetheless, in each case, the accused was young. Voss and Sandhu were first-time offenders andwere not drug addicts. They had been arrested as participants in “dial-a-dope” operations.

Owens was convicted of possessing 78 g. ofcocaine for the purpose of trafficking. The drugs were found in his apartment. He had a particularly troubled background, had struggledwith drug and alcohol addiction and was an aboriginal person. [29] When conditional sentences were available for this type of offence, there was no practical reason for an accused to seek asuspended sentence. A conditional sentence, if the accused obeyed it, looked and felt very much like a suspended sentence. Inparticular, in both cases the offender was not, at least initially, confined to a prison.

As well, in either case, the accused had to report to aprobation officer (called a “supervisor” for a conditional sentence), obey certain conditions, including perhaps taking some counsellingor treatment and performing community work service. [30] As well, conditional sentences appealed to trial judges. Breaches of the terms of their order can be enforced swiftly andsignificant consequences can be imposed promptly. The enforcement procedure is quite simple.

Enforcing a probation term is muchslower and clumsier, as is the process of revoking the suspended sentence. (Although a judge who revokes a suspended sentence canimpose a much harsher sentence than a judge who revokes a conditional sentence. That is because the length of sentence on a CSO hasalready been determined, whereas a judge revoking a suspended sentence has the power to substitute any penal sanction that he or shedeems to be appropriate.) Range of Sentence [31] The law requires that sentencing for most offences be an individualized process.

Courts of Appeal from time to time indicatespecifically what the range of sentence should be in certain circumstances. More often, when upholding a sentence, they merely indicatethat a particular sentence is “within the range” and if overturning it, that it was “outside the range.” [32] As well, trial courts must strive to impose similar sentences on similarly situated offenders in similar circumstances. A range ofsentence, when articulated by a Court of Appeal is essentially a guideline to lower courts. A trial court is not bound in all circumstancesto follow the range that the court has recommended.

The law recognizes that circumstances vary considerably, both in a particularindividual’s life and in the facts of any offence. Thus, a court may decide that a fit sentence in a particular case requires somethinghigher than the normal range or sometimes something lower. Analysis [33] It is an aggravating factor that the accused sold the drugs as part of a “dial-a-dope” operation. This is an important but notdecisive issue in determining the overall moral culpability of the offender. Cocaine is no doubt a dangerous drug, whose deleteriouseffects are apparent to anyone who sits in provincial court.

Addiction or Greed? [34] The Crown also emphasizes that the accused was not an addict. He sold drugs just for the money. He was greedy. That,suggests the Crown, places the accused at a higher level of moral culpability then some poor addict who was driven to sell drugs becausehe was desperate for his next fix.

[ 35 ] The force of this argument is blunted somewhat by the accused's assertion that he merely sold drugs to help his friend. I have no reason to disbelieve the accused on this, but, nonetheless, it is unlikely that he was selling drugs for no compensation. But, it is also clear that the accused did not stand to make very much money. He did not have any other drugs in his possession -- for future sales, nor did he have a large quantity of cash in his possession from prior sales.

I conclude that he was involved at a very low level of the drug trafficking business. [ 36 ] Courts are generally very sympathetic to persons thrown into a life of criminal activity because of their drug addiction. However, the fact that an accused sold drugs to feed an addiction is not necessarily a positive factor. It is very difficult to kick an addiction. Drug addicts, even the best motivated, often fall back into drug use and the attendant criminal behaviour.

On the other hand, a person such as the accused, who is not addicted, if motivated, will have a much easier time in staying away from criminal activity and therefore will be a better candidate for rehabilitation. [ 37 ] The accused's prospects for rehabilitation are good. Mr. Galang is young, has a good employment record, and is now engaged in the difficult task of running a business. He has no criminal record. He has taken responsibility for his offence by pleading guilty at a relatively early stage in the process. There is no evidence that he lives an antisocial lifestyle.

That is, this offence represents an isolated act in an otherwise law-abiding life. On the evidence that I have heard, I conclude that it is unlikely that he will reoffend. Conclusion [ 38 ] A suspended sentence is one of the sentencing options available in this case. Is it a fit sentence in the circumstances? In my view it is. The accused’s moral culpability is at the lower end of the spectrum of those who engage in drug trafficking. Even so, there is no question that a deterrent sentence must be imposed in such cases.

However, the courts have found that in some circumstances a suspended sentence will accomplish that goal. In my view, the goals of rehabilitation and reintegration into the community outweigh the goals of deterrence and denunciation in these particular circumstances. [ 39 ] I, therefore, suspend the passing of sentence and place the accused on probation for one year.

He must keep the peace and be of good behaviour; appear before the court when ordered to do so by the court; notify the court or the probation officer in advance of any change of name, or address, and promptly notify the court or the probation officer of any change of employment or occupation. He must report within two working days to a probation officer and thereafter as directed by the probation officer.

He must perform 40 hours of community service work under the supervision of and to the satisfaction of his probation officer. (I have chosen not to impose an obligation to perform a large number of community hours because it is equally important in my view that the accused continue to work and seek success in his lawful business.) These community service hours must be completed by the end of the sixth month of his probation term.

As I have pointed out above, should the accused be convicted of another offence during the term of the probation order, the Crown has the option of bringing the accused back before me and requesting that I revoke the suspended sentence and impose a prison sentence instead. [ 40 ] Pursuant to

section 109 of the Criminal Code , I prohibit the accused from possessing any of the weapons described therein for 10 years. Pursuant to

section 487.051 of the Code , I direct that DNA samples may be taken from the accused. I also impose a victim fine surcharge of $200. I also order forfeiture of any offence related property seized by the police. The Honourable Judge P.D. Gulbransen Provincial Court of British Columbia