R. v. Nguyen Date:, 2016 BCPC 328

Citation: R. v. Nguyen Date: 20161007 2016 BCPC 328 File No: 59188-2-C Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. CUONG MANH NGUYEN ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: D. Hartney Counsel for the Defendant: I. Donaldson, Q.C. Place of Hearing: North Vancouver , B.C. Date of Hearing: October 7, 2016 Date of Judgment: October 7, 2016

[ 1 ] THE COURT: Cuong Manh Nguyen was found guilty on Counts 1, 2, and 3 of Information 59188-C-2 on May 30th, 2016. The Crown proceeded by indictment. Each of the counts alleges possession of a controlled substance for the purpose of trafficking arising April 8th, 2013, in North Vancouver. The first count alleges possession of cocaine, the second heroin, and the third methamphetamine. [ 2 ] The circumstances are set out in Exhibit 1 which is an agreed statement of facts and, for the purpose of these reasons, I will read that into the record. [ 3 ] The trial regarding this matter started on September 5th, 2014.

A voir dire was held to determine the admissibility of the evidence and a decision was given on December 4th, 2015. On April 8th, 2013, Mr. Nguyen was stopped by the North Vancouver RCMP on Highway Number 1 due to speeding. Mr. Nguyen was driving a grey 2011 Acura RDX, B.C. licence plate, [omitted for publication]. Cuong Manh Nguyen was the driver and the registered owner of the vehicle. [ 4 ] In Mr. Nguyen's man purse, the police found 35.8 grams of cocaine and heroin. A search of the vehicle produced a satchel that was hidden in the ventilation of the vehicle.

In this bag, crack cocaine, methamphetamine, and heroin were found and each substance was packaged for resale. There were 9.6 grams of heroin, 3.4 grams of methamphetamine, and 3.6 grams of cocaine. The total was 16.6 grams. $845 from Mr. Nguyen's wallet and $4,250 from an open compartment under the steering wheel were found, as well as many cellphones, a collapsible baton, and a can of pepper spray. There were also 167.6 grams of heroin found in one of the golf bags in the vehicle. [ 5 ] Sergeant Korbely of the North Vancouver RCMP was requested to provide an expert report on this matter.

Sergeant Korbely's expert Curriculum Vitae is Exhibit 1. His expert report concluded that this quantity of cocaine, heroin, and methamphetamine along with the packaging, money, and other items seized were consistent with drugs possessed for the purpose of trafficking. [ 6 ] According to his report, at the time of the offence, the average price of cocaine was $80 to $100 for one gram. As for heroin, the average price at the gram level is approximately $160 to $200 per gram. For methamphetamine, the average price was $20 to $40 for .1 gram.

The amount of drugs found in the vehicle has an approximate value of a couple of thousand dollars. [ 7 ] Mr. Nguyen was in possession of the controlled substance found in his man purse and in the satchel that was found in the ventilation of the vehicle. However, Mr. Nguyen denied having possession of the heroin found in one of the golf bags that was in the trunk of his vehicle. [ 8 ] Following the guilty pleas, a presentence report was ordered. It can be found in Exhibit 5 of the sentencing proceeding along with the submissions of defence and letters of reference.

Sentencing submissions were made September 15th, 2016. [ 9 ] Mr. Nguyen was released pursuant to an undertaking to appear which had no onerous limitations on his liberty. [ 10 ] Mr. Nguyen is now 33. He was 30 at the time of the offence. He came to Canada with his parents and some of his siblings as refugees from Vietnam at age two. He is lucky enough to have an intact family. There are four in his sibling group. He had a modest upbringing financially, but there were no other issues that he faced with respect to his family. He continues to live in the family home with two other siblings and their families.

I gather his parents own that home. He married one year ago, having been engaged to his now wife for several years prior to that. They have a child now just four-and-a-half months old. [ 11 ] Mr. Nguyen became involved in this trafficking at the instance of Mr. Almodovar with whom he was arrested. They had been friends for some period of time. Mr. Nguyen wanted extra money for his upcoming wedding and honeymoon and began trafficking drugs with Mr. Almodovar in 2013. He reports he no longer associates with anyone involved in the criminal element. [ 12 ] Mr.

