R. v. Mak and Chu Date:, 2013 BCPC 433

Citation: R. v. Mak and Chu Date: 20130918 2013 BCPC 0433 File No: 29508 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KIN WA MAK AND KIT CHING CHU REASONS FOR SENTENCE OF THE HONOURABLE JUDGE E. L. BAYLIFF Counsel for the Crown: S. Nixon Counsel for the Defendants: Y. Hsu Place of Hearing: Williams Lake , B.C. Date of Hearing: June 28, 2013 Date of Judgment: September 18, 2013 [ 1 ] Kin Wa Mak, age 51, and Kit Ching Chu, age 47, are before me for sentencing after being convicted, following a trial, of the

offences of Production of a Controlled Substance and Possession of a Controlled Substance for the Purpose of Trafficking, contrary to ss. 7(1) and 5(2) of the Controlled Drugs and Substances Act, R.S.C. 1996, Chap. 19 ( ‘CDSA’) . The controlled substance in question is marijuana. The offences date back to the summer of 2008. [ 2 ] I have decided that I must sentence Mr. Mak and Ms. Chu to jail. The global sentence for each will be 1 year in jail. I have decided that a conditional sentence is not appropriate. I will now explain my reasons.

Facts [ 3 ] The grow operation in question was large, and commercial in nature. There were approximately 3,500 plants seized. The crop was valued at $1,362,000 by an expert witness. [ 4 ] It was both an outdoor and an indoor operation. The police entered the remote, ranch property on Jackpine Road in the Horsefly area pursuant to Search Warrant on August 20 th , 2008. They located 9 greenhouses containing the 3,500 plants. There was a barn on the property which was being used for drying, clipping and packaging the marijuana.

Perhaps in anticipation of a Cariboo winter, other rooms in the barn appeared to be in the process of being converted into in-door grow rooms using lights, though no plants were found growing indoors. [ 5 ] Mr. Mak and Ms. Chu, who are married (at common law) to one another, were both present at the property on August 20 th , 2008. There were 3 others there as well though they are not before the court. [ 6 ] Mr. Mak and Ms. Chu have insisted on their innocence throughout this matter. Despite this I did find them guilty for the reasons set out in my written judgment filed April 4 th , 2012. [ 7 ] I find that Mr.

Mak and Ms. Chu were more than “mere gardeners”. They were in the role of principal operators or “operating minds” of this grow operation – probably in conjunction with others who are not before the court. There are several reasons why I conclude that they were principal operators or “operating minds”. [ 8 ] First, there is the evidence that they were both actively involved in selecting the land for the grow operation about 9 months previously. Second, I found that Ms. Chu contributed about 45% of the money used to purchase the Jackpine Road property.

Third, I concluded that there was evidence that the house on Cameron Drive in Richmond, B.C., which belonged to Ms. Chu, was being used as a way point in the commercial distribution of marijuana. (Amongst other things located at this house were 3 kg of dried and packaged marijuana, scales, and some paperwork in a purse in one of the bedrooms which an expert witness said was a calculation of gross income from the production and sale of marijuana at the wholesale level). I also found that Ms. Chu had the requisite knowledge and control over what was going on at the Cameron Drive residence to implicate her.

There were also many documents connected to Mr. Mak, as well as a vehicle belonging to him located at that residence. Fourth, there was the evidence from a tracking device which showed that Mr. Mak’s pick up truck was coming and going between the grow operation at Jackpine Road in Horsefly and the residence at Cameron Drive in Richmond. On at least one of those occasions Ms. Chu was observed driving the vehicle. [ 9 ] The picture that clearly emerges from this body of circumstantial evidence is that Mr. Mak and Ms. Chu were not simply “gardeners” at the grow operation on Jackpine Road.

They were involved in the purchase and planning of the grow operation and in the distribution of the marijuana coming from that operation. As I say, there were probably others involved at the planning level with them but I have only Mr. Mak and Ms. Chu before me for sentencing. [ 10 ] The property at Jackpine Road has since been forfeited to the Crown. As Ms. Chu had contributed about $133,000 to the purchase of the property, the forfeiture represented a significant financial loss to her. However, I bear in mind the decision in R. v.

Craig, 2009 SCC 23 at paragraph 34 , and the fact that forfeiture of the property is not to form part of my consideration here. [ 11 ] With respect to the personal circumstances of Mr. Mak and Ms. Chu, I have pre-sentence reports prepared a year ago, in the summer of 2012, plus the submissions of Ms. Hsu, counsel for Mr. Mak and Ms. Chu at the sentencing hearing, letters in their support from their two older children and from Mr. Mak’s employer, and certain evidence from the trial which touched on their personal circumstances. [ 12 ] Mr. Mak and Ms.

Chu were both born in China and came to Canada separately more than 20 years ago. They met in Canada, formed a common law relationship and had their two older children, Benny (19 or 20) and Jessica (21 or 22) in the early 1990’s. I am told that Mr. Mak then formed a relationship with Ms. Jie Ying Zhu and was legally married to her for some period of time before being divorced from her in about 2000 and re-uniting with Ms. Chu. I am told that Mr. Mak and Ms. Chu then had a third child, [omitted for publishing], who is now age [omitted for publishing] . [ 13 ] As of the date of the pre-sentence report Mr.

Mak and Ms. Chu maintained separate residences in the Lower Mainland although both stated they were still in a relationship. [ 14 ] Mr. Mak and Ms. Chu struggle with the English language and required the services of a Cantonese-English interpreter throughout the proceedings as well as during their interviews for the Pre-Sentence Reports. [ 15 ] Mr. Mak has worked in the construction industry since arriving in Canada. Initially he owned his own stucco company but for 15 years now he has been doing home renovations. In the past couple of years he and Ms.

Chu have been working together in a proprietorship which they call Sun Sun Construction. [ 16 ] Mr. Mak has produced a letter from Alex Chen ( Exhibit 2 on Sentencing) who says he has known and worked with Mr. Mak for

18 years. Mr. Chen describes Mr. Mak as “a dependable and passionate worker who always ensures perfection in his work.” He describes him as “honest and virtuous”; a man of “great integrity” who would feel tremendous guilt if he caused pain to anyone. In Mr. Chen’s observation, Mr. Mak has “worked so hard throughout the years to provide for his entire family.” [ 17 ] I do not have too much detail about Ms. Chu’s work history prior to her working with Mr. Mak in the Sun Sun Construction business. In Exhibit 1 at trial (a State of Title Certificate for the Cameron Drive house), Ms.

Chu’s profession was shown as “janitor”. Over the years she had acquired the house at Cameron Drive and, as of December, 2007 she had acquired sufficient equity in to allow her to re-mortgage it and come up with about $133,000 which she contributed to the purchase of the Jackpine Road property. (The rest of the purchase price - about $162,400.00 - came from one Jian Shan Jiang of Abbotsford.) [ 18 ] Neither Mr. Mak nor Ms. Chu suffer from any addictions.

Neither of them are users of marijuana or other drugs. [ 19 ] The couple’s two older children, Benny and Jessica, have prepared letters in support of their parents ( Exhibit 2 on Sentencing). Benny Mak has just completed his second year of university at UBC. He speaks very highly of his mother, Ms. Chu, saying that she is “a guiding light in my life”. He describes her as “an honest woman who wishes only to raise her children into capable and considerate adults”.

