R. v. Seu Date:, 2011 BCPC 135

Citation: R. v. Seu Date: 20110405 2011 BCPC 0135 File No: 69801-3-C Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ABDULOS SEU ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE DOHM Counsel for the Crown: M. Down Counsel for the Defendant: S. Taylor Place of Hearing: Nanaimo , B.C. Date of Judgment: April 5, 2011 [ 1 ] THE COURT: Mr. Seu has pleaded guilty to charges of possessing cocaine for the purpose of trafficking and possessing heroin for the purpose of trafficking. This happened on August 22, 2009, at Nanaimo. [ 2 ] The facts were that Mr. Seu was pulled over by the police.

He was arrested for driving while prohibited, because he had given his brother's name, and his brother was prohibited. [ 3 ] The police, in performing those duties, found in Mr. Seu's possession a total of nine and a half grams of cocaine in 15 different packages and four grams of heroin in eight packages. They also found two cell phones, one of which showed 16 missed calls in the time between 1528 and 1638 on the day of the arrest. This was just within the period of about a quarter hour after Mr. Seu was arrested. The total value of the drugs on the street at their lowest value is $1,650. [ 4 ] Mr.

Seu is 33 years old. He has no prior convictions. His record consists of a conviction on July 19, 2010, for personation, which arose when he gave his brother's name, and for breach of an undertaking. The undertaking was a police undertaking, and it had to do with the consumption of alcohol. [ 5 ] At the time of this offence he had no convictions. That is what his status is in law today. He comes before the court with no previous criminal record.

I know he has had some convictions since, and that speaks a little towards his attitude, but in this situation I think it says very little. [ 6 ] The Crown and the defence are at odds on this case, because the Crown submits that there should be a 9-month period of imprisonment, to be served in jail, and the defence suggests that a similar period could properly be served under a conditional sentence order. [ 7 ] A pre-sentence report was prepared; it has described Mr. Seu's background.

It says, in part, that he is currently living with his parents; that he was expelled from high school in his grade 12 year because he missed too many classes, but that he went to the Vancouver Community College where he completed his high school at the age of 22. He is now taking on-line courses in stock and options trading through Trade Smart University.

[8] His work is described as varied; short and long-term employment, including working as a painter, a salal picker, a cutter in a fishplant, and having a home-based business in marketing wholesale travel packages. He said that he now works for World Financial Groupand is training to be an asset manager. His pay is commission-based. [9] Although he admitted to selling the drugs, he is adamant that he does not, nor has he, experimented with them. He also said thatalcohol was not a factor in this offence. While awaiting sentence, he has generally reported as directed.

He said of his motivation forselling drugs was strictly financial and it was easy. In the pre-sentence report he says that he knew it was wrong and that he felt guilty,that he thought he could get in and out of selling drugs quickly and not get caught, and that he feels sorry for what he did and for anypotential harm he may have caused. It is said that he has expressed his recognition that selling drugs has a negative effect on thecommunity. [10] He is here. He is not without support; his parents are here, and they have been here all day. A number of letters have been filedon his behalf.

They are letters which include letters from his sister, in which she speaks of his support for the family and hisinvolvement in assisting with attendances upon their father, who is undergoing, or has been undergoing, chemotherapy and surgery. [11] There is also a letter from a Mr. Lath, who is a MoreSports Midtown Hub Coordinator at a Vancouver telephone number. Heknew Mr. Seu for a lengthy period of time arising out of Mr. Seu's involvement at the Kensington Community Centre. He found Mr.Seu to be helpful as an assistant coach in the Night Hoops program. [12] There is a letter from a Mr.

Tchaikovsky [phonetic], who has known Mr. Seu for about four years. Mr. Tchaikovsky's letter saysthat Mr. Seu is well-mannered, responsible, and reliable, that he feels regret, shame, and disappointment. Mr. Tchaikovsky, on behalf ofMr. Seu, hopes that Mr. Seu will have a second chance. [13] A Delana Tarion [phonetic] wrote a letter, and in essence that person says that the conduct which gave rise to these chargesappears to be out of character for Mr. Seu. The author perceives Mr.

