R. v. Vena Date:, 2017 BCPC 62

Citation: R. v. Vena Date: 20170224 2017 BCPC 62 File No: 59155-4-C Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RYAN BARRY FRANK VENA ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: D. Harney Counsel for the Defendant: S.G. Wright Place of Hearing: North Vancouver , B.C. Date of Hearing: February 24, 2017 Date of Judgment: February 24, 2017

[ 1 ] THE COURT: Ryan Barry Frank Vena pled guilty to one count of trafficking in cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act and one count of possession of both cocaine and heroin for the purposes of trafficking contrary to s. 5(2). Both offences occurred on September 11th, 2015, in North Vancouver. The Crown proceeded by indictment. [ 2 ] Mr. Vena came to the attention of the police as a result of a tip from a civilian who had found a profile on a dating website which they believed was being used as a cover for illicit drug sales. The police commenced an undercover investigation.

An officer went through the dating profile and was eventually "vouched" for and given a second telephone number. The police then made a number of purchases of drugs, primarily cocaine, from other persons involved in the operation. [ 3 ] On May 8, they met with Isaac Yacoback who is the cousin of the accused. Mr. Yacoback informed the police that he was "the boss" and was meeting them because his runner did not show up to work that day. An ounce purchase was discussed and an 80- gram purchase was made. Mr.

Yacoback told the officers that they would have to deal with him to get a discount as the runners were not permitted to do so. On June 4th, the police made a one-ounce purchase from Mr. Yacoback for $1,800. [ 4 ] On June 18th, police stopped a vehicle driven by a Mr. Carrier. The accused was a passenger. The vehicle was surveilled to a residence at 359 East 4 th Street in North Vancouver which was determined to be the home of the offender and was searched pursuant to a warrant later in the investigation. On July 16th, the police purchased three ounces of crack cocaine from Mr. Yacoback. Mr.

Yacoback drove a Dakota truck registered to Mr. Vena to that incident of trafficking. [ 5 ] On September 11, Mr. Vena was surveilled leaving the residence on East 4th Street operating the Dakota. Shortly after, he was observed engaging in a short meeting and hand-to-hand exchange involving a second vehicle. Mr. Vena then engaged in another transaction after which the buyer was arrested and it was determined he had purchased one-half-a-gram of crack for $50 from Mr. Vena. [ 6 ] Mr. Vena was stopped and arrested within an hour of leaving the residence. He was noted by the police to be "frantic" inside the vehicle.

He was found in possession of three cellphones, one of which was a BlackBerry and which was ringing continuously. An officer called the number which had been used to make the undercover drug purchases and that call went through to the BlackBerry cellphone. The undercover officer's call identification information also appeared. [ 7 ] Mr. Vena was in possession of $260 cash in a pocket and $775 in his wallet. On his person were found 13 flaps weighing .09 grams each for a total of 1.2 grams containing a combination of heroin, cocaine, and Fentanyl.

He was also in possession of 10.1 grams of powdered cocaine and 3.2 grams of crack cocaine. The drugs were estimated to have a street value of approximately $2,000. The packaging matched that found on the buyer arrested earlier. [ 8 ] A search warrant was executed on the residence on East 4th Street. Mr. Vena was occupying a two-bedroom basement suite. Keys found on his person opened the front door lock. He advised the police he had been residing there for four-and-a-half months. The police located paraphernalia consistent with trafficking illicit substances and packaging consistent with the drugs found on Mr.

Vena at his arrest. There were three bags of cash containing a total of $3,890 and numerous scoresheets evidencing thousands of dollars of transactions. 2.74 grams of TFMPP, an alternative to MDMA, and 2.3 grams of MDMA were also found. [ 9 ] A female believed to be Mr. Vena's girlfriend approached the residence and was stopped. 25.6 further grams of MDMA was found in the glovebox of the vehicle she was in. [ 10 ] There was a non-operational marihuana grow room in the second bedroom. The police also located ammunition for a nine millimetre handgun. It is not alleged that Mr. Vena possessed a firearm.

