R. v. Perida Date:, 2014 BCPC 308

Citation: R. v. Perida Date: 20140328 2014 BCPC 0308 File No: 202938-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. JUNGY RAY PERIDA EXCERPTS FROM PROCEEDINGS ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. ST. PIERRE Counsel for the Crown: S. Davey Counsel for the Defendant: J. Israels Place of Hearing: Vancouver , B.C. Date of Hearing: March 28, 2014 Date of Judgment: March 28, 2014

[ 1 ] THE COURT: So this is Mr. Perida being sentenced for - just as an aside, as I was reading all of these cases, a lot of them from the B.C. Supreme Court, sometimes sentencing on fairly serious drug trafficking matters, it is remarkable sometimes how brief they are and how sometimes in Provincial Court we feel the need to, in a colloquial sense, cover off all the bases, I guess, but that is the burden we bear as the lower trial court. In any event, I will try to make it as succinct as I can - Mr.

Perida being sentenced for an offence committed November 2nd, 2011, quite some time ago now, that he trafficked in a controlled substance, methamphetamine, in particular, and that is contrary to s. 5(1) of the Controlled Drugs and Substances Act . [ 2 ] I will get to the circumstances in a minute, but the Crown seeks as an appropriate sentence, given all of the factors to be considered, that they say a nine-month jail sentence is appropriate. Crown is opposed to a conditional sentence order being imposed. Mr.

Perida is a first-time offender. [ 3 ] The circumstances are somewhat unique and I suppose that is what takes it out of the ordinary kind that are properly characterized as a dial-a-dope case, for lack of a better characterization. The police receive a tip that narcotics are being sold to psychiatric inpatients at St. Paul's Hospital and then I later on had Vancouver General Hospital and I thought it was Vancouver General Hospital? Do you recall? [ 4 ] MR.

ISRAELS: I believe it was VGH. [ 5 ] THE COURT: Yes, that is what I thought, up near Heather and 10th. [ 6 ] It is at Vancouver General Hospital Psychiatric Inpatient Clinic. Upon receiving that tip, undercover operatives came up with a scheme on how to investigate and one of the undercover operatives was dressed as a patient and they called a number, a male answered the phone, the number that they had received on this tip. The undercover operative asked if the man was working.

The man was obviously suspicious as to what the nature of the call was for later obvious reasons and the person said his name was Mike, the undercover operator, and he said he was a friend of Mary's. [ 7 ] There were some repeated calls made, but finally the agreement was made between whoever was on the other end of the line that the operative was calling, to meet at 715 West 12th Avenue in the City of Vancouver in the laneway, and that is right by the hospital. There is no evidence that Mr.

Perida was that individual that was on the phone, but he certainly was the individual who showed up in the lane to meet with the undercover operator. [ 8 ] Mr. Perida produced two plastic bags with methamphetamine in them and he was given $80 in return. A signal was then given and Mr. Perida then ran off on foot. He was apprehended some short distance away. The buy money was found on Mr. Perida. He was apparently on foot at the time and there is no evidence that a vehicle was involved in this transaction.

In any event, we had a total of 1.1 grams of methamphetamine that was involved in this transaction. [ 9 ] Obviously, the Crown says that denunciation and deterrence are of primary importance in these kind of matters. An aggravating factor with respect to this matter was the fact that Mr.

Perida was dealing to psychiatric inpatients, a very vulnerable community, obviously for a number of different reasons, but also there is a risk factor to others that are taking care of these psychiatric inpatients because they do not know -- and I am talking about the nurse and the medical staff, they do not know what this patient is ingesting over and above the medicinal prescriptions that that patient might be receiving and it could result in unanticipated negative behaviour that affects the safety and security of the individuals who work at these institutions. [ 10 ] The Crown points me to several cases, some of which are the well-known usual ones, the Franklin decision of Justice Henderson, 2001.

The stress, as I have already indicated, is that this is a place of safety at the hospital and that is an aggravating factor. [ 11 ] There is a decision called Thompson from Judge Baird Ellan where six months' jail was imposed on an individual in an early guilty plea. Judge Baird Ellan at paragraph 19 refers to B.C. Court of Appeal cases that support a conclusion that a jail sentence is a fit response for offences involving dial-a-dope trafficking even at the lower end of the scale, and obviously it is a fit response.

The question is, is whether it is the appropriate one in this case in this circumstance with this offender. [ 12 ] There is a range of sentences, obviously. There is Tran involving a 28-year-old accused with no record where a nine-month jail sentence was upheld by the Court of Appeal.

That was 2007 BCCA 613 . [ 13 ] There is Hawthorne where that individual -- it is a little bit difficult to apply that case directly to this one, but it is -- that individual had a prior conviction for possession for the purpose of trafficking, received a nine-month jail sentence, but there were comments about dial-a-dope schemes and how serious they are, how they endanger the community.

