R. v. Kilcollins Date:, 2014 BCPC 213

Citation: R. v. Kilcollins Date: 20140828 2014 BCPC 0213 File No: 36239-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CONG NGYUEN LE JUDITH ELAINE KILCOLLINS ORAL REASONS FOR SENTENCE RE: ACCUSED KILCOLLINS OF THE HONOURABLE JUDGE DOHERTY Counsel for the Crown, appearing by teleconference: O. Bick Counsel for the Defendant: D. Marion Place of Hearing: Campbell River , B.C. Date of Hearing: August 25, 2014

Date of Judgment: August 28, 2014 [1] THE COURT: Before the court for sentencing is Judith Kilcollins. She pled guilty on Indictment 36239, Count 3, between the3rd of May 2013 and the 15th of June 2013, at or near the City of Campbell River, in the Province of British Columbia, did unlawfullypossess a controlled substance, heroin, for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act. [2] On the following dates the defendant placed into, and buried, a bottle containing $1,100: May 3rd, 16, 22, 23, 25, 26, 29, 31,June 1, 3, 6, 11 and 15.

On these same dates, or immediately thereafter, the co-accused dug up the bottle, retrieved the money andplaced into the bottle baggies of heroin. The bottle was then reburied. [3] In all, some $13,750 and three and a half to four ounces of heroin was exchanged by way of this dead-drop method. [4] According to the Crown, the street value of the heroin was around $20,000. [5] The co-accused Le received a sentence of 12 months' imprisonment for his role.

Should I accede to the submissions of thedefence for a suspended sentence for this defendant, there would be a large, and largely unjustifiable, disparity of sentences. [6] Crown seeks a sentence of 10 months for Ms. Kilcollins. [7] As in all cases, there are both mitigating and aggravating factors. [8] Under the aggravating factor heading, the type of drug, highly addictive, heroin, the amount of the drug, between three and ahalf and four ounces, and the frequency of the exchanges. [9] On the other side there is the plea in mitigation. The defendant is 66 years of age and has no criminal record.

She is gainfullyemployed and has support in the community, as evidenced from the reference letters. [10] Crown contends, and it is not disputed, that a third of this heroin went to support the drug habit of the defendant's son, and two-thirds of the heroin was trafficked on to the streets of our small community. [11] The defendant herself is not an addict. She did not traffic heroin to support a habit or even for financial gain. She did this crimebecause she seems inherently unable to say no to a selfish, manipulative, demanding, drug-seeking son.

Her involvement is presented asthat of a devoted, but ultimately misguided, mother. [12] I am provided with a number of cases, most notably three decisions brought down in 2014: R. v. Owens, [2014] B.C.J. No. 25;R. v. Voss, [2014] B.C.J. No. 1024; and R. v. Cisneros, 2014 BCCA 154. In Owens and Voss, the defendants successfully persuaded thesentencing judge to impose suspended sentences.

I suspect neither judge had the benefit of Cisneros before considering whether or not asuspended sentence is appropriate in cases of this nature. [13] Parliament, in its wisdom, eliminated conditional sentence orders for cases of this kind. Clearly the intent is to have defendantsconvicted of such offences to do real jail time, as opposed to house arrest.

It seems to me, with great respect, to thwart the intent ofParliament if an even lighter sentence, a suspended sentence, is now to be substituted for the no longer available CSO. [14] I will say, in the case at Bar, had a conditional sentence order been available, I would likely have imposed it. [15] However, the solution is not to drop further down the sentencing scale to impose an even lighter sentence than a CSO. In fact, Ido not believe that solution is even available, and to impose such a sentence, to use words in Cisneros, "represents a marked departurefrom the norm." [16] In Cisneros, Mr.

Justice Groberman says, at paragraph 11: It is evident from the trial judge’s reasons that she harboured doubts as to the efficacy of custodial sentences in furthering generaldeterrence. This clearly affected her view of the appropriate sentence. Madam Justice Ryan’s oft-cited discussion of the principle ofgeneral deterrence in R. v. Johnson, (1996) (BC CA), 112 C.C.C. (3d) 225, is apt: At paragraph 29 of that decision, Madam Justice Ryan said: The principle of deterrence as a goal of sentencing is embedded in our law. The Supreme Court of Canada has said so in [R. v.

C.A.M., (SCC), [1996] 1 S.C.R. 500], the amendments to the Criminal Code specifically refer to it as a sentencing objective(see s. 718(b)). We must assume that deterrent sentences have some effect. It is futile to ask whether a particular sentence will deterothers. That question can never be answered. Deterrence operates in a general way. Those that would break the law must know, and law-abiding citizens must be assured, that law-breakers will receive sentences which reflect the seriousness of their crimes. This will detersome potential offenders, it will not deter others. [17] In Cisneros, Mr.

Justice Groberman goes on to say, at paragraph 14: I agree with the Crown's assessment that the ordinary sentencing range for a first offender in a crime of the nature involved in this case isapproximately 6-9 months' imprisonment. Even before the option of giving a conditional sentence of imprisonment for such offences wasremoved by amendment to the Criminal Code, such sentences were very much the exception. Paragraph 15:

The sentence imposed by the trial judge represents a marked departure from the norm. It is a departure for which there is no justification.

In the result, I am persuaded that the sentence was unfit. [ 18 ] In my view, given the circumstances of this case, the background of the offender, the principles of sentencing set out in 718 of the Criminal Code , including those of deterrence, denunciation and rehabilitation, and especially considering the comments in Cisneros , the very minimum sentence I should impose is six months' imprisonment. [ 19 ] Stand up. [ 20 ] You are sentenced to six months' imprisonment. [ 21 ] In addition, the victim impact surcharge will apply, and you are given 12 months to pay it. [ 22 ] There will be a s. 109 10-year firearms prohibition. [ 23 ] There will be a DNA order. [ 24 ] A forfeiture order, as agreed by counsel, with liberty to apply, should there be any difficulty coming to an accommodation. [ 25 ] Mr.

Sheriff. (REASONS CONCLUDED)