Seu to be a mature and well put-together individual and that Mr.Seu speaks of his disappointment to his parents. [14] These cases are not simple, because the law in British Columbia allows a trial judge or a sentencing judge to impose aconditional sentence order or a jail sentence, in the traditional sense, in any number of sets of circumstances.

There has been somethingof a pendulum swing in sentences in British Columbia, where at one time conditional sentence orders for this kind of offence werevirtually routine, then the pendulum swung in another direction, and the Court of Appeal, in an effort to introduce some predictability, setout a case, which I think was R. v. Sui.

If I recall that case correctly, the general rule for trafficking cases is, as it always has been, thattrafficking in hard drugs results in a jail sentence; that a jail sentence can be a conditional sentence order in the right circumstances. [15] The Crown has provided me with a number of cases: R. v. Nguyen, [2003] B.C.J. No. 2927, which is a very similar case, inwhich a young man, 10 years younger than Mr. Seu was at the time of the offence, after a trial for a dial-a-dope type of operation, wassentenced to jail. He was 22; he had no record; he was not a drug user.

He had a positive pre-sentence report and good post-convictionbehaviour. His motive was purely profit. At page 3 of 4 in that decision, the appellate judge referred to the reasons for judgment of thesentencing judge and said: The aggravating factors are: (1) the defendants are not drug users and were not selling drugs to support their own illness; (2) “dial-a-dope” operations have been, and continue to be, a serious problem in Nanaimo.

This was reported as long ago as 1998 . . . (3) it isnow accepted in society generally, and the courts specifically, that alcohol and drug addictions are illnesses, which individuals mustwork at in order to overcome the problem. [16] It is said that on behalf of Mr. Seu that dial-a-dope operations are certainly epidemic in the province, but they are no worse herethan they are anywhere else. I have paraphrased Mr. Taylor's words, but I think I have his point. [17] The second case referred to me by the Crown is R. v. Tran 2007 BCCA 613 , [2007] B.C.J. No. 2845.

The accused was28 years of age, he had no criminal record. He was involved in the drug trade for financial gain. He was part of a dial-a-dope drugtrafficking scheme. The drugs were hard drugs, as are the drugs in the case at bar. The judge did not impose a conditional sentenceorder in that case. In paragraph 3 of the Court of Appeal's reasons for judgment there is reference again to the sentencing judge'sremarks. The sentencing judge said in part: I have considered your chances of rehabilitation - I think they are excellent. I have considered the fact that you have no record - that iscommendable.

I have considered your family situation - which seems to be stable. But I have also considered those factors that areimportant to the community as indicated in the case law that I have cited. The conclusion I come to is that I must impose a jail sentenceand I do so. [18] The judge sentenced that young man to a period of 9 months imprisonment. [19] The paragraph that I have just read from is in many ways very parallel to Mr. Seu's case. His chances of rehabilitation areprobably pretty good. He has no record, at least no prior record.

His family situation appears to be decent. [20] At paragraph 6 of that judgment there is a quotation wherein it was said: There is a line, fairly long now, of cases from this Court in which, absent an out of the ordinary circumstance, a custodial sentence hasbeen found to be a fit sentence on a conviction of trafficking in a hard drug in what is referred to as a “dial-a-dope” scheme, where theoffender is not an addict and has participated simply for profit. [21] The judgment continued with references to other cases, including R. v. Franklin, 2001 BCSC 706, in which Mr.

JusticeHenderson set out his views on dial-a-dope operations and he emphasized, properly, the amount of thought that has to go into thedecision to participate in a dial-a-dope operation. His Lordship said that there has to be some planning, so that you can acquire the drugs;so that cell phones can be organized, although that is certainly a simple matter now; and so that the vendors', or the traffickers', existence

becomes known in the community in order to have customers. [ 22 ] I was also referred to R. v. Thompson, [2010] B.C.J. No. 2286 , a judgment of another judge of this court from last fall. That, again, was similar, except that the trafficker Thompson actually sold twice to an undercover operator, but there was a guilty plea, as there is in this case. At paragraph 15 of that judgment, the sentencing judge referred to two cases from the Court of Appeal which, in the view of the sentencing judge, were consistent with R. v.

