R. v. Chand Date:, 2011 BCPC 230

Citation: R. v. Chand Date: 20110329 2011 BCPC 0230 File Nos: 178346-2-C, 179455-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SAMUEL JAMAHL CHAND ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P.D. GULBRANSEN Counsel for the Crown: L. Jung, L. Jomori Counsel for the Defendant: S. Nunrha Place of Hearing: Surrey , B.C. Dates of Hearing: March 11, 24, 2011 Date of Judgment: March 29, 2011 INTRODUCTION [ 1 ] THE COURT : Samuel Chand is a 21-year-old man whose involvement in the use of and trafficking in drugs eventually led him to commit two very serious violent offences.

He has pleaded guilty to pointing a firearm at a person he encountered at a gas station, and then to attempting to murder another drug dealer by shooting at him with a firearm. [ 2 ] He has also pleaded guilty to a separate offence of possessing the same weapon, a Glock 9 millimetre handgun with readily- available ammunition when he was arrested two days later.

As well, he has pleaded guilty to a separate offence of possession of cocaine for the purpose of trafficking and possession of a weapon, a machete, for a purpose dangerous to the public peace. [ 3 ] The Crown submits that a fit global or total sentence would be eight to ten years in prison. The defence suggests that the sentence should be somewhat lower, five or six years in range, taking into account the accused's youth, his lack of prior adult record and his taking responsibility for the offences by pleading guilty.

There is no dispute here that the paramount principles in the sentencing are protection of the public, deterrence and denunciation. CIRCUMSTANCES OF THE OFFENCE

[ 4 ] The drug offence that he has pled guilty to occurred on November 6, 2009. The accused would have been 20 years old at that time. He was pulled over by police while driving on River Road in Delta, because of some erratic driving. The accused was the driver; another young man was the passenger. The accused was found to be in possession of 42 rocks of crack cocaine, about 8.4 grams. There was also a cell phone in the car which was answered by a police officer. The caller was seeking to buy drugs. There was a machete in the car, in a sheath, in the front seat of the car.

Clearly, the machete was there to be used as a weapon to protect the occupants from having the drugs stolen by users or by rival drug dealers. [ 5 ] The second set of offences occurred on April 12th, 2010. The accused would still have been 20 years old when this occurred. It was about four months after the drug offence. At that point he was on bail for the drug and weapons charges. On this day, it is also likely that the accused was under the influence of alcohol and drugs. I think it can be safely inferred he was in a very dangerous state of mind. [ 6 ] The first offence occurred at a gas station on Scott Road.

The victim, Mr. A. was paying for his gas and the accused was behind him. Mr. A. could see that the accused was wearing body armour. There appears to be some exchange of words, but in any event, the accused called the victim a "white piece of shit." The accused then went to his car and got a handgun. This is the same handgun that he used later on. He put a magazine in it and returned to the victim and pointed the gun right at him and said, "Are you ready to die?" He didn't shoot the gun.

The victim went to the attendant at the gas station and asked the attendant to call the police. [ 7 ] The accused left after driving his car around in what seemed to the witnesses to have been an attempt at intimidation, or a defiant gesture. This was all on video surveillance. The accused is identified and the licence number of his car was caught on the video. [ 8 ] I should remark that this incident has had a profound affect on the victim.

I would classify his reaction as being terrified, shocked and severely traumatized. [ 9 ] One hour later -- about 3:00 p.m. -- the accused was in a residential area on 130th Street and 97 Avenue in Surrey. This is where the father of the intended victim of the shooting lived with his own young family. The victim, Ajit Singh, was also a low-level drug dealer.

He had been estranged from his father, but when this event occurred his father had agreed to help his son try to find a place to live because his son had declared that he was going to leave the drug business. [ 10 ] From what the Crown can find out, the accused seemed to have been angry with this victim because he had wrecked a car that was to be used to sell drugs and he kept the money that he had got for selling the drugs instead of forwarding it to Mr. Chand. A vehicle driven by the father with the intended victim as a passenger arrived.

