R. v. Di Biase Date:, 2014 BCPC 30

Citation: R. v. Di Biase Date: 20140124 2014 BCPC 0030 File No: 217350-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MARCO ANTONIO DI BIASE EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. St. PIERRE Counsel for the Crown: A. R. Clarkson Counsel for the Defendant: L. D. Myers, Q.C. Place of Hearing: Vancouver, B.C. , B.C. Date of Hearing: January 24, 2014 Date of Judgment: January 24, 2014

A Corrigendum was released by the Court on March 19, 2014. The corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] THE COURT: Mr. Di Biase is being sentenced for an offence committed April 4th, 2011, almost three years ago, that he unlawfully possessed cocaine for the purpose of trafficking. That is contrary to s. 5(2) of the Controlled Drugs and Substances Act . Mr. Di Biase has no criminal record. He is now 36? [1] THE ACCUSED: Yes. [ 2 ] MR.

MYERS: Yes. [ 3 ] THE COURT: Thirty-six years old. [ 4 ] The Crown says that under the circumstances, a period of time in jail of three years is the appropriate sentence and they provide some cases to justify that position. The defence says that is within the range for this type of offence and with the circumstances of this offender, a two-year-less-a-day sentence is available and, in light of that, they also ask that I consider -- I am obliged to -- whether a conditional sentence order is the appropriate sentence.

The Crown maintains that that sentence is not fit and that it would be too short in length and too lenient in the [indiscernible]. [ 5 ] The facts are, briefly stated, that Mr. Di Biase was caught up in a large-scale investigation that included a number of other individuals. However, despite the extent of this investigation, I do not have -- is it fair, Mr. Clarkson, I do not have before me any sort of indication that he is any more involved other than being at this residence on the date of the execution of the search warrant? [ 6 ] MR.

CLARKSON: No, what you have is what is in the agreed statement of -- [ 7 ] THE COURT: Whatever the agreed statement of facts -- [ 8 ] MR. CLARKSON: He has admitted to owning that cocaine and close to $80,000 in cash and writing up those score sheets. [ 9 ] THE COURT: Yes, I have got that. [ 10 ] MR. CLARKSON: As well as all the other facts in that document. [ 11 ] THE COURT: All right. [ 12 ] Eventually as a result of this investigation, there was a search warrant obtained and, on April 4th, 2011 -- and I have an agreed statement of facts that has been filed as Exhibit 1 in these proceedings.

On April 4th, 2011, a search warrant was executed. Mr. Di Biase came to the door of that residence. He was residing there with his wife, Ms.

Pham, Betty Pham [phonetic], who is here in court today as other members of the family. [ 13 ] A search of that residence uncovered a large quantity of cash, approximating $80,000 in cash, mostly Canadian money, a small quantity of American money; and other paraphernalia such as scales and packaging materials for narcotics; as well as things like, for instance, there was two separate plastic bags that were empty that contained cocaine residue in them and were apparently the size of a -- that would essentially amount to an empty kilogram bag if full. [ 14 ] There were 913.8 grams of powder cocaine seized and 3.5 grams of rock cocaine.

There were score sheets that -- part of the agreed statement of facts. There was a bin that contained, as I indicated, some other paraphernalia, a vacuum sealer, vacuum bags, sandwich bags. There was a money counter. [ 15 ] The Crown points to the fact that there was a nine-millimetre handgun that was found on a different floor than the narcotics were discovered. That was under the dresser in the bedroom. That handgun, I am told, was possessed lawfully and submissions from defence counsel are, essentially, that the gun itself is not tied to, in any material way whatsoever, the charge that Mr.

Di Biase has pled guilty to. [ 16 ] There was also found on that day other things like travel documents indicating that Mr. Di Biase had been travelling recently to various places like Punta Cana. There was an itinerary for Mr. Di Biase, that sort of thing. It is part of the agreed statement of facts. [ 17 ] There was a post-arrest interview where Mr. Di Biase admitted to ownership of the cocaine and the cash. He provided a full and very candid confession, essentially, of his involvement in this offence. Police officers asked him what his motivation was and he was candid in saying that it was money, it was greed.

He told them straight out. [ 18 ] That was on April 4th, 2011. April 5th, he was released without process. On August 27th, 2012, an Information was sworn. That is about a year and a half after his arrest on these matters and providing a full confession to the police. Since that time, the matter has proceeded intermittently and we get to today's date which is now, again, almost three years later and he is being sentenced for his involvement in this offence. [ 19 ] Mr.

