R. v. Truong Date:, 2016 BCPC 224

Citation: R. v. Truong Date: 20160728 2016 BCPC 224 File No: 233412 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Division) REGINA v. PHU VINH TRUONG REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: S. Phillips Counsel for the Defendant: D. Tarnow Place of Hearing: Vancouver , B.C. Date of Hearing: July 4, 2016 Date of Judgment: July 28, 2016

INTRODUCTION [ 1 ] Mr. Truong pleaded guilty to four counts of trafficking cocaine. The offences occurred on April 13, 2013, April 16, 2013, May 9, 2013, and May 15, 2013. Facts related to other drug offences were also placed before the Court, but only for the purpose of providing a comprehensive background. [ 2 ] The Crown argues all of the circumstances justify the imposition of a six month custodial sentence for each count all of which should be served concurrently to each other. [ 3 ] Counsel for Mr. Truong argues Mr.

Truong’s background and the changes that he has made constitute exceptional circumstances and, therefore, justify suspending the passing of sentence and placing Mr. Truong on probation for a lengthy period of time. [ 4 ] The task for this Court is to consider all of the circumstances and impose a sentence that is fit and appropriate. CIRCUMSTANCES OF THE OFFENCES [ 5 ] In March of 2013, the police began an investigation into drug trafficking that was associated to a residence at 362 Alexander Street in Vancouver.

The investigation evolved into a project wherein 40 days of surveillance were conducted and 7 under-cover drug purchases occurred with Mr. Truong being the seller. [ 6 ] While conducting surveillance, the police saw Mr. Truong interacting with two women in the Downtown Eastside. They noted Mr. Truong would exchange monies with the women and then loiter in their immediate area while the women engaged with people on the street. These observations caused the police to believe that Mr. Truong was supplying drugs to the women who would then make street level sales. [ 7 ] On April 5, 2013, Cst. Kinney approached Mr.

Truong and asked for one of the women “Evelyn”. Mr. Truong indicated that she worked for him and that he was looking for her. There was further discussion which resulted in Cst. Kinney purchasing .6 grams of cocaine for $60 from Mr. Truong. When the sale was completed the officer asked Mr. Truong for his telephone number and it was provided. At this point Mr. Truong said he went by the name of Chaos. [ 8 ] On April 13, 2013, Cst. Luptky texted Mr. Truong indicating she was looking to buy cocaine. Mr. Truong replied that he was not working, it was his day off and that he did not work on weekends.

After some discussion it was agreed that Mr. Truong and Cst. Luptky would meet at the New Westminster Sky Train Station. When Mr. Truong and Cst. Luptky met he stated that he originally thought that Cst. Kinney and Cst. Luptky were police officers. Ultimately, Mr. Truong sold Cst. Luptky 1.1 grams of rock cocaine for $100. [ 9 ] On April 16, 2013, Cst. Kinney and Cst. Luptky each purchased cocaine from Mr. Truong. At 1:45 p.m., .6 of a gram of cocaine was purchased for $40. When this purchase was made, Mr. Truong displayed a Ziploc bag containing several pieces of what was believed to be cocaine.

Then, at 2:36 p.m., a second meeting occurred where 2.83 grams of cocaine were sold for $200. [ 10 ] On May 2, 2013, the police purchased 1 gram of cocaine from Mr. Truong for $100. [ 11 ] On May 9, 2013, Cst. Luptky met Mr. Truong at Oppenheimer Park and purchased 1.25 grams of cocaine for $100. Thereafter, Mr. Truong was asked if he was able to sell an ounce of cocaine. He indicated that he could but that he required a day’s notice and that the price would be $1400 - $1600. [ 12 ] On May 15, 2013, a series of phone calls occurred between the under-cover officers and Mr. Truong, and it was arranged that Mr.

Truong would sell an ounce of cocaine to the under-cover officers for $1400. A meet location was discussed and during these discussions it was clear that Mr. Truong was concerned about police in the area. [ 13 ] Eventually, the under-cover officers and Mr. Truong met. During this meeting, Mr. Truong produced a rock of cocaine weighing 28.9 grams. He was paid for the cocaine, but before the exchange took place, he wanted the officers to prove that the buyers were not the police.