Nguyen has a Grade 12 education which he received as an adult shortly after he would otherwise have graduated from high school. He maintained various minimum-wage jobs after he left school. In 2010, he started his own pressure-washing business which was not successful. In 2011, he invested in a restaurant which, unfortunately, also was not successful. However, later in 2011, he started his own cleaning company and that company now is successful and he reports earning approximately $48,000 a year gross. He has no debts and pays minimal rent to his parents. [ 13 ] His wife is currently on maternity leave.

She works for a financial company as a business advisor and is also pursuing her MBA. [ 14 ] Mr. Nguyen has no health, mental health, or substance abuse issues. He has no prior criminal history. He submits that he is prepared to comply with any terms related to a community disposition and I find he would likely be compliant with any such terms. He acknowledges responsibility for his offence and he understands the seriousness of his conduct and, in particular, the impact of the distribution of hard drugs in our society.

He is remorseful. [ 15 ] The mitigating circumstances are that he has no criminal history and is otherwise of good character. He entered a plea. Although that occurred after a Charter of Rights ruling, in the circumstances, it should be given some weight with respect to mitigation.

He is also remorseful for having become involved in this activity. [ 16 ] The aggravating circumstances are the amount and nature of the substances and the fact that this offence was motivated solely by greed. [ 17 ] The Crown submitted that the appropriate range of sentence was from 12 to 15 months and asked the court to consider a sentence at the higher end of that range. They also asked that there be probation to follow any jail sentence.

They are seeking a secondary DNA order, a s. 109 firearm prohibition which is mandatory in these circumstances, the victim fine surcharge, and forfeiture of the items seized from Mr. Nguyen's car.

[18] Counsel for Mr. Nguyen submits that the court should consider or could consider a 90-day intermittent sentence with themaximum period of probation of three years to follow.

If the court declines to impose an intermittent sentence, they submit that asentence in the range of six to nine months would meet the principles of sentence. [19] There is no prescribed minimum penalty for these matters, the maximum penalty is life imprisonment, and no conditionalsentence order is permissible. [20] The Crown argued that the court must consider all of the provisions of s. 718, 718.1, 718.2 of the Code and s. 10(1) of theCDSA. In these circumstances, there are no statutory aggravating factors under either the Criminal Code or the CDSA. The Crownpoints out that the substances Mr.

Nguyen possessed for the purpose of trafficking are highly addictive and insidious destructivesubstances when in the community. [21] The total street value in the admitted statement of facts was described as a "couple of thousand." In submissions, the Crownsuggested they would have been worth somewhere between $7,500 to $9,800 given the police estimates. Suffice to say, it was asignificant amount. [22] The drugs were packaged for distribution. There were multiple cellphones found in the vehicle as well as $5,000 cash on thedriver's side of the vehicle and other cash on Mr.

Nguyen's person. [23] The Crown says the principles of sentence the court should give primary weight to are general deterrence and denunciation. They acknowledge, however, that given Mr. Nguyen's otherwise good character, there is a significant potential for his rehabilitationwhich must also be given weight. [24] They relied on a number of authorities. Some are dated and some are more recent. The dated authorities illustrate the range ofsentence which was imposed prior to conditional sentences being available. [25] In R. v. Cheung, (B.C.C.A.), the offender was 31, had no criminal history, and was not an addict.

Hepossessed two ounces plus two grams of 85-percent pure heroin for the purpose of trafficking. He was a new father in a positiverelationship and a sentence of 2.5 years was imposed. The range of sentence was found to be two to three years. [26] In R. v. Ditson, (B.C.C.A.), the offender was 43. He was on probation at the time of the offence and had aminor and somewhat dated record. He possessed four ounces of cocaine and one ounce of heroin for the purpose of trafficking. It isunclear from the reasons whether or not Mr. Ditson was a user of substances. A sentence of 2.5 years was imposed. [27] In R. v.

Diep, 1999 BCCA 721, the offender was 22. He had one prior drug conviction from a year prior to the offence beforethe court. He was found in possession of one ounce of heroin. The court found that a 15-month period of institutional incarceration wasfit. The issue in that appeal was whether or not a conditional sentence order should have been granted rather than jail. [28] In R. v. Kukelka, 2010 BCCA 180, the offender was 38. He had a long record and was an addict. The criminal history wastypical of someone addicted to drugs characterized primarily by property and drug-related offences.