This evidence was put before the court to illustrate the dangers to the public which arise from such offences. [ 11 ] Mr. Vena is not alleged to have been the person in charge of the trafficking operation or to have been in a position to direct others. However, he was not acting merely as a runner for the purpose of supporting an addiction. Rather, he was assisting the operation by permitting his residence to be utilized for storage and packaging as well as engaging in "dial-a-dope" distribution.

The proceeds from his involvement were sufficient to support himself and his drug habit, pay his rent, and operate a vehicle. [ 12 ] A presentence report was prepared. There were also a number of letters of reference filed. I have also been ably assisted by the careful and thorough submissions of both counsel. [ 13 ] Mr. Vena is now 35 years of age. He has a lengthy criminal history. The first of his offences occurred when he was in his early 20s. There are a number of thefts in 2003 and 2004. On March 16th, 2005, he received a sentence of 75 days and probation for a robbery which occurred in 2004.

There are five offences of a minor nature in 2006 and 2007. In April of 2008, he was convicted of possession and possession for the purpose of trafficking. He received the equivalent of a 50-day sentence and probation for the latter offence. On December 5th, 2008, he was convicted of simple possession along with a property offence and received a short jail term and probation. [ 14 ] In September of 2009, he was convicted of trafficking and possession for the purpose of trafficking and received a four-month conditional sentence for the PPT.

His conditional sentence was terminated within 10 days and, at the same time, he was convicted for another property offence. The next conviction is for theft-under and a sentence of 10 days and probation for two years was imposed on June 21st, 2010. On November 26th, 2010, he was convicted of three counts of robbery and received a federal sentence of two years. [ 15 ] His last conviction is for a breach of the curfew condition on his bail on this matter by being out fishing with a family member during the daytime and for which he spent 10 days in custody.

His compliance with terms of bail and probation has been good when he has been clean and sober and poor when he has been using. [ 16 ] Mr. Vena had a stable upbringing in an intact middle-class family. He has spent most of his life on the North Shore. His mother and father remain supportive of him. Mr. Vena was diagnosed with ADHD as a preschool child. Despite being assessed as

having a high intelligence, he struggled with his education and was often bullied. He began to act out in high school, fell in with anegative peer group, and began to sell and use substances. He eventually dropped out of school. He has been struggling with addictionissues ever since. His employment as an adult has been sporadic and primarily in construction labour. [17] At 18, he was assaulted. He was beaten on the head with a golf club, stabbed in his torso, and one of his hands was nearlysevered with a machete. Fortunately, his hand was able to be reattached and is functional.

He continues to experience posttraumaticstress symptoms from this incident. Mr. Vena has contracted hepatitis C due to intravenous drug use. [18] Mr. Vena maintained his sobriety for nearly five years during and after serving the two-year sentence imposed in late 2010 forthe robberies. He completed his GED in custody, was released early, and went on to study at college where he earned approximatelyhalf the credits necessary to obtain a degree. His long-term goal is to pursue social work as a career.

Unfortunately, in 2014, he injuredhis back in a car accident, was unable to work, and was prescribed narcotic pain medication. He became depressed and began usingsubstances again which led him to commit the offences before the court. [19] After his arrest on this matter, he was released to reside with his parents. He continued to use drugs without their knowledge. By the summer of 2016, he was using heroin, crack, cocaine, GHB, and alcohol. He overdosed and then sought assistance. He is nowresiding in a recovery program. He entered that program in the late summer of 2016.

By all accounts, he is dedicated to his recoveryand to the program. He intends to enter their second-stage housing and remain there for a year. Mr. Vena is described as personable andis a valued participant in the program. [20] He has recently weaned off methadone and completed a SMART Recovery Program. He is attending a weekly meeting with anurse at Stepping Stones Day Treatment Program and is working part-time with his father. In his spare time, Mr. Vena is volunteeringwith the Easy Does It Club which is a supportive resource for those working to overcome addictions.

