R. v. Jit Date:, 2010 BCPC 427

Citation: R. v. Jit Date: 20101202 2010 BCPC 0427 File No: 54857-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SONNY SATENDRA JIT ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: P. Whyte Counsel for the Defendant: J. Waddington Place of Hearing: North Vancouver , B.C. Date of Judgment: December 2, 2010 [ 1 ] THE COURT: Mr. Jit pled guilty to production of marihuana on August 31st, 2010, and the matter of sentencing has been put over several times until today's date.

Submissions were made on November 10 th and adjourned again for further submissions today, which I have now heard. [ 2 ] The Crown, ably represented by Mr. Whyte, seeks a sentence of 12 to 18 months real jail. The defendant, ably represented by Mr. Waddington, seeks a conditional sentence. Mr. Waddington acknowledges and did acknowledge on the past date that he had something of an uphill battle in light of Mr. Jit's history and prior convictions, but he submits that there are extenuating circumstances here.

Facts [ 3 ] The police, acting on a tip, obtained a search warrant for a residence at 1237 Elmwood Place, where they seized a total of 230 marihuana plants, 5.3 kilograms of shake and 56 grams of loose marihuana with bulbs, ballasts and the other usual paraphernalia incidental to a grow operation. In addition, however, the residence had video cameras showing the exterior hooked up to a computer

inside the premises. There were also padlocks on some of the doors designed to resist forced entry. [4] According to his reference letter, and now I have been told, the father resides nearby at 1255 Elmwood Place and owns theresidence that Mr. Jit resided in on the date in question, and as well, the residence at 1237 Elmwood Place. [5] Mr. Jit, who resided nearby at 1705 West 15th Street, called the police while they were executing the search warrant, havingseen them from his residence, presumably through the video paraphernalia.

The police told him at that time to surrender, which he didwithout incident, and apparently he has been largely cooperative since that time. Offender [6] Dealing with Mr. Jit as an offender, he is 47, and married with three children, two in university and one in high school. He has acriminal record dating back to 1980 consisting of 12 entries, nine of which are convictions for drug-related offences. He was sentencedto 30 days jail for cultivating a narcotic in 1988 and a total of three years on six charges of possession and possession for the purpose oftrafficking of

Schedule 1 and 2 substances in 2001. That is the last entry on his record. Accordingly, there is a gap of approximatelyseven years between his release on that sentence and the offence date here. The longest previous gap appears to be one from 1993 to1999. On the 1999 occasion he received a three-month conditional sentence order for possession for the purpose of trafficking. [7] At the time of this offence the defendant was a recovering alcoholic, and his counsel asserts that he was using marihuana to assisthim in his recovery.

It is now established, in fact, that he joined a club in which the members use marihuana medicinally. It is referredto as the Green Cross of B.C., and it is apparently a volunteer organization involved in the dispensing of medical marihuana to licencedusers. [8] Mr. Jit volunteered with the group, but appears from the materials before me not to have ever been licenced to use medicalmarihuana. Nonetheless, I am told by Mr.

Waddington that the defendant became affected by his participation in the club and begansomehow to perceive that it would be acceptable to grow marihuana with the sole intention, I am told, of sharing it with the othermembers and using it himself medicinally, as I understand it. That, says Mr. Waddington, is the basis on which this plea has beenentered: that it was for sharing and not necessarily for other commercial purposes, and specifically not for the substantial profit thatmight be available had the crop in fact been sold on the open market. [9] Mr.

Jit has provided materials through counsel showing positive contributions he has made to the community, including havingrescued a pilot from a downed helicopter after it crashed. He has also indicated in a courteous letter he sent to the Crown in August thathe accepts full responsibility for what he has done.

He acknowledges his history of using cocaine and acquiring a record, but heindicates he has been sober and stopped using cocaine, and he continues to attend AA or NA with respect to that. [10] He indicates as well he was in the process, he said, of applying for a medical marihuana licence at the time when he was charged,and he has then since that quit smoking marihuana. [11] Mr. Waddington described Mr.

Jit's employment situation as having been a member in the film industry as an electrician andlighting technician, but he is currently working as a customer service representative at a financial centre called Cash Now, which hasnow been verified by the inquiries of Mr. Whyte at my request. Through this job it is said he helps to support his wife and threechildren. [12] I am told that Mr. Jit has paid restitution to B.C.

