R. v. Diabikulu Date:, 2016 BCPC 390

Citation: R. v. Diabikulu Date: 20160909 2016 BCPC 390 File No: 233321-3-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. CHRISTOPHER JONATHON DIABIKULU REASONS FOR SENTENCE OF THE HONOURABLE JUDGE A.M. WOLF Counsel for the Crown: O. Bick Counsel for the Defendant: M. Lehouillier Place of Hearing: Vancouver , B.C. Date of Hearing: September 9, 2016 Date of Judgment: September 9, 2016

[ 1 ] On June 22, 2016, Mr. Diabikulu plead guilty to Count 17 of a 32 count indictment found on Information 233321-3-C. The offence that the accused has plead guilty to is unlawfully trafficking heroin on December 23, 2014, contrary to s. 5(1) of the Controlled Drugs and Substances Act . I note that the other 31 counts involve three other individuals, each charged with similar offences.

Position of the Crown [ 2 ] The Crown seeks a jail sentence of 6 months, a mandatory s. 109 firearms prohibition, a discretionary DNA order, and a forfeiture order with respect to certain items that have been seized. [ 3 ] With respect to case law, the Crown refers to a 6 to 12 month range of jail. They submit that there is nothing “exceptional” in this case that warrants a sentence outside that range. The Crown further submitted that deterrence is one of the most paramount sentencing principles in trafficking cases.

Even with what defence called a positive Pre-Sentence Report, the Crown is of the view that there is no real compelling explanation for why denunciation and deterrence ought to “take a back seat” to the usual principles of sentencing and usual range of sentence for a case like this. Position of the Defence [ 4 ] It was strongly submitted that this case is unusual; so unusual as to warrant the imposition of a suspended sentence. Counsel for the accused saw the report as being generally positive. Present for the sentencing proceeding were members of the accused’s family, including his mother and Ms.

Kelsey Perry – his partner and the mother of his unborn child. [ 5 ] Defence argued that the accused has taken active steps to be a better person. Specifically, that he removed himself from his negative peers, has a healthy relationship, and a child on the way. [ 6 ] If I remember correctly, it was right around this point in the proceedings that I indicated that I was not convinced that this man needs to be specifically deterred. [ 7 ] Mr. Paul Mulangu, Executive Director for the Integration of African Immigrants, was present in support of Mr. Diabikulu. He wished to offer his support to Mr.

Diabikulu, and points out to the court that he is concerned about the number of African Canadians in our jail system. The Pre-Sentencing Report (PSR) [ 8 ] The PSR was completed on June 20, 2016, and I had the benefit of it for the sentencing that took place shortly after that date on June 22, 2016. [ 9 ] The report indicates that Mr. Diabikulu is a 23 year old young man, who was born in Montreal.

His parents grew up fairly poor and migrated from Congo to Canada. [ 10 ] He tells the author of the report that he has broken this pattern of being around negative peers, and he is in a healthy relationship with his common law wife, Kelsey Perry, since February 2015, and that they have been living together since February 2015, and are expecting their first child in July 2016. According to the PSR, Ms. Perry states that he “has made progress in his behaviour,” and is “motivated to lead a positive lifestyle for the sake of their child”.

She has written a very supportive letter, dated June 21, 2016, detailing some of the positive changes that the accused has accomplished since the time of the offence. [ 11 ] He is now employed full-time as a carpenter, earning $24.00 per hour. Criminal History [ 12 ] His history is limited. In December 2010, he plead guilty to two robberies and to using an imitation firearm.

He received a 5 month Deferred Custody and Supervision Order, along with a one year Intensive Support and Supervision Order. [ 13 ] The report confirms that he did well on his youth supervision order. [ 14 ] With respect to his current obligations to the court while on bail, it appears he has been inconsistent with his reporting. However, he appears to take responsibility for the offence and says he is willing to comply with “all terms of a community supervision order”. The Crown Authorities [ 15 ] All of the authorities provided by the Crown are British Columbia Court of Appeal cases. [ 16 ] R. v.

