R. v. Frazer Date:, 2015 BCPC 145

Citation: R. v. Frazer Date: 20150120 2015 BCPC 0145 File No: 34234-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERT RAYMOND FRAZER REASONS FOR SENTENCE OF THE HONOURABLE JUDGE E. L. BAYLIFF Counsel for the Crown: C. Tait Counsel for the Defendant: J. LeBlond

Place of Hearing: Prince George , B.C. Date of Hearing: January 6 & 7, 2015 Date of Judgment: January 20, 2015 [ 1 ] Robert Raymond Frazer has entered guilty pleas to a charge of Production of Marihuana and Possession of Marihuana for the Purpose of Trafficking, contrary to ss. 7(1) and 5(2) of the Controlled Drugs and Substances Act , respectively. [ 2 ] The offence was back in June, 2011, and thus pre-dates the mandatory minimum sentences for such matters. A Conditional Sentence Order is available to Mr. Frazer and he argues that this is the sentence the court should impose.

Crown Counsel argues that a real jail sentence is called for. [ 3 ] I have decided that the fit sentence in this case is 8 months in jail. There will be no probation to follow. In my view a Conditional Sentence Order is not appropriate. I will explain why. Facts [ 4 ] Sometime during the first half of 2011, a B.C. Hydro investigator reported to the police a suspected theft of electricity at a property on Christina Road, just outside the city limits of Prince George, B.C. Mr. Frazer was renting the property at the time and was the title holder of the electrical account at this address.

The property is an acre or more in size, with a house and a large shop. The police noted a vehicle parked at the residence registered to Mr. Frazer. [ 5 ] On June 28 th , 2011 the police stopped Mr. Frazer as he drove away from the property. He was arrested, Chartered and warned. He was advised he would be detained until a Search Warrant for the property was obtained. [ 6 ] Mr. Frazer was cooperative and provided a key to the locked gate and to the locked shop.

The police obtained a Search Warrant and entered the shop where they located a total of 1,039 marihuana plants in various stages of growth along with about 4 kg of dried and processed marihuana. [ 7 ] A police expert opined that the grow was commercial in nature, capable of producing 3 or 4 crops per year. It was estimated that the plants found in the shop were capable of producing about 194 lbs of dried marihuana for a total worth of $388,000 to $502,000 at the pound, or wholesale, level. [ 8 ] This opinion must be viewed in light of Mr. Frazer’s comments in his statement made at the time.

He explained that he had only been in the business of growing marihuana for about 6 or 7 months, and was still figuring out how to do it. He had lost his first crop to an insect infestation of some kind and, to that point, had only sold small amounts of marihuana and had a long way to go to recoup his investment. [ 9 ] There was a hydro by-pass located in the living room wall of the house. Counsel agree that this may be considered as part of the facts of the case but I remind myself that I am not sentencing Mr. Frazer for the offence of theft of electricity. [ 10 ] Mr.

Frazer explained to the officer at the time that he got into the business of growing marihuana so that he could earn some extra money to pay off a debt to the Canada Revenue Agency which had burdened him for many years. [ 11 ] Mr. Frazer will be 50 years of age in a few days. At the time of these offences he was 46 years old. He has one previous criminal conviction - Refusal to Provide a Breath Sample - dating from his late teenage years. I consider it of no significance to my sentencing decision.

[12] The Pre-Sentence Report plus the submissions of his lawyer make it clear that Mr. Frazer has always been employed - mostly insales of industrial products and services. He is currently the branch manager in Prince George for one such enterprise. [13] Mr. Frazer reports coming from a healthy, strong and supportive family background. [14] Mr. Frazer is not addicted to either alcohol or drugs. [15] Mr. Frazer is currently in a stable relationship with a woman he has known for many years although they did not become acouple until about 3 years ago.

His fiancé speaks very highly of him. [16] Others in the community also speak highly of Mr. Frazer. This is evident in the letters of support filed as Exhibit 4 onsentencing. [17] On a personal level, he has shown love, support and devotion to Richard Tosoff, a long-time friend, who suffered a severe braininjury in a car accident in early 2013. He visits Mr. Tosoff several times a week and takes his dogs into Shaffer House on a regular basisas therapy for Mr. Tosoff and probably as therapy for other patients at that facility as well. [18] On a more public level, Mr.

