R. v. Lam and Vo Date:, 2011 BCPC 321

Citation: R. v. Lam and Vo Date: 20111108 2011 BCPC 0321 File No: 24855-1 Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAO QUOC LAM PHUC VAN VO REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. J. O'BYRNE Counsel for the Crown: M. Knowland Counsel for the Defendant: D. Campbell Place of Hearing: Quesnel , B.C.

Date of Judgment: November 8, 2011 [ 1 ] THE COURT: Phuc Van Vo appears before the court and enters a plea of guilty to Information 24855, Count 1, which is unlawfully producing a controlled substance, to wit: cannabis marihuana, contrary to s. 7(1) of the Controlled Drugs and Substances Act . [ 2 ] The circumstances as detailed by the Crown in their overview told me that this is a farm which I know to be near Hixon because of the picture, which I know to be north of Quesnel on the way to Prince George.

It is obviously a rural property from the photographs filed as Exhibit 1, and in the large outbuilding which is pictured therein, there were found 1,264 marihuana plants in a multistage grow operation. [ 3 ] There is no doubt that this was a commercial venture, a multistage grow, and that the value of the marihuana, depending on how it was packaged and sold, could be anywhere between $474,000 to $1 million.

I have no idea how many crops were produced, but certainly, some of the information provided by the Crown, including scales and Ziploc bags with some remnants on the scales of grown marihuana, would suggest that this was a multi-crop operation. [ 4 ] Mr. Vo was surveilled as being the person seen going in and out of the outbuilding and was also seen by way of fingerprints to have been in two of the grow rooms. [ 5 ] The Crown takes the position that even though Mr. Vo has no criminal record and he has entered a guilty plea, nonetheless, there should be a sentence of 18 months' jail.

The Crown strongly opposes a conditional sentence, and most of their submissions were directed

at that as I had asked them to pay more attention to that. [6] The Crown gives aggravating circumstances such as the size of the grow, the risk of violence, the profitability of the operation,the fact that Mr. Vo stood to make financial gain, that he was a principal or certainly the most visible principal involved. He was theonly person they saw. He was more than a caretaker, in the Crown's submission. He was the possessor of a sophisticated growoperation. [7] The Crown, in fairness, though, points to mitigating factors on behalf of Mr.

Vo: the fact of his guilty plea and no criminalrecord. [8] The Crown produces a number of cases in a casebook which is before the court. Of particular interest to me is the reasoning ofmy brother Judge Morgan in the case of R. v. Chiu, which can be found in the book of authorities of the Crown at Tab 11, and it is moreparticularly cited as 2010 BCPC 42 , 2010 BCPC 0042. In that, Judge Morgan, as one of the 12 resident judges of the Cariboo-North East, points out the fact that we have had a tremendous upswing in grow operations.

People are coming out of the LowerMainland north, and he reports in this particular thing that he is aware of at least 11 grow-ops. As the former administrative judge whohad to

schedule these, I was aware of 17 of them and the tremendous amount of court resources that had to be put aside to deal with them. [9] I guess it does not occur to people when they come out of the Lower Mainland that two Vietnamese gentlemen at an outbuildingnear Hixon might draw attention to themselves because they would stand out like a palm tree in the middle of the prairies. Notwithstanding that, it appears they want to come forward and do grow operations. [10] In my mind, the most important principle to sentencing is specific deterrence.

Unless we stop people from coming up to theCariboo Chilcotin and north, they are going to keep coming, and in that view, jail is the only way to do it. There is no consideration inmy mind whatsoever of a conditional sentence. [11] I adopt what was said by Judge Morgan in Chiu.