Tran , 2007 BCCA 613 , is a case where the 28 year old accused was not an addict. He had no record and was involved in the drug trade for financial gain. The court upheld the sentence of nine months custody. [ 17 ] R. v. Ladret , 2012 BCCA 401 , is a case where the 42 year old accused had a related drug record, was unemployed with a significant drug problem, and received a sentence of eight months custody. Defence Authorities [ 18 ] R. v. Krause , 2015 BCPC 305 , is a case where The Honourable Judge Sudeyko considers the issue that I am being asked to consider. At paragraph 7, Judge Sudeyko asks:

“Do the circumstances of this offence and this offender, when applying and balancing the appropriate sentencing purposes, principles and objectives support a non-custodial sentence?” [ 19 ] In Krause , at paragraph 6 , the defendant pointed to “an accumulation of factors, including his previous clean criminal record and good character, his remorse and relatively early guilty plea, his youthfulness, his strong employment record, and his current employment and positive family circumstances.

In addition, the Defendant emphasizes that he made a moral decision to end his involvement in the drug trade and cut his ties with that world, before he was arrested.” [ 20 ] I found the legal analysis of Judge Sudeyko particularly useful, and I rely on the legal analysis setting out the purpose, principles and objectives of sentencing found in paragraphs 16 to 23 of that decision. [ 21 ] While not conceded by defence counsel in that case, I believe the authorities ask me to consider whether there are exceptional circumstances. [ 22 ] Essentially, the Crown takes the same position as the Crown Counsel in R. v.

Orr and Lai , a decision of the Honourable Judge Rideout, found at 2015 BCPC 206 . In that case, as in this case, “Crown Counsel submitted that there were no circumstances that would be described as exceptional circumstances that would take the sentencing range out of the six to nine month custodial range suggested by our Court of Appeal.” [ 23 ] In both Krause and Lai , neither accused had a criminal record and both were considered to be of good character. In the Orr and Lai case, Mr.

Orr’s offending behaviour was found to be in part as a result “of his negative peer associations, lack of insight and poor decision making skills.” Mr. Diabikulu’s pre-sentencing report, in slightly different words, expresses the same reason for his offending. In most of the cases tendered to me for consideration, each of the accused was young and well on their path to rehabilitation. Mr.

Diabikulu is also young and doing very well. [ 24 ] Rather than trying to re-invent a better explanation as to what exceptional circumstances are, or as the case law tendered by the Crown shows, what they are not, I will rely further on Krause wherein at paragraphs 32 to 35 the sentencing Judge perfectly captures the law as founded in R. v.

Voong et. al ., a 2015 British Columbia Court of Appeal case. [ 25 ] At paragraph 32 of Krause , quoting from Voong , Judge Sudeyko writes: After confirming the usual range of sentence, Madame Justice Bennett turns to the issue of “exceptional circumstances: “ “The exceptional circumstances must engage principles of sentencing to a degree sufficient to overcome the application of the main principles of deterrence and denunciation by way of a prison sentence. … …Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught.

This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a noncustodial sentence. There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was better served by a non-custodial sentence. However, Parliament while not removing a non-custodial sentence for this type of offence, has concluded that CSO sentences are not available.

Thus it will be the rare case where the standard of exceptional circumstances is met.” The Mitigating Circumstances of Mr. Diabikulu [ 26 ] Mr. Diabikulu is young. He has had a complicated and difficult life. He recognizes that his teenage years were spent around older peers, whom he now “recognizes as bad influences”. He is in a positive relationship and is now, at the time of sentencing, a father to a child who has been born between the time of the charge and completion of his sentencing. He is now working and has no mental health concerns. He has cut ties with negative peers.

He is remorseful and has saved significant expense to the tax payer by pleading guilty. The Aggravating Circumstances [ 27 ] Mr. Diabikulu has trafficked in a “hard drug”. There are many cases that detail the dangers associated with this crime. I find the Honourable Judge Gulbransen’s reasons for sentence in the case of R. v. Galang , 2014 BCPC 240 , very helpful. At paragraph 19 to 26 he summarizes what I consider to be the relevant principles regarding sentencing for trafficking in hard drugs and dial-a-dope cases as dictated by our Court of Appeal. [ 28 ] In 2010, Mr.

