R. v. Tran Date:, 2012 BCPC 388

Citation: R. v. Tran Date: 20120919 2012 BCPC 0388 File No: 57502-2-C Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. THIEU HUNG TRAN EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. MOSS Counsel for the Crown: J. Whyte Counsel for the Defendant: D. Forsyth Place of Hearing: North Vancouver , B.C. Date of Judgment: September 19, 2012

[ 1 ] THE COURT: You have entered a plea of guilty to two counts, trafficking in cocaine between the 5th of May 2011 and the 15th of July 2011, and trafficking in heroin between the 5th of May 2011 and the 29th of September 2011. Those are both serious offences under the Controlled Drugs and Substances Act and carry with them maximum life in prison penalties. [ 2 ] You are a person who has a prior criminal record for an offence of breaking and entering which carries with it a maximum penalty of life imprisonment. You did receive one year in jail for that. That jail sentence was imposed on the 27th of March 2006.

You were permitted to serve that sentence in the community and I do note that there were no breaches. At least I do not have any breaches on the pre-sentence report, and I am told that you acknowledge breaching a term of your probation or your conditional sentence curfew term.

I will get into that a little bit later. [ 3 ] The totality of these drug transactions of which there were ten in number and were on the 5th of May, the 31st of May, the 13th of June, 15th of July, the 11th of August, 19th of August, 26th of August and 29th of September all in 2011, last year, a total of ten and on a couple of occasions there were trafficking in both cocaine and heroin at the same time. And the total amount involved was about $200 worth of cocaine and about $1190 worth of heroin. [ 4 ] These are serious charges; you know that. You have entered a plea of guilty to the offence.

You have your family here in court with you here today. Both counsel have covered the basic problems that individuals such as yourself face. You are a person who is not coming before the court with no criminal record.

You are coming before the court with a conviction for breaking and entering and a one-year jail sentence already. [ 5 ] So aggravating in the circumstances is the continual course of conduct between May and September of 2011, the fact that this is a dial-a-dope case and we are all familiar - and I am sure no doubt you are - that dial-a-dope transactions are transactions involving telephones, cars and the easy pick-up and distribution of drugs. You are at the low end of the dial-a-dope scenario; however, you are an essential cog in the wheel.

Your motivation, out of your own mouth, was greed, money, the entrepreneurial aspect. You must have known and you did say to the probation officer, "everyone gets caught." So you entered into this greed-motivated enterprise with the anticipation that you would ultimately get caught and that there would be a price to pay for it. Therefore, here you are today. You are not a 21-year-old with no record. You are 30 now and you do have a record. [ 6 ] Whether or not you thought you were supplying drugs to addicts, probably not.

However, I note that in Judge Baird Ellan's decision of Thompson , Tab 7 of the Crown's materials, page 3, she says that the accused himself is not an addict, but: ... selling ... to people who do not appear to be addicts, can itself be considered to be a predatory activity, particularly when crack cocaine is involved. So whether or not that person -- I am sure the undercover police officer was a robust individual and probably did not appear to be an addict.

Nevertheless, you were prepared to, in a predatory sense, sell him hard drugs. [ 7 ] One might say that, "everyone gets caught" indicates a minimal amount of remorse. I accept that your guilty plea is of some consideration in the area of remorse for the court. You did not set a trial date; I bear that in mind. You entered a plea of guilty in June of 2012 to an offence that occurred in May through September of 2011. [ 8 ] I am taking into account another aggravating factor which is the prolific nature of this crime in this community, and, indeed, the communities in this general area.

Considering, as I say, your age, the blame that you place on negative peers who you do not seem to be prepared to provide information about, which is I gather part of the dial-a-dope-type enterprise. One does not expect cooperation from people such as yourself. [ 9 ] There is some indication in the pre-sentence report of mental health issues, although it would appear that the pre-sentence report author was not advised of any beating that you might have suffered or depression caused as a consequence of possible concussive injuries. There is no medical evidence before the court.

What we do have is repeated hard drug transactions over a significant period of time for one purpose and that is quick profit. [ 10 ] Crown says that the location in the public domain ought to be considered as an aggravating factor. The dial-a-dope operation by its very nature makes drugs available in suburban communities like North Vancouver. Middle of the day, there you are in a public place trafficking in drugs. You seem to be fully prepared to do so whether or not the police suggest the location or you.

You are quite prepared to sell drugs in an area where young people are to be found. [ 11 ] With respect to the pre-sentence report, I would agree that the pre-sentence report is more or less a bare-bones-type pre- sentence report that looks like it was completed on the 5th of September 2012. It was requested in June of 2012 and is a very brief document, a couple of pages. There was not a serious inquiry into your family and your situation.

