R. v. Don Date:, 2013 BCPC 229

Citation: R. v. Don Date: 20130702 2013 BCPC 0229 File No: 21817-2-C Registry: Salmon Arm IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. THANH HIEU DON ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: Federal Crown: P. Bachra Counsel for the Defendant: S. Sugarman Place of Hearing: Surrey , B.C. Date of Hearing: July 2, 2013 Date of Judgment: July 2, 2013 [ 1 ] THE COURT : Thanh Hieu Don pled guilty this morning on Information 21817-2-C on Count 1 that on the 18th of April, 2012

at Sicamous, British Columbia, he produced marihuana, contrary to s. 7(1) of the Controlled Drugs and Substances Act , and on Count 2, on the same date, he unlawfully had possession of a controlled substance, that is marihuana, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act. [ 2 ] The Crown seeks an 18-month conventional jail sentence reflecting deterrence and denunciation as predominant sentencing considerations and objectives. The defence, Ms.

Sugarman, argues for a conditional sentence order in the high provincial range, urging the importance of rehabilitative factors respecting this particular offender. [ 3 ] The circumstances are the following: On April 10th of 2012, police began an investigation of a residence at 705 Larch Avenue, Sicamous. Observations had been made by police members and by a resident living in the area. Surveillance of this offender was carried out. He had been observed at the residence. He was then observed during surveillance disposing of a garbage bag found to contain marihuana plants when recovered by police. He was arrested.

A search warrant was obtained for the residence and the residence was searched. Mr. Don is not the owner of that residence, but it is clear that he was living there at the time. The residence was substantially altered in order to house a large and relatively sophisticated multi-cycle marihuana grow operation. Only a small area of the residence was set aside for living purposes; the rest, including the basement, contained the grow operation with the necessary equipment for production, venting, lighting and for window coverings.

A surveillance camera system had been installed on the outside of the building. [ 4 ] 435 clones were recovered; 714 plants in vegetative stages were recovered. These plants were calculated to have the potential of yielding 71.81 pounds of marihuana bud. Valued at $1200 a pound in the Sicamous area, the Crown expert calculates the value of the crop at between $86,000 and $157,000. There was $14,000 worth of equipment on the premises. This all demonstrates a marihuana grow operation of a commercial nature and as a going concern which was set up to produce a continuing series of crops. [ 5 ] Mr.

Don is 42 years of age. He was born in Vietnam. He came to Canada with his family in 1997. He worked at a series of jobs after arriving in Canada, including as a dishwasher and at a lighting fixture company for a number of years. He is married. He is the father of a son who is currently 14 years of age. [ 6 ] In the year 2000, Mr. Don and his wife opened a café. That business survived for four years. He thereafter went into work in the renovation industry, but he was injured in a car accident and was off work for a period of about a year.

It was during that time that he took on work at this marihuana grow operation in Sicamous and moved, at that time, from his family who were living in the Surrey area. He lived in the residence, he watered the plants and he assisted in trimming the plants. He had been doing that for a period of two months when he was arrested. He took the job in order to assist his family with their finances.

His wife, at that time, was also working; she is a manicurist. [ 7 ] After his arrest on these charges he returned to live with his family in the Surrey area and he has now returned to fulltime productive work as a roofer, fully employed with a roofing company. He works regular workday hours, Monday through Friday. [ 8 ] He has no prior criminal record. [ 9 ] Marihuana production offences are serious criminal offences. Grow operations are, of course, illegal, and they are highly lucrative.

Large sums of money can be earned operating and working in this industry, and so it invites the interests of, for example, organized criminal groups. [ 10 ] Grow operations are often set up in residential neighbourhoods and they present significant risks to others who live in the neighbourhood, as well as, of course, people who live in the residence itself.

They invite other criminal activity in the neighbourhood; that can be of a violent nature and involve weapons, it can include offences of robbery, home invasion in the form of what are conventionally or often called "grow rips," they often invite, as I said, weapons into the neighbourhood, and in doing so they place not only the occupants of the residence but also the neighbours at great risk. [ 11 ] For all of these reasons, the courts in this province have said that deterrence of offenders, both the individual before the court but also others who are involved but not yet apprehended, or who might become involved, for those individuals deterrence is a significant sentencing objective in cases of this sort.

Denunciation is also a significant sentencing objective in order to deliver the message that the community does not in any way view as minor the presence of this kind of criminal activity conducted for these purposes in neighbourhoods in this province or anywhere else in this country.

Thus even relatively young offenders with no prior record have received conventional jail sentences in order to deliver this strong statement of general deterrence, specific deterrence depending on the circumstances of the offender, and denunciation. [ 12 ] The courts have generally viewed a directing or ownership role as aggravating. Here Mr. Don had been involved for just two months as a caretaker and a security presence at the residence, but not in any sort of directing or ownership role.

