R. v. Amhaz Date:, 2013 BCPC 151

Citation: R. v. Amhaz Date: 20130527 2013 BCPC 0151 File No: 57200-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HUSAYNE ALI AMHAZ REASONS ON SENTENCE OF THE HONOURABLE JUDGE MOSS Counsel for the Crown: A. Rice Counsel for the Defendant: C. Charles Place of Hearing: Richmond , B.C. Date of Judgment: May 27, 2013 [ 1 ] THE COURT : Mr. Amhaz, you have entered a plea of guilty to one count of trafficking in cocaine on the 9th of May of 2012,

[ 1 ] THE COURT : Mr. Amhaz, you have entered a plea of guilty to one count of trafficking in cocaine on the 9th of May of 2012, just over a year ago. You appeared here in Richmond, and since October, I believe, you have been reporting to the bail supervisor's office and there have been no infractions, and you have entered a guilty plea to the offence of trafficking in cocaine. [ 2 ] The Crown has referred to a number of cases which generally outline the court's position.

The British Columbia Court of Appeal position is that jail is more or less mandatory in cases where people decide to involve themselves in the sale of hard drugs, in particular via a dial-a-dope-type situation. So the Crown's submission that the negative aspects here outweigh the positive ones and that with the direction from the Court of Appeal that the courts receive, you ought to receive a jail sentence despite the fact you have no prior criminal record.

It is difficult to see a fine and probation as the appropriate penalty for trafficking in cocaine. [ 3 ] The only question before me, as far as I am concerned, is to determine whether or not you should be given a real jail sentence or possibly a conditional jail sentence. A conditional jail sentence would be one that you would be permitted to serve in the community.

The rule from the Court of Appeal is essentially that jail is the appropriate sentence for trafficking, even in a case involving young, first- time offenders, and only in very exceptional circumstances should the courts vary from that. [ 4 ] I have to take into account the facts of your particular case. You were involved with somebody obviously far more steeped in the business than you seem to have been. This Alex Tin Fung Kam and perhaps Alex Seena Darvishi, another name that the individual goes by.

How you would find him to be an associate as a person who has a relationship with a young woman, a strong family background, perhaps the fact that you were unemployed, apparently, and needed money. You had taken out student loans and your girlfriend says you were assisting her. Commendable, but obviously it was not something that you were able to pay back in a reasonably prompt fashion so you chose, out of greed, to sell drugs. That is the long and short of it. And you got caught, ultimately, which often happens. I believe the police had been involved with this other fellow.

He is one who, when they executed a search warrant, they found firearms and drugs. Not good things. That's what one generally finds with dial-a-dope-type people or marihuana grow operations; guns and weapons. [ 5 ] You were very, very close to that situation because of your relationship with this man. This is not just something you decided to do out of the blue. You decided to become a street soldier in whatever operation this fellow seems to have been undertaking. I do not know the details of your involvement with him.

I do know in June of last year, May and June, you were clearly using the sale of drugs as a source of income. An undercover policeman calls you. You just basically tell him your "shift" is whatever, noon 'til midnight, remarkable you're working that shift. Very troubling. And then to confirm that you are in the business you phone him back, by error, a few minutes later, 45 minutes later on the one day. Ultimately you sell, I think it's .3 grams of cocaine? [ 6 ] MS. RICE: .38 grams. [ 7 ] THE COURT: And two-and-a-half grams of marihuana.

We are only dealing with the sale of the cocaine, you have entered a guilty plea on Count 2 in that regard. [ 8 ] I take into account that it is a relatively small amount, clearly, but again, I take into account that you decided to become the foot soldier in the sale of narcotics to street level people that buy them via the telephone. It may have been an isolated period in your life, but it was not an isolated transaction. [ 9 ] When one looks at this case, which is probably the seminal one, R. v. Franklin , Justice Henderson, goes back to 2001. Nothing has really changed.

A pair of individuals purchasing half an eight-ball, I think he ended up selling three flaps, nothing terribly different from this. But the comments of Judge Henderson in that case bear review again as to why it is that he came to the conclusion that a conditional jail sentence was inappropriate, regardless of the amount of the drug.

Particularly he says to some extent you have facilitated the dissemination of a serious drug. “It used to be that drugs were disseminated at the street level by purchasers going to certain areas of town and taking the initiative to seek out drugs dealers usually on street corners and in back alleys.” [ 10 ] Now what we've got is this epidemic of people using cell phones and cars to deliver ordered drugs in a very quick and a generally surreptitious manner that often avoids detection. Anybody in the Lower Mainland, as he says, can place a telephone call to a vendor of narcotics, which you were at the time.