Nobody argues with that. [ 14 ] There is also a comment at paragraph 27 that the courts have continually noted the difference between circumstances where drug-addicted persons sell drugs on an ad hoc disorganized fashion to fuel their habit and they contrast that to circumstances where, even if it is low level, there is a more sophisticated scheme that is driven by profit to supply drugs. [ 15 ] The defence says a conditional sentence order is the appropriate sentence and makes submissions questioning whether this was a fairly highly sophisticated scheme and noting that Mr.

Perida was on foot at the time and there is no evidence that he is the operating mind or anything like that. He could have been, on this evidence, just a simple messenger boy. [ 16 ] I have the benefit of a Pre-Sentence Report. I have the benefit of many letters of reference in support for Mr. Perida noting that since this event, which occurred some two-and-a-half years ago, that he is a much different person than he was on the offence date. He is 23 years old, and you told me how old he was at the time and now I cannot find my note on that. I think it was 20 or 21, was it not? [ 17 ] MR.

ISRAELS: Twenty-one, Your Honour.

[ 18 ] THE COURT: Twenty-one, yes. Right. [ 19 ] The defence suggested a conditional sentence order in the range of nine to 15 months would adequately meet the principles of sentencing in this case. With respect to his involvement in this matter, I am told, and there is no evidence to the contrary, that it was fueled by his own use of methamphetamine. He had moved into a small bachelor pad at the time. He was working as a stock boy [indiscernible] and he fell into trouble paying his rent and then he fell into use of methamphetamine and suffered the subsequent loss of his relationship and his job.

He fell into a depression and he was using methamphetamine on a daily basis at one time. [ 20 ] After the arrest, he has obtained lawful employment. I have a letter from his employer. He has reconnected in a substantial fashion with his family and they are here in court to support him.

He began weaning himself off the methamphetamine by admittedly -- he is very candid about it, he started using marihuana and then he started to attend the Canna Clinic [phonetic] on Fraser and Broadway there and, in the spring of 2012 he stopped using methamphetamine and, by the end of the 2012, he had ceased his consumption of marihuana, as well. He has worked steadily since his efforts, his self-directed efforts, at rehabilitation. [ 21 ] The evidence here relates to the one single transaction and the aggravating part about it is that it involved a significantly vulnerable population.

He has demonstrated his capacity, his aptitude, to living a crime-free lifestyle, to rehabilitating himself, and he has done that over the last several years and he has made significant efforts in that regard. [ 22 ] He is a young man. He is 23 now. He has no record. He was an addict at the time. During the time he was bound by bail conditions, I am told there were no problems with his bail; that on his own motivation, he has broken his personal cycle of addiction and he has enrolled in school and is taking courses to upgrade his schooling. He stopped using drugs.

He is employed on a part-time basis, as well. [ 23 ] The cases that have been provided to me are -- every case is different and, obviously, one can find many decisions that could properly be characterized as dial-a-dope sentencing cases and where jail was imposed and many cases where jail was not imposed -- where incarceration was not necessary to meet the principles of sentencing, but a conditional sentence order could do so. [ 24 ] The one case that struck me as being of some significant assistance is the Tucker decision from 2011 BCCA 429 , because there, Mr.

Tucker, while he was incarcerated had been approached -- his evidence was, at least, at the trial, he had been approached by gang members and basically, when he was released, he was told he should get some narcotics and bring them back to the jail. [ 25 ] Now, the trial judge in that case found that the true motive for Mr. Tucker to do what he eventually did was to go to the jail at Wilkinson Road there and throw narcotics over the wall into an inmate recreation area that was intended for pickup and redistribution by the inmates. The defence of duress was raised and it was rejected by trial judge.

The trial judge said that he thought that one of the motives that was provided that he would ingratiate himself with the gang leader and likely obtain future gain and money and drugs from the leader was the paramount motive. [ 26 ] The trial judge said that Mr. Tucker had safe avenues of escape and he just did not take advantage of them. There was no evidence the police could not protect him. There was no air of reality in this defence of duress that was being raised. The trial judge in sentencing Mr.

Tucker for that offence noted that -- and the sentencing reasons are very brief and they are reproduced in the Court of Appeal decision, and that was at [2011] B.C.J. No. 2212 , where the sentencing judge said this, that that case was an exceptional one. [ 27 ] Justice Wong thought that Mr. Tucker had mostly rehabilitated himself and that he was quite impressed with the progress that Mr. Tucker had made while he was out on bail and that he had moved away from a criminal lifestyle, was gainfully employed, and was living a different life than he had lived before, obviously. Tucker was 35 years old.