There seems to be a review of your file by the pre-sentence report author; it tells me that you lived with your parents and continue to do so at age 30, that you have a scattered, as the word has been used, work history. You have got an almost zero work history. You have limited education. You had trouble in high school and never finished Grade 12. Your parents -- your father I do not believe has ever worked in Canada.

You are an immigrant from Vietnam and live with five siblings with your parents. [ 12 ] With regard to your emotional status, let us just say your report is not terribly complete on that issue other than indicating you take medication and might have been referred to a psychiatrist a couple of years prior, but, apparently, that is not ongoing.

You claim that you do not use alcohol or illicit substances which is relevant because this is the sale of hard drugs to people not to support a drug habit, but rather as I say, simply for profit. [ 13 ] With regard to the attitude and receptiveness towards community supervision, you take issue with generally the comment in that pre-sentence report where you were not particularly compliant with your earlier conditional sentence and say that you did report and you only had the one breach for curfew violation. And it says that you did not follow through with community work, and I am told that you

say that you did, even excepting that. You then say as to the future, you are willing to comply with any court order and want to put your criminal lifestyle behind you, spend time at home, help the community and work towards world peace. I have no idea what you are talking about there. [ 14 ] The B and E that occurred in 2006, you stated to the probation officer you just happened to be in the car with friends. What she drew from that was that you were minimizing your involvement in that offence.

In any event, I deal with the fact that you were convicted or pled guilty and received a one-year jail sentence and I will leave it at that. [ 15 ] It says in the pre-sentence report that you take responsibility for your actions and put blame on negative peers, as I say, and quick profit as the reason for these offences. [ 16 ] At the end of the day, the question is -- because both counsel agree that a conditional jail sentence is inappropriate and I would agree with that, a jail sentence must be imposed. The only issue being how long that jail sentence should be.

Case authorities help to some extent, but only in a limited way; the Court of Appeal tells us that jail is the appropriate sentence and a fit response to this kind of an offence even at the lower end of the scale, and that trafficking in

Schedule 1 substances is punishable by a maximum of life imprisonment. That indicates to you, and so it should, how serious this offence is. You say through counsel that you did not understand the possible penalty of what you could get for trafficking in narcotics. I find that difficult to follow.

If you are prepared to involve yourself in the sale of narcotics through a dial-a-dope operation and if you are expecting to get caught, one would logically think you might think of what the down side might be, but you tell me you did not. [ 17 ] So at the end of the day, I am satisfied that the aggravating factors far outweigh the mitigating factors, and that the principles of denunciation and deterrence are the mandatory principles this court has to consider.

Your rehabilitation to a lesser degree and the extremely serious nature of dial-a-dope crimes themselves, making drugs readily available, as I say, to young people particularly in suburban communities regardless of the fact that you are at the lower end of the scale of drug trafficking. [ 18 ] Taking into account everything, I impose a jail sentence of 12 months followed by one year probation. You will report within 48 hours of your release to the probation office at Suite 100, 233 West 1st in North Vancouver, and thereafter as and when directed. They will direct that you report thereafter I am sure to Vancouver.

Reside where directed and approved of by your probation officer. Do not change your address without first obtaining the prior approval in writing of your probation officer. [ 19 ] You will attend such psychiatric and/or psychological counselling as you may be directed to by your probation officer, including if so directed, involvement with the local mental health team or a forensic psychiatric outpatient clinic. [ 20 ] I am not going to direct that you do community work service.

I am not going to impose a curfew. [ 21 ] You will not possess any cellular telephone or other wireless handheld device, save and except one that is registered in your name personally, i.e., Thieu Hung Tran, as set out in the indictment. [ 22 ] You will abstain absolutely from the use and possession of non-prescription drugs and drugs set out in the Controlled Drugs and Substances Act . [ 23 ] There will be a s. 109 firearms prohibition which is mandatory for life for restricted weapons and a ten-year prohibition for all other items included under s. 109. [ 24 ] Is Crown asking for a DNA sample? [ 25 ] MR.

WHYTE: It is a secondary offence, Your Honour, so I suppose the Crown probably should given the previous conviction and the number of counts in this case. [ 26 ] THE COURT: In the view of the nature of the crimes and the fact that they continued over a period of time, I am satisfied that and do order that you supply a sample of your DNA to the authorities while in custody. [ 27 ] Waive the victim fine surcharge. [ 28 ] THE CLERK: Sorry, Your Honour. How long was the probation for? [ 29 ] THE COURT: One year. [ 30 ] THE CLERK: Thank you. [ 31 ] THE COURT: Thank you. Next. [ 32 ] MR.

FORSYTH: Thank you, Your Honour. [ 33 ] MR. WHYTE: Thank you, Your Honour. (REASONS FOR SENTENCE CONCLUDED)