Clarkson, on behalf of the Crown, says that general deterrence is obviously the primary factor in these type of cases, certainly and especially when the motivation is greed. He points to a number of different cases that were filed. I also have his submissions on sentence, as well, but the cases that he points to are cases like Huber from Judge Ehrcke; Lobon-Valencia , that is a 1999 decision of our Court of Appeal; Hein . [ 20 ] Lobon-Valencia , the court allowed an appeal from a sentence of one year in custody and substituted a sentence of 44 months. The offender there had six kilograms of high-grade cocaine.

It was apparent in that case, essentially from the location and

circumstances, that the judge had accepted an inference that Lobon-Valencia was a courier between some kind of ship and a distribution point. The Court of Appeal there held that the sentencing judge had given insufficient weight to denunciation and deterrence. [ 21 ] Hein , similar, appeal allowed and, in that case, another custodial sentence of three years, eight months, imposed -- substituted. Mr. Hein -- in that case, the RCMP found around 6.5 kilograms of cocaine.

He was 38 years old, divorced, a qualified heavy-duty mechanic, had a criminal record for possession of narcotic and obstructing a peace officer. [ 22 ] There are other cases that I am not going to refer to at any great length that are in the Crown's book of authorities, but suffice it to say the cases are some support for the range of sentence that Mr. Clarkson says is appropriate. [ 23 ] Huber was the case of Justice Ehrcke. That was one kilogram of cocaine that was being sold to an undercover police officer. Seven years had elapsed between the offence and sentencing.

The court referred to many cases where a conditional sentence was found to be appropriate for the offence of trafficking in cocaine, but noted the distinguishing feature in some of these cases is the amount and the delay. [ 24 ] General deterrence, obviously, is an important factor to take into account in these types of cases. I am also required, obviously, to consider the availability of less restrictive sanctions other than imprisonment under s. 742.1 of the Code . This particular charge is one that could, in other circumstances, require a minimum sentence. [ 25 ] Now, Mr.

Myers, on behalf of his client, says that -- I think essentially, his position is, you know, the court could impose a sentence that was being sought by the Crown and, if done appropriately, I think his point is, is that the Court of Appeal would have a difficult time interfering with that sentence. But his point is, is that a less restrictive sanction is available on the circumstances of this case and in the application of the case law that he has provided.

He maintains that I could impose a two-year-less-a-day conditional sentence order, a jail sentence to be served in the community, and that would, as well, meet all the principles of sentencing and the Court of Appeal would have a difficult time interfering with that sentence, as well.

And his essential submission is, is that that would be the appropriate sentence. [ 26 ] I am pointed to cases like Kreutziger from our Court of Appeal where Justice Oppal, when he was on the Court of Appeal, substituted a three-year jail sentence where the facts related to a one-kilogram possession of cocaine with a conditional sentence order of two years less a day. The sentencing judge was found there to have committed an error in principle by relying on things like a not-guilty plea, but the error was compounded by the judge's reference to post-offence conduct.

But in addressing the imposition of an appropriate sentence, the court referred to the circumstances involving a delay. [ 27 ] It was sort of an inordinate delay and while it may not be obviously accurate that a delay, per se, is going to be on its own a significant factor in the mitigation of a sentence, in my mind, it is what actually happens in that time that is important. [ 28 ] There is an arrest here.

There is a full confession and then, almost three years later, I am being asked to impose the appropriate sentence and I think the point is -- was being made is that sometimes it is a fact that somebody has embarked on a path that basically involves rehabilitation and reintegration into society and a change in their behaviour, a significant change in their behaviour, and that in some cases, at that point, to order that person serve a term of imprisonment would be completely counterproductive and not serve society and not serve that individual in the ways that sentencing principles are intended to. [ 29 ] Judge Galati's case of Lam I am asked to treat with some caution.

Obviously, every case is different and distinguishable on its facts. Judge Oppal said as much in Kreutziger noting that it is a very difficult process, sentencing, and that the formulation of a sentencing order is a profoundly subjective process always, of course, guided by the authorities and the personal circumstances of the individual. [ 30 ] In Lam , there was a gun involved. There was several transactions involving cocaine, the final one leading up to an agreement to purchase a kilo of cocaine.