Jessica Mak, who is enrolled at Kwantlen University, says of her mother that she “has made many sacrifices to raise her children, including moving away from her family and her country to provide a better life for her children.” She describes Ms. Chu as a “courageous woman who loves her children and would never compromise [their] safety”. [ 20 ] Regarding their father, Mr. Mak, both children say he is a very hard working man who works from early in the morning to late in the evening to provide for his family.

Both children say that they are still financially dependant on their parents to get through university. [ 21 ] Ms. Hsu in her submission spoke about the youngest child, [omitted for publishing] , and his need for his parents. This is emphasized by Jessica and Benny Mak in their letters as well. They point out that [omitted for publishing] , at age [omitted for publishing] is too young to provide for himself financially and is still very much in need of his parents’ love and nurture.

Jessica and Benny Mak write that they cannot fill this gap for [omitted for publishing] and they beg the court not to send their parents to jail so that they can continue to be there for [omitted for publishing] . [ 22 ] There are a few comments I wish to make regarding this body of evidence about the personal circumstances of Mr. Mak and Ms. Chu. [ 23 ] First, the relationship of Ms. Jie Ying Zhu to this family is somewhat confusing. I am told that Ms. Zhu was married to Mr. Mak at one point and then divorced from him. A divorce certificate certainly was one of the documents found at the Cameron Drive residence.

There were several pieces of circumstantial evidence during the trial which suggested that Ms. Zhu was also Ms. Chu’s sister, in addition to being Mr. Mak’s ex-wife. This is what Ms. Chu told the realtor when she asked to have Ms. Zhu’s name substituted for her own on the purchase contract for the Jackpine Road property. And, in a document located at Cameron Drive (an emergency contact list for a child called [omitted for publishing] born in 1994), Ms. Zhu is shown as the “mother” and Ms. Chu is listed as the “aunt”: Exhibit 5, p. 22 00051.

And, on August 20 th , 2008, when the Search Warrants were executed at Jackpine Road and Cameron Drive, the children Benny and Jessica Mak, then in their teens, were found at the Cameron Drive residence with Ms. Zhu while Mr. Mak and Ms. Chu were 6 or 7 hours north of there, by road, at the Jackpine Road property. It certainly had the appearance that Ms. Zhu was the one caring for the older children on that occasion and the police actually formed the belief that Ms. Zhu was the mother of Benny and Jessica.

I am told this is incorrect. [ 24 ] Second, as it concerns the younger child, [omitted for publishing] , there was absolutely no reference to [omitted for publishing] back at the time of the investigation in August, 2008. He would have been quite young at the time – only [omitted for publishing] years old. The police, who had Mr. Mak and Ms. Chu under surveillance for a few weeks before the Search Warrants were executed, never mentioned the presence of a small child. And, on August 20 th , no small child was found in the care of Ms. Chu and Mr. Mak at Jackpine Road or, for that matter, in the care of Ms.

Zhu at Cameron Drive. [ 25 ] I raised some of these apparent inconsistencies or incongruities with Ms. Hsu during submissions at sentence and received assurances that Mr. Mak and Ms. Chu are, in fact, the parents of all three children. I will proceed to sentence Mr. Mak and Ms. Chu on the assumption that they are the parents of 3 children, all of whom are dependants, and one of whom is still quite young. [ 26 ] I will now move on to give a brief overview of the position of each of the parties concerning the appropriate sentence. Positions of the Parties [ 27 ] Ms.

Nixon, for the federal Crown, argues that a jail sentence in the range of 18 months to 2 years less a day is appropriate for each accused. She opposes the imposition of a Conditional Sentence for either accused. She emphasizes that Mr. Mak and Ms. Chu were operating minds of this grow operation, and that it was a large, commercial enterprise. She acknowledges that these defendants, like so many defendants in cases of this sort, have no previous criminal convictions and are hardworking, productive people.

But, she says the need for denunciation and deterrence supports the imposition of a sentence of incarceration rather than a Conditional Sentence. [ 28 ] Ms. Hsu, for Mr. Mak and Ms. Chu, argues for a Conditional Sentence Order or what is sometimes called “house arrest” or “a jail sentence served in the community.” Ms. Hsu emphasizes that the law requires that the court give serious consideration to all other sanctions than incarceration and avoid incarceration wherever possible.

She emphasizes that neither defendant has a criminal record and that they are hard working, productive people who have children, including one quite young child, to support and care for. She emphasizes that they are non-violent and pose absolutely no threat to society. She emphasizes that they have lived for 5 years on

conditions of bail with no breaches and are very likely to be equally successful in complying with the terms of a conditional sentence. She argues that a conditional sentence order would satisfy all of the sentencing principles and would be a proportionate sentence in allthe circumstances. [29] I will now review the legal or statutory framework that applies. Statutory Framework [30] Section 5(3) and 7(2) of the CDSA, as worded back in 2008, set a maximum sentence of 10 and 7 years respectively for offencesinvolving marihuana, but no minimum sentence is specified. Thus, a Conditional Sentence Order, as set out in s. 742.1 of the CriminalCode is an available sanction in this case. [31]

Section 742.1 as it was worded at the time read as follows: “If a person is convicted of an offence, other than…an offence punishable by a minimum term of imprisonment, and the court imposes asentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger thesafety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to718.2, the court may, for the purpose of supervising the offender’s behavior in the community, order that the offender serve the sentencein the community, subject to the offender’s compliance with the conditions imposed….” [32] Sections 718 and 718.2 set out the purpose and principles of sentencing.

I will refer to them in more detail a little later in thesereasons. [33]

Section 10 of the CDSA also sets out sentencing principles but I am satisfied that none of the factors listed in that

section haveapplication in the case at bar. [34] I will now turn to the cases cited by Ms. Hsu and Ms. Nixon. I will review them in date order. Cases [35] R. v. McLennan & Munro, 2001 BCCA 209: The defendants pleaded guilty part way through trial to a charge of Production ofMarihuana. This case is local to the Cariboo. 2,472 plants were seized with a value of $370,000. At trial a sentence of 2 years less 1day was imposed. On appeal this was reduced to a Conditional Sentence of the same length (the conditions are not set out).

Bothaccused were in their 50’s and either had no record or an old record that was not relevant. The trial judge gave lengthy reasons touchingon, among other things, the large size of the grow operation, the prevalence of marihuana grow operations in the area, the impact of thisactivity on the community, and the need for general deterrence. He decided that a Conditional Sentence would not adequately meet thesentencing objective of deterrence and imposed a jail sentence.

However, the Court of Appeal overturned this decision and substituted aConditional Sentence on the basis that the trial judge put too much emphasis on the deterrent effect of jail. [36] R. v. Shah, 2003 BCCA 294: The defendant pleaded guilty to Production of Marihuana. 1,535 plants were seized with a valueof about $537,000. At trial a sentence of 3 months was imposed. On appeal this was changed to a Conditional Sentence Order of 1 yearwith conditions of curfew, restriction on cell phone and pager use, among others.

Shah and his co-defendant were 28 and 29 years of ageand either had no record or a minor, unrelated record. Justice Low found that the trial judge had erred in emphasizing the large size ofthe grow operation and in holding that a Conditional Sentence Order was not available as a sentencing option for that reason. “The sizeof the crop should not stand in the way of the imposition of a Conditional Sentence”: ¶ 6. [37] R. v.