The accused drove into the cul-de-sac where they lived and the father and the son had driven. He fired four shots from his handgun through the open passenger window of his own vehicle. One of the bullets hit the headrest of the father’s car. Both occupants ducked down and so no one was actually hit with the bullets. The accused drove away quickly. [ 11 ] This occurred near an elementary school. There were about ten witnesses. Some were children of the age of nine or ten years old. Of course, by this time the police were actively looking for Mr. Chand. They found him a couple of days later, driving his car.

He still possessed the handgun, the magazine had four bullets missing. He was wearing body armour. The police checked the gun and found that it actually fired bullets. The gun worked. It is a prohibited firearm, the magazine was also prohibited. CIRCUMSTANCES OF THE ACCUSED [ 12 ] Mr. Chand grew up in tragic circumstances. Until he was removed by the Ministry of Child and Family Services at the age of ten, he was in the care of his drug-addicted mother and her drug-addicted boyfriend. Mr. Chand's father was never involved in his life.

He and his siblings suffered abuse from the boyfriend; they suffered financial deprivation, sometimes they were homeless. After being removed from that family he was raised in various foster homes, some involved positive relationships, others involved negative relationships. He only got to grade 9 in school. From time-to-time while he was in foster care he would run away to be with his mother or the person he calls his aunt. One can infer he had a particularly difficult and unhappy childhood and teen years. Thus, he had no family really, no parental support or guidance.

He has had some sporadic employment, but really it seems to me that by the time these offences happened he was making his living as a drug dealer, albeit at the lower level. He is clearly not a “high-level player” in the business. [ 13 ] His only prior criminal conviction prior to these offences was a 2006 youth conviction for robbery. The pre-sentence report and his counsel indicate that he is now motivated to change. He regrets choosing to live what I will call the drug lifestyle. He has a poor memory of what happened on the day of the shooting because he was under the influence of drugs and alcohol.

WHAT IS THE FIT SENTENCE? [ 14 ] The first point that I have to address is that attempted murder is one of the most serious offences under the Criminal Code . It has a very high level of moral culpability by its very definition. To be guilty of attempted murder, a person has to have been found to have intended to kill the person that is the subject of his assault or other act of trying to kill the person. It was really just luck that no one was killed, and as I say, it was luck because his intention was to kill the victim. [ 15 ] The aggravating factors in this case are that this occurred in a residential area.

Other people were thereby endangered, including children. The father of the intended victim was right in the line of fire and he could have been killed as well. The accused appeared not to take notice or to care that someone who was not the subject of his anger also could be shot. [ 16 ] The second aggravating factor, in my view, is the prior incident where he pointed the gun at the person at the gas station. It is an expression of anger randomly aimed or randomly expressed at an innocent person, endangering him.

The act was blatant in the sense that it was on surveillance, he did not try to hide anything so it was almost, I would say impulsive, a dangerously impulsive act. It shows the accused to have been impulsively unpredictable and a real threat to public safety. [ 17 ] Thirdly, another aggravating factor is that this man was deeply involved in the drug world, what I will call the drug psychology,

in which quarrels are settled by lethal violence. [ 18 ] There are mitigating factors, however. First of all, this is a guilty plea. This is a very meaningful act in these particular circumstances. The accused has truly taken responsibility for what he did. Secondly, he has spared both victims and the intended victim's father the trauma of having to testify and re-live what happened. The guilty plea has saved them from testifying and going through the events again. It is a significant act of contrition by the accused. [ 19 ] Secondly, this man is a young man, now 21 years old.

He has a particularly sad background. By pleading guilty he shows that he is not irredeemable. He is not someone whose mental state is such that he will continue to be a violent and difficult and dangerous person, necessarily. He has not really had any opportunity, in my view, to try to look at living life outside of the drug world, and he appears to be motivated to change. Those are factors which I have to consider. [ 20 ] There are other factors, what I would not say are mitigating factors, but they are factors that differentiate this case from what I would say are more serious cases.

