R. v. Topley Date:, 2012 BCPC 431

Citation: R. v. Topley Date: 20121120 2012 BCPC 0431 File No: 34215-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHAWN BRENT TOPLEY REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. J. O'BYRNE Counsel for the Crown: D. Hartney Appearing on their own behalf: Shawn Brent Topley Place of Hearing: Prince George , B.C. Date of Sentence: November 20, 2012 [ 1 ] THE COURT: Mr.

Topley appears before the court for sentencing on Information 34215 to which he entered a plea of guilty on September 24, 2012, to Count 1, which alleges that he did, on the 31st day of May 2011, at or near the City of Prince George, in the Province of British Columbia, unlawfully produce a controlled substance, to wit: Cannabis (marihuana), contrary to s. 7(1) of the

Controlled Drugs and Substances Act. [2] The Crown particulars as related to me show that on the date in question, the 31st day of May 2011, a search warrant wasexecuted at 4608 Crocus Crescent here in Prince George, British Columbia.

The search warrant was obtained as a result of two civiliancomplaints and confirmed as well by a peace officer who resided in the area that there was the smell of vegetative marihuana. [3] Officers executing the search warrant found three grow rooms in the basement where there were 113 plants which, whencalculated out, gave an approximate value of anywhere between $42,000 and $100,000. As well, in the drying room they found ninepounds of drying bud which had a value of approximately $18,000 to $25,000. They also seized $2,215 cash at the time. [4] I am told that Mr.

Topley, at the time of the warrant, was cooperative, that he gave a full confession and a warned statement. He has no criminal record. [5] The Crown typifies this as an unsophisticated grow operation, and they take the position that the appropriate penalty would bea 15-month conditional sentence. Crown would have me sentence the accused in the first six months to strict house arrest and thenloosen conditions for the next six months and with the last three months being without curfew. [6] As well, they suggest I should impose a sentence of 40 hours community work service, restrict Mr.

Topley from consumingany alcohol for the first six months, and direct that he have no weapons. [7] As well, the Crown seeks a secondary DNA order, that is, that he provide such samples of his DNA as required for inclusion inthe DNA databank pursuant to

Part XV of the Criminal Code and, as well, the mandatory firearms prohibition for 10 years under s. 109. [8] Crown seeks forfeiture of all of the items seized relating to the grow operation except for the government ID and the B.C.passport. To that end, an order has been prepared and shown to Mr. Topley. [9] Mr. Topley is now unrepresented, today being the 20th day of November 2012, his previous counsel having withdrawn.

Inview of that, and in view of the fact that he had entered the plea with counsel but counsel withdrew, I this morning went through theprovisions of s. 606(1.1) with him to ensure that he fully understood his guilty plea, that he understood the penalties he was facing, andthat he understood that I was not party to any plea bargain deal or arrangement. He was offered the opportunity of seeing duty counseland declined, indicating he wished to proceed with this and get it over. [10] He tells me he is aged 31. He has a grade 12 education. He has been employed by CN as a conductor for the past one and ahalf years.

He is single. He does not support anybody other than himself. Prior to working with CN, he had employment on the drillingrigs. [11] He told me that the reason he committed this offence was that he was in a bad spot in his life at the time, after having gonethrough a breakup with his fiancé. [12] In his submission to me, Mr. Topley pointed to the fact he had no criminal history and that he was wanting to stay out of jail sohe could continue his employment. [13] As I said, Mr.

Topley has given me his background antecedents, and he stresses that I should consider the fact that this was aone-off. [14] The principles of sentencing that I have to consider are, firstly, deterrence, that is, deterrence to you specifically, Mr. Topley,and general deterrence, that is, so members of the public who may think it should be legal to have marihuana, are not quite in themajority as of yet, and accordingly, it is my duty to deter those people from doing exactly what you were doing. This was not a littlegrow operation in the back room so you could roll a few joints. This was a commercial operation.

That type of profitability that theCrown indicates, anywhere from $60,000 to $125,000, is not something going on for recreation. This is a commercial operation, and Iview it as such. [15] Second after deterrence is the matter of protection of the public.

People who live in communities in this city, Prince George,have a right to be protected from people like you growing pot, and the reason for it is because of the threat of violence and the threat ofhome invasions and other people having their property values devalued because of people like you doing commercial grow-ops inresidential areas. [16] Lastly, after I have deterred you and protected the public, it is only then that I look to your rehabilitation, and whether or not youhave views on marihuana which are not currently those of the Parliament of Canada is not relevant to me in your rehabilitation. [17] Crown did not provide me with any cases on this matter, but I am fortunate because I am tomorrow dealing with a matter whichinvolves a grow-op, and to that end, Ms.

