R. v. Konstantakis Date:, 2011 BCPC 319

Citation: R. v. Konstantakis Date: 20111114 2011 BCPC 0319 File No: 84971-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL KONSTANTAKIS ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE BULLER BENNETT Counsel for the Crown: K. Groves Counsel for the Defendant: K. Mirsky Place of Hearing: Port Coquitlam , B.C. Date of Hearing: November 14, 2011 Date of Judgment: November 14, 2011 [ 1 ] THE COURT : Mr.

Konstantakis has pleaded guilty to count 1 on Information 84971-1 that on or about the 7th day of July, 2010, at or near the City of Maple Ridge, in the Province of British Columbia, he did unlawfully produce a controlled substance, to wit: cannabis marihuana, contrary to s. 7(1) of the Controlled Drugs and Substances Act . [ 2 ] The circumstances are as follows. [ 3 ] In the afternoon of July 7th, 2010, RCMP members from the Ridge Meadows detachment executed a search warrant for a residence on 22nd Street in Maple Ridge, B.C. [ 4 ] Mr.

Konstantakis did not immediately come to the front door of the residence when the police announced their presence. They used a ram twice on the front door but they were still not able to open the front door. [ 5 ] Eventually, Mr. Konstantakis did appear at the front door. He followed police demands that he step out of the residence and a short time later he was arrested. [ 6 ] On searching the residence, police found a large marihuana grow operation in the basement. In total, there were 1,216 plants. There were three grow rooms in the basement.

There was an electrical by-pass and a sophisticated electrical system. Photographs of the

grow room show amongst other things the by-pass, a CO2 or carbon dioxide burner, a large number of ballasts and lights, as well as hoses for watering and supplying nutrients. Police also located a large canister of bear spray beside Mr. Konstantakis' bed. [ 7 ] There was a lockable, metal accordion door from the main floor of the residence down to the basement where the grow rooms were located. [ 8 ] An expert calculated the value of the bud from the plants priced at the pound level to be $330,520. [ 9 ] The photographs of the residence show that Mr. Konstantakis lived upstairs.

No one else lived in the house with him. He had been the B.C. Hydro subscriber since May 2004 for that residence. [ 10 ] Defence counsel maintained that Mr. Konstantakis was not the principal involved in the grow operation. Rather, he was the caretaker who received free rent. Even though it was his residence, he did not benefit from the large profit from the crops. There was nothing about his lifestyle that indicated that he had a large income. [ 11 ] Crown conceded that they could not prove that Mr. Konstantakis was the operating mind or the principal behind the grow operation. [ 12 ] Mr.

Konstantakis is now 44 years old. He is single, and he has no dependents. He lives in supportive housing now. It is called "Central Residences" and is located in downtown Vancouver. [ 13 ] Mr. Konstantakis has been under the care of a doctor for depression and anxiety both at the time that the search warrant was executed and presently. He also self-medicated with marihuana. Currently, Mr. Konstantakis receives income assistance. [ 14 ] However, for 16 years Mr. Konstantakis was a pipefitter specializing in fire sprinklers.

Unfortunately, he suffered a back injury and has serious lasting effects from that injury. [ 15 ] Mr. Konstantakis re-educated himself to become a Microsoft service engineer. He did that in approximately the year 2000. He was not able to keep current in this field, so he turned to telemarketing for about six months. For about four years, Mr. Konstantakis worked as a limo driver. [ 16 ] Mr. Konstantakis does have a criminal record. About 20 years ago, he had two convictions for impaired driving. There are more recent convictions for assault and mischief.

This is his first drug offence. [ 17 ] There are mitigating circumstances. Mr. Konstantakis pleaded guilty. I accept that he was the caretaker of the crop. He did not benefit from the large profit as such but he did benefit in terms of free rent, and I note also this is his first drug offence. [ 18 ] There are aggravating circumstances of course. There was a by-pass involved. The residence was fortified in the sense that there was a lockable, metal accordion door between the main floor and the basement. A large canister of bear spray was found. [ 19 ] Mr. Konstantakis did benefit because he received free rent.

The house is located in a residential area. He does have a criminal record, although somewhat dated. It goes almost without saying that marihuana grow operations attract crime; they fuel organized crime, and they are highly profitable enterprises or can be. [ 20 ] Crown says that there should be a jail sentence of one year, primarily to address denunciation and deterrence. Crown counsel submitted that this was a large commercial grow operation, mid-level.

As a result, there has to be real jail. [ 21 ] Defence counsel conceded that there has to be a jail sentence but submitted that an 18-month conditional sentence order would be appropriate. Defence counsel properly pointed out that there is no mandatory minimum jail sentence. [ 22 ] Both counsel are correct; there must be a jail sentence. In my view the appropriate range is less than two years. [ 23 ] So that brings into question the option of a conditional sentence order. Would a conditional sentence order first of all adequately protect the public? Although Mr.

Konstantakis has moved from Maple Ridge and now lives in a more supportive setting, these types of offences are committed for the money of some amount, bring crime into residential neighbourhoods, cause damage to private residences, and also are difficult to detect and investigate. Should Mr. Konstantakis re-offend, in my view in committing another offence such as this he would place the public at risk. He was not deterred by prior criminal convictions, nor was he deterred by the illegal nature of his acts. [ 24 ] I am not satisfied that a conditional sentence order would adequately protect the public.

But further, would a conditional sentence order adequately address the principles of sentencing, particularly denunciation and deterrence? [ 25 ] The matter before me was a large commercial operation. As I have already stated, Mr. Konstantakis was a caretaker but he did benefit from free rent. He was under the care of a doctor then and now for the same medical issues, so this was not an untreated condition that contributed to his commission of the offence. That he self-medicated with marihuana also becomes a moot point.

The motive was financial and he did gain. [ 26 ] In my view therefore a conditional sentence order would not adequately address denunciation and deterrence. Rather, there will be a one-year jail sentence served in a real jail. [ 27 ] There will be a ten year firearms prohibition under s. 109 of the Criminal Code . [ 28 ] In my view, given the seriousness of the offence before me, it is appropriate that Mr. Konstantakis provide a DNA sample. [ 29 ] There will be a forfeiture order for the items seized.

[ORAL REASONS FOR SENTENCE CONCLUDED]