Kimball Lee, 2004 BCPC 557 , 2004 BCPC 0557: The defendant pleaded guilty to two counts of Possession ofMarihuana for the Purpose of Trafficking and two counts of Theft of Electricity. 1,304 plants were seized valued at $459,000. Mr. Leewas operating two different grow operations in two different residential homes in Williams Lake. There was a Hydro by-pass at eachlocation. A jail sentence of 10 months in length was imposed plus one year of Probation (counseling for gambling and not to possessgrow equipment).

A Conditional Sentence was rejected as not adequately addressing the objectives of denunciation and deterrence. Theaccused was 40 years of age with no criminal record. He was an immigrant from China. He had 4 children living with their mother inthe Lower Mainland. Financial pressure due to loss on the sale of a house plus a gambling addiction were factors in Mr. Lee’s decisionto give up his normal work in renovations and start growing marijuana. [38] R. v. Koenders, 2007 BCCA 378: The defendant was convicted following a trial of one count of Production and one count ofPossession for the Purpose of Trafficking.

Koenders was 41 years old. He had a record: 4 previous convictions for simple possession ofmarihuana. He was a user and advocate for marihuana. About 2,100 plants were seized from a house in a rural area near Courtney, B.C. Koenders had hired another to mind the grow operation in exchange for free rent. The value of the crop was estimated at $560,000 to$840,000. At trial Crown Counsel sought a sentence of jail of about 1 year. The trial judge imposed a sentence of 2 years less 1 day injail plus Probation of 2 years. Koenders appealed, seeking a reduction in sentence to 1 year in jail.

On appeal, Ryan JA, concurred in bySmith and Levine JJA, upheld the sentence of 2 years less 1 day plus Probation of 2 years. At ¶ 11 to 43 Ryan, JA examined manydecisions from the Court of Appeal dating back to R. v. Su. At ¶ 12 she wrote that there is no presumption for or against a conditionalsentence order in production cases. However there is a discernible range of sentence in these cases which turns on the commercial nature

of the grow operation and the personal circumstances of the accused. At ¶ 13 she noted that sentences for commercial production are heavier than sentences for non-commercial production. At ¶ 20 and 21 she commented on the need for deterrence and denunciation in crimes of this sort which are the product of choice and planning. At ¶ 23 she commented that the sentencing court must also consider the culpability of the offender and not dwell only on the gravity of the offence.

Age, whether principle operator or not, a first offence or not, what choices the offender made before getting into the marihuana industry, whether there was a guilty plea or a trial, whether there was a joint submission or not – are some of the questions to consider. At ¶ 26 Justice Ryan quotes from R. v.

Su, where Justice Lambert says 12 months imprisonment is “within the range for a first offender in a grow operation of this dimension.” At ¶ 29 and 30 she notes that judges have: “...increasingly expressed the need for denunciation and deterrence and been less inclined to grant conditional sentences on the basis that such sentences are often insufficient to achieve these goals.” [ 39 ] Justice Ryan says this is consistent with Proulx in that, on occasion, the need for denunciation and deterrence will be sufficiently great that a sentence in jail is called for rather than a Conditional Sentence Order.

She says jurisprudence from the B.C. Court of Appeal supports the view that denunciation and deterrence may reasonably involve incarceration.” At ¶ 37 she summarizes: “As these cases indicate, there are multiple factors that go into the determination of whether conventional incarceration or a conditional sentence is appropriate. ... Where conditional sentences or very short sentences of incarceration have been imposed for the commercial production of marihuana it is possible to find a collection of mitigating personal circumstances. In many cases, there has been a guilty plea coupled with a joint submission.

In other cases, there are health or age issues. Yet again in others the appellant has played a very minor role.” [ 40 ] At ¶ 42 she summarizes her review of the law: “In the end, the gravity of the offence must be examined along with the personal circumstances of the offender. The cases reveal, with some anomalies, that when dealing with the principal of a large scale, purely commercial operation, with few if any mitigating factors in the personal circumstances, this Court has imposed or sustained a period of at least one year of conventional incarceration.

Where less serious offences are involved, and there are mitigating circumstances, this Court has determined that a strict conditional sentence can properly address the goals of denunciation and deterrence.” [ 41 ] After reviewing the law concerning how courts should handle joint submissions she concludes at ¶ 53 and 54: “I am not persuaded that the sentencing judge...made any error in principle or imposed a sentence that was not fit.

Although lengthy, the period of jail falls within in the range found in the jurisprudence.” [ 42 ] The appeal from the sentence of 2 years less one day jail plus 2 years Probation was dismissed. [ 43 ] R. v. Anderson, 2007 BCCA 581 : The defendant pleaded guilty to Production. Charges of Trafficking and Theft of Hydro were stayed. Anderson was 38 years old and had a very old prior conviction for simple possession which was treated as irrelevant by the sentencing judge. This grow operation was located in a barn in a rural area near Salmon Arm.

Anderson had suffered financial and family reverses after moving to Alberta. He moved back to BC and was given the opportunity to caretake this grow operation and he took it. 1,163 plants valued at between $300,000 and $456,000 were seized and theft of hydro valued at $19,000 was documented. Anderson had a stable family and good upbringing. Since the offence he had been employed and was working long hours and paying child support to his ex wife. The sentencing judge imposed a jail sentence of 10 months (Crown had sought 1 year at trial).

On appeal the accused sought a conditional sentence order saying the sentencing judge overemphasized deterrence and the accused’s “greed”. Smith, JA, with whom Hall and Mackenzie, JJA concurred said a t ¶ 16: “ With respect, I think this argument rests on semantics. Greed is a pejorative term. The gist of this factor is the entering into the business for the profits to be made.

Whether the motive is called greed or not, deterrence is an important sentencing factor in these cases because of the easy money provided by the illegal activity whatever may be the reasons behind the desire for that easy money. “ ¶ 18 “I am not persuaded that the sentencing judge erred in taking this view of the case. Mr. Anderson admittedly committed the crime to make a quick dollar. It was a sophisticated and large scale marihuana grow operation.” [ 44 ] And at ¶ 19: “This Court has made it clear in many cases such as R. v. Su , 2000 BCCA 480 ; R. v. Van Santvoord , 2007 BCCA 23 ; R. v.

Wallis , 2007 BCCA 377 and R. v. Koenders , 2007 BCCA 378 , that such operations will generally warrant more severe sentences in order to denunciate and deter the illegal conduct and to contain the spread of marihuana grow operations in this province.” [ 45 ] The appeal was dismissed. [ 46 ] R. v. Chiu, 2010 BCPC 42 : The defendant entered an early guilty plea to Production of Marihuana. 1,331 plants valued at (assuming 3 crops per year) $955,000 were seized and theft of electricity valued at $12,684 was documented. Mr. Chiu had repaid B.C. Hydro for the stolen electricity.

A jail sentence of 12 months was imposed . Chiu was 51 years old. He had emigrated from China. He spoke Cantonese and very little English. He had two adult children attending post secondary education. He was under a heavy financial burden attempting to pay for their education and also support his aged mother in China. He was the gardener/caretaker of the grow.

