R. v. Sihota Date:, 2016 BCPC 410

Citation: R. v. Sihota Date: 20161219 2016 BCPC 410 File No: 76041 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TREVOR LEE SIHOTA REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T. GOUGE Counsel for the Crown: M. Down Counsel for the Defendant: C. Churchill Place of Hearing: Nanaimo , B.C. Date of Hearing: November 28, 2016 Date of Judgment: December 19, 2016

The Issue [ 1 ] Mr. Sihota has entered a guilty plea to a single count of possession of heroin for the purpose of trafficking. The Crown seeks a six month jail sentence. Mr. Sihota asks me to suspend sentence and impose a period of probation. The Facts [ 2 ] Mr. Sihota has no criminal record. [ 3 ] Mr. Sihota sold drugs from his apartment, where he was arrested. At the time of the arrest, the police found 42.7 grams of heroin, valued at $4,700 - $6,000, in his apartment. [ 4 ] Mr. Sihota is 35 years of age and unmarried.

He graduated high school and completed three years of a four-year program at Vancouver Island University. He says that he left the program because he “... couldn’t do the starving student anymore”. He found work in the beverage industry in Victoria, and maintained that employment for two or three years, until age 24 or 25. Thereafter, he worked briefly as a car salesman, but was dismissed because he was using crack cocaine. He opened a pizza shop with his girlfriend, which they operated for 12 to 18 months before closing it. In his late 20’s, he worked at a coffee shop owned by his parents.

Since his arrest, he has worked for his parents, who have a contract to provide janitorial and maintenance services to a chain of gas stations. [ 5 ] Mr. Sihota began using alcohol at age 13, marijuana at age 15 and cocaine at age 19. In his late 20’s, he began using crack cocaine, crystal methamphetamine and GHB. He attended a residential drug treatment program on four separate occasions, at ages 26, 27, 29 and 31. However, the treatment programs were ineffectual. He was arrested for the present offence on March 7, 2013, at age 32.

In relation to that offence, he said that he “… began selling drugs to make money, but because his own drug use escalated, it eventually became a matter of just trying to pay for the drugs that he and his girlfriend were using”. [ 6 ] Mr. Sihota suffers from the sequelae of several concussions, which caused brain injuries, and from a psychiatric disorder, the diagnosis of which is vague and uncertain, and which may be secondary to his drug use. After his arrest, he was admitted to the psychiatric ward of the local hospital on three separate occasions, suffering from auditory hallucinations.

After an extended stay in the psychiatric ward, he was transferred to the Psychosis Program at the University of British Columbia hospital, from which he was discharged in the spring of 2015. Since his discharge, he has received outpatient psychiatric services in Nanaimo. He is described as a low risk for future violent offences. [ 7 ] Dr. White, the medical director of the UBC Psychosis Program, described Mr. Sihota in the following terms in a letter dated July 9, 2014: If he continues treatment and avoids cocaine, his prospects for continued improvement and resumption of a full life are good.

If he does not follow those recommendations, he is at high risk for relapse of psychosis and may require further institutional care. In a letter dated September 30, 2015, Dr. Oludiran, Mr. Sihota’s treating psychiatrist in Nanaimo, described him as “… stabilized on medication, abstinence ( sic ) from substance use and compliant with his treatment”. [ 8 ] One of the terms of Mr. Sihota’s discharge from the UBC Psychosis Program was that he attend appointments with a psychologist and a counsellor (Mr. Mark Hayden) at a mental health and addictions clinic in Nanaimo until the end of August, 2016.

He attended many of those appointments as required. However, when his obligation expired at the end of August, he declined Mr. Hayden’s offer of further counselling. Mr. Hayden says that Mr. Sihota “… did not have any real goals, there was no buy-in for case management, and was missing quite a few appointments”. Mr. Churchill explains that Mr. Sihota prefers to be in charge of his own treatment and counselling program. [ 9 ] Mr. Sihota now attends regular meetings of Alcoholics Anonymous and Narcotics Anonymous. His AA sponsor speaks highly of his motivation and attitude, although he describes Mr.

