R. v. Vu Date:, 2011 BCPC 269

Citation: R. v. Vu Date: 20111007 2011 BCPC 0269 File No: 202982-1T Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANH HONG VU REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. F. GIARDINI Counsel for the Crown: Cathryn W. Bruce Counsel for the Defendant: Robert L. Dick Place of Hearing: Vancouver, B.C. Dates of Hearing: Aug. 11; Sept. 29, 2011 Date of Judgment: October 7, 2011 NATURE OF OFFENCE [ 1 ] The accused Mr. Anh Vu pled guilty to one count of unlawfully producing a controlled substance, namely, marijuana on or about February 7, 2010.

His guilty plea was entered on March 10, 2011. [ 2 ] In February 2010, the RCMP executed a search warrant on a house in a residential rural neighborhood of Prince George. When they entered they found the accused at the top of the stairs. He was there with Mr. Tran, a co-accused, the charges against whom were later stayed in Prince George. [ 3 ] I will first describe the grow operation (“grow op”) found at the house. The house had two levels.

From the description of what the police observed and on the basis of the photographs submitted, it appears the house was uninhabited and its primary purpose was for the growing of marijuana. There was ready and unimpeded access between the basement and the rest of the house. The police found four grow rooms and all the paraphernalia normally associated with grow ops, namely, high intensity lights, wiring, ballasts, Mylar, CO2 filters, fans, blowers, transformers, growing nutrients and so on. In the kitchen they found a digital scale, a food saver and food saver wrap.

The police also discovered that someone had created a hydro bypass. The cost of electricity owed to BC Hydro as a result was calculated at approximately $28,942. [ 4 ] Four rooms were specifically used as grow rooms and had a significant number of plants in each room. In addition, about 29

plants were found on the steps of the stairs leading to the basement. In total, the police found 786 marijuana plants. The Crown described this as a sophisticated grow operation. On the basis of the information provided in this sentencing hearing, including the photographs of what was found in the house; I accept that characterization as correct. [ 5 ] As I indicated Mr. Vu was found in the house. He was at the top of the stairs leading to the basement. There were soil marks on his clothes and he was wearing latex gloves. My understanding, based on the submissions of counsel, is that Mr.

Vu had arrived in Prince George on February 1, 2010; accordingly, he had been in Prince George approximately one week. (February 1, 2010, to February 7, 2010, when warrant was executed). [ 6 ] I will next address the value of the marijuana plants. The Crown calculated the value of the plants based on a yield of 3 ounces per plant. For 2000 pounds, the minimum value was calculated at approximately $147,375; the maximum value was calculated at approximately $294,750. [ 7 ] At the ounce level the value of the marijuana plants found at the grow op was calculated at a minimum of $314,400 and a maximum of $707,400.

THE POSITION OF THE PARTIES [ 8 ] The Crown's position on sentencing is that a “real jail” sentence of 17 months should be imposed on the accused, to be followed by a 12 month probation order. The Crown also seeks a lifetime ban on firearms under s. 109 of the Criminal Code , a forfeiture order for everything that was found during execution of the search warrant (except for money found in Mr. Tran’s vehicle; money found in his wallet and the wallet itself).

The Crown also seeks a stand alone restitution order to BC Hydro in the amount of $28,942.75, a DNA order and a victim fine surcharge of $100. [ 9 ] The Crown argues this offence occurred while the accused was on bail. It submits that a 17 month “real jail” sentence is well within the range of sentences for this type of grow operation. It points to the following aggravating factors: the size of the operation, the level of sophistication of the operation, the risk of fire, the obvious fact that the grow op was a commercial operation run for profit, and the accused’s prior criminal record.

The Crown acknowledges that the fact the accused pled guilty is a mitigating factor. [ 10 ] The Crown submits that a CSO is not consistent with the principles of sentencing, which in this case are primarily denunciation and general deterrence. The Crown says this is especially so in light of the fact that the accused was given an earlier CSO for drug- related offence and that he committed this offence while on bail. [ 11 ] Mr. Vu submits that a conditional sentence order is appropriate in all the circumstances.

