R. v. Thuler Date:, 2011 BCPC 464

Citation: R. v. Thuler Date: 20111222 2011 BCPC 0464 File No: 73700 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RUTH LINDA THULER REASONS FOR SENTENCE OF THE HONOURABLE JUDGE B.G. HOY Counsel for the Crown: M. Erina Counsel for the Accused: E. Warren Place of Hearing: Abbotsford , B.C. Date of Hearing: December 16, 2011 Date of Judgment: December 22, 2011

[ 1 ] THE COURT : The defendant has pled guilty to the offence of possessing tobacco products that was not stamped, contrary to s. 216 of the Excise Act . This offence occurred in Abbotsford. [ 2 ] June 2008 was the commencement of an investigation involving the defendant and others, in the sale of tobacco. On June 5th, 2009, she was stopped and on searching her vehicle a total of 70,000 cigarettes were seized. Two bundles of cash totalling $4,000 were also recovered on the front seat. This was proceeds of the contraband sale of tobacco.

Furthermore, score sheets were located which detailed the purchases and sales of cigarettes by Thuler. The timeframe is unknown, but there were purchases of at least 600 cases of cigarettes. Her profit margin was significant. [ 3 ] In conjunction with this arrest, a U-Haul trailer was searched. There found was 550,000 cigarettes and 90,000 grams of fine- cut tobacco. [ 4 ] Total taxation revenues lost would have been $55,056 for the Federal Government and $124,782 for the Provincial Government.

The origin of the tobacco traces its manufacture to First Nations Reserves in Eastern Canada and the United States. [ 5 ] The defendant has a related record. August 12th, 2008 in Ontario, pursuant to the Ontario Tobacco Tax Act , she was convicted of two counts of possessing unmarked cigarettes and fined $37,550 on each count. One hundred thousand unmarked cigarettes were involved in the offence. [ 6 ] On October 6th, 2011, she was convicted in Alberta of one count of possessing unstamped tobacco, contrary to the Excise Act , and one count contrary to the Alberta Tobacco Tax Act .

There was a further charge of failing to appear. [ 7 ] She received a global sentence of five months and 15 days between the various offences. They are five months on the Excise Act count, 30 days concurrent on the provincial offence and 15 days consecutive on the failing to appear. This sentence was reduced by one month for dead time. A total of 742,000 cigarettes and 40,000 grams of fine-cut tobacco was seized. [ 8 ] As a note, concerning the Alberta offences, their offence date is April 9th, 2009. She was on bail when the new offences from Abbotsford occurred. [ 9 ] The defendant is 51 years old.

She previously had employment as a clerk at a hospital. She took a payout when staffing was downsized. Since that time, she met a man who introduced her to this type of offences. She is now adamant that she will not re-offend. [ 10 ] This is a joint submission for a period of incarceration of one year, concurrent. [ 11 ] As I consider this matter, there are several aggravating features. This was plainly a crime of profit; there was no other motivation. She also has a high degree of culpability, given the large quantity of tobacco which she was found to be in possession of. She was not merely a street trafficker.

It appears by her score sheets that this was a very active criminal enterprise. Furthermore, she was unrepentant in her conduct as she committed this offence while on bail for a similar matter and with a similar quantity of cigarettes. It is noted that this is her third offence for related crimes, all occurring within the past three years. [ 12 ] In discussing the harm these types of offences bring to society, R. v. Jenkins , March 22, 2011 BCPC Abbotsford, file number 73701-1 outlines some factors. They include the economic disadvantage this brings to legitimate commercial enterprises.

Furthermore, regardless of how damaging cigarettes might be in the first place, it is unimaginable how much more injury this might bring when it is unregulated and lacks quality control. Finally, tax revenues are lost. [ 13 ] Of the various sentencing considerations, it is evident that the defendant's personal deterrence is required, along with general deterrence. This is the uppermost consideration and focus of this sentence, given her criminal record.

I am cognizant that one should not stray too far from joint submissions unless there is good reason to do so. [ 14 ] Originally the sentencing position was one-year consecutive. I am of a thought that that might well be a more appropriate range, given her criminal background. However, by the same token, a concurrent term is also, in my view, within the range in these circumstances.

Overall, it should sufficiently act as a deterrent sentence for the defendant and a reminder to others that these offences will not be tolerated. [ 15 ] In coming to this conclusion, I am also mindful that she has pled guilty. [ 16 ] I confirm a sentence of one year, concurrent. ________________________ B.G. Hoy Provincial Court Judge