Frazer has been involved in various volunteer organizations and initiatives. He spends about 20hours a month in the summer volunteering at the motor sports park in Prince George to raise money for the Helicopter EmergencyRescue Operations Society. He has also served on the executive of a local car club and is spoken of highly by another member of theexecutive for his problem solving skills, calmness and sincerity. [19] The Probation Officer found it difficult to determine Mr. Frazer’s attitude and understanding regarding these offences (see p. 4of the Pre-Sentence Report, Exhibit 5.).

She commented on the ease and great sincerity with which he provided information that wasquite at odds with information he had provided to the police at an earlier date. I noted this characteristic about Mr. Frazer’s demeanourduring the hearing a few weeks ago. His demeanour during the police statement in 2011 was as easy, open and apparently sincere as hisdemeanour in court as he testified to quite a different set of facts. However, Mr.

Frazer has stated to the court his deep regret abouthaving chosen to get involved in these offences during what he termed “a dark time in my life”, and I accept what he says in this regard. The Law [20]

Section 742.1 of the Criminal Code, as it was worded at the time of this offence in 2011, must govern the sentence I impose inthis case, along with the extensive common law or judge made law which has grown up in the area of sentencing for the Production ofMarihuana. [21] There were 5 pre-conditions for the imposition of a Conditional Sentence back in 2011. In Mr. Frazer’s case the first 3 pre-conditions (not a serious personal injury offence, no minimum sentence, a sentence of less than 2 years in length) are all satisfied. Thefourth pre-condition is, I find, also satisfied. It deals with the risk that Mr.

Frazer will commit further offences. I find that there is littleor no risk of that in Mr. Frazer’s case. [22] The fifth pre-condition requires that a conditional sentence be consistent with the fundamental purpose and principles ofsentencing and requires a more detailed analysis. [23] I have reviewed R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61 (SCC) which remains the leading case on theinterpretation and application of s. 742.1. There are many, many important points made in that case and the following very briefsummary leaves out many of them.

In extremely brief terms, the Supreme Court in Proulx emphasized that it is an error in principle notto give serious consideration to a Conditional Sentence in all cases where the pre-conditions are met. A Conditional Sentence can besignificantly punitive and serve as a significant deterrent. However, a real jail sentence will always be a more restrictive option becauseit does involve the total deprivation of liberty. The court recognized that there may be circumstances where the need for deterrence anddenunciation was such as to warrant incarceration.

Finally, sentencing under s. 742.1 is an individualized process.

[ 24 ] In addition, I have reviewed the cases cited by counsel. [ 25 ] Counsel for Mr. Frazer cites R. v. McLennan & Munro, 2001 BCCA 299 , R. v. Whyte, 2002 BCCA 293 , R. v. Shah, 2003 BCCA 294 , R. v. Kreutziger, 2005 BCCA 231 , R. v. Gan, 2007 BCCA 59 , R. v. Tanasichuk, 2007 BCSC 1028 , R. v. Howitt, 2010 BCSC 1475 , R. v. Lam, 2012 BCPC 488 , R. v. Nguyen, 2013 BCSC 2320 , R. v. Leech, 2013 BCSC 1157 , R. v. Ta, 2014 BCSC 116 . [ 26 ] Counsel for the Crown cites R. v. Koenders, 2007 BCCA 378 , R. v. Nguyen, 2013 BCSC 1146 / 2014 BCCA 93 , R. v. Budd, 2010 BCCA 214 , R. v. Laird, 2013 BCSC 59 , R. v.

Chen, 2011 BCPC 297 . [ 27 ] I will review each briefly, in chronological order. [ 28 ] R. v. McLennan & Munro, 2001 BCCA 299 : 2,472 plants. Jail sentence of 2 years less 1 day was imposed at trial. This was overturned on appeal and a conditional sentence was substituted on the basis that the trial judge had put too much emphasis on the deterrent effect of jail. [ 29 ] R. v. Whyte , 2002 BCCA 293 : Several hundred plants. A jail sentence of 1 year was imposed at trial.

This was overturned on appeal and a conditional sentence was substituted on the basis that the trial judge had failed to give sufficient weight to the principle that, where possible, courts should refrain from jailing first time offenders (Whyte had no record). The court emphasized that a Conditional Sentence amounts to a severe restriction on liberty and therefore should be of significant deterrent effect. [ 30 ] R. v. Shah , 2003 BCCA 294 : 1,500 plants.

