R. v. Kaushal and Poncia, 2018 BCPC 350

Citation: R. v. Kaushal and Poncia 2018 BCPC 350 Date: 20181024 File No: 44121-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KAPAL DEV KAUSHAL DILLON PONCIA ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE S. KEYES Counsel for the Crown: M. Hajivandi Counsel for the Defendant: D.E.M. Jenkins, Q.C. Place of Hearing: Prince George , B.C. Date of Hearing: March 14, 2018 Date of Sentence: October 24, 2018

[ 1 ] THE COURT: Mr. Kaushal has pleaded guilty to one count of trafficking in a controlled substance, specifically cocaine. I was informed in the circumstances that -- in fact the circumstances include having sold four different times to officers small amounts of cocaine, but Mr. Kaushal has only pleaded guilty to one. [ 2 ] Mr.

Kaushal had originally elected Provincial Court judge, then he elected trial by a Supreme Court judge, but at the start of the preliminary inquiry on this matter some time ago, he indicated that he would plead guilty and the matter was adjourned from then till today. [ 3 ] The Crown and defence join in a submission to me that a sentence of a suspended sentence and probation will be sufficiently severe to meet the interest of justice in this case. Normally, trafficking in drugs results in a jail sentence. However, the British Columbia Court of Appeal in R. v.

Voong provided that in exceptional circumstances a suspended sentence with probation could meet the interest of justice, and the requirement for denunciation and deterrence. [ 4 ] The sale of drugs, and the use of drugs, in our communities is very destructive. Some people think they can use drugs as recreation and that no harm will come of it, but before me every day I see people who thought that at the start and now find themselves in jail because they cannot deal with their addiction and they commit many offences. Sometimes they are parents who lose their children, sometimes people die from this.

The use of drugs in our community is a very serious problem. That is why the normal sentence is for jail. [ 5 ] Crown and defence join together in submitting to me that Mr. Kaushal is a person to whom the exceptional circumstances mentioned in R. v. Voong apply. Mr. Kaushal is in his 60s. He has been married for 35 years. He has three adult children who are doing well in the community. [ 6 ] After 30 years of working at the Winton Global Mill, Mr. Kaushal became a taxi driver due to work injuries. He has been a taxi driver for a good long time. I am told that Mr.

Kaushal earned nothing from the sale of this cocaine. He was simply the person who provided the drugs and collected the money; that he did not get to keep any of it. All that he earned from this process was essentially a referral for people to take rides in his cab. Thus, this is not a situation in which there was a profit motive for Mr. Kaushal. [ 7 ] I accept that Mr. Kaushal is immensely embarrassed; that this matter has come to light and that he has received considerable censure from his community. This town is small enough that there are no secrets. Mr. Kaushal has no criminal record whatsoever.

He has no regulatory record; no driving record; no tickets. He has never been in conflict with the law before. I am of the view that this is a circumstance in which the exceptional sentence of a suspended sentence and probation will be acceptable. I am confident that Mr. Kaushal will not re-offend. [ 8 ] All right. Now, counsel, you have not told me what probation terms you want. I am prepared to go along with this, but you need to tell me what terms this probation should have, in your view. [SUBMISSIONS RE PROBATION TERMS] [ 9 ] THE COURT: So I am going to impose a sentence of 12 months' probation.

The terms will be as follows ... [ 10 ] THE CLERK: And suspended sentence, Your Honour? [ 11 ] THE COURT: Suspended sentence. [ 12 ] THE CLERK: Thank you. Thank you. [ 13 ] THE COURT: 2001, Madam Clerk: You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

You must notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation. [ 14 ] 2101: You must report in person to a probation officer at 101-250 George Street, Prince George, B.C. by 12 noon tomorrow, October 25th, 2018, and after that, you must report as directed by the probation officer until the completion of the community service that I order herein. [ 15 ] 2206: You must not leave British Columbia unless you have the written permission of the probation officer or the court, and you must carry the permission when you are outside the province. [ 16 ] 2201, Madam Clerk, but we will do notice: When first reporting to the probation officer, you must inform him or her of your residential address and phone number, and you must not change your residence or phone number without written permission from your probation officer. [ 17 ] 2509: You must complete 15 hours of community work under the direction of the probation officer which may include providing assistance at the Sikh Temple. [ 18 ] THE INTERPRETER: Is it 15 or 50? [ 19 ] THE COURT: One-five.

Your community work service must be completed by February 28, 2019. [ 20 ] Then under s. 109 of the Criminal Code , a mandatory weapons prohibition must be made. You are prohibited from possessing 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 any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life.

[ 21 ] And with respect to the DNA, having considered the fact that Mr. Kaushal has no record, and I am confident there will be no repeat of criminal behaviour on his part, I decline to order a secondary DNA sample to be taken. [ 22 ] MR. HAJIVANDI: Thank you, Your Honour. And the victim surcharge if that is . . . [ 23 ] THE COURT: That will just go as usual. [ 24 ] MR. HAJIVANDI: [indiscernible] [ 25 ] MR. JENKINS: Thank you. (REASONS FOR SENTENCE CONCLUDED)