He was found in possession of 27.83grams of heroin. He had served the equivalent of 24 months in custody to the time of the appeal and was then released. The court in thatcase determined that the range for low-level dealers involved in trafficking to feed their own addiction was 12 to 18 months. [29] In R. v. Hsieh, 2015 BCSC 689, the offender was 23. He was described as having a low to mid-level involvement in thetrafficking and was in possession of a firearm. There were positive prospects for his rehabilitation and he was remorseful.

He received atwo-year sentence comprised of 12 months for the trafficking and 12 months for the possession of the firearm. The court found that theappropriate range was 12 to 15 months, for the drug offence. [30] In R. v. Aviles, 2016 ONSC 34, the offender was found in possession of unstated amounts of cocaine, Oxycodone, heroin, andmarihuana. He was 25 years of age and had a dated and unrelated record. He had made significant efforts at his own rehabilitation afterthe offence. A sentence of 21 months was imposed. [31] Counsel for Mr.

Nguyen concedes that the court must impose a jail sentence for this kind of offence. The argument was as tothe length of time necessary to meet the principles of sentence. It was suggested by counsel that the court considers an intermittentsentence of 90 days plus lengthy probation. They pointed to the fact that many cases have found that these sorts of sentences have asignificant denunciatory and general deterrent effect. [32] They also referred the court to R. v. McGill, 2016 ONCJ 138, at paragraphs 51 and 74, where that court commented on thesignificant deterrent effect of suspended sentences.

The submission was that the ongoing disruption and embarrassment of reportingweekly to a correctional institutional over many months would be of deterrent effect and would have a significant impact on the accused'slife and liberty interests. I agree that these are correct legal propositions. [33] Counsel for Mr. Nguyen also argued that Mr. Nguyen's circumstances are exceptional or unusual as set out in R. v. Voong, 2015BCCA 285, at paragraph 59. The Voong decision dealt with dial-a-dope participants, in other words, people who were participating indial-a-dope operations as traffickers.

Three of the accused dealt with in that matter were addicts and one was a youth helping a friendpay off that friend's drug debt. In Voong, the court found that the range for street-level participants in a dial-a-dope scheme is from six tonine months' jail and up to 18 months' jail depending on all the circumstances. [34] Counsel for Mr. Nguyen provided the court with R. v. Datt, 2014 BCCA 484. This case was an example of exceptionalcircumstances which resulted in an 18-month conditional sentence order for trafficking.

I adopt the principles of sentence as set out byMadam Justice Smith in paragraphs 70 to 79 of that decision. [35] In R. v. Krause, 2015 BCPC 305, the offender was involved in a dial-a-dope operation as a street-level participant. He was 24years of age and had no criminal history and was not addicted to any substances. He withdrew from his participation approximately a

year prior to his arrest and, by the time of his arrest, had "turned his life around." At that time, a conditional sentence order was available. However, the court determined that in those circumstances a suspended sentence was appropriate. [ 36 ] In R. v. Pepper , 2015 BCCA 476 , the offender was also involved as a street-level participant in a dial-a-dope operation. He was 40 years of age, a father to several children, and had no criminal history. He was facing financial issues.

He had developed a substance abuse problem which led to a drug debt, and it was the dealer who suggested that he pay off that debt by participating in the scheme. That offender was also suffering from anxiety and depression. The court found that his participation was out of character and imposed a 90-day intermittent sentence in those "exceptional circumstances." [ 37 ] In R. v. Ameeri , 2016 BCSC 1187 , the offender was 23 years of age and was involved in a dial-a-dope operation at the street level. He had a dated, unrelated record.

He also faced the risk of deportation if he received a sentence of over six months' duration. He had faced some challenges as a new immigrant in his teen years coming to Canada. A 90-day intermittent sentence was imposed. [ 38 ] In my view, the circumstances of this offence and this offender differ materially from cases involving youthful or addicted persons engaged in a street-level dial-a-dope scheme. Mr. Nguyen was not an addict. He had no financial or other challenges. He was operating a successful business at the time. I find his involvement to be mid-level and not as a street-level distributor for others.

I do, however, find that he was not the operating mind of this trafficking scheme. [ 39 ] With respect to turning his life around, Mr. Nguyen enjoys the same life now as he did both before the offence and during the offence. What has changed is that he has withdrawn from his involvement in this criminal activity. [ 40 ] In all the circumstances, I find Mr. Nguyen made a free choice to engage in this conduct. I find that his moral blameworthiness should be viewed as high. He was mature, being 30 years of age, when he determined to engage in this conduct.