A jail sentence of 3 months was imposed at trial but was overturned on appeal and a conditional sentence was substituted on the basis that the trial judge had erred in emphasizing the large size of the crop and holding that, for that reason, a conditional sentence was not available. [ 31 ] R. v. Kreutziger , 2005 BCCA 231 : This case involved cocaine trafficking rather than production of marihuana. A jail sentence was imposed by the trial judge but this was overturned on appeal and a conditional sentence was substituted. It is cited by counsel for Mr.

Frazer for the principle that it is an error to reject a conditional sentence as a sentencing option either because of a “not guilty” plea by the accused, or because of delay brought about by the accused’s actions. [ 32 ] I wish to make clear that I do not regard delay as a factor in any way in Mr. Frazer’s case, no matter who, or what, was the cause of the delay. [ 33 ] Counsel also draws an analogy between Mr. Frazer and the accused in the Kreutziger case. Kruetziger, like Mr.

Frazer, had no prior record, had been productively employed and had accrued no further criminal convictions in the years since the offence. In those circumstances the Court of Appeal held that it would be “counterproductive” to send the Kreutziger to jail and a conditional sentence was substituted on appeal. The court is urged to employ similar reasoning in Mr. Frazer’s case. [ 34 ] R. v. Gan , 2007 BCCA 59 : 662 plants. The accused was a caretaker not a principle operator. He was 69 years old. He had taken the job to make some easy money. A 90 day sentence was imposed at trial.

This was overturned on appeal and a conditional sentence was substituted on the basis that a conditional sentence would have an equally deterrent effect, in these circumstances, as a sentence of incarceration. [ 35 ] R. v. Tanasichuk , 2007 BCSC 1028 : 7,200 plants. Guilty plea part way through a trial. Accused was the caretaker. Accused was young and had dependants. He had no previous record. Brooke J. concluded that a conditional sentence would adequately address the purposes and principles of sentencing. Decision given 2 days before the Court of Appeal decision in R. v. Koenders . [ 36 ] R. v.

Koenders , 2007 BCCA 378 : 2,100 plants. Accused had a prior record for marihuana possession. At trial a sentence of 2 years in jail was imposed. On appeal the accused sought to have this sentence reduced to 1 year in jail but his appeal was dismissed and the sentence imposed at trial was upheld. Justice Ryan acknowledged the difficulty in reconciling the court’s decisions with respect to

the appropriate sentence for the production of marihuana and laid out certain key principles for consideration. She held that “it stands to reason that sentences for commercial production will be more severe than for non-commercial production” (para. 19).

She commented that “a review of the jurisprudence of this Court shows that deterrence and denunciation may reasonably involve incarceration when crafting sentences for offences related to the commercial production of marihuana.” (para. 30) At para. 42 she commented: “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 goals of denunciation and deterrence.” [ 37 ] R. v. Budd , 2010 BCCA 214 : 316 plants. One year in jail imposed at trial. Upheld on appeal.

Although accused’s personal circumstances were positive jail was justified because of the need for denunciation and deterrence. The accused had got involved in the marihuana industry after he suffered setbacks in his regular career. The court commented that this was not a mitigating factor as many people suffer economic setbacks but do not resort to illegal activity. [ 38 ] R. v. Howitt , 2010 BCSC 1475 : 700 plants. The accused was an employee rather than a principle operator.

Following trial a conditional sentence of 18 months was imposed with conditions for 50 hours of community work and a curfew between 8 pm and 6 am to be monitored electronically. At para. 47 Justice Harris concluded that, given the accused’s young age and steady record of employment, a conditional sentence with strict conditions could satisfy the sentencing principles and objectives. [ 39 ] R. v. Chen , 2011 BCPC 297 : 1,139 plants. The accused was a gardener rather than a principal operator. The accused was convicted following a trial and sentenced to 1 year in jail plus probation for 1 year.

Although the accused had no criminal record the principles of denunciation and deterrence were held to require a jail sentence rather than a conditional sentence. [ 40 ] R. v. Lam, 2012 BCPC 488 : 2,629 plants. The accuseds were gardeners at the grow operation and there was no evidence they would profit to any great extent from the activity. Neither had a criminal record. A fine of $2,000 each, plus a conditional sentence order of 2 years less 1 day was imposed, with conditions of house arrest for the first ½ of the sentence and a curfew for the second half. [ 41 ] R. v.

Nguyen, 2013 BCSC 1146 , aff’d 2014 BCCA 93 : 961 plants. Accused was a caretaker or “baby sitter” whose role was to give the property the appearance of being occupied. The accused had a recent prior conviction for production of marihuana. Sentence of 18 months imprisonment upheld on appeal. [ 42 ] R. v. Nguyen, 2013 BCSC 2320 : 1,336 plants. Operation had been ongoing for several years. Accused admitted living there for 2.5 years as a gardener. His name was on title to the property but it was acknowledged that he was not the principle operator.