Tran and that is: . . . that absent unusual circumstances, jail sentences are the usual response to offences of this nature.

At paragraph 19, the sentencing judge identified that: There are cases [from the Court of Appeal] in which there are mitigating circumstances, such as addiction or overriding compelling personal circumstances, which indicate or suggest that the person is not of an operating mind or that there are factors compelling a person to commit an offence which do not allow him to properly reflect on his actions . . . [ 23 ] I am not certain that one has to go so far as to require some limitation on the operating mind or some inadequacy of time for reflection before committing the offence, but I accept that there are circumstances where a conditional sentence order in a trafficking or possession for the purpose of trafficking case is suitable.

Usually those cases or frequently those cases are ones wherein there has been a compelling demonstration of remorse by virtue of pursuit of rehabilitation on behalf of the offender. [ 24 ] At paragraph 32, the sentencing judge in Thompson said: It seems that offenders are under the impression that they can conduct this kind of activity until they get caught, and then expect a sentence that is not particularly disruptive to their lifestyle. In my view, a more consistent message is required. [ 25 ] In R. v. Ali , [2010] B.C.J.

No. 7 , a judgment of the British Columbia Court of Appeal, Ali appealed a sentence of 6 months incarceration following his conviction for trafficking and possession of cocaine for the purpose of trafficking. At paragraph 12 the Court of Appeal referred to their sentence: . . . for dial-a-dope operations in R. v. Rastgoei , 2008 BCCA 242 . . . And the court noted: . . .conditional sentences have been imposed in some cocaine trafficking cases, but "especially in dial-a-dope trafficking operations, conditional sentence orders have not been favoured". [ 26 ] On behalf of Mr.

Seu, there have been offered other cases, from the Supreme Court and the Court of Appeal of this province. R. v. Fitzpatrick was a case decided in November of 2010, reported at 2010 BCSC 1829 , on a joint submission. Fitzpatrick was arrested for possession of marihuana on a vehicle search. The police found two ounces of crack cocaine in the centre console and more marihuana, as well as cash in the amount of $1,425.

Fitzpatrick told the police he was doing it for the money, that he did not use crack cocaine. [ 27 ] That case was done by way of a joint submission, and I should point out that very often counsel in making a joint submission will outline the facts in brief form and the courts accept those joint submissions, unless there is some reason not to do so. That is not the case before me. I am not faced with a joint submission. [ 28 ] I do not criticize the practice of joint submissions, for to do so would certainly be contrary to experience.

But when the court has two lawyers before them who are doing their job properly, as I suspect we have here, and reasonably experienced, as we have here, if they put together a joint submission, that deserves serious consideration. [ 29 ] Also given to me on behalf of Mr. Seu is R. v. David Tai Wei Chang , a judgment of our Court of Appeal from November 13, 2002. That man was 22 years of age, with no previous record. He was on a student visa. I take notice that convictions of this type can have dramatic effects on immigration status of individuals. This does not apply to Mr.

Seu, who is a citizen. [ 30 ] At paragraph 12 of the reasons, Mr. Justice Esson pointed out what he thought was an error in the reasons of the learned trial judge; that the trial judge appeared to imply that for an offence of this kind, a conditional sentence order could not be appropriate, in that it would not serve the factors of general and specific deterrence and denunciation. In other words, the Court of Appeal said that conditional sentence orders can serve the factors of general and specific deterrence and denunciation. [ 31 ] The last case given to me is that of R. v.