On the date in question, Lam produced a kilo of cocaine to undercover operator. [ 31 ] Judge Galati points out simply that there is illustrative examples of different ranges of sentences, and he points to Kozma from our Court of Appeal. It dealt with a fairly significant amount of cocaine, that a conditional sentence order was endorsed; the Kreutziger case; Duong , 2006 BCPC 156 ; and other ones. It is noted that the offence for Mr. Lam occurred some two-and-a-half years prior. Since that time, Mr. Lam had been in the community without difficulty and there was no suggestion that he would reoffend.

There was a conditional sentence order ordered in that case. [ 32 ] Nesbitt from our Court of Appeal, which is one of the cases provided, as well, a fairly recent case from our Court of Appeal. There was six years between the arrest and sentencing, and I think Mr.

Myers' point is that, obviously, the court noted that period of time, but the question is, is what amount of delay is sufficient mitigation to take a case from being one where the appropriate sentence would be over two years and limiting the -- or denying the imposition of a conditional sentence and one that -- and what kind of delay, you know, would mitigate the range of sentencing to the extent that it could be. And there is no answer to that, except that in Nesbitt , the young accused there had been rehabilitated by the time of sentencing. [ 33 ] He had no prior record.

By the time of sentencing, it was six years after the offence, he was 27 years of age, and he had been living a crime-free life since that time. That case involved 17 kilograms of cocaine where a conditional sentence was deemed to be the appropriate sentence. The Crown had appealed. [ 34 ] Ellrodt was a case, 1999, just after the amendments to the Criminal Code with respect to sentencing. Ellrodt had a significant criminal record which included convictions of drug trafficking and possession for the purpose of trafficking. At the time of the arrest, he was awaiting sentencing on those charges.

He was a fellow who was married and had a wife that had given birth since the time of his incarceration. [ 35 ] There was an appeal by Ellrodt because he had received a two-years-less-a-day sentence of imprisonment in real jail. He was transporting a quarter pound of cocaine into a small town. He was 32 years old. The appeal was allowed, Justice Southin noted that this

fellow had a record, he had prior convictions that had failed to deter him from the course of criminal conduct, but that did not prevent the consideration of a conditional sentence order, at least for two of the three judges sitting on that panel. In that case, it was noted that the court found that the accused and his family lived in a relatively isolated area, that they were entirely dependent economically on him. [ 36 ] I am told that Mr.

Di Biase here has a supportive family, that if he was gone, if he had to go off to jail, that his new wife and their newborn baby would be fine without him, but in my mind, it should not weigh on the negative side of a ledger or as a factor to be considered that they have a supportive family. [ 37 ] Mr. Kang was Judge Bagnall's decision, but that has very different sort of facts, but again, it is an individual who had a kilogram of cocaine, but Mr.

Kang had Tourette's syndrome and that seemed to weigh heavily on Judge Bagnall's consideration of whether he was competent to serve an actual jail sentence, and those are the kind of cases that I have considered. [ 38 ] I have also considered cases like Schneider , which is [2007] B.C.J. No. 2543 from our Court of Appeal. That was a smaller quantity of drugs, probably around 150 grams of cocaine, I think it was, crack cocaine, but this fellow had been sentenced to a year in jail.

The appellate court -- our Court of Appeal allowed the appeal and substituted a conditional sentence order of 18 months. [ 39 ] In the circumstances, the judge there had failed to adequately consider whether a conditional sentence could meet the objectives of sentencing. The appellant there was a 46-year-old offender, no criminal record, and had good prospects of rehabilitation and did not appear to pose a risk of reoffending.

The court there, noting the law with respect to deference to a sentencing judge, still found that there was inadequate consideration of a lesser restrictive sentence. [ 40 ] Obviously, a higher quantity of drugs here, but the range, sort of a two-year to three-year range, that Mr. Myers says that is appropriate is supported by many cases, one of them being Goodkey , [2013] B.C.J.

No. 2047 , where seven kilograms of cocaine in different circumstances resulted in a two-year actual jail sentence. [ 41 ] In my mind, having looked at all of the -- and I also have the benefit of a number of -- and I will not go through all of them because there is a number of character references for Mr. Di Biase that paint him in a very positive light. This is what has been described as an aberrant behaviour on Mr. Di Biase's part.