He began working in the marihuana business because of gambling debts. He had no criminal record. He had engaged in retraining after his arrest and was now employed in the legal economy. He entered a guilty plea. A conditional sentence of 2 years less 1 day was imposed with conditions to perform 200 hours of community work, to be under house arrest for the first 15 months and a curfew during the final 9 months, both of which were to be electronically monitored. [ 43 ] R. v. Leech , 2013 BCSC 1157 : 666 plants.

The accused was occupying the residence and had knowledge of the grow occurring in the basement and, as such, was a party to the offence. However, he was not directly involved in caring for the plants. He had no criminal record. Justice Joyce noted that the accused had suffered significant financial consequences already, including losing his house to foreclosure. A conditional sentence of 15 months was imposed with house arrest and curfew. [ 44 ] R. v. Laird , 2013 BCSC 59 : 502 plants. Guilty plea. Accused was a principal operator along with other members of his family.

The original purpose was to grow marihuana medicinally for certain members of the family. The secondary purpose was to make some extra money. The accused had no prior record. Citing R. v. Koenders , the trial judge imposed a sentence of 9 months in jail plus 6 months of probation. A conditional sentence was rejected. [ 45 ] R. v. Ta , 2014 BCSC 116 : 860 plants. Convicted following a trial. The accused was the registered owner of the residence but, apart from that, there was no evidence about his exact role in the grow operation. He had no prior record.

A conditional sentence of 18 months was imposed with conditions for house arrest and curfew. [ 46 ] This concludes my review of the cases cited by counsel.

[47] I have also refreshed my memory concerning other Court of Appeal decisions between 2000 and the present dealing withsentencing in cases of marihuana production. In addition to those already cited by counsel, I have found R. v. Aslam, 2007 BCCA 122, R.v. Wallis, 2007 BCCA 377, R. v. Anderson, 2007 BCCA 581, R. v. Kwiatkowski, 2010 BCCA 238, R. v. Lee, 2011 BCCA 73 and R. v.Buller, 2011 BCCA 163 to be of assistance. Analyis [48] Sections 718, 718.1 and 718.2 of the Criminal Code set out the fundamental purpose and principles of sentencing. [49] I will begin with the fundamental purpose of sentencing.

Section 718 requires that the sentence I impose on Mr. Frazer must“contribute…to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one ormore of the following objectives…”. [50] The first objective I will address is denunciation. [51] In my view, the offence of production of marihuana, while non-violent in and of itself, is one in which the sentencing objectiveof denunciation must receive considerable weight. This is because it represents a very deliberate choice to step outside the law with thehope of financial gain.

In my view this undermines the legal economy, and undermines respect for the laws about which that legaleconomy is structured, such as tax laws and social benefit programs. [52] The next objective I will consider is deterrence. [53] In my view, general deterrence is an important sentencing objective in offences of this sort in part because such offences requirea high degree of planning and deliberation. It is also an area of the law in which sentencing is likely to actually have a deterrent effect. [54] Justice Ryan commented on the planning and deliberation involved in offences of this sort in R. v.

Koenders at paragraphs 20and 21: “[Quoting from R. v. Pearson, (SCC), 1992 3 SCR 665 at 695: The unique characteristics of the [Narcotic] offences…suggest that those offences are committed in a very different context than mostother crimes. Most offences are not committed systematically. By contrast, trafficking in narcotics occurs systematically, usually withina highly sophisticated commercial setting. It is often a business and a way of life.

It is highly lucrative, creating huge incentives for anoffender to continue criminal behavior even after arrest and release on bail.” In my view, the same reasoning underlies the increased need for denunciation and deterrence in offences related to the commercialproduction of marihuana. The person who becomes involved in the commercial production of marihuana, solely for profit, makes adeliberate decision to operate outside the laws of this country.

Unlike most other offences, the production of marihuana is notsituational: no one can operate a grow operation without a huge amount of planning, deliberation and organization.” [55] In Mr. Frazer’s case there is no evidence that he had yet realized any profit from growing marihuana. As he explained to theofficer he had only been doing it for 6 or 7 months and was still “learning the ropes”; learning what strains grew best and how to copewith pests.