Justice Wong said he was loath to send Mr. Tucker to prison at that time because it would undo all the progress that he has made and so, in that case, there was a suspension of the passing of sentence and he was put on a period of probation for three years. [ 28 ] The Crown appealed that. The Crown said that in that case incarceration should have been ordered. The Crown argued in that case that the failure to impose jail time gives undue priority to the goal of rehabilitation over the pressing need for general deterrence to others, and that was a very unique case in that Mr.

Tucker was attempting to traffic narcotics to incarcerated prisoners. It was noted by the Court of Appeal that it was an unusual disposition for the court to make, but they were not persuaded that they should interfere and that they were very reluctant, as most appellate courts are, to substitute at that time a custodial sentence for a non-custodial sentence when to do so would be detrimental to the offender's success and continued rehabilitation. There is that case. [ 29 ] There is the Pang decision from 2010 BCCA 500 , where there is 1.35 kilograms of methamphetamine discovered in that case. Mr.

Pang was 29 years old, had previous drug convictions that were dated. However, the sentencing judge was alive to the principles of deterrence and denunciation, but also stressed that rehabilitation was a very important factor in that case and the appeal was dismissed. He had received a conditional sentence order. The Court of Appeal dismissed that Crown appeal. [ 30 ] I am not going to go over in any great detail all of the other cases, just simply to say that our Court of Appeal has upheld conditional sentence orders for dial-a-dope-type cases in various different scenarios.

If an offender can meet the statutory prerequisites that are required for consideration of a conditional sentence order, there is nothing that says that they are precluded from receiving one.

There is just simply a balance that needs to be met with respect to the important principle of denunciation and deterrence and balancing that with rehabilitative concerns, and there are many judges and courts above this one that have noted that that balance can come down with respect to different factors on both sides of the fence of a incarceratory sentence and conditional sentence orders. [ 31 ] Justice Smart in the Sidhu case noted that the sentencing process itself has a strong deterrent effect whether it results in a conditional sentence or incarceration because the process, with all that it entails is a significant stigma and, obviously, that holds true in any case where there is a drug conviction for a young man who is going to find his way in the world.

He is now saddled with a drug conviction and he will find out and I am sure his counsel has told him that it is a burden. It is a burden to carry, a significant one. Justice Smart - and that Sidhu case was one of the ones that was handed -- that I did consider - imposed a conditional sentence order. [ 32 ] There are numerous other cases that support the possibility of a conditional sentence order for these kind of offences. The

concern that the court had was whether a conditional sentence order could meet the principles of sentencing, which is the fourth prerequisite for a conditional sentence order, but I am satisfied upon careful reflection that a conditional sentence order for a first-time offender can meet the principles of denunciation and deterrence and certainly will give Mr. Perida a chance to consolidate the path of rehabilitation that he has already decided is the appropriate one for him and one he has been firmly ensconced on for the last two-and-a- half years or so.

To divert him from that path by imposing an incarceratory sentence just, in my mind, would not be the most effective way to reach the ultimate goal and that is the protection of the public. [ 33 ] If informed individuals knew about the consequences to Mr. Perida now and the continuing consequences and what he has done over the last several years, then I think that they would completely understand that society benefits most from Mr. Perida's continued rehabilitation.

At the same time, there has to be a punitive sanction and so, in my mind, a conditional sentence order for 12 months is the appropriate sentence and, Mr. Perida, you are going to be subject to a conditional sentence order for a period of 12 months. [ 34 ] It is a jail sentence and it is served in the community. Often, people ask for these kind of sentences and they often end in disaster for quite a very simple reason, because when people go to jail, their movements, their every-day life, what they do from day to day is controlled by other folks.

They are told when they get to eat, when they get to go out to the exercise yard, when you are going to bed. Everything is decided for you. There are almost no decisions you have to make when you are inside a jail situation, except to not get in any trouble. [ 35 ] When you are out serving a jail sentence in the community, the number of situations that you can get into where you are compelled to try and cheat a little bit on the conditions, are huge. I mean when you are asked to stay home for a certain period of time, there are many young people who find the temptations are just too great.

They cannot do it and, if that happens to you, and your counsel will tell you, you could end up being brought back before the court and end up doing more time in jail, real jail, than you ever would have if I had sentenced you to a real jail sentence. It is not easy for young men to resist some of those temptations. [ 36 ] Now, you have the aptitude to -- you have shown the ability -- that you said to me, essentially, by your behaviours that you want to change your life, you want to change the path that you are on. You have got to prove it now.

Otherwise, there are drastic consequences. [ 37 ] You will keep the peace and be of good behaviour. [ 38 ] You will report to a conditional sentence supervisor no later than three o'clock on Monday and, thereafter, as directed by that conditional sentence supervisor. [ 39 ] For the first six months of this conditional sentence order, you will remain inside your residence except for the following exceptions: while attending, going to and from any place of employment or any place of schooling; for any reason that you have received permission from the conditional sentence supervisor in writing; for any medical emergency.