The court did an extensive review of earlier decisions and concluded that a jail sentence was required to achieve denunciation and deterrence, particularly in light of local conditions, including a downturn in the legal economy (primarily forestry based) and the resulting temptation to “make a quick and easy buck through the illegal production of marihuana”, as well as the large number of such cases currently proceeding through the court system in the Cariboo. [ 47 ] R. v. Budd, 2010 BCCA 214 : Budd was convicted following a trial of Production, Possession for the Purpose of Trafficking

and Trafficking. He was age 26 and had no record. The grow operation was located in a house in Nanaimo. Budd and others weretransporting 316 marihuana plants in a moving van from one house to another. There were signs of a pre-existing grow operation at thehouse. The trial judge found that it was a medium sized operation of some sophistication that had been going on for some time. Thevalue of the plants and bud seized was about $50,000. Budd had limited education due to a learning disability but had qualified as atugboat captain.

At trial a sentence of 1 year in jail was imposed and a co-accused, found to have a much more limited involvement, wasgiven a suspended sentence and probation. On appeal by Budd, Kirkpatrick, JA, concurred in by Ryan and Tysoe, JJA, upheld the oneyear jail sentence. It was argued on appeal that the sentencing judge had erred in failing to consider the personal circumstances of Mr.Budd which were positive – stable family, no record, hard working, no breaches in several years of bail, impact of a jail sentence on hisopportunity to work in the fishing industry in Alaska.

But at ¶ 14 the Court found that the trial judge gave proper consideration to theaccused’s personal circumstances and imposed jail despite this because of the need for denunciation and deterrence. The Court referredto its comments in Anderson, 2007 and Koenders, 2007 about the importance of deterrence in cases such as this where there is a wellthought out plan to enter into an illegal business in order to make money. ¶ 16: “Similarly, Mr. Budd submitted that he was motivated to turn to the marihuana trade when his regular employment suffered setbacks.

Nevertheless, the motive was the desire for easy money to allay unfortunate economic realities with which many other people must copewithout resorting to illegal activity.” ¶ 17: “As this Court stated in Koenders at para. 21, “[t]he person who becomes involved in the commercial production of marihuana,solely for profit, makes a deliberate decision to operate outside the laws of this country.” Generally, the principals of large scale,commercial operations, with few if any mitigating factors in the personal circumstances of the offender, will result in the imposition of aperiod of at least one year of conventional incarceration (Koenders, at para. 42).

In the case at bar, the judge found the grow operation tobe a sophisticated, mid-level commercial operation.” ¶ 18: “I am not persuaded that the judge erred in imposing a one year jail sentence rather than a conditional sentence. He was alive tothe problem of marihuana grow operations in the local community and the need to deter others from embarking on similar enterprises.” [48] R. v.

Chen, 2011 BCPC 297: The defendant was convicted following a trial of Production of Marihuana and Possession for thePurpose of Trafficking. 1,139 plants valued at $284,700 were located in a residence. 1 year in jail followed by 1 year of probation wasimposed. Chen was 40 years old. He was a landed immigrant from China. He had a son and elderly mother in China. He would likelybe deported as a result of this conviction. Chen was a gardener/caretaker rather than a principal operator.

The objectives of deterrenceand denunciation, with particular regard to the problem of marihuana grow operations in the Cariboo, dictated a sentence of jail ratherthan a Conditional Sentence. [49] R. v. Feng & He, October 25th, 2011, BCSC, Williams Lake Registry # 29525-2: Guilty plea by Mr. He to Production ofMarihuana. 322 plants were seized valued at an annual value of $300,000 (assuming 4 crops per year). 6 month jail sentence imposed. He’s role was as a gardener/caretaker. He was 62 years old. He emigrated to Canada from China in 2003. He was married with 3 adultchildren. He had no criminal record.

He had a very limited education. He and his wife were caring for their 5 year old grandson as theirson was serving a jail sentence for a marihuana production offence. Commenting that the role of caretaker is vital to the overall illegalenterprise, Judge Daley found that the offence was a serious one despite the fact that Mr. He was a caretaker and not the operating mindof the grow. [50] R. v. Lam & Vo, 2011 BCPC 321: Mr. Vo entered a guilty plea to Production of Marihuana. 1,264 plants valued at anywherefrom $474,000 to $1 million depending on the number of crops per year were seized.

The sentence imposed was 14 months in jail. Mr.Vo was more in the role of a caretaker of the grow. Vo’s age is not given. He had no criminal record. Citing R. v. Chiu, 2010 BCPC42, with approval, Judge O’Byrne said: “In my mind the most important principle…is specific deterrence. Unless we stop people fromcoming up to the Cariboo Chilcotin and north, they are going to keep coming, and in that view, jail is the only way to do it. There is noconsideration in my mind whatsoever of a conditional sentence.” [51] R. v.

Francoise Yvonne Jones, 2012 BCSC 816: There was a finding of guilt part way through trial for offences of Productionof Marihuana and Possession of Marihuana for the Purpose of Trafficking. 413 plants valued at $46,000 were located in Ms. Jones’home. A 13 month Conditional Sentence with conditions of 9 pm curfew first 6 months was imposed. Jones was age 61, withsubstantial health issues and a minimal income. She had no criminal record. Crown recommended a Conditional Sentence. Defendantsought a suspended sentence and probation.

A Conditional Sentence was necessary to address the objectives of denunciation anddeterrence. [52] R. v. Huy Van Dao, 2012 BCSC 1627: The defendant was convicted of Possession for the Purpose of Trafficking following atrial. 1,046 plants valued at $392,000 were located. The sentence imposed was a 15 month Conditional Sentence with house arrest and50 hours of community work. Dao was a caretaker, not a principal. Dao was age 44, married with two children. Dao emigrated toCanada from Vietnam. He struggled with English. He had no prior criminal record. The court adopts the statement from R. v.

Howitt,2010 BCSC 1475: “A conditional sentence which is longer than the jail term I would otherwise impose and which includes strictconditions restricting his liberty can, I am satisfied, fulfill the sentencing objectives of denunciation and deterrence…”. [53] R. v. Topley, 2012 BCPC 431: The defendant entered a guilty plea to Production of Marihuana. 113 plants valued at $42,000plus 9 pounds of drying bud marihuana valued at $18,000 were seized. The sentence imposed was 6 months jail. Topley was aged 31with no criminal record. He had a job with CN as a conductor. This was a commercial operation.

After referring to R. v. Chiu, 2010 BCPC 42 and R. v. Vo, November 8th, 2011, Quesnel Registry # 24855 and the problem of grow operations in this area, Judge O’Byrnestated that deterrence is paramount. Protection of the public is also very important. [54] R. v. Cheng, 2012 BCPC 493 , 2012 BCPC 0493: The defendant entered a guilty plea to Possession for the Purpose ofTrafficking. Cheng was observed delivering a total of 10 lbs of dried and packaged marihuana to Jonathan Bacon. The wholesale valuewas estimated as $13,000. Cheng also had $10,000 in cash on his person.

