R. v. Pierini and Burton Date:, 2013 BCPC 365

Citation: R. v. Pierini and Burton Date: 20131211 2013 BCPC 0365 File No: 36754-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NIGEL EUGENE PIERINI and BRENT ALEXANDER BURTON REASONS FOR SENTENCE RE: ACCUSED BURTON OF THE HONOURABLE JUDGE M. J. BRECKNELL Counsel for the Director of Public Prosecutions: H. Alkema Counsel for the Defendant: F. Fatt Place of Hearing: Prince George , B.C. Date of Hearing: Date of Judgment: December 11, 2013

INTRODUCTION [ 1 ] The Defendant, Brent Alexander Burton, (Mr. Burton) has pleaded guilty to the following Counts on Information number 36754:

a) Count 1, production of marijuana contrary to s. 7(1) of the Control Drugs and Substances Act ( CDSA ), and

b) Count 2, possession of marijuana for the purpose of trafficking contrary to s. 5(2) of the CDSA . [ 2 ] Counsel for the Public Prosecution Service of Canada (the Crown) seeks the following sentence:

a) a sentence of 12 months to be served in a provincial prison;

b) a 10 year firearms prohibition pursuant to

Section 109 of the Criminal Code of Canada (the Code );

c) a DNA order pursuant to

Section 487.04 of the Code ;

d) a forfeiture order regarding the items seized during the execution of the search warrant pursuant to

Section 490.1 of the Code and

Section 16 of the CDSA . [ 3 ] Defence counsel does not oppose the ancillary orders or the length of the sentence sought by the Crown but submits that Mr. Burton should be able to serve his sentence in the community as a Conditional Sentence Order based, primarily, on his personal circumstances. THE LAW Statutes [ 4 ]

Section 7 of the CDSA states in part: 7(1) Except as authorized under the regulations, no person shall produce a substance included in

Schedule I, II, III, or IV.

(2) Everyone who contravenes subsection (1) (

b) Where the subject-matter of the offence is cannabis (marijuana), is guilty of an indictable offence and liable to imprisonment for term not exceeding seven years. [ 5 ] Section 5 (2) of the CDSA states: 5

(2) No person shall, for the purpose of trafficking, possess a substance included in

Schedule I, II, III or IV. [ 6 ]

Section 718 of the Code states: 718. 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 that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 7 ]

Section 718.1 of the Code states: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[ 8 ]

Section 718.2 of the Code states in part: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, .... (

b) a sentence should be similar to sentences imposed on similar offenders for a similar offences committed in similar circumstances; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. Case Law Crown [ 9 ] The Crown relied on the following cases in submissions: a. R. v. Koenders 2007 BCCA 378 b. R. v. Vo 2009 BCCA 471 c. R. v. Howitt 2010 BCSC 1475 d. R. v. Giang 2010 BCSC 1016 e. R. v. Wong 2011 BCSC 1862 f. R. v. Chen 2011 BCPC 297 g. R. v. Liard 2013 BCSC 59 h. R. v.

Lee 2013 BCSC 61 [ 10 ] The Crown particularly relied on the analysis of Madam Justice Watchuk in Laird . [ 11 ] Defence counsel relied on the following cases in submissions: a. R. v. Petrie 2013 BCSC 1185 b. R. v. Leech 2013 BCSC 1157 c. R. v. Lam 2012 BCPC 488 (re: Kuang and Ma ) d. R. v. Wetherill 2009 BCPC 356 [ 12 ] Defence counsel placed particular emphasis on the case review, the ten step analysis described in and the outcome of Lam (Kuang and Ma) .

CIRCUMSTANCES OF THE OFFENCE [ 13 ] On August 1, 2012 after investigations and surveillance lasting several weeks, a Search Warrant was executed by the Royal Canadian Mounted Police (RCMP) on a commercial property located at 924/938 Patricia Blvd., in Prince George. The property was in a light commercial, wholesale district a short distance from the Prince George Courthouse. [ 14 ] The property was a large open warehouse/garage building which had been divided into four separate grow rooms.

Although there were slight differences in the four grow rooms they generally were set up with the typical marijuana growing equipment including ballasted high-intensity lighting, fans and walls encased in white plastic. Two of the rooms were set up for hand watering and two used an automated system. [ 15 ] The four rooms had marijuana plants at various stages of growth growing in pots. There were a total of 636 plants in the four rooms as well as 69 clones in a box which had arrived shortly before the search warrant was executed. [ 16 ] Mr.

Burton’s o-accused was arrested at the scene at the time the Search Warrant was executed and a gas/heating bill and $3,000.00 in cash were also seized. Mr. Burton was arrested two weeks later at his residence. [ 17 ] The property was owned jointly by some individuals and an incorporated company. One of the directors of the incorporated company is Mr. Burton’s father-in-law.