You are also allowed outside of your residence for six hours a week to -- that will be determined in advance with your conditional sentence supervisor to take care of other things like appointments and shopping and things like that.

That is for the first six months of this order. [ 40 ] For the next six months of the order, you will be on a curfew between the hours of 10:00 p.m. and 6:00 a.m. with the same exceptions except for the six hours a week. [ 41 ] You are not to possess any weapons as defined in the Criminal Code . [ 42 ] You are not to possess any drugs as defined in the Controlled Drugs and Substances Act . [ 43 ] You are not to possess or consume alcohol. [ 44 ] You are not to be found in any businesses that exclude those persons under the age of 19. By licence, they exclude those persons under the age of 19.

That just means bars, essentially. You can go to restaurants or any place licenced as such, but obviously you will see on the door if they have a licence like that. [ 45 ] Now, I am open to any other suggestions on conditions? Ms. Davey? [ 46 ] MS. DAVEY: The Crown is not seeking anything further, Your Honour. [ 47 ] THE COURT: Yes. [ 48 ] MR. ISRAELS: Thank you. [ 49 ] THE COURT: Yes. [ 50 ] MR. ISRAELS: I am sorry, Your Honour, just one quick point unless I missed it, was there an exception just in case for a medical emergency? [ 51 ] THE COURT: Yes. [ 52 ] MR.

ISRAELS: Thank you. [ 53 ] THE COURT: In addition to that, upon expiry of the conditional sentence order, there will be a period of probation for -- and that will be for another year, and with respect to the conditions, you will report to the probation officer upon expiry of this sentence, and thereafter, as directed. [ 54 ] You will provide your residential address and do not change it unless advising the probation officer.

[ 55 ] You are not to possess any weapons as defined in the Criminal Code or any drugs as defined in the Controlled Drugs and Substances Act for which you do not have a prescription. [ 56 ] You are to maintain or seek employment or attend schooling as directed by your probation officer. [ 57 ] That is just doing the things you are supposed to be doing, okay, staying on the path that you are already on. [ 58 ] Anything else? [ 59 ] MS. DAVEY: No, thank you. [ 60 ] MR. ISRAELS: No, thank you, Your Honour. [ 61 ] THE COURT: Okay, Mr.

Perida, do you have any questions? [ 62 ] THE ACCUSED: No, I do not, thank you, Your Honour. [ 63 ] THE COURT: There are also some ancillary orders that you were seeking. [ 64 ] MS. DAVEY: Yes, I was going to ask. [ 65 ] THE COURT: I believe there was a s. 109 -- [ 66 ] MS. DAVEY:

Section 109, 10 years, and it is a DNA secondary designated offence. [ 67 ] THE COURT: Yes, there will be a ban on the ownership of those items that are described in s. 109 for a period of 10 years and those are firearms and things of that nature, Mr. Perida, and I have not heard any submissions on the DNA. I think there should be a sample of DNA that is provided by Mr. Perida and that can be done -- I do not have the sheet here. Do you know what day it is? Maybe I do, somewhere. Oh, here it is. Is this it? [ 68 ] THE CLERK: The bottom one. [ 69 ] THE COURT: You will probably give them a couple of weeks.

I think they like to get this thing in the system before people start showing up. At least, that is what I have been told in the past. April 24, can you do it April 24th? It is a Thursday, 10:00 a.m. at the Graveley Street address and they will let you know all this information up at the registry. That is when you will provide your sample of DNA. [ 70 ] Yes. Okay, and because he is going to be on this order for some time with liberty restrictions, I am going to waive the victim fine surcharge. [ 71 ] Mr. Perida, it is not easy to do these house arrest kind of things.

I get breaches all the time, people coming back and they have messed it up. Nobody says that it is easy and it should not be easy. So treat it seriously because the consequences -- I have seen people sort of mess it up early in the thing and then the consequences, you can imagine what they are. They are kind of devastating, especially if the conditional sentence order is terminated, you are off to the real jailhouse for the rest of the sentence. Okay. All right. [ 72 ] MR. ISRAELS: Thank you very much, Your Honour. [ 73 ] THE COURT: Yes. Good luck to your, Mr. Perida, and thank you to your family.

I would imagine you owe your family a lot of love because they are the ones that are supporting you and there are not a lot of people that have that and you are lucky to have a family that actually shows up and supports you. [ 74 ] THE ACCUSED: I agree, Your Honour. [ 75 ] THE COURT: Okay, thank you. (REASONS FOR SENTENCE CONCLUDED)