A Conditional Sentence, 18 months in length (house arrestexcept for work) was imposed. Cheng was 31 at the time of the offence (some 7 years earlier). He had a previous criminal recordthough no drug offences. “Family and friends have noted that he is a changed person since his arrest and over the years since.” He had

complied with bail terms for 7 years. A Conditional Sentence was found to adequately address denunciation and deterrence in this case. Rehabilitation and restorative objectives outweigh other objectives. [55] R. v. Lam, Kuang & Ma, 2012 BCPC 488 , 2012 BCPC 0488: Kuang and Ma entered guilty pleas to Production ofMarihuana. 2,629 plants valued at $1.6 million or more were seized. “The grow operation was a highly capitalized, professionallyinstalled commercial operation…”.

The sentence imposed was a Conditional Sentence of 2 years less 1 day (house arrest first 12 months,curfew after that, write a letter of apology and explanation to local paper). Kuang was the cook, Ma was a gardener/caretaker. A co-accused, Lam, who had a previous record for drug offences, received a sentence of 3 years in jail in a separate proceeding. JudgeBrecknell cited the passage from R. v. Howitt set out in R. v. Dao, above, and imposed a lengthy Conditional Sentence rather than a jailsentence. [56] R. v.

Laird, 2013 BCSC 59: The defendant entered a guilty plea to a charge of Production of Marihuana. 502 plants valued at$62,000 were located. The sentence imposed was 9 months in jail followed by 6 months of Probation (reporting only). Laird was 52years old. Along with his aged parents, he was an owner-operator of the grow operation. He was a life time resident of the Cariboo. Hehad no relevant criminal record. He was growing marijuana partly for the medical use of his father and brother and partly for sale so thathe could make some extra money.

Commenting on the need for denunciation and deterrence in such cases, and the problem of growoperations in the Cariboo, the sentencing judge rejected the option of a Conditional Sentence and a jail sentence was imposed. [57] R. v. Doug Lee, 2013 BCSC 61: Lee was convicted following a trial of Production of Marihuana and Possession for thePurpose of Trafficking. 247 plants valued at $92,000 were seized from Lee’s home. A 15 month Conditional Sentence (house arrestfirst 12 months except for work, 40 hours community work) was imposed. Lee was age 49 and had no criminal record. He had 2children.

Lee and his wife owned the property where the grow was located. The property will almost certainly be forfeited. “…I amsatisfied that this is one of those rare cases where a conditional sentence should be imposed on this accused for this offence…it is not alenient sentence…”. [58] R. v. Zhu, 2013 BCSC 277: The defendant was convicted following a trial of Production of Marihuana and Possession ofMarihuana. 621 plants valued at $214,000 were seized from a home in a residential neighbourhood of West Vancouver. There was alsoan electrical by pass.

A 12 month Conditional Sentence (curfew except for work for first 9 months) was imposed. Zhu was 38 years old,born in China. He was a landed immigrant. He was in the role of caretaker of the grow operation. He had no criminal record. Some ofthe authorities “are hard to distinguish”. What is required in every case is an individualized approach. [59] In addition to the cases cited by counsel, I have also refreshed my memory regarding the principles and direction provided by R.v. Proulx, 2000 SCC 5.

As well, I have refreshed my memory concerning a series of decisions from the British Columbia Court ofAppeal dealing with the sentencing of those involved in grow operations. See Appendix A. Each deals with exactly the issue whicharises in this case – namely, whether a conditional sentence order or a sentence of incarceration is appropriate in a case involvingmarihuana production and trafficking. [60] In my earlier decision in the case of R. v. Chen, 2011 BCPC 297, I summarized certain principles that emerge from the Court ofAppeal decisions and R. v. Proulx.

The following list of points is taken from paragraph 49 of Chen, supplemented with reference to thecases cited by counsel in the current proceeding: 1. A conditional sentence must always be given serious consideration for any offender who meets the pre-conditions set out in s.742.1. It is an error to presume that a conditional sentence is never appropriate for certain kinds of offences (such as marihuanaproduction) or in certain fact situations (such as in large, commercial grow operations): Su (2000), Neubert (2001), Innes (2001),Trinh (2001), Shah (2003), Vu (2003).2.

A conditional sentence can have significant denunciatory, deterrent and punitive effects and it is an error to fail to consider thiswhen deciding on an appropriate sanction: R. v. Proulx, 2000 SCC 5 , [2000] 1 SCR 61, McLennan & Munro (2001),Trinh (2001), Whyte (2002).3. It is an error to place either too much or too little emphasis on denunciation and deterrence on the one hand and rehabilitative andrestorative objectives on the other: McLennan & Munro (2001), Neubert (2001), Whyte (2002), Tran (2005), Copeland (2004).4. What is required in every case is an individualized approach to sentencing: R. v.

Zhu, 2013 BCSC 277 (see paragraph 38 above). 5. It is a common law principle of sentencing that, where possible, courts will not incarcerate first time offenders: Whyte (2002),Trinh (2001), Nguyen (2002).6. As it concerns evidentiary findings, a sentencing judge may take judicial notice of the fact that there is a significant and lucrativeillegal marihuana industry in this province and that it has grown in scale and pervasiveness in recent years: Hill (2007) at ¶ 25.

Asentencing judge may take account of local conditions when imposing sentence: Wallis (2007), ¶ 31, Ford (2010), ¶ 64, R. v.Chiu, 2010 BCPC 42 (referred to at paragraph 46 above), R. v. Lam & Vo, 2011 BCPC 321 (paragraph 50 above), R. v. Topley,2012 BCPC 431 (paragraph 53 above), R. v. Laird, 2013 BCSC 59 (paragraph 56 above). 7. Sentences for commercial production of marihuana are heavier than sentences for non-commercial production: Koenders (2007), ¶13.8. Where the accused is the “caretaker” or “gardener” and has no prior record the sentencing option often chosen is a conditionalsentence.

These have ranged in length from 4 months to 20 months with most being either 1 year or 18 months in length: Nguyen(2001), Trinh (2001), Nguyen (2002), Godwin (2005), R. v. Huynh, 2006 BCPC 582, Gan (2007), Ngo (2009), R. v. Giang, 2010BCSC 1016, R. v. Howitt, 2010 BCSC 1475, R. v. Huy Van Dao, 2012 BCSC 1627 (see paragraph 52 above) and R. v. Lam,Kuang & Ma, 2012 BCPC 488 , 2012 BCPC 0488 (see paragraph 55 above). However, on other occasions, jail sentencesranging between 6 months and 14 months in jail, sometimes with probation to follow, have been imposed for caretakers with noprior record.

See Anderson (2007), Kwiatkowski (2010), R. v. Chiu, 2010 BCPC 42 (see paragraph 46 above), Lee (2011) and R. v. Nguyen, 1 March, 2011, Vancouver Registry # 202972-1-T (BCPC), R. v. Feng & He, October 25th, 2011, BCSC, WilliamsLake Registry # 29525-2 (referred to in paragraph 49 above), R. v. Lam & Vo, 2011 BCPC 321 (referred to in paragraph 50 above),and R. v. Topley, 2012 BCPC 493 , 2012 BCPC 0493 (see paragraph 53 above).9.