Diabikulu was sentenced as a youth for two robbery offences and using an imitation firearm. He received a deferred custody and supervision order and an Intensive Support and Supervision Order for one year. [ 29 ] He was under terms of youth supervision until approximately May 2012, when he was a young adult. Mitigating is that he completed his youth supervision order satisfactorily without any violations. Aggravating is that approximately 17 months later, less than two years, he is trafficking hard drugs. Greed, Addiction or Other Reason for Offending behaviour? [ 30 ] Somewhat unique to Mr.

Diabikulu’s circumstances is that his involvement in this crime was not driven by addiction or greed.

If it was greed, then I believe the authorities suggest a sentence in the higher range. Nevertheless, his Pre-Sentence Report indicates thathe “committed the offence to improve his social standing in his peer group.” [31] It appears common ground that he was not a “main player” in this dial-a-dope scheme. Rather, he simply was hanging aroundbad peers and wanted to be accepted by them. “Peer pressure” might be another way to phrase it. Individual and Societal Considerations [32] It was submitted by Mr.

Diabikulu’s counsel that it is open for me to consider the defendant’s race as a potentially mitigatingcircumstance. “Individual and Societal Considerations” is how R. v. Reid, 2016 ONSC 954, phrases this consideration. It is an April2016 decision of the Honourable Justice Morgan from the Superior Court of Justice in Ontario that has been provided as an authority forthis submission. [33] At paragraph 21, Justice Morgan wrote: I am impressed by Mr. Reid’s self-awareness and his desire to improve his lot.

In the Pre-Sentence report, he states, tellingly: “I am ayoung man who has made poor choices for himself but I am making changes to better myself.

I do not want to be that 30 year old blackman who is a lost cause as I have potential to do something with my life.” He thereby raises not only a point about himself, but about theneed to ameliorate the over incarceration of young men in the African Canadian community. [34] The decision continues and makes reference to the “Report on Race Relations in Ontario” (1992) by Stephen Lewis thatconfirmed that “Black inmates are one of the fastest growing sub-populations in federal corrections.” [35] Further, at paragraphs 23 to 27, the decision reminds me that R. v.

Gladue, (SCC), [1999] 1 SCR 688, atparagraph 57, is a case that recognizes that for the Black community, as with aboriginal Canadians, “Over incarceration is a long-standing problem that has been many times publicly acknowledged but never addressed in a systematic manner by Parliament.” [36] I am mindful that in Reid the court had the benefit of relying on the “Report on Race Relations in Ontario” and I do not havesuch information in relation to British Columbia. I am equally aware that each Province may have unique and systemic factors that needto be addressed.

Lastly, that any sentence imposed should be for a particular offender in a particular community. [37] That being said, I think that Justice Morgan’s conclusion at paragraph 27 is equally applicable in British Columbia, where hewrites: “While this court is not in a position to remedy the societal issues, it can and should take the societal context into account infashioning an appropriate sentence for an individual offender.” I have much case law that provides guidance as to the way courts dealwith the “unique and systemic factors” involving our countries Aboriginal Peoples.

Unfortunately, I do not have any such evidencebefore me that provides any degree of expert evidence with respect to African Canadians. However, all offenders should benefit fromthe least restrictive sentences when reasonable and possible in the circumstances. The totality of circumstances will always be unique toeach case. What are the alternatives to a period of 6 to 9 months custody in this case? Alternatives to a 6 to 9 Month Period of Custody [38] Well founded in the law, a Judge should never impose a prison sentence unless it is unavoidable. [39]

Section 718.2(

e) of the Criminal Code is often referred to when the accused is an Aboriginal offender. I have heard it regularlyreferred to as the “Aboriginal Sentencing Provision”. However, I remind myself of the wording of the section: (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders,with particular attention to the circumstances of aboriginal offenders. [emphasis added] [40] I have considered the authorities provided to me where suspended sentences have been imposed for dial-a-dope traffickingoffences. [41] I accept the guidance of the authorities that hold a 6 to 9 month period of jail is the appropriate range, to be adjusted accordingto aggravating or mitigating factors.

As well, I recognize that there are many cases which are described to have exceptionalcircumstances where suspended sentences have been imposed. [42] I do not wish to repeat the mitigating factors. However, I believe starting a healthy relationship with a life partner and having achild in between the offence date and sentencing date is a ‘life changer”. I am told that he wants to be a good father. [43] I am satisfied that if a conditional jail sentence was an option for this accused, I would seriously consider it for two reasons. First, because of the nature of the offence I find that jail is warranted.