[ 18 ] None of the owners interviewed by the RCMP provided any useful evidence concerning the terms under which the building was rented. Mr.

Burton’s father-in-law said that the tenants, who he could not name or identify, paid cash for the rent. [ 19 ] Given the number of plant seized the Crown contends the value of the grow operation would be between $260,000.00 and $360,000.00 in wholesale amounts and $420,000.00 and $635,000.00 in street-level sale amounts. [ 20 ] Defence Counsel submits that the value of the marijuana seized would be much less than contended by the Crown because the crop would not all be harvested at the same time. CIRCUMSTANCES OF MR. BURTON [ 21 ] Mr. Burton is 28 and has no criminal record.

He lives in a common-law relationship with Stephanie McLean. They are raising two children, her son and Mr. Burton’s daughter. [ 22 ] Mr. Burton is a high school graduate who has, over the years, been employed as a call center employee, a house framer, a heavy equipment operator and, most recently, a crane repair technician. [ 23 ] His supervisor from his present employment supplied a letter of reference describing Mr. Burton as a motivated and dedicated employee who is dependable and professional in his dealings at work and with clients. His supervisor noted that he has discussed Mr.

Burton’s legal predicament with him and that Mr. Burton has expressed shame and remorse surrounding his involvement in the matters before the Court. [ 24 ] Stephanie McLean also provided a letter in which she set out her own personal health issues and how they affect her capacity to maintain herself and properly care for her family. She points to Mr. Burton as being a main support for her, their children and that he is the breadwinner for the family. She states she is fearful for what will become of her and the family if Mr. Burton is incarcerated. [ 25 ] When offered the opportunity to speak to the Court Mr.

Burton expressed his shame and regret for having been involved in the offences before the Court for which he has accepted responsibility. SUBMISSIONS Crown [ 26 ] The Crown submits that a sentence of 12 months in prison is appropriate given Mr. Burton’s participation in the grow operation, the sophistication and size of the operation and the value of the marijuana being produced. [ 27 ] The operation was, in the Crown’s submission, a low-level large-scale commercial operation and the Crown asked the Court to conclude that Mr.

Burton could have been a partner/operator or alternatively only an employee. [ 28 ] The Crown acknowledged that there were no presumptions and no solid lines of authority in the case law concerning whether the sentence for a person in Mr. Burton’s circumstances should be served in a Provincial prison or in the community. Defence [ 29 ] Defence Counsel submits that there is no proof that Mr. Burton was profiteering from or a partner in the grow operation. He maintains that Mr.

Burton was no more than an employee or gardener and that the Court should draw no inferences from the fact that a family member indirectly owns a portion of the building where the enterprise was located. [ 30 ] Defence Counsel also pointed to the heavy reliance for support, both financial and personal, placed on Mr. Burton as a result of his wife’s health issues and the burden of maintaining the care of his children. DISCUSSION Case Review [ 31 ] The Crown and Defence presented cases that fairly describe the wide range of sentences available in circumstances similar to the case at bar.

They also reminded the Court of the Court’s analysis in Lam (Kuang and Ma) and the extensive case review set out in that decision. [ 32 ] If one adds up all of the cases referred in Lam (Kuang and Ma) , as well as the other cases presented by counsel here the Court is left to consider over 60 cases on the various factual and legal issues to be analysed in order to arrive at an appropriate and just sentence for Mr. Burton. [ 33 ] It is clear that there is a wide range of sentences capable of being imposed on offenders involved in marijuana grow operations. As Madam Justice Southin said in paragraph 10 of R. v.

McLennan and Munro 2001 BCCA 299 : [10] There are so many differing sentences for marijuana offences in the province that it cannot be said that there is any common judicial opinion as to what is the right thing to do. [ 34 ] A similar view was expressed by Mr. Justice Joyce in R. v. Shokar 2006 BCSC 1088 when he said at paragraph 18: [18] Crown counsel provided me with a number of authorities dealing with sentencing for production of marijuana in the case of first- time offenders. For me at least, it is not easy to discern from these authorities, and others that I have reviewed, what is the range of

sentence for first-time offenders in these kinds of cases, and when a conditional sentence may be appropriate.... [ 35 ] In R. v. Lee 2004 BCPC 557 , R. v. Chiu 2010 BCPC 321 , R. v. Howitt 2010 BCSC 1475 and R. v . Nguyen 2011 BCSC 1596 , Judges Bayliff and Morgan and Justices Harris and Joyce each reviewed the law and arrived at a series of principles and factors to be considered in sentencing offenders involved in marijuana grow operations. Those were summarized in Lam (Kuang and Ma) as follows: 1. The Court must consider all available sanctions other than prison.