As a result, he had yet to recoup the money he had invested in setting up the operation. [56] Because planning and deliberation is required to get into the business of growing marihuana, it is reasonable to expect that, aspart of their deliberations, those inclined to get involved in this industry might consider the sentence they would be likely to receive ifcaught.

[ 57 ] For these reasons I conclude that the sentencing objective of deterrence is worthy of considerable weight in a case of this kind. [ 58 ] There are four other sentencing objectives - to separate the offender from society, to assist in rehabilitating offenders, to provide reparations and to promote a sense of responsibility in offenders. [ 59 ] In my view, none of these have any particular relevance in the case at bar. Mr. Frazer is a capable, intelligent, hard-working man who has already demonstrated a strong sense of responsibility towards, for example, his friend, Mr.

Tosoff, and towards various volunteer programs that benefit the community. [ 60 ] He is not in need of rehabilitation. Reparations have not, apparently, been claimed by the owner of the property. [ 61 ] In

summary, with respect to the fundamental purpose of sentencing and the objectives of sentencing - as noted earlier, the 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 with most application in this case are denunciation and deterrence. [ 62 ] The importance of denunciation and deterrence in cases of this sort was commented on by Smith, J.A. in R. v.

Anderson , 2007 BCCA 581 , a case involving a gardener/caretaker with no prior record: “This Court has made it clear in many cases such as R. v. Su, R. v. Van Santvoord, R. v. Wallis and R. v. Koenders that such operations [referring to large scale commercial grow 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.” [para. 19] [ 63 ] The next step is to consider proportionality.

Section 718.1 reads as follows: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [ 64 ] I note the emphasis on proportionality in the case of R. v. Howitt . See the quote from R. v.

Nasogaluak, 2010 SCC 6 found at paragraphs 32 and 33 : “…[P]roportionality requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. … As a sentencing judge, I must strike an appropriate balance between the moral blameworthiness of the offender and the gravity of the offence, that is, between a sentence that punishes the offender no more than is necessary and one that speaks out against the offence.” [ 65 ] I said earlier that I find the sentencing objectives of denunciation and deterrence worthy of considerable weight in a case of this sort, involving as it does a very deliberate plan to step outside of the law with the hope of making some extra money.

The sentence in this case must “speak out against the offence” firmly. [ 66 ] At the same time, the sentence must punish Mr. Frazer no more than is necessary. In this regard, as I said to Crown Counsel during submissions, I think it is important to take into account all that Mr. Frazer said in his statement to the police.

He takes responsibility as principal operator but it is also clear that he was not part of a larger organization, that he was struggling to learn the business and to make the contacts necessary to sell the product, and that he had not yet earned any particular profit or even recouped his investment. [ 67 ] In my view the Crown’s submission for a 15 month jail sentence would be a disproportionately harsh sentence in these circumstances, particularly in light of Mr. Frazer’s guilty plea.

[ 68 ] The next step is to consider “Other Sentencing Principles”: s. 718.2 . These include a consideration of mitigating and aggravating factors, of sentences imposed on others for these offences, and of all available sanctions other than imprisonment. [ 69 ] The mitigating circumstances in Mr. Frazer’s case are: 1. He has, effectively, no criminal record; 2. He took responsibility from the beginning and cooperated with the police. Once charged he entered an early guilty plea; 3.

He is spoken of as a loyal friend, a hard worker and a dedicated volunteer in the community. [ 70 ] The aggravating circumstances are: 1. The grow was commercial in nature and large in size; 2. There was an electrical bypass; 3. Mr. Frazer was the principle operator. [ 71 ] The nature of Mr. Frazer’s involvement in this grow operation was contested in a hearing before me held several weeks ago. I rejected Mr.

Frazer’s evidence and found that his involvement was that of principle operator as he had originally said in his statement to the police on the day of the incident, June 28 th , 2011. [ 72 ] I do wish to say that if I was wrong in that factual conclusion - in short, if I had found Mr. Frazer was merely a caretaker - I would not regard such finding as a mitigating circumstance. Each person involved in an illegal industry, such as the marihuana industry, has a role to play. See R. v. Aslam referred to above, at paras. 7 to 10. Even as a caretaker, Mr.

Frazer would have been serving an essential role by giving the property an occupied appearance and by keeping others away from the grow operation going on in the shop. [ 73 ] In my view the principle mitigating factor in Mr. Frazer’s case is his early guilty plea. There is authority to support the view that a reduction of up to one-third from the appropriate range of sentence is justified where there is a guilty plea prior to trial. As will be seen later in these reasons, I have reduced Mr. Frazer’s sentence by one third from the one year in jail that, according to R. v. Su 2000 BCCA 1816 as adopted in R. v.