As noted already, he had no financial need and had a stable life with no challenges and no addiction. He was motivated solely by greed and the ability to make easy money. [ 41 ] This was not an impulsive choice. He had plenty of opportunity to consider what he was going to do. What he chose to do, simply to make money, was to engage in the distribution of addictive and highly harmful substances for profit. I infer his involvement had been ongoing at the time of his arrest due to the alterations to his vehicle.

As noted, I find that he was not engaged as a street-level dial-a-dope distributor, but was engaged at the mid-level, though not as a principal. [ 42 ] All of those factors must be balanced against his otherwise good character. Mr. Nguyen has significant family support in the community. His wife is of good character and he has a new child who he needs to take care of.

He is self-employed and runs his own business and there will be consequences for that business and to his family as a result of his incarceration. [ 43 ] I accept that he has been specifically deterred by the process of being charged and going to trial. I find that there is little rehabilitation required for Mr. Nguyen other than to ensure that he chooses in the future to continue to lead a prosocial life. It has been three years since the time of the offence and there is no suggestion whatsoever that he has been engaged in any wrongdoing since that time. I find I must temper my sentence to ensure that Mr.

Nguyen and his family are not overly impacted by the experience of his imprisonment. [ 44 ] Weighing all of the circumstances of this offence and this offender and taking into account the principles of sentence and the range of sentence set out in the cases I have reviewed, I find that a 90-day sentence would not meet the principles of sentence and, in particular, the principles of general deterrence and denunciation of this kind of conduct. Rather, I find a significant period of incarceration is required to meet those principles.

As was said by Madam Justice Bennett in Voong at paragraph 1 : Those who embark in drug trafficking engage in serious criminal conduct. Absent exceptional circumstances, in British Columbia, they should expect to be sent to prison. [ 45 ] Mr. Nguyen, if you will stand. [ 46 ] Mr. Nguyen, I am imposing a sentence of 12 months' imprisonment.

You can be seated again. [ 47 ] I do not see any need to impose any probation to follow because that would be for rehabilitative purposes and I trust, sir, that we will not see you back before the courts again; that the message has been made clear to you. [ 48 ] You will be required to provide a sample of your DNA on a secondary basis. [ 49 ] There will be a s. 109 firearms prohibition. I believe it is 10 years -- [ 50 ] MR. HARTNEY: Yes, Your Honour. [ 51 ] THE COURT: -- Mr.

Hartney? [ 52 ] So you are not to possess any firearm, crossbow, prohibited weapon, restricted weapon, imitation weapon, prohibited device, ammunition, prohibited ammunition, explosive substance, or all such things and any related authorizations, licences, and registration certificates. [ 53 ] Do you have any such items to surrender? [ 54 ] That is for a period of 10 years. [ 55 ] There will be a victim fine surcharge of $300. [ 56 ] MR. HARTNEY: I think we agree on that.

[ 57 ] THE COURT: Yes. Time to pay? Six months? [DISCUSSION RE VICTIM FINE SURCHARGE] [ 58 ] THE COURT: So I think this one because it predates the change will be $100. [ 59 ] THE CLERK: I think you are right. [ 60 ] THE COURT: Okay. [ 61 ] THE CLERK: I am sorry. [ 62 ] THE COURT: So $300. [ 63 ] MR. DONALDSON: I am going to suggest a year to pay, Your Honour, so that he can serve his sentence and get out and then pay. [ 64 ] THE COURT: Okay. All right. So I will give you to October 31st, 2017, time to pay the victim fine surcharge, and I believe forfeiture has already been dealt with. [ 65 ] MR.

HARTNEY: Yes, Your Honour, I have a copy of a signed order that -- [ 66 ] THE COURT: Yes. [ 67 ] MR. HARTNEY: -- I will just give you. [ 68 ] THE COURT: Good luck, Mr. Nguyen. [ 69 ] MR. DONALDSON: Thank you, Your Honour. Any remaining counts might be stayed. There might be a marihuana count still -- [ 70 ] THE CLERK: Count 4, Your Honour. [ 71 ] MR. HARTNEY: I am going to assume that my colleague intended to stay any outstanding counts. [ 72 ] THE COURT: Yes, I think it is just Count 4 which was the possession of the marihuana. [ 73 ] MR.

HARTNEY: Crown will direct a stay of proceedings on that count. [REASONS FOR SENTENCE CONCLUDED]