R. v. Nguyen Date:, 2011 BCPC 416

Citation: R. v. Nguyen Date: 20111101 2011 BCPC 0416 File No: 72203-2C Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BINH VAN NGUYEN REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K.D. SKILNICK Counsel for the Crown: J.M. Le Dressay Counsel for the Accused: N. Cobb Place of Hearing: Abbotsford, B.C. Date of Hearing: November 1, 2011 Date of Sentence: November 1, 2011 [ 1 ] THE COURT : Binh Nguyen has pled guilty to a charge of production of a controlled substance, marihuana, contrary to s. 7 of the C ontrolled Drugs and Substances Act .

The offence occurred on November the 18th, 2009, at which time police executed a search warrant on a residence on Ponderosa Street in Abbotsford. Inside the residence police located a substantial grow operation which, I am told, consisted of 1,602 plants in four separate grow rooms. There were 42 lights and there was a hydro bypass located in the garage of the residence. I understand that it is conceded that the accused was not the principal; he was what is sometimes referred to as a "gardener", albeit of a large operation. [ 2 ] The accused has pled guilty.

It is not an early guilty plea in the sense that his plea falls on the first day of his scheduled trial, and while three days of trial time are opened up, unfortunately they are not opened up early enough that someone may be able to take advantage of that time. Having said that, I take into account that the accused, because of his guilty plea, spares the requirement for witnesses to testify and, more significantly, he is abandoning a potential Charter argument. [ 3 ] This is not a joint submission in the sense that Crown and defence are not advocating for me to impose the same sentence.

Crown originally took a position of between 12 and 16 months; the defence position was initially for the lower range and for a concurrent sentence and, in the alternative, defence urges me for a lower sentence of something in the range of six to nine months if it is to be a consecutive sentence.

[ 4 ] The accused is 48 years of age. He has been in Canada for about 23 years. He is separated from his spouse.

He is currently serving a sentence on a matter which occurred subsequent to the sentence for which I am now sentencing him. [ 5 ] In sentencing the accused I am taking into account the requirements of the Criminal Code and specifically s. 718 which requires me to denounce unlawful conduct, to deter this offender and other like-minded individuals from committing offences of this nature, separate the offender from society where necessary, to assist in his rehabilitation, to make any amends necessary to the community, and to promote a sense of responsibility, acknowledgement of the harm done to the community. [ 6 ] I take into account that the Code requires me that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

I take into account that the sentence should be increased or reduced according to any relevant aggravating or mitigating circumstances, and that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

I also take into account that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate for those circumstances, and that the court should consider all available sanctions other than imprisonment that are reasonable in the circumstances. [ 7 ] I am also taking into account the authorities with respect to consecutive and concurrent sentences which generally hold that where there is no relationship between separate commission of criminal offences consecutive sentences are appropriate, and particularly where an offender, who is released while awaiting trial on an offence, commits another offence.

Under those circumstances it has been held that consecutive sentences are appropriate. [ 8 ] In my view, I have not been told specifically what offence Mr.

Nguyen is serving in Ontario, but clearly it is an offence committed in another province unconnected with this offence, and in my view a consecutive sentence is called for. [ 9 ] In terms of sentencing him in accordance with the other provisions of the Criminal Code , I am mindful of the fact that in this province there are a number of conflicting decisions in which individuals convicted of tending to marihuana grow-ops have been given jail terms for offenders without prior records for as much as two years, and in other situations offenders have been given the benefit of a conditional sentence order. [ 10 ] In my view, it is inappropriate for a conditional sentence order in this case, firstly because the offender, Mr.

Nguyen, is serving a sentence in jail in any event; and secondly, the fact that he has now committed a second offence raises concerns about his compliance if permitted to serve this sentence in the community. [ 11 ] I am taking into account some of the Court of Appeal decisions, in particular cases where larger grow operations were dealt with.

I am also taking into account, however, the fact that this is an accused with no prior record and that he is being sentenced not as a principal but as someone who assisted in the commission of this offence by acting as what is sometimes known as a gardener. [ 12 ] Taking into account all those factors and taking into account the range of sentence suggested by counsel, in my view this is an appropriate case for a sentence of 12 months to be served consecutive to any sentence that Mr. Nguyen is serving, and I sentence him accordingly. [ 13 ] MR.

COBB: Sorry, there should be a mandatory s. 109 firearms prohibition. [ 14 ] THE COURT: Yes, I was just going to ask about ancillary orders that were required. [ 15 ] MR. COBB: 109 or 110. [ 16 ] THE COURT: Yes. [ 17 ] MR. COBB: And you will see an order for forfeiture in due course from my learned friend in that. [ 18 ] THE COURT: All right. And a DNA order? [ 19 ] MR. COBB: It's a secondary offence. [ 20 ] THE COURT: Okay. [ 21 ] MR. LE DRESSAY: It seems appropriate, in the circumstances, that we do have - [ 22 ] MR. COBB: I want both. [ 23 ] THE COURT: All right. Under s. 109(1)(

c) of the Criminal Code , I am going to direct that the accused be prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited device, ammunition, prohibited ammunition and explosive substance, and I believe the Code requires that to be for ten years, if I am not mistaken. [ 24 ] MR. COBB: Yes. [ 25 ] THE COURT: Yes, ten years under ss. (2). And I will also make an order pursuant to s. 487.051 of the Criminal Code directing that a sample of the accused's DNA be taken for inclusion into the National DNA Databank. That is to be taken -- Mr.

Sheriff, maybe you can help me, and I understand now that that is done here, is that correct? [ 26 ] THE SHERIFF: We can do it here, Your Honour. [ 27 ] THE COURT: Yes. I will direct then that that be taken here by a sheriff and that will be for inclusion into the National DNA Databank, and that sample is to be taken in one of the methods prescribed by the Criminal Code .

[ 28 ] All right. Anything else that needs to be addressed? [ 29 ] MR. LE DRESSAY: As my friend indicated, you'll be seeing a forfeiture order as well soon on this matter. [ 30 ] THE COURT: All right. Do you want me to make that order today? [ 31 ] MR. LE DRESSAY: If you could. All items seized. I don't think there's any exceptions needed here. [ 32 ] MR. COBB: Not that I'm aware of. [ 33 ] THE COURT: Okay. Then I will make an order as well under the appropriate

section of the Criminal Code directing that all of the matters seized by the Abbotsford Police in connection with this matter be forfeited to Her Majesty the Queen. [ 34 ] MR. COBB: The other count, Mr. Le Dressay ? [ 35 ] THE COURT: And I take it that Crown is going to stay Count 2? [ 36 ] MR. LE DRESSAY: And Count 3, isn't there a hydro -- [ 37 ] MR. COBB: No, there is not. [ 38 ] THE COURT: No, I have only got a two count Information. [ 39 ] MR. LE DRESSAY: No, it’s just a -- yeah, sorry. [ 40 ] THE COURT: Crown directs a stay of proceedings then on Count 2? [ 41 ] MR. LE DRESSAY: Count 2, yes. _______________________ K.D. Skilnick Provincial Court Judge