Where the accused is the “principal operator” or “directing mind” of the grow operation and has no prior record, conditionalsentences in the range of 1 year to 2 years less 1 day have been imposed. See McLennan & Munro (2001), Neubert (2001), Whyte(2002), Shah (2003), Shaw (2005), Huon (2010), R. v. Francoise Yvonne Jones, 2012 BCSC 816 (referred to in paragraph 51

above), R. v. Doug Lee, 2013 BCSC 61 (paragraph 57 above), R. v. Zhu, 2013 BCSC 277 (paragraph 58 above) . In one particularly unusual case, Evers (2011), there was a suspended sentence and a fine of $3,000. In many more cases jail sentences have been imposed, sometimes with probation to follow. The range is from 4 months to 2 years less 1 day with most sentences between 8 months and 1 year in jail.

See Su (2000), Innes (2001), Vu (2003), Tran (2005), Van Santvoord (2005), Wallis (2007), Koenders (2007), Luu (2007), Vo (2007), Ford (2010), Budd (2010), Kwiatkowski (2010), Au-Yeung (2010), Buller (2011), Bi (2011), and R. v. Laird, 2013 BCSC 59 (paragraph 56 above). 10 . Where the evidence proves that the accused is involved at the mid to high level of the marihuana trade, courts have generally imposed jail sentences in the range of 2 years less 1 day to 3 years in jail: Aslam, (2007), Heidarian, (2007) , Hill (2007). 11 .

Where the accused has one or more prior convictions for production or trafficking in drugs this is seen as a serious aggravating factor and has generally resulted in sentences of 1 year to 2 years less a day in jail: Tran (2005), Copeland (2004), Readhead (2008), Le (2007). 12 . Where a husband and wife are co-accused the female spouse has generally received a conditional sentence on evidence that she was less involved and because of ongoing child care responsibilities. These have ranged in length from 9 months to 18 months. See Shaw (2005), Vo (2009), Huon (2010), Buller (2011) and Bi (2011).

The parity principle requires that persons co-accused as the result of the same grow operation (often these have been spouses) receive similar sentences unless the evidence clearly indicates that they had different levels of responsibility: Huon (2010), Bi (2011). [ 61 ] I will now apply the statutory framework and the principles drawn from the cases to Mr. Mak and Ms. Chu and the particular circumstances of their case.

Analysis 1. “Would not endanger the safety of the community” [ 62 ] Before imposing a conditional sentence a court must be satisfied that if the defendants serve their sentence in the community they will not endanger the community. “Endanger the community” has been interpreted to mean the risk that the defendants will commit crime of any sort. It is not limited to violent crime: Proulx , paragraph 76 . [ 63 ] I have no reason to believe that Mr. Mak or Ms.

Chu would be likely to commit further offences if they served their sentence in the community. 2. “Would be consistent with the fundamental purpose and principles of sentencing...” [ 64 ] The final pre-condition for a conditional sentence requires the court to ask whether, if Mr. Mak and Ms. Chu or one or other of them, served their sentences in the community, this would be consistent with the fundamental purpose and principles of sentencing as set out in sections 718 , 718.1 and 718.2 of the Criminal Code .

In my view placing these defendants on a conditional sentence would not be consistent with ss. 718 , 718.1 and 718.2 because of the need for denunciation and deterrence, both specific and general, given the problem of grow operations in the Cariboo. [ 65 ] I will examine each of these sections in detail. 2.1 Fundamental purpose of sentencing: s. 718 [ 66 ]

Section 718 states that the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions with one or more of the objectives listed. In my view, the sentencing objectives that have most application in this case are denunciation, deterrence and promoting a sense of responsibility in the offenders and acknowledgement of harm done to the community.

I will examine each of these objectives in turn. 2.1.1 To denounce unlawful conduct [ 67 ] Justice Lamer wrote in Proulx at paragraph 102 that denunciation “is the communication of society’s condemnation of the offender’s conduct”. [ 68 ] When Mr. Mak and Ms. Chu made the decision to get involved in growing marijuana they made a deliberate choice to step outside of Canadian law in exchange for money. It is this choice – to break the law in order to earn money – that requires denunciation. As I wrote in R. v.

Chen , 2011 BCPC 297 at paragraph 59 : “When the law is broken in a very deliberate fashion and for large profits, as occurs in these cases, respect for the rule of law is seriously undermined both amongst those, like [the defendants], who decide to take the risk to get involved in such activities and in the wider society, amongst citizens who hear about such conduct.”

[ 69 ] These cases have a good deal in common with other economic crimes such as tax fraud. The unlicensed marijuana grower and trafficker operates in the black market and, as a result, pays no tax on their earnings and makes no contribution to social programs.

While enjoying all the benefits of Canadian society – a reasonably stable and effective political system, public services like roads, schools and hospitals, policing, a justice system and social programs like Canada Pension Plan, Employment Insurance, medical insurance – the unlicensed marijuana grower pays either nothing, or less than his or her proportionate share, towards maintaining Canadian society. In my view, this is another aspect of the matter that requires denunciation. (Note: for a case where a producer did declare her income from growing marijuana on her tax return, see R. v.

Evers, 2011 BCCA 330 .) [ 70 ] For the reasons stated I am of the view that the objective of denouncing unlawful conduct must receive considerable weight in this matter. 2.1.2 To deter offenders [ 71 ] In R. v. Koenders , at paragraphs 19 to 21 , Madam Justice Ryan observed that deterrence is a realistic sentencing objective in cases involving the commercial production of marijuana because a good deal of planning goes into the decision to get involved in production. “Unlike most other offences, the production of marihuana is not situational.

No one can operate a grow operation without a large amount of planning, deliberation and organization.” Because of the planning that is required to get into the industry, it is reasonable to expect that people are going to consider both the profits to be made, and the potential “cost” if caught. The sentences that courts impose on marijuana producers are likely to receive at least some consideration in the “cost-benefit analysis” undertaken by those thinking of getting into the industry.

The sentence I impose in this case has a real potential to deter others from choosing this path. [ 72 ] It would certainly appear from the number of such cases that have proceeded through the courts in the Cariboo in recent years that there are many people willing to make the choice to enter this black market industry. The importance of deterrence as a sentencing objective increases accordingly. The plethora of these kinds of cases as well as their effect on local communities has been commented on by other judges from this region – in particular see R. v. Chiu as well as R. v. Lam & Vo and my own comments in R.

Chen. [ 73 ] In

summary, I find that deterrence is a sentencing objective which must receive considerable weight in this case. 2.1.3 To assist in rehabilitating offenders [ 74 ] Rehabilitation of the offender is often a key sentencing objective in regular criminal cases. It is less often an objective in marijuana production cases. This case is no different. Mr. Mak and Ms. Chu are not addicted to any substance. They are both hard working, intelligent, competent people.

They are not in need of rehabilitation. 2.1.4 To promote a sense of responsibility in offenders and acknowledgment of harm done to society [ 75 ] I would like to promote in Mr. Mak and Ms. Chu an understanding of the importance of the rule of law to a well functioning society and the responsibility each one of us bears to uphold the rule of law. Since Mr. Mak and Ms. Chu continue to deny having committed these offences, it is unlikely that any sentence I impose – a community based sentence or a jail sentence – is going to achieve this particular objective.