Hydro -- in fact it has been substantiated now by receipts, and it is substantialamounts -- to Hydro, the RCMP and the District of North Vancouver, in the amounts of $5,360 to RCMP; over 6,000 to Hydro; and 1,000to the North Van District for cleanup, or "safety inspection and administration fee", it says. These, I am told, are the incidental costs thatone experiences if one is found engaged in this kind of activity in a residence in North Vancouver. [13] Reference letters were provided by Mr. Jit's wife, father, brother-in-law, sister-in-law and two friends.

All speak of hissignificant sacrifices for his children and constructive behaviour in the community. These letters were submitted for the first time at thesentencing last date and though it had been adjourned, I note, at least once before proceeding, Crown counsel had not had the time at thatpoint to consider them and the sentencing had to be adjourned so he could do so. He has now done that, and they have been verified forthe most

part largely from family members and friends, but in particular in respect to the employment situation, and now as well havingreceived a reference letter from a member of the Green Cross Society. [14] I had asked as well about the ownership of the houses, given the proximity of the father, and that has now been establishedbefore me that in fact the father owns all three of the houses that figure in either the references or the circumstances before me. [15] I am told as well, and I note, that according to Mr.

Jit none of his family members were aware of the activities being conductedat 1237 Elmwood Place until after the offences came to light through the execution of the search warrant. Cases [16] The cases cited by the Crown are R. v. Koenders 2007 BCCA 378, R. v. Siu 2000 BCCA 480, R. v. Budd, a more recent case,2010 BCCA 214 , 2010 B.C.C.A. 214, and R. v. Lee, a 2007 case. These are all cases, apart from Budd, which is fairly new,with which the court was familiar, and they do set the range for offences in the nature of the one that Mr.

Jit has committed. [17] No cases have been cited by defence in favour of the proposition that a conditional sentence order might be available for a repeatoffender in Mr. Jit's circumstances, and I note likely because it would be surprising to see such case law. Mr. Waddington's mainassertion or submission on behalf of Mr. Jit is that he is a unique individual and that in those circumstances he should receive a unique

sentence, not one within the range dictated by the cases. Aggravating and Mitigating Circumstances [ 18 ] Turning to the aggravating and mitigating circumstances, on the mitigating side Mr. Jit has pled guilty, and in that respect he has fully accepted his responsibility. He has been cooperative since his arrest. He is involved with his family and maintains employment, and it has not been established other than that Mr. Jit was using this marihuana himself and intending to share it or contribute some of it to this compassionate society. Notably, as Mr.

Waddington points out it had not been harvested, and there is no indication that he was actually selling it commercially. [ 19 ] He was using it as an addict and to donate. I accept that, because the aggravating circumstance of selling on the open market has not been established by the Crown beyond a reasonable doubt in the circumstances before me. [ 20 ] Mr. Jit does also continue to address his addictions to other substances, and as I have indicated I was told that he has quit smoking marihuana as well.

On the other hand, while his participation in the Green Cross Society has been substantiated it would appear from the requirements in respect to the society and the reference that has been provided, that it -- the society does not provide marihuana to people other than those who are licenced, and he obviously was obtaining it only by growing it himself in a situation where he had not made the required efforts to obtain a medical licence to do so. Not that he would have been given a medical licence to grow it in a residence as he did, but he also did not have a licence to use it in the circumstance.

So his participation in the society is in some respects neither here nor there, and in that sense he was not using it in a licenced scenario. He was volunteering with the society, and apart from the absence of a licence I do accept that he was using it to one extent or another for the purpose of pain alleviation. [ 21 ] Mr. Waddington submits that there is mitigation based on these features: that Mr. Jit is otherwise a good provider for his family; that he has learned his lesson; that he has reformed since the offence was committed; the nature of the intended use not being commercial as in the sense of sale; Mr.

Jit's good Samaritan incident in 2007; and his character apart from this incident being what Mr. Waddington describes as the best among people who commit these crimes. [ 22 ] None of these factors in my view demonstrate that Mr. Jit has either acted out of character or that he has changed his character from what it was when he acquired the prior convictions, unfortunately. There is no dramatic mitigating feature here in my view that removes Mr.

