R. v. Kim Date:, 2014 BCPC 1

Citation: R. v. Kim Date: 20140107 2014 BCPC 0001 File No: 57178-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TAEK HONG KIM REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P. CHEN Counsel for the Crown: M. Loda Counsel for the Defendant: G. Orris Place of Hearing: Richmond , B.C. Dates of Hearing: December 18, 2013 & January 2, 2014 Date of Judgment: January 7, 2014

[ 1 ] On September 3, 2013 the Accused was convicted after trial of possession of methamphetamine for the purposes of trafficking and of possession of methamphetamine for the purposes of exporting from Canada. Sentencing submissions were heard on December 18, 2013 and January 2, 2014 and were adjourned to today for my decision on sentence. [ 2 ] The facts found at trial are as follows. [ 3 ] The Accused, a Korean national, had travelled to Canada from Korea on May 28, 2012.

On May 31, 2012 he was at Vancouver International Airport waiting to board a plane to Japan where he was intending to stay overnight en route back to Korea. A search of his luggage by CBSA officers revealed 2 packages of methamphetamine packed in a secret compartment between the inner and outer shells of his suitcase. The total weight of the methamphetamine was 3.3 kg or about 7.3 lb. [ 4 ] The Accused had been recruited to transport the suitcase by one of his closest and oldest friends, Jung Suk Kim, who he had known since middle school.

Jung Suk Kim told him he was launching a business that involved transporting a suitcase from Canada to Japan. Jung Suk Kim said the courier would be paid the approximate equivalent of $3,000 Canadian and asked the Accused if he knew anyone who would be interested in the job. The Accused later fell into heavy debt because of his gambling habit and told Jung Suk Kim that he was prepared to take the job. Jung Suk Kim then arranged a meeting with one Sang Yun Park.

Sang Yun Park appeared to be the organizer of the enterprise in Korea, the person who would be paying the Accused for the job and the supplier of the air tickets, the Canadian accommodation and the final plans for the venture. The suitcase was provided to the Accused in Canada by one Brian Kim. There is no evidence that the Accused was involved in the deconstruction and re-assembling of the suitcase or the packing of the methamphetamine in it.

According to the Accused’s evidence at trial, his instruction was to deliver the suitcase to an unknown person in Japan. [ 5 ] The Accused, at trial testified that, while he knew the suitcase contained a valuable substance, he did not know or suspect that the substance was methamphetamine or that the substance was something illegal.

I rejected that evidence. [ 6 ] Sang Yun Park and Jung Suk Kim were convicted in Korea on November 21, 2012, of conspiracy to traffic in methamphetamine and were each sentenced to 10 months imprisonment. [ 7 ] The Crown seeks a global sentence of 6 years less credit on a 1:1 basis for time served of 19 months in pre-sentence custody. The Crown also seeks a mandatory firearms prohibition for 10 years pursuant to

Section 109 of the Criminal Code , a DNA order (secondary) and the forfeiture of the methamphetamine seized from the Accused on his arrest. [ 8 ] The Accused seeks a sentence of two years and five months but also seeks credit, on a 1.5:1 basis, for pre-sentence custody. The Accused has spent 19 months in custody which, at a ratio of 1.5:1 would result in credit of 2 years and 4 ½ months. That would result in a sentence of time served plus a week or two.

The Accused takes no position with respect to the other orders sought by Crown. [ 9 ] Counsel for the Crown seeks to have the time spent in pre-sentence custody credited at a ratio of 1:1. [ 10 ] Both counsel have provided the Court with a number of case authorities, all of which I have read. However I will refer only to those authorities that I have found particularly helpful. [ 11 ] The Accused addressed the Court through a statement read by his counsel during sentencing submissions.

His mother had travelled from Korea intending to address the Court during submissions on a date that the Court was not able to proceed.

The Accused’s sentencing material submitted to the Court includes a letter from his mother asking for leniency in his sentencing and a supportive letter from his employer in Korea. [ 12 ] In this sentencing I have considered the circumstances of the offence, the circumstances of the Accused, the case authorities, the Accused’s statement to the Court, the sentencing material submitted by the Accused, and submissions of counsel. [ 13 ] The Accused is single, 29 years old and has no prior criminal history. [ 14 ] In determining the appropriate range of sentence, a number of cases have been helpful. [ 15 ] In R. v.

Carpenter , 2002 BCCA 301 , the Court of Appeal dismissed the accused’s appeal of a 6 year sentence for importing 1.3 lbs of heroin from Thailand by swallowing pellets of the drug prior to boarding a plane to Canada. The Court considered the analysis of the range of appropriate sentences for couriers of illegal drugs in R. v. Grossman [1998] B.C.J. No. 63 , which Romilly, J. found to be between 6 and 12 years. [ 16 ] At paragraph 15, Newbury, J.A. stated the Court’s reasons for dismissing Mr.