They have to establish their credibility by satisfying the vendor of whatever it is, he is not an undercover policeman. They then make arrangements to have the drugs delivered to wherever the purchaser happens to be, maybe in 15 or 20 minutes. [ 11 ] That is the evil that we are trying to stop. Whatever your views are on the selling of drugs and the possession of drugs, it is against the law. He goes on to say it makes these drugs, primarily cocaine and heron, " readily accessible throughout the Lower Mainland...with less effort on the part of purchasers.

And here I think of adolescents who might feel intimidated at the thought of seeking out a drug dealer in the recesses of the Main and Hastings area...dark alleys and street corners...in the relative comfort and safety of their suburban locations " i.e. Richmond, they can easily purchase these drugs through a dial-a-dope operator such as yourself and your friends.

He inferred, although he had no evidence and I would agree that dial-a-dope operations are obviously profitable, very highly profitable, otherwise people would not get into them. [ 12 ] Aggravating in that case again was the fact that the accused was not a drug addict, had an unrelated conviction not to do with drugs, Grade 12 education. He complied with, I think, his bail terms, moved to a new community and cleaned up his act, as I am told you have. Not that you moved to a new community, I believe you are living with your parents.

They do not allow the presence of alcohol or drugs in their home. [ 13 ] In that case, Franklin asked the court to consider a conditional jail sentence. He got into the selling of drugs to keep his girlfriend from having to prostitute herself. That case is, as I say, probably the one that courts look to most for guidance because nothing says it better as to what a dial-a-dope operation is. Essentially nothing has changed. As he says, again at page 13 of his decision:

“The Lower Mainland is overrun with cocaine and heroin. Those who are willing to disseminate these drugs ... are responsible for the ready availability of them.” [ 14 ] The destructive potential of these drugs does not even bear comment, as people know about the destructive potential, particularly heroin and cocaine. [ 15 ] Then he says it is reasonable to think that those considering the decision to sell drugs will take into account the likely penalty they will receive upon conviction. In other words, general deterrence is a genuine concern in cases of this sort.

A fine would just simply be a licence for doing that which you have done. I do not agree with that. [ 16 ] He did, as I am doing here, attempt to weigh the principles of sentencing; the need for general and specific deterrence, the need for rehabilitation, particularly in the situation involving an offender for the first time.

Jail should be a last resort: He came to the conclusion despite the positive things in that young man's life, jail, in his view, was necessary to instil in he and other members of the community, the society we live in will denounce and deter that conduct as best they can by the imposition of jail sentences.

That is when people such as yourself think, "I could use this money to pay off my student loan, it's easy." Maybe they will be deterred by the fact that if they get caught they might go to jail. [ 17 ] That is the basis upon which I come to the conclusion that, one, a conditional sentence is not appropriate as it does not attain the two principles the courts must emphasize in cases of this nature, denunciation, deterrence, and to a lesser degree, your rehabilitation.

I am mindful of the pre-sentence report and the letters, both of which suggest you are an otherwise positive young man and that your future is ahead of you. [ 18 ] I am going to impose the sentence that Crown suggests of six months in jail. At the end of the day, a six-month jail sentence is not something you are going to end up serving six months for. It is a relatively short sentence. Hopefully when you are released you can resume cohabitation with your spouse. [ 19 ] Is the Crown asking for a probation order? [ 20 ] MS.

RICE: No, Your Honour. [ 21 ] THE COURT: There will be also an order that you be prohibited from possessing any weapons pursuant to s. 109 of the Criminal Code for a period of ten years. You will also provide a sample of your DNA pursuant to s. 487.051 of the Criminal Code . I do not consider this to be the sort of an offence where it should be overlooked. I think it is a significant offence and calls for your contribution to the DNA blood bank in the event you decide to continue your criminality.

I hope you do not, but if you do, that gives the authorities one more instrument to use. [ 22 ] THE CLERK: Victim surcharge, Your Honour? [ 23 ] THE COURT: Waive the victim surcharge. [ 24 ] MS. RICE: Yes. And, Your Honour, the Crown directs a stay of proceedings with respect to Count 1. (REASONS FOR SENTENCE CONCLUDED)