Jit's case from the realm of an otherwise appropriate sentence. [ 23 ] As to aggravating factors as highlighted by the Crown, this grow operation was being conducted in a residential area, thereby creating the risks of fire and violence that are documented in many of the cases -- for instance, R. v. Koenders . This operation is in the mid-range in terms of size, clearly commercial and potentially lucrative, although I note not necessarily so.

There was an additional measure of sophistication in light of the presence of surveillance cameras and the padlocks on some of the doors. [ 24 ] In my view the use of a premise that is owned by a family member but not occupied is a more sophisticated, elaborate arrangement -- some people grow it in their basements or their homes -- and in some respects makes the nature of the operation more aggravated than if Mr. Jit had it in his own basement.

We have no evidence of who occupied the residence, but as I have noted it was a door or two away from where his father resided. [ 25 ] I am somewhat troubled by the lively support that Mr. Jit has received from his family members who have provided the character letters, in light of the fact that some of them in my view must have been aware or at least have suspected something of the offence or what was ongoing at this residence, with the surveillance cameras and the camera from the one residence to the other. However, I am told that they were not aware, and I am not going to draw any conclusions that they were.

However, if they were not aware I would have expected more subdued support from them in light of his criminal activity and his criminal past. [ 26 ] Mrs. Jit speaks in her letter of being fearful when her husband is not at home and imploring the court not to put him in jail, but I would have to observe that she has been with him for 20 years.

She has spent other nights without him in the residence, notably for whatever portion of the 2001 federal sentence he may have served. [ 27 ] These are the kinds of letters that one might expect for someone who has no record, has acted out of character due to falling on hard times or having significant personal setbacks. Those features are not present in relation to Mr. Jit. He has not acted out of character, nor had he fallen on hard times or had setbacks. He mentioned a back injury in his letter to the police, and I am told he is in pain, and that was the purpose for which he was using marihuana illegally.

But I have not heard that that hindered his ability to work or somehow overrode his better judgment at the time. And this was not just a single incident. This was something that was set up, put in place and maintained for at least some months, I would assume, based on the circumstances. [ 28 ] I have -- and in respect of his hindered judgment and decision to undergo this illegal path, I have only been told essentially that he smoked too much marihuana. I note in passing as well that if it was -- if his situation was hindered, his ability to earn money, it was not commercial in any event.

And he has throughout the time, I note, been able to afford the cost of tuition for his two older children according to the letter from his friend Mr. Campbell. [ 29 ] Whatever the views of his family members may be, Mr. Jit is not providing a good role model for his children, in my view. Whether he was selling marihuana or using it personally and sharing it, growing it in a residence is illegal and dangerous.

Not only is there the risk of fire, but the pervasive risk of violence arising from the temptation of theft by others who observe what was occurring, and clearly someone must have observed what was occurring as there was a report to police resulting in a search warrant. Mr. Jit in my view imperilled his neighbours and perhaps his children. [ 30 ] Mr. Whyte for the Crown says the cases establish that the starting point for offenders without prior records is 12 months.

I would perhaps have said it was something lower than that, although I note the more recent case of Budd endorses a 12-month sentence for a person without a record. In the case of Lee it is a 12-month sentence in a 2007 case for a person who had one prior conviction with

a jail sentence. [ 31 ] In any event, I agree with the submission that 12 months would be at the very low end for an offender with a prior related record, including federal time for possession for the purpose of trafficking as well as a prior cultivation. In fact, in my view the Crown position is as charitable as one could expect, perhaps more so, and fully accounts for all the mitigating features that exist in this case except for one, and I will take this into account as I have said I would do: the fact that Mr. Jit -- it has not been established Mr.

Jit was going to sell on the open market, nor was he making a profit from what we know at this point. I take that into account in imposing a sentence that is somewhat below what would otherwise be the applicable and appropriate sentence, in my view. [ 32 ] I will have you stand up, please, Mr. Jit. In my view the lowest possible available sentence in the circumstances is one of nine months incarceration. I am going to sentence you to that at this time, and the other orders that were requested by Crown, forfeiture will go, and is it a DNA offence? Mandatory, I think. [ 33 ] MR.

WHYTE: It is over five kilograms, Your Honour. That would make it in light – [ 34 ] THE COURT: DNA is appropriate. Whether it is discretionary or mandatory Mr. Jit is going to have a DNA sample taken from him while he is in custody. I do not propose to follow it with probation. (REASONS FOR SENTENCE CONCLUDED)