Carpenter’s appeal: “ Considering the very strong admonition to appellate courts in M.(C.A.) , and setting aside for the moment the Charter argument made for the first time in this court, I am unable to say that the sentence imposed on Mr. Carpenter was demonstrably unfit. It lies within what appears to be the range for similar offences and similar offenders in British Columbia, although it is a longer sentence than what I might have imposed in light of Mr. Carpenter’s aboriginal background and lack of adult criminal record. ” [ 17 ] In R. v.

Pocosangre , 2013 BCSC 193 , Melnick, J. imposed a sentence of 8 years for trafficking and importing 9 kg of cocaine. Mr. Pocosangre had no prior criminal history, had a good family and was actively involved in his community. However the Court also found that Mr. Pocosangre was a successful self-employed truck driver who was motivated by the large profit to be made and that he had participated in the planning of the offence. Melnick, J. agreed with the range of sentence set out in R. v. Sandhu , 2003 BCSC 2033 by Williams, J. of 6 to 10 years.

[18] In R. v. Nguyen, 2012 BCSC 1762, Pearlman, J. imposed a sentence of 4 years for unlawful possession of cocaine for thepurpose of export from Canada. Mr. Nguyen had swallowed pellets containing 1.27 kg of cocaine prior to his attempt to board a plane toAustralia. He was to be paid $20,000 for delivery of the cocaine. Mr. Nguyen had a prior trafficking conviction – a dial-a-dopeoperation involving crack cocaine - for which he had served a 12 month conditional sentence. [19] At paragraph 12, Pearlman, J. discussed the case of Grossman that had been considered in Carpenter.

Regarding the rangedetermined in Grossman of 6 to 12 years, Pearlman J. stated: “...Here, the Crown submits that the range, at least at the lower end, for an offence involving the quantity involved in this case has beensomewhat reduced in the intervening years since Grossman was decided.” [20] In R. v. Aghabeigi, 2004 BCCA 263, the Court of Appeal dismissed the Crown’s appeal of a 3 year sentence for importing 10kg of opium concealed in the lining of 2 suitcases.

The Court agreed with the Crown that although the sentence imposed was lenient, thesentencing judge took all of the appropriate factors into account. [21] In R. v. Veikle, Richmond Registry File #56337-1, January 9, 2013, Judge McKinnon of our Court imposed a sentence of 3years imprisonment for possession of 2 kg of methamphetamine for the purpose of export from Canada. Mr. Veikle was searched at theairport with the methamphetamine in Ziploc bags taped to his legs. He was 64 years old, had a dated prior assault conviction but had noprevious involvement with illegal drugs. [22] In R. v.

Hamilton and Mason, (ONCA), the Crown appealed conditional sentences imposed at trial fortrying to smuggle cocaine into Canada from Jamaica that had been swallowed prior to boarding their plane. Ms Hamilton had swallowed93 pellets containing 349 gms. Ms. Mason had swallowed 83 pellets containing 489 gms. [23] The Court found the court below had erred in holding that systematic racial and gender bias justified conditional sentences. TheCourt held that conditional sentences for such offences were inconsistent with the fundamental purpose of sentencing and allowed theCrown appeal.

However, the Court did not substantially change the length of the sentences imposed at trial, substituting sentences ofimprisonment of 20 months for Ms. Hamilton and two years less a day for Ms. Mason. [24]

Section 718 of the Criminal Code sets out the fundamental purpose and principles of sentencing as: To contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society byimposing just sanctions that have one or more of the following objectives:

a) to denounce unlawful conduct;

b) to deter the offender and others from committing offences;

c) to separate the offenders from society where necessary;

d) to assist in rehabilitating offenders;

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

f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community. [25]

Section 718.1 states: The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [26]

Section 718.2 describes other sentencing principles which the court must consider. Some of those particularly relevant to thiscase are:

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor to the offender;

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

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

d) all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders. [27]

Section 10 of the Controlled Drugs and Substances Act states: Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this

Part is to

contribute to respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation and treatment, in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [ 28 ] In any sentencing, the Court must consider the circumstances of the offences committed, the circumstances of the particular offender and the mitigating and aggravating factors that attach to these circumstances. [ 29 ] In the case at bar, there are a number of aggravating factors: 1. The quantity of the drugs found was substantial, over 3 kgs. 2.