As such, he asked them to produce a pipe and they told him that it was in their car, but that they would smoke with him when they next saw him. Mr. Truong told the officers that he did not smoke. [ 14 ] Mr. Truong was arrested two weeks later and interviewed by the police. During the interview, Mr. Truong denied selling cocaine. He also stated he used five rocks per day. The police told Mr. Truong that they had him under surveillance and that they had not seen him using cocaine. Mr. Truong responded, “If you have surveillance I am done.” [ 15 ] After Mr.

Truong’s arrest, he was released and charges were not sworn until May 2015. A warrant for Mr. Truong’s arrest was issued and not executed until September 2, 2015. He was then released on an undertaking to appear with minimal conditions. [ 16 ] Trial dates were set and although there was some discussion about the possibility of a guilty plea the Crown was not notified that Mr. Truong was going to plead guilty until shortly before the date scheduled for trial. The plea and sentencing submissions were received on the first day that had been scheduled for the trial. MR. TRUONG’S CIRCUMSTANCES

[ 17 ] Mr. Truong was 23 at the time he committed the offences and 26 at the time of sentencing. He does not have a criminal record. He is single and lives with his parents. [ 18 ] According to submissions of counsel, Mr. Truong’s mother is a seamstress and his father is a cleaner. Apparently, Mr. Truong helps with household expenses. No further evidence was offered to verify this point, nor, was an explanation given on the degree to which his parents rely on him. [ 19 ] Mr. Truong works part-time at Apex Produce Inc.

A letter was filed confirming his employment and a pay stub was submitted confirming he worked approximately 60 hours in a two week period. [ 20 ] Two letters were filed on behalf of Mr. Truong. A letter authored, by a person named Ximaras, which speaks of having known Mr. Truong for a long time and having knowledge about his drug use. The letter does not provide any details regarding Mr. Truong’s drug use, or how the writer knew that Mr. Truong used drugs. [ 21 ] The letter from Ms. Henry speaks to Mr. Truong’s character and the positive changes that he has made since June 2015.

Again, the letter is very short on detail. [ 22 ] Counsel for Mr. Truong submitted that his client was using powder and rock cocaine at the time that he committed the offences before the Court. He advised his client no longer uses drugs and that he is drug free. There has been no verifiable objective information confirming the details of Mr. Truong’s drug use. It is noted, he told the undercover officers that he did not smoke and that during 40 days of surveillance he was not observed using cocaine.

Further, when he was arrested no drug paraphernalia was found on his person and he does not have a “petty” criminal record, which is often associated with drug addiction. [ 23 ] I also observed that Mr. Truong told the police during his interview that he used cocaine; however, I give this statement little weight as within the same statement he was untruthful on the issue of selling drugs. [ 24 ] While I accept Mr. Truong may have been using drugs around the time that he committed the offences, I cannot conclude that he was addicted to the extent that he was selling to support an addiction.

My finding is based on my comments above, as well as, Mr. Truong had the ability and desire to take weekends off from selling drugs. This behaviour is inconsistent with a person who sells drugs to feed an addiction. [ 25 ] I note the letters that speak of Mr. Truong having used drugs, but give them little weight as they fail to offer any detail with respect to quantity of use, type of drug used or how the authors even knew that Mr. Truong was using drugs. SENTENCING PRINCIPLES [ 26 ] I have considered the purpose and principles of sentencing as set out in ss. 718 -718.2 of the Code.

I acknowledge that an offender must not be deprived of their liberty if less restrictive sanctions are available in the circumstance and that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. I have also considered the purpose of sentencing as set out in s. 10 of the CDSA. [ 27 ] In my view and after considering all of the circumstances, I am of the view that the primary sentencing objectives in the instant case are denunciation and deterrence with some concern for the continued rehabilitation of Mr. Truong.

RANGE OF SENTENCES [ 28 ] A review of the cases show a wide range of sentences for those involved in drug trafficking. [ 29 ] In R. v. Win, 2000 BCSC 1929 , Mr. Win was sentenced to concurrent sentences of 15 months after he was convicted of seven counts of trafficking in cocaine. At the time of sentencing, Mr. Win did not have a criminal record, he was employed, and he had the support of friends and family. It was noted by the sentencing judge that Mr. Win’s offences were for the sole purpose of making money. [ 30 ] In R. v. Shusterman, 2012 BCSC 362 , Mr.