He suggests that a CSO of two years less a day would not be, as defence counsel put it, a walk in the park. As well it would be appropriate for probation to follow. Mr. Vu asserts he was hired to go to Prince George during a slow time in his legitimate landscaping business in Vancouver. He says it was not clear to him that he was hired to attend a grow op. Mr. Vu further says all he did at the grow op was assist with gardening, namely, the trimming of the marijuana plants. BACKGROUND OF OFFENDER [ 12 ] The accused is 53 years old. He was born in Vietnam and is the eldest of four siblings.

He went to school and completed grade 7. However, his parents were farmers and he left school to work on the farm. At 17 he was drafted into the army and served for four years. On his discharge he returned home and after the passage of one year he escaped from Vietnam. He lived in a refugee camp in Hong Kong for four years and in 1989 his application to immigrate to Canada was granted. He lived in both Winnipeg and Toronto. In Toronto he found work in an auto parts factory but while there developed a significant cocaine problem and as well used heroin from time-to- time.

He met a woman and married and they now have two children. [ 13 ] In 1992, while on parole, he moved to Vancouver. While living in Vancouver, he was convicted in 1994 for trafficking in cocaine and 1995 for possession of cocaine. It appears that there was also a trafficking of cocaine charge arising out of events in 1995 but a conviction was not entered until 2000. Counsel explained that this was because there was an intervening appeal. When the conviction was entered in 2000, he received a conditional sentence order. He notes that this was despite the fact this was his second trafficking offence. Mr.

Vu advises that he had no problem abiding by his CSO conditions. At the time of his arrest on this charge Mr. Vu was on a promise to appear. However, he points out that he did not breach a specific court order. Mr. Vu took some time to review his background and criminal record because, he submits, the circumstances of his convictions provide helpful context. Mr. Vu submits that he is not someone who is disinclined to follow court orders. [ 14 ] Mr. Vu advises that 1995 was the end of his issues with drugs. He bought a house in East Vancouver on which he is still paying the mortgage.

He set up a landscaping business and has been operating it since 2002. His wife works in a Vietnamese restaurant, as does he from time-to-time. Mr. Vu has a good business in the spring and summer but business falls off in the fall. The significance of this is that he needs to find other work to maintain himself and his family through the fall and winter months. Mr. Vu asserts that he was hired to go to Prince George and went there on February 1. He was paid a thousand dollars to do so. Mr. Vu says he did not know that what he was going to be doing was tending a grow operation. He was told it was janitorial work.

It was only when he arrived in Prince George that he found out what the work really was, namely, assisting with gardening at the grow op. Mr. Vu advises that he feels incredibly

stupid and ashamed. APPLICABLE LEGAL PRINCIPLES [15] The purposes and principles of sentencing are set out in ss. 718 and 718.2 of the Code. The fundamental purpose of sentencing isto contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society.

This is done by imposing “just sanctions” which have one or more of the following objectives: a. separating offenders from society, where necessary; b. deterring the offender and others from committing offences; c. denouncing unlawful conduct; d. assisting in rehabilitation of offenders; e. providing reparation for harm done to the victims or the community; f. promoting a sense of responsibility in offenders and acknowledgement of harm done to the victims and the community. [16] Additionally, in arriving at a fit sentence, the sentencing judge must ensure that the sentence imposed on the offender isproportionate to the gravity of the offence and the degree of responsibility of the offender.

This means that the sentence I impose on Mr.Vu must be commensurate with the gravity of the offence he has committed and with his moral blame-worthiness. [17] Other principles which the sentencing judge must consider are: a. A sentence should be increased or reduced to account for any relevant or mitigating circumstances relating either to the offence or theoffender; b. A sentence should be similar to sentences on similar offenders for similar offences committed in similar circumstances; c. An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; d.

All available sanctions, other than imprisonment, that are reasonable in the circumstances, should be considered for all offenders. [18] The sentencing process is an individualized process which involves balancing the goals of society against the moral blame-worthiness of the offender in the circumstances of the offence: see R. v. M., 2008 SCC 31 , [2008] 2 SCR 163; R. v. C.A.M., (SCC), [1996] 1 SCR 500. SHOULD A CONDITIONAL SENTENCE BE IMPOSED? [19] It is clear from the submissions of counsel that a jail sentence, to be served in the community or in “real jail”, is appropriate inthe circumstances.