The drug being transported was methamphetamine, a particularly pernicious drug, both in terms of its harmfulness and in terms of its growing use, particularly amongst young people. 3. Although the amount of money the Accused was to receive was relatively small ($3,000), that was still his motivation for accepting the criminal enterprise. 4. Exporting a

Schedule 1 drug has generally been regarded by our courts as being more serious than trafficking in the drug. [ 30 ] There are some mitigating circumstances: 1. The Accused has no prior criminal history and no history of involvement with illegal drugs. 2. The Accused appears to have a stable and supportive family in Korea and support in his community there. His mother cooperated with Korean authorities in the investigation that led to the charging and conviction of the principles of the enterprise in Korea. 3.

The Accused cooperated with Korean police and gave a statement to the police in the investigation in Korea. 4. The Accused’s decision to take the job of transporting the suitcase containing the methamphetamine was motivated by the heavy debt he had fallen into because of his gambling and was made after his application for a bank loan had been rejected. It is probable that the Accused was suffering from a gambling addiction at the time of his offences. 5. The Accused is still only 29 years old. 6.

In his written statement to the Court, the Accused has expressed remorse for his actions, notwithstanding that he still maintains that he did not know the substance in the suitcase was an illegal drug. [ 31 ] Defence Counsel submits that the fact the Accused will be deported after his sentence is completed should be considered as a mitigating factor. [ 32 ] In R. v. Critton , [2002] O.J.

No. 2594 , Hill, J. considered a number of cases with different approaches to this issue, concluding at paragraph 86: “ I prefer the view that the accused’s deportation is a factor which can, in some circumstances, serve to mitigate the severity of the sanction imposed by the court.

Leaving aside instances of accused who are illegally in the country, in cases such as that of Patrick Critton, deportation is relevant to the sentencing function in at least 3 respects: 1. the risk of incomplete rehabilitation on release from custody is not a risk imposed upon the Canadian people 2. frequently, the offender subject to deportation serves ‘harder time’ in Canada because he or she is incarcerated a significant distance from family who are resident in a foreign country 3.

Canadians are spared the expense of continued incarceration of the accused where the offender is deported (annualized cost of maintaining a federal prisoner - $51,202.00 in 1998 (Prison Population and Costs, 1997/98, Statistics Canada (online at http://www.statscan.ca/english/indepth/85-002/feature/jurl1999004006sda.htm); $67,160.00 in 1999-2000 (Prisoners’ Justice Updates – Current News, Facts & Stats (online at http://www.vcn.bc.ca/august10/news.html). [ 33 ] Hill, J.’s reasoning on this issue was cited with approval by Doherty, J.A. at paragraphs 156 and 157 of Hamilton and Mason . [ 34 ] The Crown submits that the certainty of deportation upon completion of sentence is irrelevant and not mitigating but has not provided any case authorities in support of this position.

I find that it is a mitigating factor that must be considered in this sentencing. [ 35 ] The cases are clear that offences such as these require sentences that emphasize denunciation and deterrence. I am satisfied that no specific deterrence is required. However, it is my view that the sentence to be imposed on the Accused must be sufficient to properly address both denunciation and general deterrence. [ 36 ] The Criminal Code and the Controlled Drugs and Substances Act both require that the principle of rehabilitation be considered.

At the end of the day, the Court must still consider whether the Accused is a good candidate for rehabilitation.

[ 37 ] The Accused is 29 years old - an age where rehabilitation is still a realistic prospect. He has no prior criminal history and no prior involvement with illegal drugs. He has a stable and supportive family and supports within the community, including his employer who is willing to rehire him upon his return to Korea. [ 38 ] While couriers of drugs are generally persons deserving of harsher punishment, there are differences between couriers in terms of the degree to which they participated in the planning and preparation for the enterprise.

In Pocosangre , for example, the drugs were found in a hopper under the floor of a specialized trailer Mr. Pocosangre was hauling with the truck he owned and operated. The court concluded from the record of his cellphone messages that Mr. Pocosangre’s participation in the crime was clearly a planned and premeditated act, not a decision taken on the spur of the moment. [ 39 ] In the case at bar, although the Accused had participated in a number of meetings, I do not find he was involved in any of the planning. His role was simply to pick up a suitcase and board a plane from Canada to Japan.

He was not involved in the packing or the direct handling of the methamphetamine. I find the Accused to be very much at the lowest rung of the criminal enterprise he was participating in. Both his mother and his employer describe him as naive. The employer’s letter states: “ I really worried about Mr.