Sihota as being “… in the early stages of his recovery”. He has submitted to periodic testing for illicit drug use. As at August 2, 2016, the test records indicate that he “… remains clean and sober, testing positive only for Methadone”. The Issue in Context [ 10 ] Mr. Sihota has suffered a series of misfortunes in his life, which no doubt contributed to his decision to engage in narcotics trafficking. He has the loving support of his family, who have suffered with him as a result. It is impossible not to feel compassion for them.

The countervailing factor is that narcotics trafficking is epidemic in British Columbia, and particularly in Nanaimo. The consequences are tragic. Many lives were ruined by the drugs sold by Mr. Sihota. The rate of death by overdose is increasing exponentially. The victims of drug trafficking are also worthy of compassion. The primary objective of sentencing in cases of narcotics trafficking must be to do whatever can be done to stop or reduce the incidence of the offence. Legal Principles [ 11 ] The governing principles were recently stated by Justice Bennett in R. v.

Voong 2015 BCCA 285 ; [2015] BCJ NO. 1335; 325 CCC (3d) 267: 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. * * *

… absent exceptional circumstances, the sentence for a first offence or with a minimal criminal record, dial-a-dope drug seller will be in the range of six to eighteen months imprisonment, depending on the aggravating circumstances. Exceptional circumstances may 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 to the 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 are above and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge to conclude that 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 CSO sentences are not available.

Thus, it will be the rare case where the standard of exceptional circumstances is met. * * * The exceptional circumstances must engage principles of sentencing to a degree sufficient to overcome the application of the main principles of deterrence and denunciation by way of a prison sentence. [ 12 ] It is not alleged that Mr. Sihota was engaged in a dial-a-dope operation. However, I do not consider that to be a critical distinguishing factor. [ 13 ] I do not think that it could be said that Mr. Sihota has “… truly turned his life around …”.

I would say that he has taken positive steps in that direction, but that the outcome remains very much in doubt. Mr. Hayden’s description of Mr. Sihota’s participation in counselling is not encouraging. Mr. Sihota’s parents provide him with housing and a job, but he could not be described as a self- sufficient adult citizen. He remains at high risk to relapse and reoffend. [ 14 ] In cases of this kind, it is always necessary to balance the public interest in rehabilitation of the offender against the public interest in deterring drug trafficking by imposing prison sentences for that crime.

Many, perhaps most, recovering addicts who receive jail sentences relapse while in custody, and re-engage in trafficking on their release. In some cases, the public interest in suppressing the drug trade is best served by a suspended sentence and a period of probation, in the hope the offender will continue on a path to becoming a responsible and contributing member of society. R. v. Rutter 2016 BCPC 321 ; [2016] BCJ No. 3183 is an example of such a case.

In other cases, where the achievements of the offender while awaiting sentencing are less significant and the risk of relapse while in the community remains high, the relative importance of deterrence is more significant. In this case, I think that the importance of denunciation and deterrence outweighs that of rehabilitation, and that a six-month jail sentence is appropriate and necessary. [ 15 ] There will also be a term of 18 months’ probation on the following conditions. Mr.

Sihota must: a. keep the peace and be of good behaviour and attend court when required to do so by the court; b. report in person to a probation officer within 72 hours of his release from custody, and report thereafter as and when directed by his probation officer; c. reside at a place approved by his probation officer and not change that place of residence without the prior written permission of his probation officer; d. not possess or consume any alcohol or any controlled substance, as defined by the Controlled Drugs & Substances Act , except in accordance with the terms of a valid medical prescription; e. not possess any drug paraphernalia; f. not be found on any business premises where alcohol is the primary commodity for sale; g. attend, participate in and successfully complete any counselling program to which he is referred by his probation officer, including a full-time attendance program if he is referred to one. [ 16 ] Ms.

Down also sought an order for forfeiture of the circled items on the “Major Incident Flow Charts”, an order that Mr. Sihota provide a DNA sample and a 10-year weapons prohibition under

section 109 of the Criminal Code . Mr. Churchill did not oppose those orders, which are granted. December 19, 2016 ________________________ T. Gouge, PCJ