Knowlan of the Public Prosecution Service of Canada had provided me with a brief ofauthorities which has two of my own cases. [18] The first case to be referred to is the matter of R. v. Ka Fuk Chiu, a decision of my brother Judge Morgan out of the WilliamsLake Registry cited as 2010 BCPC 42 , 2010 BCPC 0042. That is April 13, 2010.

In that case, my brother judge was inWilliams Lake and considering the sentencing on a grow operation, and he looked into the principles relating to conditional sentences asfollows: [85] Although I take into consideration all of the principles referenced in the above cases, I am guided primarily by the includedfollowing principles:

[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 can not 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 a sentence, 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 be best 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 marihuana grow operation at that particular time and in that particular location, even after a consideration that the offender is a first offender and not a principal operator but a caretaker or 'gardener'. [ 19 ] Judge Morgan went on at paragraph 97 in that decision as follows: [97] Another local factor related to the increasing number of marihuana grow operations that are being discovered in this region is the increasing demand on sparse local police and judicial resources.

In 100 Mile House, there are currently 11 marihuana production files before the Provincial Court requiring 31 days of trial/preliminary inquiry time. In Williams Lake there are currently 9 marihuana production files before the Provincial Court requiring 29 days of trial/preliminary inquiry time. Based on recent media reporting, we can expect there are several more in the pre-court pipeline.

This represents a high demand on limited local police and judicial resources. ... [99] The nature of a marihuana grow investigation, including the execution of the warrant, requires the involvement of multiple police officers . . . [ 20 ] He goes on to consider the two mitigating factors, that being Mr. Chiu's lack of criminal record and very early guilty plea, and sentenced him to 12 months' jail. [ 21 ] The next case I will refer to is my own decision in R. v. Dao Quoc Lam & Phuc Van Vo . That is a matter of the Quesnel Registry, No. 24855, November 8, 2011.

In that case, I was referred again to the decision of my brother Judge Morgan in paragraph 8 and the tremendous upswing in grow operations. I said at that time people are coming out of the Lower Mainland north and they are causing a great strain. I went on: As the former administrative judge who had to

schedule these, I was aware of 17 [grow operations] and the tremendous amount of court resources that had to be put aside . . . [ 22 ] Paragraph 10: In my mind, the most important principle to sentencing is specific deterrence. Unless we stop people from coming 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 no consideration in my mind whatsoever of a conditional sentence. [ 23 ] At paragraph 13, I went on: [Defence counsel] makes a valiant effort to convince me that there are special and mitigating circumstances.

He points to the lack of a 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 says that 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 on this for pure financial gain. You play the game; you pay the price. [ 24 ] In that, there was a sentence of 14 months' jail and not as a CSO. [ 25 ] The last case I will refer to is my decision here in Prince George and the accused Kam Hub Lam, which was given on March 7, 2012, Prince George File No. 32253-2-C.

In that matter, Mr. Lam came before the court and entered a plea of guilty in relation to a very sophisticated high-level grow operation which involved 2,629 plants, 492 pounds of marihuana that was recovered, a value of approximately $984,000. The accused, Mr. Lam, was on a conditional sentence for a previous grow-op when he was arrested and pled guilty to these offences, and that is a substantial aggravating factor. Nonetheless, his counsel, Mr. Donaldson from Vancouver, tried

valiantly to convince me to impose a conditional sentence. I said at that time, at paragraph 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. [ 26 ] In addition to those cases and the principles set out therein, I find that general deterrence is paramount. Specific deterrence of this accused is a secondary consideration. Protection of the public is very important.

In fact, effective today, as was pointed out by the Crown, conditional sentence sentences are not available for persons convicted of production of marihuana. It is obvious that Parliament has directed judges to specifically not consider imposing conditional sentences for offences such as this. [ 27 ] Accordingly, I will make an order that the items that are on the list for the matter for forfeiture that has been prepared by the Crown -- and you can hand that up, Mr. -- [ 28 ] MR. HARTNEY: Your Honour, this has been signed now. [ 29 ] THE COURT: All right.

Those matters, Madam Registrar, the order can be reviewed and then brought to my chambers for signature. They will be forfeited. [ 30 ] Next, I am going to direct that you will be prohibited from possessing any firearm under s. 109. It is Number 164.

You are prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, or any crossbow, restricted weapon, ammunition, or explosive substance for 10 years and any prohibited firearm, restricted firearm, prohibited weapon, and prohibited device and ammunition for life. [ 31 ] I will direct that you will provide such samples of your DNA as required for inclusion in the DNA databank pursuant to

Part XV of the Criminal Code . That is Number 162, Madam Registrar. [ 32 ] Stand up, sir. [ 33 ] The appropriate penalty in this case, I have decided, is a jail term. I cannot avoid that. I would be appealable if I did not. It will be six months' new time served, starting today. Go with the sheriff, please. (REASONS CONCLUDED)