He himself, who is a 36-year-old man now and has a young family, has lived a positive life up to this point and the people that know him have nothing but good things to say about him. [ 42 ] He suffered the loss of his older sister, Lena [phonetic], some two years ago to breast cancer. That caused him a great deal of emotional trauma within his family and because she left three children behind and a husband and he felt obligated to assist both financially and emotionally and he did that.

They have created a fund, a breast cancer fund, in which they have raised some $240,000 over the years to donate to Canadian Breast Cancer Foundation. [ 43 ] That was a very tragic circumstance in his life. It led to significant stressors in his life. The business was not doing well and he, basically, at that point in time, felt the need to financially contribute to not only, obviously, his own family, but his sister's family. He made bad choices.

He made such bad choices that, you know, they are going to -- the kind of choices that you cannot get rid of your entire life, the consequences of. [ 44 ] They are going to haunt you, Mr. Di Biase, for the rest of your life; I can tell you that. It is a criminal conviction for a drug offence. It is going to have a significant impact on your life. [ 45 ] The question is whether a conditional sentence order can meet the principles of sentencing. This is a serious case, obviously, but I have before me a man who has come this far in his life without getting in any trouble with the law.

He has no criminal record and he is a man of unquestionable character and, previously, integrity and he is going to suffer the loss of that reputation in the community. [ 46 ] He is going to suffer greatly, in my mind he is going to suffer greatly by the sentence that I am going to impose and I am going to grant a conditional sentence in this case, Mr. Di Biase. I think it can meet the principles of sentencing. [ 47 ] There is going to be a two-year conditional sentence -- two-years-less-a-day conditional sentence order.

You are going to -- and because -- our Supreme Court and the Courts of Appeal have said that this kind of sentence can be an appropriate sentence for serious offences, and I cannot ignore the direction from our Supreme Court of Canada in Proulx and others that say that it can, and I cannot ignore the fact that while you are in the community, you are showing the community just how difficult it is to comply with these kind of sentences. [ 48 ] They are going to see that you are on a conditional sentence order because your liberty is going to be seriously affected.

People are going to ask you why you cannot go out and you are going to have to -- and they are going to know the reason for that, and it is going to be a significant deterrent to others.

I cannot imagine anybody who knows the penalties and the consequences of having a criminal record of a significant drug offence and having the liberty losses that I am about to impose on you would not characterize that as a significant penalty. [ 49 ] So the -- you are going to -- the mandatory conditions you will comply with. [ 50 ] You are going to report no later than 4:00 p.m. on January 27, 2014, at the probation office over there at Cordova.

Remain within the jurisdiction of the court unless you have got permission to go outside. [ 51 ] For the first 12 months of the order, and this is the hard part for a man with a family and young child, you are going to remain on the property of your residence for seven days a week.

You will only be allowed outside your residence during that time for the following reasons: written consent of the supervisor; when traveling directly to, directly from, or while at your place of employment or your place of schooling; for six hours a week, you get to take care of personal matters like shopping and other appointments and that is to be arranged in advance with your supervisor; and, of course, in the event of a medical emergency. [ 52 ] For the following 12 months, there will not be any restrictions on your liberty.

[ 53 ] There will be a condition that you will provide your residential address to the supervisor. Do not change it without the written consent of your supervisor. [ 54 ] You will present yourself to the door of your residence when a peace officer or supervisor attends there for the purposes of determining your compliance. [ 55 ] Madam Registrar, I am speaking really quickly, but I have these written down and I can email them to you if you want. I have not typed out, but I can email them to you as soon as we are finished. All right?

That should assist you, I hope. [ 56 ] You are not to possess or consume any alcohol or controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act , except as prescribed for you by a physician. [ 57 ] You are not be found within any establishment that holds a licence excluding individuals under the age of 19 years. [ 58 ] You shall not possess any weapons as defined in s. 2 of the Criminal Code including knives except while preparing or consuming food or during course of lawful employment. [ 59 ] Upon the expiration of your conditional sentence order, you will be on probation for another two years.

That is a long time, Mr. Di Biase, but it is a very serious offence that was committed here. [ 60 ] The only conditions of your probation will be to report to a probation officer on completion of your conditional sentence order. [ 61 ] You will reside where directed by your -- you will provide your residential address to your probation officer and not change that address without the written permission of that person. [ 62 ] You are not to possess any weapons as defined in s. 2 of the Code. [ 63 ] Anything else, Mr. Clarkson, that you can think of? [ 64 ] MR.