If the sentence is to be less than two years, the Court must first consider a Conditional Sentence and impose prison only if it concludes a Conditional Sentence is not appropriate in light of the provisions of

section 742.1, sections 718 through 718.2.and the case law. There is no presumption for or against a Conditional Sentence in marijuana production cases. 2. Sentencing is an individualized process which requires the Court to consider the nature of the offence, the degree of responsibility of the offender, the offender’s circumstances and any other relevant factors in crafting a just and appropriate sentence. The Court must not place either too much or too little emphasis on any of the sentencing factors in determining the sentence. 3.

Denunciation and deterrence are important sentencing principles with regard to offences involving the production of marijuana. 4. A Conditional Sentence may have significant denunciatory and deterrent effects; particularly if it has strict conditions. 5. The Court cannot dismiss a Conditional Sentence simply because the grow operation is large and/or sophisticated or highly capitalized. However, the commercial nature of an operation, particularly one involving an excess of 500 plants, can be taken into account by the Court in weighing the sentencing objectives of denunciation and deterrence. 6.

The Court may take judicial notice of the significant and lucrative marijuana production industry in British Columbia and the negative impact those crimes have on local communities. 7. Factors such as whether or not there has been an electrical power bypass and whether the operation is in a residential or rural area may have an influence on the type of sentence to be considered. 8. If the Defendant is only a "gardener" and has no prior record, and has demonstrated capacity for rehabilitation, a Conditional Sentence is more generally available. 9.

If the Defendant is a principal operator, is involved a substantial way in establishment and operation of the grow operation or has previous convictions for similar offences, a Conditional Sentence will not usually be appropriate unless the Court determines there are compelling mitigating circumstances regarding the offender's situation. 10.

A Conditional Sentence may not adequately address general deterrence in circumstances where there is a large commercial operation at a particular time and in a particular location even after due consideration is given to the fact that the Defendant is a first-time offender, not a principal operator but rather a "gardener" and shows a demonstrated capacity for rehabilitation. [ 36 ] The case law provides only limited guidance on the issue of the type of sentence to be imposed in this case given the wide variety of approaches and the specific circumstances of the offences and accused in those other cases. [ 37 ] This case poses several suspicious, but unproven, circumstances that require comment.

The first is that there is no reliable information about the level of Mr. Burton’s involvement in the illegal enterprise. The Crown contends that he may be a partner with the co-accused. Defence counsel maintains he was no more than a gardener. Due to the nature of the evidence obtained through the surveillance and during the execution of Search Warrant there is simply no way to establish the exact nature of Mr. Burton’s involvement. [ 38 ] The second is the unusual circumstances surrounding the suspected involvement of Mr.

Burton as a tenant of the building (although there is no lease agreement to refer to) and the fact that one of the owners of the building is his father-in-law who claims to have an inability to provide any reliable information concerning who the tenants of the building were.

That situation is both suspicious and circumstantial but no more than that can be said given what the Crown is able to prove. [ 39 ] Based on the facts of this case and the cases presented if there is to be a sentence to be served in a Provincial prison a range of 12 to 15 months would be just and appropriate. [ 40 ] In considering the objectives of deterrence and denunciation in the context of a Conditional Sentence Order, Mr.

Justice Harris commented in paragraph 47 of Howitt: [47] A conditional sentence which is longer than the jail term I would otherwise impose and which includes strict conditions restricting his liberty can, I am satisfied fulfil the sentencing objectives of denunciation and deterrence....A conditional sentence will assist in achieving those objectives by enabling Mr. Howitt to maintain productive and legitimate employment while serving his sentence. [ 41 ] After reviewing the circumstances of the offence, the circumstances of Mr.

Burton, the statutes and the case law, particularly the case of Lam (Kuang and Ma), and the ten sentencing factors summarized in that case, a substantial Conditional Sentence Order as opposed to a sentence served in a Provincial prison is an appropriate and just sentence in this case. Mr. Burton should consider himself extremely lucky that his involvement in this criminal behaviour occurred when it did because if it had occurred today he would be facing a lengthy minimum term of imprisonment in a federal penitentiary.

DECISION Ancillary Orders [ 42 ] As part of the sentence, the Crown has sought various ancillary orders. [ 43 ] Count 1 is a primary designated DNA offence.

Pursuant to s. 487.051(1) of the Criminal Code , I make an order in Form 5.03 authorizing the taking of a number of samples of bodily substances by any Peace Officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration in the National DNA Databank from Brent Alexander Burton by December 31, 2013. [ 44 ] Pursuant to s. 487.051(4) of the Criminal Code I further make an order in Form 5.041 that Brent Alexander Burton shall attend on or before December 31, 2013 between the hours of 9:00 A.