The issue to be decided is whether a conditional sentence order is appropriate in this case.

Section 742.1 of the Codeprovides that in certain circumstances a judge who imposes a sentence of imprisonment may order the offender to serve the sentence inthe community. [20] In R. v. Proulx, 2000 SCC 5, the Supreme Court of Canada set out the approach a judge should follow when considering theimposition of a conditional sentence. The judge should first make a preliminary determination about the appropriate range of sentencesfor the offence in question.

Conditional sentence orders can only be made in circumstances where the jail sentence imposed is less thantwo years. [21] As noted, in this case the only sentencing issue is whether the sentence imposed should be served in “real jail” or in thecommunity. The Crown is asking for a “real jail” sentence of 17 months with probation to follow. The Crown thereby hasacknowledged that a sentence of two years less a day is appropriate in the circumstances. The defence also acknowledges that a term of

imprisonment in the provincial range is appropriate in the circumstances. In fact, the defence suggested in argument that a sentence of 2years less a day, followed by probation, may be appropriate if the sentence is served in the community; which is what the defence urgesme to do. SOME CASE LAW ON GROW OPS [22] At this stage I will set out the case law submitted by counsel. The Crown relies on the following cases; R. v. Budd 2010 BCCA214, R. v. Wallis 2007 BCCA 377, R. v. Van Santvoord 2007 BCCA 23, and R. v. Lee 2011 BCCA 73. The defence relies on thefollowing cases: R. v. Gan 2007 BCCA 59, R. v.

Whyte 2002 BCCA 293, R. v. Trinh 2001 BCCA 677, R. v. McLennan 2001 BCCA299, R. v. Tanasichuk 2007 BCSC 1028, R. v. Farewell 2007 BCSC 160, R. v. Tran 2008 BCPC 16, R. v. Huynh 2006 BCPC 582, andR. v. Nguyen 2008 BCPC 404 , 2008 BCPC 0404. [23] In R. v. Koenders, 2007 BCCA 378, Ryan J.A. noted there is no question that its decisions on sentencing in relation to marijuanagrow operations can be difficult to reconcile. Complicating the issue is the fact that if an offender meets the provisions of s. 742.1 of theCode the sentencing judge must consider the imposition of a conditional sentence.

There is, however, no presumption that a conditionalsentence is the norm or is not the norm for any offence that does not carry a minimum sentence. She further noted that a discerniblerange and approach to sentencing has developed in the Court of Appeal with respect to production of marihuana and related offenceswhich turns most crucially on the commercial nature of the offence and the personal circumstances of the offender. [24] The cases relied on by the defence, which all involved first offenders, indicate the following: (

a) In Gan a 69-year-old first offender, who participated in a grow operation as a way to make some money, had a 90 day jailsentence overturned by the Court of Appeal which then imposed a one year conditional sentence order. (

b) In Whyte a 35-year-old first offender, who was found with several hundred marijuana plants in his residence and candidlyadmitted he was participating in the production of marijuana, had a 12 month prison sentence changed to a conditional sentence order fortwo years less a day on appeal. (

c) In Trinh a 45-year-old first offender, who had immigrated to Canada from Vietnam via a refugee camp in Hong Kong, wassentenced to nine months imprisonment when he pled guilty to one count of unlawfully producing marijuana. On appeal the prisonsentence was set aside and a one-year conditional sentence order was substituted. (

d) In McLennan the accused and a co-accused, who were both in their 50s and who had no criminal records, were sentenced to twoyears less a day by the trial judge for unlawfully producing marijuana. They had 2472 marijuana plants in a barn. The Court of Appealsubstituted a two-year less a day conditional sentence order for incarceration. In the course of that case Southin J.A. noted there were somany differing sentences for marijuana offences in this province that it could not be said there was any common judicial opinion as towhat was the right thing to do. (

e) In Tanasichuk the 27-year-old accused, who was a first offender, entered a plea of guilty to one count of producing marijuana.He had been the caretaker of a marijuana grow operation comprised of 7200 plants. Brooke J. imposed an 18 month conditional sentenceorder. (