Secondly, due to the positive circumstance of the accused, Ibelieve he would be a good candidate for supervision. However, this sentence is not available in law. [44] I do not believe that the extraction of the Conditional Sentence as a sentencing option means that there is a default position,whereby I should impose a suspended sentence. [45] Of course, there are no two cases exactly alike. The circumstances of each offender is always unique. However, I find there iscase law that allows me to consider an alternative to the imposition of a 6 to 9 month period of incarceration, which is not a suspendedsentence.

[ 46 ] I find R. v. Ameeri , a February 2016 case from Justice Kent from the Supreme Court of British Columbia, very useful. In that case, the accused was indicted for unlawfully trafficking. His Pre-Sentence Report stated that Mr. Ameeri: Regrets his poor decision making. Although he does not blame anyone for his actions, he does state that he was socializing with “bad friends” who happened to be more entrenched in a criminal lifestyle. Mr.

Ameeri states that he was “young and dumb” at the time of the offence and is now focusing on making better decisions in his life that will benefit him and his family in the future… He states he no longer socializes with peers who are involved in criminal activities… and is working full time. [ 47 ] Relying on

Section 10 of the Controlled Drugs and Substances Act , which states that the fundamental purpose of any sentence for an offence under the Act is to [c]ontribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [ 48 ] Further, relying on

section 718 of the Criminal Code which states: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community. [ 49 ] After having taken into consideration all the circumstances of Mr. Diabikulu, both mitigating and aggravating, I find that an appropriate sentence of 90 days custody is the appropriate sentence in this case. [ 50 ] While I recognize that a suspended sentence is open for me to impose, I find that Mr. Diabikulu had the opportunity of early justice system interventions as a youth.

While this is his first time before the court as an adult, as well as for a drug offence, he was old enough to pick his peers better. When he trafficked in hard drugs he did so by choice. It is an understatement that his choice was a bad one. Equally, I believe he should be credited with making good choices since the time of the offence. [ 51 ] In hopes that Mr.

Diabikulu will be able to maintain his employment as a carpenter and continue on his rehabilitative path, I believe that the sentence should be served on an intermittent basis. [ 52 ] While this sentence might be considered as a low one, I do believe it properly reflects the totality of aggravating and mitigating circumstances. [ 53 ] Sir, please stand up. [ 54 ] You are sentenced to 90 days imprisonment, to be served intermittently, the first day to be served today, September 9, 2016, and the remainder to be served intermittently on successive 3 day weekends commencing on September 16, 2016 from the hour of 7:00 PM to 7:00 PM, Sunday September 18, 2016, until such days in the aggregate equal the said term of 90 days, and I direct that the accused be bound by a probation order until the expiration of the sentence imposed.

Terms of Probation: 1. You will keep the peace and be of good behavior; 2. You will appear before the court when required to do so by the court; 3. You will report to probation services located at 275 Cordova Street East, Vancouver, BC by 3:00 p.m. September 13, 2016 and thereafter as directed by your probation officer;

4. You will notify your probation officer of your residential address, and not change that residential address without first obtaining their prior approval; 5. You will remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or your probation officer; 6. You will abstain from the possession or consumption of alcohol or non-prescribed medication; 7.

You shall not have in your possession any cell phone or paging device or wireless communication device, except you may possess one cell phone that is registered in your own name, and you will provide the number of that cell phone to your probation officer and not change that number without the written permission of your probation officer; 8. You shall not possess any weapon as defined in s. 2 of the Criminal Code . [ 55 ] The ancillary order for the taking of a DNA sample from Mr. Diabikulu is granted under s.487.05 of the Criminal Code .

This will be done within fourteen days of today’s date. [ 56 ] Pursuant to s.109(2) of the Criminal Code , I order for a period of 10 years from today’s date that Mr. Diabikulu be prohibited from possessing any firearm, restricted weapon, prohibited weapon, prohibited device or prohibited ammunition. [ 57 ] There was an order of forfeiture which both counsel agrees is appropriate, and I will order that. [ 58 ] There is also a victim fine surcharge. The Honourable Judge A.M. Wolf Provincial Court of British Columbia