Koenders , cited above, is the approximate range for a large size, commercial grow operation where jail is the sentencing option chosen by the court. This reduction is in recognition of Mr. Frazer’s guilty plea. [ 74 ] Mr. Frazer’s accomplishments in the community as a friend and as a volunteer are significant, but I note from my review of the cases that these characteristics are not that dissimilar to those displayed by many of the people convicted of such offences - most have little or no prior record, most are hard-working, capable people who are good providers for those who are dependant upon them. [ 75 ]

Section 718.2(

c) requires that a sentence should be “similar to sentences imposed on similar offenders for similar offences in similar circumstances.” [ 76 ] I note that in some cases the sentencing option chosen for a principle operator of a large size, commercial operation, who has no prior record, has been a conditional sentence of at least a year in length (see R. v. McLennan & Munro , R. v. Whyte , R. v. Shah ). In other decisions a conditional sentence was rejected and a jail sentence was imposed ( R. v. Koenders , R. v. Budd , R. v. Laird , R. v. Wallis ). [ 77 ]

Section 718.2(

d) provides that the accused should not be incarcerated if less restrictive sanctions are “appropriate” and sub-

section (

e) requires the court to consider all available sanctions other than imprisonment that are “reasonable in the circumstances.” [ 78 ] In my view a conditional sentence would neither be “appropriate” nor “reasonable in the circumstances” given the sentencing objectives of denunciation and deterrence which must be given significant weight when, as in the case at bar, the offender makes a very deliberate and well planned choice to step outside the law in hopes of making some extra money. [ 79 ] I bear in mind the common law principle referred to in R. v. Whyte to the effect that, where possible, first time offenders should

not be incarcerated. I consider Mr. Frazer to be a first time offender. I also bear in mind that conditional sentences can, and often do,have a significant deterrent and denunciatory effect particularly in the case of someone like Mr. Frazer who has a position in society. [80] However, the Supreme Court of Canada recognized in Proulx that a jail sentence would always be more restrictive of anoffender’s liberty.

As well, the court recognized that, in some circumstances, the need for denunciation and deterrence would besufficiently great that a jail sentence, rather than a conditional sentence, would be warranted. [81] Mr. Frazer, despite being a first time offender, made a very deliberate decision to break the law in the hopes of making money. In my view this calls for a sentence that will be a deterrent to others who might be tempted to follow in his footsteps. Conclusion [82] A conditional sentence order is available in the case at bar.

However, I conclude that such a disposition would not be consistentwith the fundamental purposes and principles of sentencing. The need for denunciation and deterrence is high and in my view the onlyway to express or achieve such objectives in these circumstances is through a sentence of incarceration rather than through a conditionalsentence. [83] The range of jail that is appropriate in this case, involving a large, commercial grow operation, is approximately 1 year. See R.v. Koenders, paragraph 26, citing R. v. Su, 2000 BCCA 480 , 2000 BCJ 1816 (BCCA). [84] Mr.

Frazer pleaded guilty early and this is an important mitigating factor because it saves the public the cost of a trial. [85] The Crown argues for a jail sentence in the range of 15 months. In my view this is outside the range set in Su and approved inKoenders. It also fails to take into account Mr. Frazer’s early guilty plea. [86] I conclude that a fit sentence in all the circumstances is 8 months in jail and that is the global sentence I impose, to runconcurrently on count 1 and count 2. There will be no probation to follow.

There is no need for rehabilitation in this case, nor, in myview is there any ongoing risk that Mr. Frazer will be involved in the marihuana industry and so a probation order is not called for. [87] I am required to make certain ancillary orders. There will be an s. 109 firearms and weapons prohibition for 10 years asrequired by law. [88] This is a secondary designated DNA databank offence and I exercise my discretion against making an order. In my view givenMr. Frazer’s very limited record and the nature of the charge it would not be in the best interests of justice to make such an order.

Theprivacy interest outweighs the public interest and I decline to make a DNA databank order. [89] Pursuant to s. 16 of the CDSA and s. 490(9) of the Criminal Code I order forfeiture of the items seized in the course of thisinvestigation on the terms, and with the exceptions already worked out by counsel and incorporated in a written order. [90] Finally, pursuant to s. 738 I order restitution to B.C. Hydro in the sum of $15,218.91. ___________________________ E. L. Bayliff

Provincial Court Judge