First of all, this is not a planned murder or a planned “hit” in the sense of Mr. Chand having been hired to kill someone. He was trying to settle a personal grudge with a colleague in the drug business. [ 21 ] Secondly, he did not hit anybody with the bullets. There are other sentencing cases that have been cited or one can think of where people have suffered terrible, terrible injuries from being shot or stabbed or beaten up. That did not occur in this case. [ 22 ] So, what is a fit sentence? The central issue here is the length of the sentence that should be imposed on the attempted murder charge.

The second and very important issue is whether the sentences on the other charges should be consecutive or concurrent to the attempted murder charge. [ 23 ] In terms of the attempted murder charge, it is punishable by life imprisonment. There is a minimum five-year penalty for this offence because he used a firearm. [ 24 ] The cases that I have been referred to, and in particular the case of R. v. Kipp 2010 BCSC 1886 decided by Mr.

Justice Joyce, and some of the cases he referred to, suggest that where someone has attempted to murder someone by shooting at the victim or victims in a public place, endangering the public, and for a drug-related dispute have resulted in sentences in many circumstances in the ten-year range. [ 25 ] Other cases involving shootings in public places, but not in the drug-related world have resulted in sentences ranging from seven to ten years. I would say these sentences can all be categorized as being really at the low end of the range for similar-type offences.

These are not necessarily high sentences for that offence. But the cases I have just referred to essentially involve people who are young men without significant records of previous violent crimes and who commit the crimes in a context of some level of spontaneity as opposed to deliberate planning; so that essentially looks like the general range of sentence for this kind of attempted murder, if I can put it that way. [ 26 ] In this case, however, because the accused also committed three other crimes which arise in circumstances that are each separate and unique, I have to consider them as unique events.

That is, that he was in possession of drugs for trafficking, he possessed a weapon with those drugs to prevent himself from being harmed by others who would harm him in the business. He pointed a firearm at a man at a gas station and then two days after he was arrested he still had the prohibited weapon in his possession. [ 27 ] In most circumstances, the sentences on these charges should be consecutive to each other and to the attempted murder charge. I agree with the Crown's position that consecutive sentences would result in an unduly harsh sentence.

For example, if I were to impose a sentence of one year on the drug and weapons charges, two years on the charge of pointing a firearm, ten years on the charge of attempted murder, and then say four years on the charge of possession of a firearm, all consecutive, the sentence would be 17 years. I agree with the Crown's analysis that given the mitigating factors and this man's youth, that this would result in an unduly harsh sentence. This would also contravene the requirement of s. 718.2 (

c) of the Criminal Code which cautions courts when imposing sentences not to impose consecutive sentences which would result in a harsh sentence. [ 28 ] Having said that, I am going to consider concurrent sentences because, in the context of the most serious charge, I think I can impose a sentence on that charge which will recognize all the aggravating factors and mitigating factors without having to impose a sentence which would be unfair or unjust.

For example, that is recognizing that this man is young, it is his first adult conviction, he has pleaded guilty, accepted responsibility for what he has done, showing some respect for the victims by pleading guilty, admission of wrong-doing; and thus there is still some chance of reformation and reintegration into the community. [ 29 ] But I must remember that nonetheless, the circumstances are very serious. The common thread throughout this is that the accused was entrenched in the drug lifestyle and drug business, both selling and using drugs and embracing the attendant violence that comes with that business.

He possessed a prohibited firearm through all three transactions of the pointing, the attempted murder and the possession later on.