M. and 4:00 P.M. at the Royal Canadian Mounted Police Detachment, 999 Brunswick Street, Prince George, British Columbia and submit to the taking of the samples. [ 45 ] Count 1 attracts a mandatory ten year firearms prohibition. Pursuant to s. 109 of the Code , Brent Alexander Burton is prohibited from possessing:

a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years; and

b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 46 ] There will a forfeiture order for all of the offence related property seized pursuant to s. 490.1 of the Code and s. 16 of the CDSA in the terms of an order drafted by the Crown, agreed to by Defence Counsel and approved by the Court. SENTENCE [ 47 ] Mr. Burton will serve a Conditional Sentence Order of 18 months in the community with the following terms and conditions: (

a) You shall keep the peace and be of good behaviour; (

b) You shall appear before the Court when required to do so by the Court; (

c) You shall report in person to a Conditional Sentence Supervisor no later than 4:00 pm on December 23, 2013 at the Probation Office at 101 - 250 George Street, Prince George, British Columbia, and you shall thereafter report as and when directed by the Supervisor and in the manner directed by the Supervisor; (

d) You shall remain within the jurisdiction of the Court unless written permission to go outside the jurisdiction is obtained from the Court or the Supervisor; (

e) You shall notify the Court or the Supervisor in advance of any change of name, or address, and promptly notify the court or the Supervisor of any change of employment or occupation; (

f) After you first reporting to the Supervisor further reporting may include reporting by telephone, at the discretion of the Supervisor; (

g) When first reporting to the Supervisor you shall inform him/her of your present residential address and phone number, and you shall not change your address or phone number at any time without first obtaining the written consent of the Supervisor; (

h) For the first six months of your sentence, you are to remain within your residence (or on the lot on which your residence is located) at all times, except as follows:

a) between the hours of 6:00 pm and 9:00 pm Monday through Friday and 11:00 am and 2:00 pm Saturday and Sunday, in order to attend to your personal business;

b) at any time with the written consent of the Supervisor obtained in advance. Such consent is to be given only for compelling personal, family or employment reasons ;

c) when traveling directly to, or returning directly from, your place of employment, or while in the course of your employment. You shall provide the Supervisor with written proof of employment;

d) in the event of a medical emergency and then only when traveling directly to or returning directly from a hospital emergency ward. (

i) For the remainder of your sentence you shall obey a curfew by being inside of your residence (or on the lot on which your residence is located) between the hours of 10:00 p.m. and 6:00 a.m. each day, except as follows:

a) with the written consent of the Supervisor obtained in advance. Such consent is to be given only for compelling personal, family or employment reasons;

b) when traveling directly to, or returning directly from, your place of employment, or while in the course of your employment. You shall provide the Supervisor with written proof of employment;

c) in the event of a medical emergency and then only when traveling directly to or returning directly from a hospital emergency ward. (

j) You shall present yourself at the door to your residence when any Peace Officer or Supervisor attends there for the purpose of determining your compliance with the curfew and house arrest conditions of this Order. (

k) You shall respond personally and immediately to the telephone when a Peace Officer or Supervisor makes a telephone call to your residence for the purpose of determining your compliance with the curfew and house arrest conditions of this Order. (

l) You shall have no contact or communication directly or indirectly with Nigel Eugene Pierini. (

m) You shall not possess or consume any alcohol or any controlled substance within the meaning of

Section 2 of the Controlled Drugs and Substances Act , except as prescribed for you by a physician. (

n) You shall not enter any liquor store, beer and wine store, bar, pub, lounge or other business premises from which minors are excluded by the terms of their liquor license. (

o) You shall write a letter of apology directed to the citizens of Prince George to the satisfaction of the Supervisor no later than February 28, 2014. That letter shall be forwarded to the editor of the Prince George Citizen at 150 Brunswick Street, Prince George, British Columbia, with a request that it be published.

In that letter you will describe your personal history, detail the nature and general location of the grow operation, describe your understanding of the dangers of marijuana production, set out the sentence you have received, describe your remorse and embarrassment for participating in such criminal behaviour and set out the steps you plan to take to ensure that you remain a productive and law-abiding member of Canadian society. (

p) You must carry a copy of this Conditional Sentence Order with you at all times when you are in public. If you are stopped by a Peace Officer for any reason you shall immediately provide the Peace Officer with a copy of this document without being requested to do so. ___________________________ M. J. Brecknell Associate Chief Judge Provincial Court of British Columbia