Nevertheless, his role is also important in the operation because it can provide a veneer of normality to the illegal operation hidden inside the residence and act as a protection for the owner's investment. [ 13 ] In addition, Mr. Don's role here was entirely directed towards the earning of an illegal income. He is not an addict who might have a need beyond profit to be involved. [ 14 ] The Crown has brought to my attention three cases from the Court of Appeal in this province, all of which are well known in addressing sentences in cases like this. R. v.

Anderson is a 2007 decision of the Court of Appeal which upheld a conventional ten-month jail sentence imposed on a person without a prior record who had a caretaker role, and on a guilty plea. The court noted the judge's conclusion that the importance of general deterrence was particularly relevant In that case, although conditional sentences may also provide adequate deterrent impact in certain circumstances. The court found no error in principle, nor that the sentence was unfit, and confirmed that ten-month jail sentence. ( R. v.

Anderson 2007 BCCA 581 ) [ 15 ] Su is a Court of Appeal decision which reduced a conventional two-year-less-one-day sentence to 12 months' incarceration. The offender in that case went to trial and gave evidence which was not believed. The trial judge was found by the Court of Appeal to have

placed too little focus on the offender's personal circumstances in reaching the sentence he did. He was a first offender. The court held,in the circumstances of that case, that a jail sentence was the only fit sentence. The court does not, however, address nor excludeconditional sentences in appropriate circumstances, and numerous conditional sentence orders have been imposed in the years since R. v.Su. (R. v. Su 2000 BCCA 480) [16] R. v. Van Santvoord is another well-known case from 2007; it is a decision of the Court of Appeal involving a large growoperation. Mr.

Van Santvoord was also involved in a second operation at another site. He was shown on videos describing howmarihuana should be grown. His role was substantially greater than the role played by the offender in the case before me. In VanSantvoord the offender had no prior record and pled guilty. The Court of Appeal stated the particular circumstances were flagrant andrequired a strong statement of denunciation and deterrence. They set aside a fine and imposed a 12-month conventional jail sentence. (R. v. Van Santvoord 2007 BCCA 23) [17] Ms. Sugarman has provided two cases. R. v. Lee is a judgment of Mr.

Justice Romilly of the Supreme Court in this provinceand imposed an 18-month conditional sentence order in January of this year. In respect of a married first offender who was a father,working, and not a risk to the community, he applied the proportionality principle. He relied on a decision called R. v.

Sweeney in 1992of the Court of Appeal in this province in which the court said at paragraph 42, in part: The degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender'ssentence must be equivalent to his or her moral culpability and not greater than it. The two perspectives on proportionality thus convergein a sentence that both speaks out against the offence and punishes the offender no more than is necessary. (R. v. Sweeney (1992), (BC CA), 71 CCC (3d) 82 (BCCA)) [18] Justice Romilly relied on a

summary of principles extracted from a number of decisions by Mr. Justice Joyce in a case called R.v. Nguyen in the decision of the Supreme Court in 2011 in this province. Justice Joyce stated at paragraph 28: I derive the following principles from the authorities: 1. Denunciation and deterrence are important sentencing principles with regard to the offence of production of marihuana. 2. Notwithstanding the significance of denunciation and deterrence, a conditional sentence is not precluded if the other statutoryconditions for a conditional sentence are satisfied.

The Court must give serious consideration as to whether a conditional sentence maysatisfy those principles taking into account other principles of sentencing including: (

a) rehabilitation and restorative objectives including reparation for harm done and an acknowledgement of responsibility; (

b) a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender; and (

c) incarceration is a last resort for all offenders. 3. A conditional sentence that has strict conditions can achieve the principles of denunciation and deterrence. 4. Sentencing is an individualized process in which both the nature of the offence, the degree of responsibility of the offender, andthe other circumstances of the offender must be considered when fashioning an appropriate sentence. 5.

If the offender is the primary operator of the operation or is involved in a substantial way in its establishment and operation, then aconditional sentence will likely not be appropriate unless there are compelling circumstances regarding the offender's situation. 6. If the offender has played only a subordinate role in the operation, is a first time offender, and has good prospects forrehabilitation, then a conditional sentence may be appropriate. (R. v. Nguyen 2011 BCSC 1596) [19] R v. Lam is a decision in 2012 of Judge Brecknell of this court.

It is to similar effect; it involved a large rural grow operationwith product valued at several millions of dollars. The offenders, there were several, had no records and were gardeners. They receivedconditional sentence orders of two-years-less-one-day. Judge Brecknell extensively reviewed the authorities and he extracted a series ofprinciples set out at paragraph 49, similar to those Justice Joyce identified. (R. v. Lam et al 2012 BCPC 488) [20] In the present case Mr. Don has a relatively lesser role and of short duration. He has no directing responsibility.

