R. v. Ho Tran, 2018 BCPC 113

Citation: R. v. Ho Tran 2018 BCPC 113 Date: 20180430 File No: 233525-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NGOC HIEN NELSON HO TRAN ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE T. GOVE Counsel for Federal Crown: H. Doherty Counsel for the Defendant: T. Cox (as Agent for A. Lagemaat) Place of Hearing: Vancouver , B.C. Date of Hearing: April 30, 2018 Date of Judgment: April 30, 2018 [ 1 ] THE COURT: I convicted Mr. Ho Tran of possession for the purpose of trafficking of cocaine and heroin, the offences taking place on October 17, 2016.

[ 2 ] When the police officers pulled over the car in which the accused was a passenger, he had small baggies in his mouth containing cocaine and heroin. The police had apparently come across the accused and the driver of the car engaged in a dial-a-dope business. If the police officer had not forced the accused to spit out the drugs, it seems he was going to swallow them. He might have died. These high risk ventures, engaging in the trafficking of illegal drugs, and almost swallowing those drugs to avoid detection, gives some insight into the accused. [ 3 ] He is 27 years of age.

His parents came to Canada as Vietnamese refugees. He is the youngest of five children. The older four I am told are married and appear to be leading successful lives. His father deceased when he was a child. He has lived until recently with his mother. His mother works at a cold storage and fish plant, and from what I am told, has worked very hard for the last 20 years raising her five children. [ 4 ] The mother, although not able to communicate in English, has written a letter of support for the accused on this sentencing, which I have reviewed. [ 5 ] The accused was not particularly successful at school.

He has worked as a labourer in construction and at a fish plant. He began the use of cocaine at the age of 17 and became addicted. This offence, and an earlier possession for the purposes of trafficking in drugs in 2009 as a youth, were his efforts to sell to support his addiction and perhaps help his mother. [ 6 ] Since his arrest on October 17, 2016, he has been on bail. Counsel advises that he has been very anxious and upset.

Of course, the prospect of going to jail hanging over him for almost one and a half years would be upsetting to anyone, but also in his case, there is particular embarrassment to his mother and his family. He has, in short, let down a woman who struggled with a new country, a language she does not comprehend, and yet has raised five children, working more than full-time. Her "baby" has distressed her to the point that the letter she wrote to me says that she will fall apart if he goes to jail.

Counsel told me that she was not in court during the sentencing proceedings as she feels that she would faint. [ 7 ] In other cases the court is sometimes told that an accused person is duped or taken advantage of by others to have that accused commit crimes. I do not have any reports on the accused, but given how poorly he did in school, he may be someone who can be duped. His counsel told the court that the accused told him, and has for some time told him, that he feels that he is stupid and has a low sense of his abilities and self-esteem. He has for the past six months been living with his cousin in Montreal.

Up until last week, his counsel informs me, he thought that he was in Ontario. When I gave him an opportunity to address the court on his own behalf, what he said added to the impression I have that the accused is indeed one more likely to be duped, more likely to be led than to lead. [ 8 ] Six months ago, his family, his mother and four older siblings, and their families, did what the accused counsel referred to as "an intervention." The accused was sent to stay with his cousin Raymond Zou in Montreal. Raymond is a student at Concordia University in Montreal, studying computer engineering.

I have a letter from Raymond, which I will quote in part. [As read in]: I have always found Nelson to be an honest and reliable person. I would say that his personality is caring, loving and gentle. Nelson's mother has worked very hard as a single mother to raise 5 children and Nelson being the youngest child is very close to his mother. When I was in Vancouver I had worked in construction with Nelson, and he was always reliable and liked by everybody.

About 6 months ago Nelson's mother told me Nelson had been getting into trouble and doing drugs for a few years and she asked if he could come and stay with me and knowing about Nelson, I agreed. Since staying with me, Nelson has been respectful and responsible. I have enjoyed having him around. It is our goal that once Nelson gets on his feet and healthy again, he will get a job and contribute to his family and society. Nelson and I have discussed his cocaine addiction many times while he is here and I truly believe he has tackled his addiction successfully.

Nelson and I have had many discussions about what he wants to do with his life, and I am always encouraging him to do better and become a better man. Nelson often says how ashamed and sorry he is for selling drugs to addicts whose lives at risk every time they do drugs, and for letting his mother down. I will always be here to support Nelson and if he is not sentenced to jail, he will fly back here Friday night and continue to stay with me. Positions on Sentencing [ 9 ] The Crown points out that the accused has a record of crime, a short record.

As mentioned he was convicted of possession for the purpose of trafficking as a youth in 2009, and more recently has been convicted of the dangerous operation of a motor vehicle in 2017. He was on bail when this offence before me occurred. This, as the Crown points out, is a classic dial-a-dope operation. I agree. I do not need to go into the details. The amount of drugs found were 47 baggies, which contained a potpourri of powder cocaine, rock cocaine and heroin.

Upon search the accused had $1,340 in cash, in denominations consistent with selling drugs at $20 apiece. [ 10 ] Crown points out to me that the case law in this area says that a sentence of six to 18 months in jail is called for, unless "there

are out of the ordinary" or "exceptional circumstances." Here, the Crown submits the sentence should be six months jail, followed by probation. Madam Prosecutor points out that the accused has done nothing to change his circumstances since his arrest. There are before me no evidence of him having taken rehabilitative programs and no reports from counsellors as to progress.