Kim who is naive such that easily (sic) used by the other persons. ” [ 40 ] After considering the circumstances of the offences, the circumstances of the Accused, the aggravating and mitigating factors and the case authorities that have been presented to me, I find that a sentence of 3 years imprisonment would be adequate to sufficiently address the principles of denunciation and deterrence while still recognizing the very real prospect of the Accused’s rehabilitation. [ 41 ] The Accused’s principles in the criminal enterprise in Korea - the people who recruited him to transport the suitcase from Canada to Japan - received sentences of 10 months imprisonment from the Korean court.

I accept Crown’s submission that the Korean court may be applying different laws and different sentencing principles than those used by our courts. I am not suggesting that sentences imposed by the Korean court are any guide whatsoever for the appropriate sentence in the case at bar. However, in my view, those sentences have relevance in one respect.

The imposition of a 3 year sentence in Canada would have a significant denunciatory and deterrent effect, at least with respect to any Korean nationals who may consider getting involved in such criminal enterprises in the future, by demonstrating how much more seriously such crimes are dealt with in this country. [ 42 ] The last issue is the amount of credit to be applied with respect to the time the Accused has spent in pre-sentence custody. [ 43 ] In R. v. Bradbury , 2013 BCCA 280 , Smith, J.A. considered the proper

interpretation and analysis of Sections 719(3) and 719(3.1). These amendments became operative on February 22, 2012: Determination of sentence

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody. Exception

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8). [ 44 ] In the case at bar, subsections 515(9.1), 524(4) and (8) are not applicable.

The question is whether circumstances justify granting enhanced credit - up to 1.5:1 for each day the Accused has spent in custody prior to sentence. [ 45 ] At paragraph 48, Smith, J.A. stated: “ I also agree with the other appellate decisions that the exception in ss.(3.1) does not require “exceptional” circumstances and that circumstances that will justify enhanced credit must be personal to the individual offender.

In my opinion, however, circumstances that would justify enhanced credit must have a qualitative characteristic; that is, a characteristic that is individual to the offender but also distinct from those characteristics that are universal to, or almost universally held, by other similarly situated offenders. Examples of commonly held circumstances might include the lack of programs, the conditions of the remand institution, and the loss of remission or parole eligibility.

Individual qualitative circumstances might include the imposition of segregated or protective custody through no fault of the accused, the harsh effect of remand conditions because of a particular health issue by an accused, or a delay in the proceedings that is not attributable to the accused. Stated otherwise, circumstances to justify enhanced credit must be ones that are outside of the common experience of most offenders in remand custody. ” [ 46 ] The Accused has limited ability in the English language. The trial was conducted with the assistance of a Korean interpreter. He has no access to Korean

interpretation while in custody. This has severely limited his access to programs in the institution as they are offered in the English language. His inability to communicate in English has also isolated him from his fellow inmates and has limited his communication with others in the custodial institution. He cannot make use of magazines and other reading material that may be available or watch television as these are only available in the English language.

He has received some support from the local Korean church community who have supplied him with a Korean language bible. [ 47 ] The Accused also had more limited access to his family and other supports who are in Korea. His mother came to address the court at his sentencing but was not able to attend on the adjourned date because she had to return to Korea.

[ 48 ] In my view, the conditions experienced by the Accused while in pre-trial and pre-sentence custody were harsher than they would have been for other persons who would be conversant in the English language. I find that these circumstances creating the harsher time spent in custody for the Accused arose from characteristics that were individual to him, namely his limited ability to communicate in English, being a Korean national, and his limited contact with family and supports in Korea.

In my view, these are circumstances that, as Smith, J.A. stated in Bradbury , are “outside of the common experience of most offenders in remand custody” . I find these to be circumstances that justify the enhanced credit for time spent in custody, as described in Section 719(3.1). [ 49 ] Accordingly, I will grant the Accused credit at a ratio of 1.5:1 for the 19 months he has spent in custody, resulting in credit of 28.5 months. [ 50 ] Mr. Kim, please stand. I hereby sentence you to imprisonment for 3 years on each count to be served concurrently.

I will grant you credit of 28 ½ months for the time you have spent in custody. The balance of your sentence to be served in custody will be a further 7 ½ months. [ 51 ] I also make the following ancillary orders:

a) You will provide such samples of DNA as are reasonably required for forensic DNA analysis in accordance with

Section 487.051 of the Criminal Code ;

b) You are hereby prohibited from possessing any firearms or ammunition or any other weapon that is listed in

Section 109 of the Criminal Code for a period of 10 years;

c) I order the forfeiture of all the methamphetamine seized upon your arrest. [ 52 ] I will waive the victim fine surcharge. ____________________ P. Chen Provincial Court Judge