Summary – Fundamental Purpose and Principles of Sentencing [ 76 ] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions. The sentencing objectives that have the most application in Mr. Mak and Ms. Chu’s case are denunciation and deterrence. Rehabilitative and restorative objectives have less application given the characteristics of these defendants and the nature of this offence. 2.2 Proportionality: s. 718.1 [ 77 ]

Section 718.1 sets out the next step in the analysis. “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [ 78 ] Justice Lamer wrote in Proulx at paragraph 82 that: “Proportionality requires an examination of the specific circumstances of both the offender and the offence so that “the punishment fits the crime”. As a by-product of such an individualized approach, there will be inevitable variation in sentences imposed for particular crimes. In M.(C.A.), supra, I stated at para. 92: “It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime.’”

[ 79 ] Justice Stromberg-Stein echoed these comments in the recent case of R. v. Zhu , supra, at para. 22 where she said that there is a need, in every case, to take an individualized approach to sentencing, taking into account the totality of the circumstances both as it concerns the offence and the offender. [ 80 ] Circumstances relevant to the offence in this case are: large, commercial grow operation but, given the remote, “off the grid” location, no physical risk to others from fire or other hazard.

No weapons were present and there is no evidence of violence of any sort in connection with this grow operation. [ 81 ] Circumstances relevant to Mr. Mak and Ms. Chu’s personal circumstances are: no previous criminal history and by all accounts they are hard working, intelligent, competent people whose primary focus in life is providing for each other and for their children in the best way possible. Both have the potential to make a living in the legal economy but struggle with the language barrier.

However, they showed themselves quite capable of negotiating their way through reasonably complex commercial transactions such as the purchase of the Jackpine Road property back in the winter of 2007/2008. [ 82 ] Also relevant to their personal circumstances is my finding that Mr. Mak and Ms. Chu were “operating minds” of this grow operation (see paras. 7 to 9 above).

The Crown argues that this fact together with the very large size of this grow operation justifies a jail sentence in the “upper end of provincial time” – 18 months to 2 years less a day – rather than in the 1 year range referred to long ago by the Court of Appeal in R. v. Su , supra. While I do find that a jail sentence, rather than a conditional sentence, is called for in the case of both Mr. Mak and Ms. Chu, it is my conclusion that sentences of one 1 year in jail is the proportionate response.

The longer sentences recommended by the Crown would not be proportionate in my view. [ 83 ] There are several reasons for this. First, it would appear to me that Mr. Mak and Ms. Chu are actually a good deal less sophisticated than many of those involved in marijuana production. They come across to me as true, “owner-operators” in the best tradition of small business.

They do not appear to have had the organization in place that would allow them to distance themselves from the more risky aspects of the business – for example, they were personally involved in locating and purchasing the property rather than having an agent or a nominee do that. They were personally involved in making trips back and forth to the Lower Mainland or to Williams Lake to buy supplies thereby running the risk of encountering the police, as occurred on the one occasion in Clinton testified to by Cst. Doerr, and of having their vehicle’s movements electronically tracked as, of course, occurred.

They do not appear to have had the structure in place or the financial wherewithal to download the actual work of tending the plants onto “mere gardeners” or “caretakers” as so often has occurred in cases that come before the court. Mr. Mak, in particular, was actively involved in working in the grow operation (I found that Ms. Chu was a party to the actual production). They do not appear to have had the organization in place that would have allowed them to distance themselves physically from the location of the grow operation.

Both were present at Jackpine Road, and ran the risk of being arrested if the police arrived, as they did on August 20 th , 2008. Finally, when they got to court they were “on their own” – as true owner-operators they had only themselves to look to for the expense of getting a lawyer to defend them and, in the end, both proceeded through trial without a lawyer. Thus, while Mr. Mak and Ms. Chu were clearly “operating minds” of this grow operation, every indication is that the organizational structure behind this operation was actually far less sophisticated than in many cases that come before the court.

The sentence I impose should reflect that. There is criminality here, certainly, but, in my view, it is at a lower level than might initially appear. [ 84 ] The second reason why I find that the principle of proportionality dictates a jail sentence, but one that is considerably lower than that argued for by the Crown, is that all indications are that Mr. Mak and Ms. Chu have suffered substantial financial loss as a result of their involvement in this grow operation.

There was evidence that some packaged marijuana had already left the site for market, but the police investigation appears to have happened before it would have been possible for those who invested in this operation to recoup their investment. That investment must have been substantial including as it did the purchase of the property ($295,000), a new tractor, a sizeable generator and all the construction materials, soil, pots, irrigation equipment and the many small marijuana plants that were required to get this operation up and running.

As noted earlier, the Jackpine Road property has already been forfeited to the Crown in a separate proceeding and, in the current proceeding, I am being asked to order the forfeiture of all of the items listed on the police exhibit list. This grow operation had the potential to earn Mr. Mak and Ms. Chu, and any others that were involved with them in setting it up, a great deal of money. However, because the police investigation culminated fairly soon after the operation was set up, that profit potential was not realized, and the investors, including Mr. Mak and Ms.

Chu, appear to have suffered significant financial loss. [ 85 ] Third, as it concerns proportionality, I bear in mind that Mr. Mak and Ms. Chu are the parents of three children. Their two older children are dependant on their parents financially. Their youngest child is still quite young and dependant on them in every way. However, as against that, I bear in mind the fact that back in 2008, when their older children were teenagers and their youngest son was little more than a toddler, Mr. Mak and Ms.

Chu felt it both possible, and justifiable, to spend quite long periods of time away from their children and to leave them in the care of others in order to pursue their black market business interests. [ 86 ] In

summary, the principle of proportionality requires the court to stand back and look at all the circumstances – both of the offender and the offence – and craft a sentence such that the “punishment fits the crime”. In my view, a proportionate sentence in this case is a jail sentence rather than conditional sentence because of the deliberate nature of the crime and the resulting need for denunciation and deterrence. However, it must be a jail sentence for each defendant in the range of one year rather than the considerably longer sentences recommended by the Crown. 2.3 Other sentencing principles: s. 718.2 2.3.1 Mitigating and aggravating circumstances

[87] The mitigating circumstances in this case are: • Neither Mr. Mak nor Ms. Chu have any prior criminal convictions; • They have three children who are dependant in various ways on them. [88] The main aggravating circumstance is that: • This grow was large and commercial in nature; • Mr. Mak and Ms. Chu were “operating minds” rather than “mere gardener/caretakers” although as noted above I find that theywere “owner-operators” rather than “chief executive officers”. [89] Of course, in this case, neither Mr. Mak nor Ms. Chu acknowledged any wrong doing by entering an early guilty plea.

Thematter went to trial and they were convicted following that trial. This is not an aggravating factor. However, it does distinguish the casesomewhat from those sentencing decisions where the accused has entered a guilty plea. An early guilty is recognized in the law as amitigating factor which can justify a fairly significant reduction in the sentence that might otherwise be appropriate. That mitigatingfactor is not present in Mr. Mak and Ms. Chu’s case. 2.3.2 Similar offences, similar offenders, similar circumstances [90]

Section 718.2(

c) directs the court to impose a sentence that is “similar to sentences imposed on similar offenders for similaroffences in similar circumstances.” Counsel have cited the many decisions I referred to earlier to assist the court in determining whatkinds of sentences have been imposed in “similar” cases. [91] As noted in paragraph 60 above, point # 9, where the accused is the “principal operator” or “directing mind” of the growoperation and has no prior record, conditional sentences in the range of 1 year to 2 years less 1 day have been imposed.