He has also been instrumental insetting up an outreach initiative called Street Saviours which sends people trained to administer Narcan to the Downtown Eastside toassist people who overdose and to provide education and support. [21] Mr. Vena accepts responsibility for his offending and is remorseful for his conduct. He is seen to have insight into hischallenges and the behaviours which resulted in his relapse in 2014. Although his plea was not an early one, any delay was due to theadvice of counsel respecting potential triable issues. [22] I accept that if Mr.

Vena chooses to maintain a clean and healthy lifestyle, he will not likely be back before the courts again. Heappears to have the abilities necessary to complete a university degree and go on to be self-supporting and a contributing member ofsociety. [23] The Crown submits that the court should impose a period of incarceration of 15 months concurrent on each count. They agreeMr. Vena is entitled to eight days of credit for five days of actual time served. They also seek an order requiring him to provide his DNAfor the databank as this is a secondary designated offence.

They are seeking forfeiture of the items seized at his residence and of hisDakota truck. A s. 109 firearms prohibition for life is mandatory. [24] Counsel for Mr. Vena argued that the offender should be given a suspended sentence as they say his circumstances areexceptional as was set out in R. v. Voong, 2015 BCCA 285, at paragraph 59: In

summary, absent exceptional circumstances, the sentence for a first offence or with a minimal criminal record, dial-a-dope drug sellerwill be in the range of six to eighteen months imprisonment, depending on the aggravating circumstances. Exceptional circumstancesmay include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict,gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done tothe offender as a result of being caught.

This is a non-exhaustive list, but at the end of the day, there must be circumstances that areabove and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge to concludethat the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded that CSOsentences are not available.

Thus, it will be the rare case where the standard of exceptional circumstances is met. [25] The Crown says that the circumstances of these offences and this offender do not constitute the exceptional circumstances as setout in Voong.

The Crown argues that their position is a lenient one which takes into account the offender's guilty plea, the steps Mr.Vena has taken to address his rehabilitation to date, and his positive prospects for continuing to remain clean and sober and to be aprosocial member of our society. [26] The Crown relied on the following cases to support a 12- to 18-month range of sentence for low-level traffickers with relevantprior convictions where they have trafficked drugs to support their own drug use: R. v. Lloyd, 2014 BCPC 11, 2014 BCCA 224,paragraphs 59 to 72, and 2016 SCC 13, paragraphs 52 to 55; R. v.

Tran, 2007 BCCA 405, paragraphs 30 and 34 to 38; R. v. Gibbon, 2006BCCA 219. I agree that the position on sentence taken by the Crown in this matter is a lenient one and at the low end of the range in thecircumstances. [27] Counsel for Mr. Vena also relied on R. v. Preston, (BC CA), [1990] B.C.J. No. 2886; R. v. Cain, (BC CA), [1993] B.C.J. No. 1369, for the principles stated therein with respect to sentencing addicts and the deterrent effect of asuspended sentence; and R. v. Galang, 2014 BCPC 240; R. v. Wong, 2016 BCSC 1568; R. v. Rutter, 2016 BCPC 321; and R. v.

Yang,2016 BCPC 381, with respect to exceptional circumstances. [28] I have also considered the principles of sentence set out in s. 718, 718.1, and 718.2 of the Criminal Code and s. 10 of the CDSA. [29] Mr. Vena's involvement in the offence was ongoing and the operation was a sophisticated one from which he was profiting overand above supporting his drug use. This was not only a dial-a-dope operation, but one that was advertised on social media making it aneven more insidious offence.

