R. v. Wang Date:, 2012 BCPC 430

Citation: R. v. Wang Date: 20121121 2012 BCPC 0430 File No: 33765-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ON ZHING WANG REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. J. O'BYRNE Counsel for the Crown: M. P. Knowlan Counsel for the Defendant: P. M. Pakenham Place of Hearing: Prince George , B.C. Date of Sentence: November 21, 2012 [ 1 ] THE COURT: On Zhing Wang appears before the Court for sentencing in relation to Information 33765, Count 1. That is a Count of, on the 21st day of November 2010, unlawfully producing a controlled substance, to wit: Cannabis (marihuana).

He was convicted after trial on that matter, and the matter adjourned for sentencing. On Count 2, a conditional stay of proceedings was entered

as I was of the view that possession for the purpose of trafficking related to the same events and would be covered by the principle against multiple convictions, being the principle in Kienapple . [ 2 ] Shortly stated, Mr. Wang was found in a highly sophisticated, multistage grow operation with 1,282 plants when police executed a search warrant at a residential address within the city limits of Prince George, British Columbia, on November 10, 2010.

Upon execution of the search warrant, the police also discovered a hydro bypass. [ 3 ] The position of the Crown is that the appropriate sentence in this case is three years in jail. The Crown, in asking for that sentence, not only points to the number of plants and the circumstances in which the investigation unfolded that led to the charges against Mr. Wang, but they also point to the following: that Mr. Wang has a related recent criminal conviction, that being on the 23rd day of January 2008 in Winnipeg, Manitoba, for possession of a

Schedule II substance for the purpose of trafficking and theft of telecommunications. On the first Count he received a day in jail and 12 months' pre-sentence custody.

On the second Count he received one day concurrent and 30 days' pre-sentence custody concurrent. [ 4 ] I pause to note that in the normal scheme at that time, remand or dead time or pre-trial custody was credited at the rate of two- to-one, so in effect, that is actually a two-year sentence but converted to one day at the hearing. [ 5 ] I was given further details about that conviction, that it related to two grow operations, one which underpins the conviction, that being one of 1,278 plants. It also had a hydro bypass, and the plants there were valued at $1.4 million.

In addition, there was a second grow operation with 1,177 plants. [ 6 ] I note, and contrasted here, that there are 1,282 plants, or just five more than the original one.

I was not given a specific value for the marihuana here, but I can well take judicial notice of the fact it would have been between $500,000 and $750,000 value. [ 7 ] As the second aggravating fact, the Crown points to the size of the grow operation, that being 1,282 plants, and underscores the fact that this was a commercial, multistage grow operation. [ 8 ] Thirdly, the Crown points to the presence of a hydro diversion, that it is very dangerous for this to be present as anybody who touches it could suffer fatal results. [ 9 ] Fourth, the Crown points to the fact that this was not a rural property, that this took place in a residential area within the city of Prince George where there are a number of other residents close by.

That brings with it the potential for organized crime and violence and grow rip-offs. [ 10 ] Lastly, the Crown points to the fact that this was obviously a sophisticated plan that was laid in place far from Vancouver where Mr. Wang, I am told, resides and that he came here for the purpose of engaging in this activity. [ 11 ] The position of the defence is that a sentence of two years or two years less a day is more appropriate.

In particular, they point to his background, that he came from China on March 13, 1964, that he came here in 1990, that he is a refugee, that he has been in an on- again/off-again common-law relationship. He has a five-year-old son. He has worked as basically a labourer in renovations of houses and industrial locations. He has also worked as a cook and a restaurant assistant. [ 12 ] He points out that his client has been self-sufficient and never on welfare since coming to Canada. [ 13 ] A pre-sentence report has been prepared, and I will direct that a copy will be placed in the file.

That pre-sentence report lays out some of the background and history of Mr. Wang, and of interest, it raises the fact that he may be subject to some repercussions in his home country of China as a result of his involvement in the Tiananmen Square incident on June 24, 1989. [ 14 ] It is of interest to note that as a result of his involvement with the criminal justice system in Winnipeg and his conviction there for possession for the purpose of trafficking, the pre-sentence report indicates he is currently under an active removal order to be deported back to China.

The pre-sentence report also directs me to consider that Mr. Wang takes little or no responsibility for his involvement in the offence. In the view of the probation author, Ms. Jones, the prognosis is highly guarded for Mr. Wang. [ 15 ] Of particular interest and of some submission to me by the defence is the fact that Mr. Wang's immigration status is such that he would be highly at risk and may lose any right of appeal should I impose a sentence of greater than two years, that he now has a high risk of deportation due to this conviction. [ 16 ] Mr. Pakenham on behalf of Mr.

Wang directs me to the cases that were provided to me by the Crown, and particularly R. v. Daskalov , 2011 BCCA 169 , wherein the court there, at paragraphs 24 and 25, cautioned trial judges that the court ought not to impose a sentence which is disproportionate to the result in the circumstances that would have an adverse effect upon immigration status.

The court indicated at paragraph 24: [A] sentencing judge may consider immigration consequences to the limited extent of ensuring that a sentence does not create serious and unintended immigration consequences that would result in a disproportionate sentence for the circumstances of the offence . . . [ 17 ] At paragraph 25 of Daskalov , the court goes through a number of sentences, most of which were in the two years or two years less a day range where the difference of a day or two could mean a substantial difference in the immigration status of the accused. [ 18 ] I should, as well, for fullness of the record, indicate the Crown also provided me with a case called Kanthasamy , 2005 BCCA 135 (B.C.C.A.) , again, another decision on the immigration issue. [ 19 ] In addition to those cases, the Crown has provided me with a book containing therein seven authorities.