However, moreoften, courts have concluded that a jail sentence was appropriate. Jail sentences have ranged in length from as low as 4 months to 2 yearsless 1 day with most sentences between 8 months and 1 year in jail. In a number of the cases where jail was imposed the sentence wasreviewed by the Court of Appeal and upheld.

See Su (2000), Innes (2001), Vu (2003), Tran (2005), Van Santvoord (2005), Wallis(2007), Koenders (2007), Luu (2007), Vo (2007), Ford (2010), Budd (2010), Kwiatkowski (2010), Au-Yeung (2010), Buller (2011), andBi (2011). [92] I have considered whether I should sentence one of these two defendants to jail and the other to a conditional sentence. Thejustification for such an approach would be that this would allow one of them to stay home and care for their three children, particularlytheir youngest child who is only [omitted for publishing].

As mentioned in paragraph 60, point # 12, above, there are certainly manymarijuana production cases involving husbands and wives where this approach has been taken. However, in this case, the evidenceindicated that Mr. Mak and Ms. Chu were very equal partners in this enterprise and, in my view, the parity principle requires that theyreceive equal sentences despite their child care responsibilities. 2.3.3 All available sanctions other than imprisonment [93]

Section 718.2(

d) provides that an offender should not be deprived of liberty if less restrictive sanctions are “appropriate” andsub-section (

e) provides that all available sanctions other than imprisonment that are “reasonable in the circumstances” should beconsidered for all offenders. [94] The sanctions available in this case are a conditional sentence or a jail sentence. [95] A conditional sentence can be very onerous to serve. As noted in Proulx, supra and R. v.

Howitt, 2010 BCSC 1475 at para. 47,a conditional sentence will often be longer than a jail sentence for the same offence, and to be under conditions such as house arrest orcurfew, abstention from the use of alcohol and periodic reporting for 18 months or more would be very onerous and would go a long waytowards achieving the objectives of denunciation and deterrence.

However, as noted in Proulx, at paras. 40 to 44, incarceration willalways be more restrictive of an offender’s liberty than a conditional sentence because it involves being locked up in a jail rather thanstaying at home and continuing with life amongst family, friends and associates. [96] In my view a conditional sentence would neither be “appropriate” nor “reasonable in the circumstances” given the particularneed for denunciation and deterrence in a case such as this where the offences committed were the result of a very deliberate decision tostep outside of the law in the hopes of earning a lot of money, tax free. [97] There is a common law principle that the court should avoid, where possible, incarcerating first time offenders for non-violentoffences.

See R. v. Whyte, 2002 BCCA 293 , [2002] B.C.J. No. 1040. Mr. Mak and Ms. Chu are first time offenders andgrowing marijuana is a non-violent offence. It can lead to violence as we see in the so-called “grow rip” cases such as R. v. Bernier,2003 BCCA 134 , [2003] B.C.J. No. 466 (BCCA) but there is no indication of that sort of activity in the case at bar. However,it does undermine respect for the law and has a corrupting influence on those who participate in it and on those who observe it beingcarried on in the community on a commercial scale, apparently without consequence.

Therefore, it is my view that a sentence ofincarceration is called for in this case, for both Mr. Mak and Ms. Chu, despite the fact that both are first time offenders.

Conclusion [ 98 ] In my view a conditional sentence would not be a “just sanction” when the purposes and principles of sentencing set out in ss. 718 , 718.1 and 718.2 are applied to the circumstances of this offence and these offenders. The need for denunciation and deterrence is high and the only suitable way to achieve those objectives is through a sentence of incarceration for both Mr. Mak and Ms. Chu rather than through a conditional sentence for one or other or both of them. [ 99 ] The range of sentence that is appropriate is approximately 1 year in jail (see paragraph 60, point # 9).

It would certainly be possible for the court to justify a longer jail sentence in the range that the Crown has urged given the large size of this grow operation and the fact that Mr. Mak and Ms. Chu were “principal operators” rather than “mere gardener/caretakers”. However, for the reasons indicated under the discussion of proportionality, above, I have concluded that the sentence – while it must be a jail sentence for both defendants – should not exceed 1 year. I have decided not to impose a sentence of Probation to follow.

The only terms of Probation I would have been inclined to impose would have been directed at trying to ensure that Mr. Mak and Ms. Chu do not involve themselves any further in the marijuana industry. For example, courts will often impose a term that the offender “not be in possession of equipment or paraphernalia suitable for growing marijuana”. I have decided against imposing an order with such terms because, given the language barrier and Mr. Mak and Ms. Chu’s self employed status in the construction and renovation sector, I think such a term would be extremely difficult to enforce. Mr. Mak and Ms.

Chu have not, apparently, come to police attention in over 5 years and I have decided to limit their sentences to jail only. [ 100 ] Mr. Mak would you stand please. I sentence you as follows: Count 1: Production of marijuana, contrary to s. 7(1) of the CDSA: 1 year in jail. There will be no Probation to follow. The Victim Fine Surcharge is payable but I give Mr. Mak 5 years to pay that particular tax. I prohibit Mr. Mak from the possession of firearms and other weapons listed in s. 109 of the Criminal Code as required by that section.

Pursuant to s. 16 of the Controlled Drugs and Substances Act and s. 491 of the Criminal Code I order forfeiture of all items listed on the major incident flow chart prepared by the police during this investigation and marked Exhibit 6 & 20 on the trial. Count 2: Possession of marijuana for the purpose of trafficking, contrary to s. 5(2) of the CDSA: 1 year in jail to be served concurrently, that is, at the same time as the jail sentence imposed on count 1. There will be no Probation to follow. The Victim Fine Surcharge is payable but I give Mr. Mak 5 years to pay it.

I have already dealt with the s. 109 firearms prohibition and with forfeiture of items seized during the investigation. [ 101 ] This concludes the sentencing of Mr. Mak. You may have a seat, sir. [ 102 ] Ms. Chu would you stand please. I sentence you as follows: Count 1: Production of marijuana, contrary to s. 7(1) of the CDSA: 1 year in jail. There will be no Probation to follow. The Victim Fine Surcharge is payable but I give Ms. Chu 5 years to pay that particular tax. I prohibit Ms. Chu from the possession of firearms and other weapons listed in s. 109 of the Criminal Code as required by that section.

Pursuant to s. 16 of the Controlled Drugs and Substances Act and s. 491 of the Criminal Code I order forfeiture of all items listed on the major incident flow chart prepared by the police during this investigation and marked Exhibits 6 & 20 on the trial. Count 2: Possession of marijuana for the purpose of trafficking, contrary to s. 5(2) of the CDSA: 1 year in jail to be served concurrently, that is, at the same time as the jail sentence imposed on count 1. There will be no Probation to follow. The Victim Fine Surcharge is payable but I give Ms. Chu 5 years to pay it.

I have already dealt with the s. 109 firearms prohibition and with forfeiture of items seized during the investigation. [ 103 ] That concludes the sentencing of Ms. Chu. [ 104 ] Mr. Mak and Ms. Chu you will now have to go with the Sheriff. I know that this is a very hard day for you and I think you have had many hard days since the police investigation in August, 2008. It may seem hard to believe this now but the time will soon come when you will recover from this, re-establish your lives, and your business, and put this all behind you.

I wish you good luck in the years ahead. ___________________________________ E. L. Bayliff

Provincial Court Judge