She summarizes that his youth and remorse, which I think she accepts, do not in themselves put the accused into exceptional circumstances. [ 11 ] The defence, through counsel, provided an interesting submission, which I will summarize as follows. That submission is that the accused believed that he was "too stupid" to do anything else to make money and support his cocaine addiction and help his mother than to go along with the smart boys and help sell their drugs.

This submission is particularly interesting because it might be put forward to show why a jail sentence is necessary to deter the accused and others in like circumstances. In other words, the accused's candid explanation for why he was involved in a dial-a-dope cuts both ways.

It could justify a deterrent sentence of jail, or could be used to justify one of rehabilitation, given that he was a "follower and duped." Analysis [ 12 ] Were it not for the intervention of the accused's family six months ago, shipping him off to cousin Raymond in Montreal, and his abstention from drugs since then, the court would not see that the accused has presented anything to consider with respect to exceptional circumstances. A jail sentence would seem to be fairly straightforward.

I agree with the Crown, that were he to go to jail, a six months sentence would be appropriate. [ 13 ] What I need to do is examine whether the "intervention" here amounts to such an exceptional circumstance that the accused can be spared from such a jail sentence. [ 14 ] From recent B.C. Court of Appeal cases I conclude that what I must look for is the following:

(1) The accused must show circumstances that are above and beyond the norm to justify a non-custodial sentence;

(2) Something that would lead a sentencing judge to conclude that the offender had turned his or her life around;

(3) The protection of the public was subsequently better served by a non-custodial sentence;

(4) This is a rare case, where the standard of exceptional circumstances is met; and

(5) That the accused's commitment to rehabilitation and his apparent success to date show that he ought to be afforded this opportunity. These tests come from the following cases: R. v. Oates , 2005 BCCA 259 ; R. v. Voong, Taylor, Charlton and Galang , 2015 BCCA 285 . [ 15 ] In some cases courts have found accused have met the exceptional circumstances test by (1) going to drug rehabilitation; (2) taking counselling; (3) maintaining employment; (4) maintaining abstinence from drugs.

Basically what the courts are looking for is that the accused has made a big change in life and lifestyle. [ 16 ] What has this accused, Mr. Ho Tran, done? It appears that for some time after his arrest in 2016, he did little to better his circumstances. As his counsel pointed out, he is not from an upper middle class family, who would have had the knowledge and resources to send him to a treatment centre. The accused is from a refugee family, whose matriarch, his mother, having been in Canada for 20 years, still does not communicate fully in English. She is living, in my view, in an isolated situation.

In my view, it would not be right to draw a negative inference from what this family, this accused, did not do for 12 months, compared to what an upper middle class integrated family might have done. He is not from the sort of family that would have sent him to one of the expensive rehabilitative residential programs, and appear in court with a glowing letter of recommendation. [ 17 ] So what did they do? After 12 months of apparently things going nowhere, he was sent to live with his cousin, Raymond Zou, in Montreal. This may have been more effective than a residential program.

Raymond seems to have stepped up, taken the accused in. From what is before me, I conclude that the intervention has been a success to date, and there is no reason to think that it will not continue. The accused is, I am told, drug-free, leading a stable life, away from the trafficking lifestyle and those in it that he was part of in Vancouver. [ 18 ] On the facts of this case, and in the unique circumstances of this accused, what he has done amounts, in my view, to the sort of exceptional circumstance that the B.C. Court of Appeal envisions and that justifies an avoidance of jail with a non-custodial sentence.

I should add, that given the accused's circumstances and characteristics, a period of time in prison, a correctional facility, would be likely to affect the accused with respect to who he meets and how he views himself, affect him to such an extent that it would be more likely that he would offend in the future than would be the case if he spends his time in the company and under the guidance of his university student cousin. [ 19 ] There will be a suspended sentence.

He will be placed on probation for 12 months, with the statutory terms, including to keep the peace and be of good behaviour. [ 20 ] He will report to a 275 East Cordova probation officer forthwith and thereafter as directed. [ 21 ] Until November 1st, 2018, he will reside at Number 1, 1255 Rue Saint-Marc, Montreal, and obey the rules. [ 22 ] He will be within his residence between the hours of ten o'clock in the evening and six o'clock the following morning, unless he is in the company of Raymond Zou, Diep Tran, or Marina Ho, or such other person designated in writing by his probation officer that he may be with, which written permission he will carry on his person and present to a peace officer if questioned by a peace officer. [ 23 ] He will, until November 1st, 2018, present himself to the door of his residence upon the request of a peace officer to confirm

compliance with the curfew. After November 1st, 2018, he will reside as directed by the probation officer and obey the rules. [ 24 ] He will not possess or consume any drugs prohibited under the Controlled Drugs and Substances Act . He will attend for such counselling as directed by his probation officer, and complete the counselling to the satisfaction of the probation officer. [ 25 ] He will complete 20 hours of community service by July 1st, 2018. [ 26 ] He will have no contact directly or indirectly with Christopher Houle. [ 27 ] There will be an order under s. 109 of the Code , a weapons prohibition for 10 years. (REASONS FOR SENTENCE CONCLUDED)