CLARKSON: To add to the conditions? [ 65 ] THE COURT: Yes, do you have any suggestions or submissions with respect to conditions? [SUBMISSIONS RE COMMUNITY WORK SERVICE HOURS] [ 66 ] THE COURT: Well, I mean obviously -- what I will do is this, then, as a part of -- as a condition of the probation, that you will perform to the satisfaction, to the direction, of your probation officer 60 hours of community work service which may include work that you perform on behalf of the charitable organization that was created in your sister's name. [ 67 ] THE ACCUSED: Thank you, Your Honour. [ 68 ] THE COURT: Okay.

Now, okay, anything else? [ 69 ] MR. CLARKSON: No, Your Honour. [ 70 ] THE COURT: There is the ancillary orders that were being sought, Mr. Clarkson. Want to give me those again? [ 71 ] MR. CLARKSON: Yes. [ 72 ] THE COURT: I have signed the -- [ 73 ] MR. CLARKSON: Under s. 109(2) of the Criminal Code , a 10-year firearm prohibition. [ 74 ] THE COURT: Yes, a s. 109 ban on firearms for 10 years. [ 75 ] MR. CLARKSON: And Your Honour has already signed the forfeiture order.

So that has been granted, and the Crown is also seeking a DNA order, a secondary designated offence. [ 76 ] THE COURT: This is a secondary designated offence. Mr. Myers? [ 77 ] MR. MYERS: I have no position. [ 78 ] THE COURT: Okay, yes. Yes, all right. I am going to order the DNA sample, then, to be provided, then, by -- this is a -- it is a Burnaby case so whatever -- [ 79 ] MR. CLARKSON: Yes, Burnaby, correct. [ 80 ] THE COURT: Burnaby RCMP, you can do that -- can he go on -- I know that they often need a little bit of time to get some paperwork or something.

So how about February 3rd, a Monday -- or, I am sorry, your name -- yes, it does not matter what name. February 3rd is Monday. Can he go February 3rd? That is just to provide a DNA sample. That is to the RCMP detachment in Burnaby at Deer Lake. They will give you the information there. [ 81 ] THE ACCUSED: Yes, Your Honour. [ 82 ] THE COURT: All right.

[ 83 ] MR. CLARKSON: And victim fine surcharge. [ 84 ] THE COURT: Yes, and there is a victim fine surcharge. It will need to be paid. [ 85 ] THE ACCUSED: Yes, Your Honour. [ 86 ] THE COURT: All right. [ 87 ] THE ACCUSED: Yes. [ 88 ] THE COURT: Yes, it will not be easy, Mr. Di Biase. Some people who actually request conditional sentence orders are really -- some people actually regret asking for them, quite frankly, because it is so much easier when you are in custody to not be -- to not give in to temptations, to mess it up.

People are out in the community, there are so many temptations and so many opportunities to breach the order that it is a difficult thing to do. [ 89 ] All I can say is -- and Mr. Myers will explain to you the consequences of breaching such an order and they are just not good. You are getting a chance to redeem yourself in the community. Take that chance.

Become a homebody for the next period of time and do not mess it up. [ 90 ] THE ACCUSED: Thank you. [ 91 ] THE CLERK: Your Honour, for the victim surcharge, would the due date be -- [ 92 ] THE COURT: Yes, the due date, 60 days for the victim fine surcharge, and I can email those conditions.

Want me to do that? [ 93 ] THE CLERK: Yes, please. [ 94 ] THE COURT: Okay, do you want me to write down your email address on here? [ 95 ] THE CLERK: And also for the probation order, do we need, "To report and thereafter as and when directed"? [ 96 ] THE COURT: Yes, thank you, and I will have that written down, too, and that should expedite your exit from the building. [REASONS FOR SENTENCE CONCLUDED] CORRIGENDUM - Released March 19, 2014 In the Reasons for Sentence dated January 24, 2014, the following change has been made. [2] On page 9, paragraph 41, the word “abhorrent” is incorrect.

The correct word is “aberrant”. The sentence should now read as follows: … This is what has been described as aberrant behaviour on Mr. Di Biase’s part. … [REASONS FOR SENTENCE CONCLUDED]