Shusterman was sentenced to jail for one year after he was convicted of possessing 29 grams of cocaine for the purpose of trafficking. The accused was 22 at the time of the offence and 25 when sentenced. He had a long but unrelated criminal record. The sentencing judge concluded that the accused was not an addict and he noted that the range for street level trafficking in cocaine was six months to three years. [ 31 ] In R. v. Henry, 2014 BCCA 485 , the accused was sentence to 18 months imprisonment after pleading guilty to trafficking in cocaine.

The offences involved ten transactions that occurred between January and May and while the accused was on probation. The accused had an unrelated criminal record, he was trafficking to support a drug debt, and he had stopped using drugs at the time of sentencing. The accused’s sentence appeal was dismissed. [ 32 ] In R. v. Sandher, 2008 BCSC 263 , the accused was sentenced to 18 months custody after he pleaded guilty to four counts of trafficking cocaine. He sold five ounces of cocaine in seven transactions within the context of a dial-a-dope operation.

The accused was 28 years old, he was the custodial parent to two children, and he did not have a criminal record. [ 33 ] In R. v. Owens, 2014 BCSC 32 , the accused pleaded guilty to possessing marijuana and cocaine for the purpose of trafficking. The sentencing judge suspended the passing of sentence and placed the accused on probation for two years. The accused was charged after being found in possession of 22.1 grams of cocaine and 17 ounces of marijuana. The accused was 22 at the time of sentencing, he

had spent almost a year under strict bail conditions, he did not have a criminal record, he had turned his life around and he had the support of family and friends. [ 34 ] In R. v. Lo, 2015 BCSC 1821 , the sentencing of the accused was suspended and he was placed on probation for three years after he was found guilty of possessing cocaine and heroin for the purpose of trafficking. The accused was found in possession of 4.9 grams of heroin and 5.9 grams of rock cocaine within the context of a dial-a-dope operation.

The accused was 26, he did not have a criminal record, he was in a common law relationship, and he had a nine year old child. He was employed at the time of sentencing and he had the support of family and friends. [ 35 ] The range of sentences for a first time offender convicted of trafficking via dial-a-dope is generally nine to six months jail and if exceptional circumstances exist a suspended sentence maybe appropriate: R. v. Voong, [2015] BCCA 285, R. v.

Lo , [2015] BCSC 1821. [ 36 ] I find the above cases to be of assistance, however, I note that all offences are factually unique as are the individuals involved. It is incumbent on the Court to recognize Mr. Truong’s unique circumstances, but also, the unique facts of his offences. AGGRAVATING AND MITIGATING FACTORS [ 37 ] When I consider all of the circumstances, I find the following to be aggravating; [ 38 ] The type of drug involved is a

Schedule 1 substance which is reflective of the harmful quality of cocaine specifically its addictive nature and the harm it causes to individuals and communities. This perspective is reflected in R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), at paragraph 8 , where the court stated: [8] There is no disputing that crack cocaine is an extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society. [ 39 ] The overall scheme used by Mr. Truong. He used cellular telephones, a nickname, different meeting points and other people.

These techniques were employed to make his task easier and to increase sales over a larger area. [ 40 ] The facts show that Mr. Truong was more than a street level dealer. He had people that he was directing, he had access to larger amounts of cocaine, he used a cell phone, and he met purchasers in other areas such as New Westminster. [ 41 ] I find the following to be mitigating: [ 42 ] Mr. Truong’s guilty plea is somewhat mitigating. The timing of the guilty plea was late and therefore I decline to find the plea substantially mitigating. [ 43 ] Mr.

Truong does not have a criminal record, and he appears to be involved in pro-social activities. [ 44 ] Mr. Truong has expressed remorse for his conduct and he has discontinued all drug involvement. ANALYSIS AND DECISION [ 45 ] The offence of trafficking in cocaine requires a sentence that denounces the offence and deters others.