And even the prior drug offences with a weapon, there is a threat of him being entrenched in the drug business. [ 30 ] Looking at it in terms of a sentence for the attempted murder, which recognizes the seriousness of all the circumstances, will achieve the purpose to protect the public from this man's possible future activities, it will isolate him to protect the public, a sentence of appropriate length will deter others from committing similar offences and demonstrate to the accused that this crime is a very serious one, but which will at the same time recognize the factors which suggest that he may change and there is still some hope for him. [ 31 ] All of these circumstances therefore establish that there must be a lengthy sentence for the attempted murder charge, and then in my view concurrent sentences on the other charges will mitigate the otherwise harsh sentence that would occur with consecutive sentences. [ 32 ] Do you want to stand up, please, sir?

What I am going to do then is all of these sentences will be concurrent sentences. On the drug charge, Information 179445, on Count 1 the sentence is one year. Count 5, the weapons charge, the sentence is one year.

[ 33 ] On Information 178346, you will be given credit for having served 11 months and 15 days; that is my count of the time you served to today from your arrest. The sentences I would have imposed are as follows: On Count 1, two years; Count 4 ten years, that is the attempted murder; Count 8, the possession of a prohibited weapon, four years. However, because of the time served, Count 1 the net sentence will be one year 15 days. Count 4 the sentence is nine years 15 days. Count 8, the sentence is three years 15 days. All sentences are concurrent.

I will not give credit for the time served on the drug charges because he was not in custody on those, but credit is given for time served on the gun charges. [ 34 ] There will be no victim fine surcharge. [ 35 ] Under s. 109 of the Criminal Code I prohibit Mr. Chand from possessing any of the weapons named in there for life. That applies to both Informations. [ 36 ] Pursuant to s. 487.051 I direct that DNA samples may be taken from him; that applies to both Informations. In fact, there are both discretionary and mandatory orders. [ 37 ] Under s. 743.21 of the Criminal Code , Mr.

Chand is prohibited from having any communication with S.A. What is the father's name, Daljit or Danjit? [ 38 ] MS. JUNG: Danjit. [ 39 ] THE COURT: Danjit Singh, D-a-n-j-i-t, and Ajit Singh. [ 40 ] The firearm, magazine and the ammunition and the handgun are all forfeited to the Crown. [ 41 ] No victim fine surcharge. [ 42 ] MS. JUNG: Thank you, Your Honour. And on Count 8 on the 178346 -- [ 43 ] THE COURT: Yes? [ 44 ] MS. JUNG: -- was that a net sentence of three years 15 days? [ 45 ] THE COURT: Yes. [ 46 ] MS. JUNG: Thank you. [ 47 ] THE COURT: The sentence would have been four years -- [ 48 ] MS.

JUNG: Yes. [ 49 ] THE COURT: -- but I reduced it by the -- [ 50 ] MS. JUNG: By the -- [ 51 ] THE COURT: No, it's -- that's right, one year less -- almost a year. [ 52 ] MS. JUNG: Yes. [ 53 ] THE COURT: Almost a year credit. [ 54 ] MS. JUNG: Almost a year. [ 55 ] THE COURT: 15 less -- 15 days less of a year's credit. [ 56 ] MS. JUNG: Right. [ 57 ] THE COURT: I've got that right, haven't I? The point was I would have given him longer than the minimum sentence on that. [ 58 ] MS. JUNG: Yes, thank you, Your Honour. And it is a lifetime -- [ 59 ] THE COURT: Lifetime weapons prohibition. [ 60 ] MS.

JUNG: Yeah, firearms prohibition under 109. [ 61 ] THE COURT: Under 109. [ 62 ] MS. JUNG: Thank you, Your Honour. [ 63 ] THE COURT: Weapons there too as well, not just firearms. [ 64 ] MS. JUNG: Yes, yes, thank you, Your Honour. And Your Honour, the Crown on the 178346-2-C directs a stay of proceedings on the remaining counts that haven't been dealt with on sentencing. [ 65 ] THE COURT: Thank you. [ 66 ] MS. JUNG: Thank you, Your Honour.

[ 67 ] MS. JOMORI: And on Information 179455, Crown directs a stay on Count 2. (REASONS FOR SENTENCE CONCLUDED)