Given the presence of Fentanyl in the substance sold by the operation in which this offender was involved,the oft-quoted observations of Mr. Justice Henderson in R. v. Franklin, 2001 BCSC 706, at paragraphs 44 to 48 are particularly

apposite. Many of those who are dying from overdoses are suburban recreational users who are getting easy access to these substances as a result of dial-a-dope operations. [ 30 ] Mr. Vena failed to comply with his bail conditions and continued to use substances for the first year he was in the community on interim release. As a result, he has only just begun his journey to rehabilitation rather than having taken the opportunity to address his issues over the full 16 to 17 months since the date of the offence. Mr.

Vena is a mature adult in his mid-30s with a criminal history which includes three prior drug-related offences and four prior robberies, each motivated by substance abuse. He was not deterred by the prospect of a further jail term when he returned to trafficking in 2014 or when he failed to pursue his rehabilitation while on bail. [ 31 ] It is clear that trafficking a

Schedule I substance is an aggravating factor and denunciation and general deterrence must be the primary objectives of sentence. The Crown also argues, and properly so, that the presence of Fentanyl in a substance held out to be cocaine and/or heroin should result in the imposition of a clearly denunciatory sentence, given we are currently facing a public health opioid crisis leading to over 900 overdose deaths due to Fentanyl and Carfentanyl in one year in B.C. alone. However, there is no suggestion Mr. Vena had knowledge the substances he was selling contained Fentanyl.

Exemplary sentences may be found to be appropriate for those who have trafficked in such substances more recently as those offenders could be found to have been wilfully blind to the likelihood of Fentanyl or Carfentanyl being present. [ 32 ] All of the cases cited by both counsel are of assistance either with respect to the principles or to the range of sentence. In those cases where a suspended sentence has been imposed as a result of a finding of exceptional circumstances, the offender was a low-level trafficker who was addicted and was selling only to support their own drug use. Most were younger than Mr.

Vena and/or had no record or less serious criminal histories. Most had made consistent long-term efforts following the offence or upon their interim release to firmly establish their rehabilitation by the time of sentence. [ 33 ] Mr. Vena has conducted himself admirably over the last six months. He has made great strides forward in his recovery and rehabilitation. As a result, I have carefully considered all of the aggravating and mitigating factors, the gravity of the offence, and the degree of responsibility Mr. Vena bears for his offending behaviour, and the principle of restraint.

I have carefully considered and weighed those principles and circumstances against the principles of general deterrence and denunciation in determining whether a term of incarceration is necessary to meet all of the principles of sentence. [ 34 ] I find I must conclude that the circumstances of this offender and this offence are not exceptional and that I must impose a term of incarceration. I am well aware that Mr. Vena's efforts to date will be interrupted by a period of time in custody and that some of the progress he has made so far may be negatively impacted. I can only hope that Mr.

Vena will again conduct himself as he did when serving his last sentence and will not lose his motivation to remain clean and sober. I am hopeful he can again achieve early parole so that he can renew his admirable efforts at the earliest possible time. [ 35 ] Mr. Vena, if you will stand. [ 36 ] There will be a sentence of 14 months on each count. I have not specifically parsed out the eight days' time served in imposing that sentence. That is concurrent on each count. [ 37 ] You can be seated again. [ 38 ] With respect to probation, was Crown seeking -- [ 39 ] MR.

HARTNEY: Your Honour, I had not made that request. [ 40 ] THE COURT: Right. [ 41 ] MR. HARTNEY: I leave it up to Your Honour. [ 42 ] THE COURT: All right. There will be a DNA order on the secondary ground, and there will be a firearms prohibition, and I believe I am correct that, in Mr. Vena's circumstances, that will be for life? [ 43 ] MR. HARTNEY: That is correct, Your Honour. [ 44 ] THE COURT: All right.

Section 109, and I have signed the forfeiture order of the property requested. [ 45 ] MR. HARTNEY: Thank you, Your Honour, I will leave that in the court file. [ 46 ] THE COURT: Yes. Anything further? [ 47 ] MR. WRIGHT: No, Your Honour. [ 48 ] THE COURT: All right. Good luck, Mr. Vena. The Honourable Judge J. Challenger Provincial Court of British Columbia