Just briefly, at paragraph 85 in that decision, he says: [1] There is no presumption for or against a conditional sentence; [2] It is an error for a sentencing judge to be guided by a belief that conditional sentences for commercial marihuana cultivation cannot have a general deterrent effect; [3] It is an error for a sentencing judge to not have due regard for the personal circumstances of the offender when crafting asentence, even when that sentence is focused primarily on general deterrence; [4] A sentencing judge may take judicial notice of a significant and lucrative marihuana industry in B.C.; [5] A sentencing judge may take judicial notice of the impact the crime of marihuana production is having on the local community; -- and I pause to point out that is just what I was doing -- [6] Generally, the goals of denunciation and general deterrence for principal operators of large commercial grow operations will bebest achieved through a jail sentence; [7] Where a conditional sentence has been deemed appropriate, there are usually significant mitigating circumstances; [8] A conditional jail sentence may not adequately address general deterrence in circumstances of a large commercial marihuanagrow operation at that particular time and in that particular location, even after a consideration that the offender is a first offender and nota principal operator but a caretaker or 'gardener'. [12] That applies perfectly to this, and in fact, in Chiu, the grow-op was only about 100 plants less. [13] Mr.

Campbell makes a valiant effort to convince me that there are special and mitigating circumstances. He points to the lack ofa criminal record. He points to the early guilty plea. He points to the fact there were no firearms, and there is not a risk of fire. He saysthat Mr. Vo is terrified as to what the outcome of this will be. Well, he was not so terrified that he did not embark on it. He embarked onthis for pure financial gain.

You play the game; you pay the price. [14] I will, however, in the circumstances, consider the Chiu decision and others. [15] Stand up, sir. [16] The appropriate sentence in this case is a sentence of 14 months in jail. I will waive the victim fine surcharge. There will be anorder under s. 109 of the Criminal Code -- is that for life or is that for 10 years? [17] MS. KNOWLAN: For 10 years, Your Honour, first -- [18] THE COURT: All right. [19] MS.

KNOWLAN: -- first offence. [20] THE COURT: Under 109 of the -- that you will be prohibited from possessing any firearm, crossbow, prohibited weapon,restricted weapon, prohibited device, ammunition, prohibited ammunition for a period of 10 years from today's date. [21] Does he have any of those, Mr. Campbell?

[ 22 ] MR. CAMPBELL: Not to my knowledge. [ 23 ] THE COURT: All right. That order will be made forthwith. [ 24 ] I will, as well, direct that you will provide such samples of your DNA as is necessary for inclusion in the DNA databank pursuant to

Part XV of the Criminal Code . [ 25 ] Mr. Sheriff, are you equipped to do that here? [ 26 ] MR. SHERIFF: Your Honour, we're not. [ 27 ] THE COURT: All right. Okay. And lastly, the order for forfeiture, Ms. Knowlan? How do you want that to be worded? As per the drug exhibit flowchart? I am forfeiting the pickup truck specifically. [ 28 ] MS. KNOWLAN: Perhaps all items seized. [ 29 ] THE COURT: Okay. You can draw up an order that is appropriate to your friend. She will sign it, Mr. Campbell, and produce it -- [ 30 ] MR. CAMPBELL: Yes. [ 31 ] THE COURT: -- for my signature, please. [ 32 ] MS.

KNOWLAN: Thank you, Your Honour. [ 33 ] THE COURT: As to Count 2 on Information 24855 and Mr. Lam? [ 34 ] MS. KNOWLAN: Crown directs a stay of proceedings. [ 35 ] THE COURT: Okay. Anything else, Counsel? [ 36 ] MR. CAMPBELL: No, Your Honour. [ 37 ] THE CLERK: There is, just for clarification, all items seized on the flowchart? [ 38 ] THE COURT: On the -- what is it called? A drug -- major incident -- [ 39 ] MS.

KNOWLAN: Major incident drug flowchart or -- I'll draft up an order for Your Honour's attention. [ 40 ] THE CLERK: And also, too, the prohibition is 10 years, Your Honour? [ 41 ] THE COURT: Ten years. [ 42 ] THE CLERK: Thank you. [ 43 ] THE COURT: One-oh-nine. [ 44 ] THE CLERK: And DNA? He has to appear -- I guess he'll be in custody. [ 45 ] THE COURT: He is in custody, so he will be done there. I can give the Crown back their authorities. I will give the defence back their authorities. I will give the clerk back the information. [ 46 ] MR. CAMPBELL: And the charges in relation to Mr.

Lam? [ 47 ] THE COURT: They were stayed, I thought. [ 48 ] MR. CAMPBELL: Stayed? All right. (REASONS CONCLUDED)