f) In Farewell the wife, who had no criminal record, was convicted of possession and production of marijuana and sentenced to anine-month conditional sentence order whereas the husband, who had a criminal record, was sentenced to nine months incarcerationfollowed by one year's probation. (

g) In Tran the 27 year-old accused, who was born in Vietnam and immigrated to Canada as a teenager, with no prior criminalhistory, was sentenced to a 15 month conditional sentence order for producing marijuana in circumstances which involved a growoperation of 592 plants. (

h) In Huynh the accused, who came to Canada from Vietnam as a teenager and had no criminal record, monitored and assisted inthe growing of plants in a 1062 plants grow operation. He was not the owner of the home. He was sentenced to a one year conditionalsentence order. (

i) In Nguyen the 53-year-old accused was born in Vietnam and came to Canada as a refugee after spending 3 1/2 years in a refugeecamp in Hong Kong. He had no prior criminal record and was found to have performed a caretaker function in a 818 plant grow op. He,his wife, and two children were living at the grow op house. He was sentenced to a conditional sentence order for 12 months. [25] In the main the case law relied on by the Crown, not unexpectedly, illustrates cases where a jail sentence was imposed rather thana CSO. (

a) In Budd, the court considered an appeal of a sentence of one year incarceration on charges involving possession of marijuana forthe purpose of trafficking, trafficking in marijuana and production of marijuana Mr. Budd was 26 years old at the time of the offence. Hedid not have a criminal record. He had worked in the fishing industry and had qualified as a tugboat captain. The convictions wereexpected to affect his employability because he would be unable to enter Alaskan waters.

At sentencing the Crown had emphasized theprinciples of denunciation and deterrence, whereas the defence had argued that a conditional sentence that permitted him to maintain hisemployment was a fit disposition. The Crown relied on this case for the proposition that individuals involved in sophisticated large-scalemarijuana grow operations will generally warrant more severe sentences in order to denounce and deter the illegal conduct and to containthe spread of marijuana grow operations in this province. In that case, the sentence appeal was dismissed. (

b) In Wallis, the accused sought leave to appeal a 15 month jail sentence, plus probation, after he was convicted of production ofmarijuana. The accused ran an operation of 638 plants in the house he shared with his parents. He was 28 years old when he committedthe offence. He had no prior criminal record. The Crown relied on this case for the proposition that the sentencing judge had properlyemphasized principles of denunciation and deterrence. The sentence of incarceration was found to be proportionate to the gravity of the

offence and the responsibility of the offender. The majority of the court noted that the offence had been driven by greed and has obvious deleterious effects on the communities in which it appeared to thrive. (

c) In Van Santvoord , the accused was ordered to pay a fine of $20,000 on two counts of production of marijuana. The sentence was appealed by both parties. The Crown relied on this case for the proposition that the case of R. v. Su 2000 BCCA 480 , is still the guideline for the proposition that denunciation and deterrence are appropriate sentencing objectives were commercial marijuana operations are involved. It also stands for the proposition that a conditional sentence for the owner of the operation is generally unsuitable and for what constitutes a guideline range. (

d) In Lee , the court considered an appeal by the accused of a nine-month jail sentence for production of marijuana. The Crown relied on this case for a list of the aggravating and mitigating factors that a judge ought to consider in sentencing offenders involved in grow operations. [ 26 ] The case law submitted by the Crown and the defence, as well as my own experience, makes it clear to me that, in appropriate circumstances, a sentence of two years less a day or less can be a fit sentence for a person found guilty of the production of marijuana.

I have concluded the appropriate range of sentence for the offence of production in the circumstances of this specific case falls within the provincial sentence range. I next need to consider whether the other prerequisites set out in s. 742.1 are met.

Those prerequisites are: a. there is no minimum term of imprisonment; b. the Court is satisfied that serving the sentence in the community would not endanger the safety of the community; c. serving the sentence in the community would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. [ 27 ] First, there is no minimum term of imprisonment for the offence of production of marijuana. [ 28 ] The second question to be addressed is whether the safety of the community would be endangered if Mr. Vu was allowed to serve the sentence in the community.