Pang , 2010 BCCA 500 , another judgment of our Court of Appeal. Pang was watched for some 22 days and he was obviously heavily involved in the drug world. He was stopped -- or others with whom he was dealing were stopped and large amounts of methamphetamines and cash were seized. [ 32 ] Mr. Pang's case was a very different case from Mr. Seu's, and there can be no doubt that the evidence in the Pang case implicated that 29-year-old man far more than the evidence in the Seu case implicates Mr. Seu. Pang was addicted to crystal meth, as it is called, and he became involved in selling drugs to support his habit.

He was able to partially reduce his drug dependency after he was arrested and he had a job at a family restaurant at the time of his sentence. [ 33 ] A distinguishing feature in the Pang case is found, clearly, in paragraph 22 of the reasons for judgment of the Court of Appeal: . . . Pang had become involved in trafficking not out of greed, but to support his addiction and was someone who was, with the help and support of family and friends, taking positive steps to turn his life around. [ 34 ] In that case the Court of Appeal deferred to the trial judge's imposition of a conditional sentence order. [ 35 ] Mr.

Seu is a person who went into a risky business for money. He did it, by his own admission, to make some money.

[ 36 ] Many people younger than Mr. Seu and without his advantages, have made the same error.

He has some indications of work and job prospects, but they are, compared to other people who come before the court, only very general. [ 37 ] When imposing a sentence like this, the court thinks or tries to consider any number of factors: I consider the age of the accused, how long he has been without a criminal record, whether or not he has a criminal record, if this is his first time before the court on a serious matter, is it necessary to send him to jail, is it necessary to deter the offender, is it necessary in order to send out the correct message to others of like mind who may be tempted to get into this kind of activity in order to make some easy money.

Is there another way to address the needs of society and the needs of the accused? [ 38 ] I am impressed by the words of the sentencing judge in R. v. Thompson , at paragraph 30 -- excuse me, paragraph 32: It seems that offenders are under the impression that they can conduct this kind of activity until they get caught, and then expect a sentence that is not particularly disruptive to their lifestyle. [ 39 ] The sentencing judge there emphasized the view that a more consistent message is required. [ 40 ] In this case I take Mr.

Seu's age into consideration, his absence of a prior criminal record, the involvement that he had which appears to be on the bottom end of a dial-a-dope operation. I ask whether it is necessary that Mr. Seu be imprisoned in order to satisfy the needs to specifically deter and rehabilitate Mr. Seu. I am not sure of the answer to that question. It may be that a properly crafted conditional sentence order would suffice, but I ask also what would other people of Mr. Seu's background, age, means, and desires, take from a sentence wherein Mr.

Seu, having become involved in this predatory business, would simply walk out of court with terms that limited his freedom to some degree? What impression does that give to others who might think that this is worth a try? [ 41 ] In this case I find nothing in Mr. Seu's personal background or circumstances, or in the way he committed the offence, that would make me tend to impose a conditional sentence order. [ 42 ] I am satisfied that a fairly neutral pre-sentence report and the needs for general and specific deterrence direct me towards a jail sentence. [ 43 ] That being said, because this is Mr.

Seu's first conviction, I am not going to make it as long as counsel for the Crown has suggested, although that is clearly in the range. [ 44 ] There will be a sentence of 6 months imprisonment, to be followed by a period of probation of 2 years. [ 45 ] The terms of the probation will be that you must keep the peace and be of good behaviour. [ 46 ] You are to report to a probation officer in Nanaimo within 2 working days of your release, and you will report thereafter as directed by your probation officer. [ 47 ] There will be an order pursuant to s. 109 of the Criminal Code for a period of 10 years. [ 48 ] I have considered whether there is any reason why a sample of Mr.

Seu's DNA should not be taken. I can see no such reason, so, Mr. Seu, you will provide a sample of your DNA to the authorities forthwith. [ 49 ] There will be an order that the two cell phones seized in this case be forfeited, to be dealt with according to law. [ 50 ] Anything else, counsel? [ 51 ] MR. TAYLOR: Nothing. [ 52 ] MS. DOWN: Nothing, thank you. (SENTENCING CONCLUDED)