He has norecord, and has pled guilty and accepted responsibility. He has told the court that he is sorry for his conduct. He is fully employed andsupporting his family. He entered this endeavour, albeit for an income, but at a time when, due to health circumstances, his income wasless secure. He is not a threat or danger in the community. His specific deterrence is well in hand. I conclude this is one of those casesin which the objectives of deterrence and denunciation can be addressed, while addressing restorative and rehabilitative principles,through a conditional sentence order. [21] Mr.

Don, if you could stand now, please? [22] In respect of both of these offences, concurrent, there will be a conditional sentence order for a period of two-years-less-one-day. The conditions will be the statutory conditions. You are to keep the peace and be of good behaviour. Following release from courttoday you are to travel directly to your residence, and Ms.

Sugarman is going to provide that address in a moment again, and you are notto leave that residence before six o'clock in the morning tomorrow, July 3rd, 2013. [23] You will report to a conditional sentence supervisor before 12:00 noon tomorrow, July 3rd, 2013, and thereafter as directed bythe supervisor.

[ 24 ] You will reside at the address which will be stated by Ms.

Sugarman in a moment, your residential address, you will reside at that address or such other address as is directed by the supervisor, and you will not change that address without the prior written approval of the supervisor. [ 25 ] You will attend, participate in and complete, to the satisfaction of the supervisor, any assessment, treatment or counselling that may be directed by the supervisor. [ 26 ] You will advise the supervisor, upon your attendance, of the name, address and contact information for your employer, and you will thereafter advise of any change in information forthwith. [ 27 ] During the first 12 months of the conditional sentence order you will be bound by a house arrest condition.

You are not to be outside of your place of residence except for the following purposes: to attend court when required to do so; to attend to your legal counsel; to attend to any assessment, treatment or counselling as directed by the supervisor; to attend to your employment pursuant to a

schedule provided to your supervisor on the letterhead of your employer and approved by the supervisor; to attend to any medical or dental appointment, having informed the supervisor in advance of the location, date and time of that appointment. [ 28 ] You may be away from your residence where you have the prior written approval of the supervisor, in which case you are to carry that with you and produce it on request of a peace officer or supervisor. [ 29 ] You may be away from your residence between the hours of ten o'clock in the morning and 12 noon, on one or other but not both, Saturday or Sunday of each week for the purpose of attending to banking and similar personal business. [ 30 ] You may be away from your residence when travelling directly to or from any of these commitments. [ 31 ] During the balance of the conditional sentence order you will be bound by a curfew.

You are not to be outside of your place of residence between ten o'clock in the evening and six o'clock in the morning, seven days a week, unless you have the prior written approval of the supervisor which you must carry with you and produce on request of a peace officer or supervisor, or in the event of a medical emergency involving yourself or a member of your immediate family. [ 32 ] You are to present yourself at the door of your residence or by telephone if requested to do so by a peace officer or supervisor for the purpose of confirming compliance with any condition in this order. [ 33 ] You will abstain from the possession or consumption of alcohol or non-prescription drugs or substances controlled under the Controlled Drugs and Substances Act unless you have a medical prescription for that substance in your name. [ 34 ] You will carry a copy of this order with you when away from your residence and produce it on request of a peace officer or supervisor. [ 35 ] You will complete 40 hours of community work service before the end of the fifth month of the conditional sentence order.

You may be away from your residence for the purpose of attending to that community work service or when travelling directly to or from that commitment. [ 36 ] Subject to comment from counsel and the inclusion of your residential address for the purposes of conditions where I have specified it to be included, that sets out the conditions of the order. [ 37 ] I will make the order that you not possess firearms under s. 109 of the Criminal Code for a period of ten years where I have discretion to impose a time period. [ 38 ] There will be an order that you supply a sample of your DNA to the national DNA databank.

You are to attend the Surrey detachment of the RCMP before three o'clock in the afternoon on Thursday, July 4th, 2013, that is Thursday of this week, before four o'clock in the afternoon for the purpose of supplying a sample of your DNA to the national DNA databank. [ 39 ] The victim fine surcharge will be imposed. Ms. Sugarman, you can speak to timing for that to be paid. [ 40 ] Is it agreed that a forfeiture order should be made? [ 41 ] MS. SUGARMAN: Yes, Your Honour. [ 42 ] THE COURT: There will be an order for forfeiture as sought by the Crown. [ 43 ] MS.

SUGARMAN: I can supply his address. [ 44 ] THE COURT: Yes. [ 45 ] MS. SUGARMAN: 14888 84th Street, Surrey. [ 46 ] THE COURT: 14888? [ 47 ] MS. SUGARMAN: 84th Street. [ 48 ] THE COURT: Surrey. So that is 14888, is that correct? [ 49 ] MS SURGARMAN: That's correct. [ 50 ] THE COURT: 84th street. And time to pay on the surcharge?

[ 51 ] MS. SUGARMAN: A month please, Your Honour. [ 52 ] THE COURT: The victim fine surcharge is due and payable on or before August 31st, 2013. (REASONS FOR SENTENCE CONCLUDED)