In other words, is there a risk that Mr. Vu would reoffend and, if so, what is the gravity of the damage which could ensue? Mr. Vu has a criminal record but it is not an extensive record. A cluster of theft related offences occurred from 1990 to 1992. Mr. Vu was then convicted of trafficking in a narcotic in 1994 and possession of a narcotic in 1995. The record shows a conviction for trafficking in a narcotic in 2000 for which Mr. Vu received an 18 month conditional sentence order. I am satisfied on the information provided by both counsel that that conviction related to circumstances that arose in 1995.

Subsequently, but after the date of this offence, Mr. Vu was convicted of theft under in 2010. Notwithstanding his record, I am satisfied that since 1995 Mr. Vu has tried to deal with his drug related issues. Except for the theft under, on which he was convicted in 2010, he has not been charged with any other offences, except the case at bar. I am satisfied that, in the circumstances, Mr.

Vu would not endanger the safety of the community if he were to serve his sentence pursuant to a CSO. [ 29 ] The final point I must consider is whether serving the sentence in the community is consistent with the fundamental purposes and principles of sentencing to which I have previously referred. The Supreme Court of Canada in Proulx said that serious consideration should be given to the imposition of a conditional sentence. In all cases where the first three prerequisites are satisfied a conditional sentence may be an option to consider.

In fact, the court said it would be an error in principle not to consider the possibility of a conditional sentence seriously when the statutory prerequisites are met. The court in Proulx further stated that a conditional sentence can meet the objectives of denunciation and deterrence. Further, a conditional sentence may be imposed even in cases where there are aggravating circumstances relating to the offence or the offender. [ 30 ] Many sentencing decisions have noted that the imposition of a conditional sentence is not necessarily less onerous than a period of “real jail”.

It has also been noted that the terms of conditional sentences are generally longer in duration than the “real jail” terms that may be given. Moreover, it should be noted that with a conditional sentence the parole and/or remission provisions applied by the corrections services do not apply. Further, the ramifications of a breach of the conditions of a conditional sentence order can be significant: See R. v. Holmes 2009 CLB 1048, (Ontario Superior Court of Justice).

The Sentence [ 31 ] I have considered the nature of the offence, the circumstances surrounding the commission of the offence, as well as the circumstances of the offender and the principles and purposes of sentencing. After some reflection, and despite the able submissions of counsel, I have concluded, notwithstanding Mr. Vu's personal circumstances, that a term of imprisonment is appropriate and is required to properly address the sentencing principles of denunciation and deterrence. [ 32 ] In coming to this conclusion I have considered the following: (

a) the grow operation was a large commercial operation; (

b) it was a sophisticated operation which required a variety of grow op paraphernalia and was powered by resorting to a hydro bypass; (

c) the operation was in a residential, albeit rural, neighbourhood;

(

d) the whole house was devoted to the grow operation; (

e) Mr. Vu asserts he was enticed to Prince George under false pretences. However, even taking that into account, it does not explain why he remained at the grow op site and performed "gardening" duties relating to the grow op. Moreover, in spite of his straitened circumstances, Mr. Vu, who is mature man, had a choice to make. Regrettably, he chose to continue his participation in the grow op once he learned the true reason for his presence in Prince George; After considering all the circumstances of the offence and taking into account Mr. Vu’s guilty plea, I am imposing a 9 month jail sentence, followed by 12 months probation. ANCILLARY ORDERS [ 33 ] I also make the following orders: (

a) Pursuant to s. 16(2) of the Controlled Drugs and Substances Act there shall be forfeiture of all items seized by the police, except $1000 found in Mr. Tran’s vehicle; $460 found in his wallet and the wallet itself. (

b) Pursuant to s. 109(3) of the Code there will be a lifetime ban on possession of any firearms, cross-bows, restricted weapons, ammunition and explosive substances; (

c) Pursuant to s. 487.051 of the Code there will be a DNA order. In the circumstances I am waiving the victim fine surcharge and decline to issue a restitution order to BC Hydro because I am not satisfied that Mr. Vu was responsible for the hydro bypass. ________________________________ The Honourable Judge M. F. Giardini Provincial Court of British Columbia