I appreciate that suspending the passing of sentence and placing a person on probation may achieve a degree of denunciation and deterrence, I am of the view that probation or an intermittent sentence would not adequately address the objective of denunciation and deterrence that is required in the instant case. [ 46 ] With respect to the above, the amount of denunciation and deterrence demanded by the facts is enhanced because of the drug involved, the amounts involved, the manner of distribution, the fact that Mr. Truong was more than a street level dealer, and the area of the sales.

As for this later point, the sales primarily occurred in the Downtown Eastside, this is an area where I walk on a daily basis, and I not only regularly see drug transactions, but I also witness the destruction that trafficking is causing to this community and to the persons within. As such, I find it incumbent to assist in ensuring a safe and peaceful society by imposing a sentence that strongly denounces trafficking in the Downtown Eastside. [ 47 ] Despite the above, I also recognize the need to impose a sentence that has a rehabilitative component. I say this because of Mr.

Truong’s age, his lack of criminal record and the support he has. Accordingly, his sentence will be followed by probation. [ 48 ] Finally, and after considering all of the evidence, I am not satisfied that Mr. Truong’s circumstances are exceptional and support suspending the passing of sentence and placing him on probation. Specifically, I am not satisfied that he was addicted to cocaine; moreover, the evidence fails to establish objectively identifiable steps towards rehabilitation. [ 49 ] After considering all of the relevant factors, I sentence Mr.

Truong to custody for a period of four months on each count to be served concurrently and were it not for the mitigating factors, I would have been inclined to impose a higher sentence. Mr. Truong’s custodial sentence will to be followed by probation for 12 months. PROBATION TERMS AND CONDITIONS

[ 50 ] Keep the peace and be of good behaviour. [ 51 ] Appear before the Court when required to do so by the Court. [ 52 ] Notify the Court or your probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. [ 53 ] Within 72 hours of your release from custody you must report to probation officer at 275 East Cordova Street, Vancouver BC and report thereafter as and when directed by your probation officer. [ 54 ] Except for reporting on one occasion to a probation officer, you must not be found in the area bounded by Clark Drive to the east, Water Street and Powell Street to the north, Cambie Street to the west, and East Georgia Street and West Georgia Street to the south in the City of Vancouver, Province of British Columbia. [ 55 ] You must attend and participate in any counselling that may be directed by your probation officer this may include but is not limited to drug counselling. [ 56 ] You must not possess those drugs as defined by the Controlled Drugs and Substances Act, expect those drugs for which you have a medical prescription. [ 57 ] While outside your residence you must carry a copy of this order on your person at all times.

ANCILLARY ORDERS i. Weapons Prohibition [ 58 ] Pursuant to s. 109 of the Code, Mr. Truong is prohibited from possessing any prohibited firearm, restricted firearm, cross-bow, restricted weapon, ammunition and explosive substance for a period of 10 years. ii. DNA [ 59 ] Pursuant to s. 487.051 (3), the Crown applies to the Court to make an order that Mr. Truong provide a sample of his DNA. I, therefore, must decide if I am satisfied that it is in the best interests of the administration of justice to make such an order. [ 60 ] According to s. 487.051 (3) (b), I must consider Mr.

Truong’s criminal record, if he has been previously found not criminally responsible, the nature of the offence before the Court, the circumstances of its commission and the impact that such an order would have on Mr. Truong’s privacy and security of the person. [ 61 ] Applying the above considerations, Mr. Truong does not have a criminal record. There is no evidence that he has ever been found not criminally responsible for an offence. He was convicted of four counts of trafficking cocaine wherein the purchases were made by under-cover police officers. [ 62 ] With respect to Mr.

Truong’s privacy and security of his person, I note the taking of a DNA sample is minimally intrusive, and all information gained is guarded by statue. [ 63 ] Considering all of the factors and recognizing the changes that Mr. Truong has made in his life, I am not satisfied that the making of a DNA order is, in the circumstances, in the best interests of the administration of justice. Crown’s application is denied. iii. Victim Fine Surcharge [ 64 ] I direct that Mr. Truong pay $200 per count and the total amount must be paid on or before July 10, 2017. _____________________________ The Honourable Judge R.

Harris Provincial Court of British Columbia