These authorities deal

with the general and then go to the specific inasmuch as the last three - R. v. Chiu, R. v. Lam & Vo, and R. v. Lam - all are local cases. By local, I mean those cases that are decided by judges of the Cariboo/Northeast of which Prince George is one of the locations. [20] The first case referred to me is the case of R. v. Chiu which is a decision of my brother Judge Morgan sitting in Williams Lake. It is cited as 2010 BCPC 42 , 2010 BCPC 0042. In that case, His Honour Judge Morgan, in paragraph 85, laid out theconsiderations in sentencing for grow operations.

He laid them out as follows: [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; [6] A commercial marihuana grow operation consisting of over 500 plants will be considered a large operation; [7] Generally, the goals of denunciation and general deterrence for principal operators of large commercial grow operations will bebest achieved through a jail sentence; [8] Where a conditional sentence has been deemed appropriate, there are usually significant mitigating circumstances; [9] 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'. [21] In that case, His Honour Judge Morgan went on to sentence Mr.

Chiu for 12 months of jail. He did not impose a conditionalsentence. [22] Following on that is my own decision in R. v. Lam. That is unreported, November 8, 2011, No. 24855 out of the QuesnelRegistry. In that case, there was a very sophisticated, multistage grow operation that was discovered outside of Hixon. The value of themarihuana, 1,264 plants in multistage, was between $474,000 to $1 million per crop.

In that case, prior to reviewing what I have justreviewed from Judge Morgan's Chiu decision, I said the following at paragraph 10: [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. [23] After adopting what Judge Morgan said in Chiu, I went on at paragraph 12: [12] That applies perfectly to this, and in fact, in Chiu, the grow-op was only about 100 plants less. [13] Mr. Campbell [that is, counsel for Mr. Lam] makes a valiant effort to convince me that there are special and mitigatingcircumstances. He points to the lack of a criminal record. He points to the early guilty plea. He points to the fact there were nofirearms, and there is not a risk of fire. He says that Mr.

Vo is terrified as to what the outcome of this will be. Well, he was not soterrified that he did not embark on it. He embarked on this for pure financial gain. You play the game; you pay the price. [24] A further decision here in Prince George is the matter of R. v. Kam Hub Lam. That is again unreported March 7, 2012, No.32253-2-C of the Prince George Registry. In that case, it was an extremely sophisticated grow operation, 2,629 marihuana plants invarious stages. The Crown circumstances indicated that that operation could grow three crops annually.

There were 492 pounds ofmarihuana recovered with a wholesale value of $984,000 with a projected retail of $4.5 million. Projecting that calculation over threecrops per year shows the magnitude of this grow operation. [25] An aggravating factor in that case was that at the time of his arrest, the accused was on a conditional sentence order for a grow-op. [26] In sentencing, I went on at paragraph 19: [19] The cases, including my own, point out that in the Cariboo Northeast, there has been a tremendous substantial increase in thenumber of grow operations.

People are coming out of the Lower Mainland north and they are setting up grow operations. As the formeradministrative judge, I was aware of 17 of these grow operations and the tremendous amount of court resources that had to be put asideto deal with them.

[20] In my mind, the most important principle in sentencing here is general deterrence. Unless we stop people from coming up to the Cariboo Chilcotin and the area of Vanderhoof north and setting up grow operations, they are going to keep coming. In my view, jail is the only way to do that. [21] In this case, it is urged on me that this accused was not a principal, was not a gardener, that he was just a repairman. I do not think it makes any difference whatsoever because he was there. He was involved. He is a party and he is just as guilty. [ 27 ] In that case, Mr.

Lam was sentenced to three years in jail, and I understand that that is under appeal. [ 28 ] Turning now to the circumstances of Mr. Wang. [ 29 ] What I must take into account here is that he has a criminal record. Although it is not long, it does show that he was not previously deterred by the fact that he had been convicted of a grow operation of a very similar nature.

He received the equivalent of a 24-month sentence at that time, and that did not deter him. [ 30 ] His immigration status was already put at risk by that conviction, and even the fact that he was under an active deportation order did not deter him from going out and committing these offences less than three years after. [ 31 ] I do not take the immigration status of Mr. Wang to be sufficient to supplant what I see to be the necessary sentencing principle of deterrence. I must specifically deter Mr.

Wang from ever doing it again and, as well, generally deter those who may be likeminded. [ 32 ] The protection of the public is also of paramount consideration because here we had a hydro bypass and a grow operation in a residential area. [ 33 ] Accordingly, I will first of all direct that under s. 109 -- Madam Registrar, here I will be using 165 -- you are prohibited from possessing any firearm, crossbow, restricted weapon, prohibited weapon, prohibited device, ammunition, or explosive substance for life. [ 34 ] As well, I will direct, as it is a secondary designated DNA offence, 162, that I am making an order authorizing the taking of a number of samples of bodily substance by any peace officer in the Province of British Columbia as are required for inclusion in the DNA databank pursuant to

Part XV of the Criminal Code . [ 35 ] There will be an order for forfeiture in the form as drafted by the Crown, which I have signed. Madam Registrar, I will put it out right now so it can be reviewed by the clerk for -- [ 36 ] THE CLERK: Thank you. [ 37 ] THE COURT: I will, as well, direct that the pre-sentence report and the criminal record of the accused will just be filed, Madam Registrar. We won't make them an exhibit. We will just put them in the file. [ 38 ] Stand up, Mr. Wang. [ 39 ] Reviewing all of the principles in this matter, I find that the sentence you previously got did not deter you.

Obviously, there has to be a step up. Although I do not find you to be in the same category as Mr. Lam, that is, somebody who has to be removed from society for a substantial period of time, I do find that the appropriate sentence is two and a half years' new time starting now. [ 40 ] I waive the victim fine surcharge. (REASONS CONCLUDED)