R. v. Voong Date:, 2014 BCPC 211

Citation: R. v. Voong Date: 20140710 2014 BCPC 0211 File No: 90281-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAU MAN VOONG ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE ST. PIERRE Counsel for the Crown: N. Gulamhussein Counsel for the Accused: W. Shkwarok Place of Hearing: Port Coquitlam , B.C. Date of Hearing: June 30, 2014 Date of Judgment: July 10, 2014 [ 1 ] THE COURT : Mr.

Voong is being sentenced for an offence he has pleaded guilty to that on or about January 24th, 2013, at or near the City of Maple Ridge in the Province of British Columbia, he did unlawfully possess a controlled substance, to wit: cocaine, for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , R.S.C. 1996, c. 19.

[ 2 ] This is a case which is commonly referred to and characterized as a "dial-a-dope" operation. [ 3 ] Mr. Voong comes before the Court with a criminal record but it is a dated one. He has one conviction on two counts of possession of a narcotic for the purposes of trafficking that date back to May of 1994 for which he received a $500.00 fine and for the second count that he dealt with that day was a suspended sentence and probation for a year. [ 4 ] After that, he had convictions for break and enter and theft in 1996. In 2002 another break and enter.

He has not had any criminal convictions since 2002. [ 5 ] This matter was prosecuted by Indictment and the maximum penalty is life in prison, pursuant to s. 5(3) (

a) of the Controlled Drugs and Substances Act . Therefore, a conditional sentence order is not available to the accused by virtue of s 742.1(

c) of the Criminal Code of Canada , R.S.C. 1985, c. C-46. Those changes came into force in November 2012. As a result, the imposition of a conditional sentence is not a sentencing option in this case. [ 6 ] Crown seeks a jail term of nine months, and the defence is submitting that I should consider s. 731(1)(

a) of the Code which specifies that the Court may suspend sentence and direct that the accused be subject to a term of probation. [ 7 ] The Controlled Drugs and Substances Act sets out some principles of sentencing at s. 10(1) and essentially the fundamental purpose of any sentence for an offence under that part of the Act is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation and treatment in appropriate circumstances of offenders and acknowledging the harm done to victims and the community. [ 8 ] Aggravating the situation for Mr. Voong is s. 10(2) (

b) of the Controlled Drugs and Substances Act which is a prior conviction he has but again it is 20 years old. [ 9 ]

Section 718.3 of the Code appears to codify the importance of vesting the sentencing judge with discretion to impose an appropriate sentence. [ 10 ] Then there are all the other sections that deal with the principles of sentencing in s. 718.2. Specifically, subsection (

d) states that, "An offender should not be deprived of liberty if lesser restrictive sanctions may be appropriate in the circumstances". Subsection (

e) states "All available sanctions other than imprisonment that are reasonable in the circumstances should be considered." [ 11 ] Now of course the principles of general deterrence and denunciation are primary factors to consider in a case like this and it has been said as much by our Court of Appeal on many occasions. Of course, the other principles apply such as a sentence should be similar to other sentences imposed on similar offenders for similar offences committed in similar circumstances. That is one of the issues in this case. [ 12 ] Now, in this particular case, Mr.

Voong is alleged to have been the subject of or at least caught up in an investigation by drug enforcement members who were investigating a dial-a-dope operation. They observed on several occasions that the accused, Mr. Voong, would meet with people. In December 2012, there were four suspected transactions. In January 2013, there were I think a total of about 16 suspected drug transactions by the investigators, and it was January 24th, 2013 that Mr. Voong was arrested in this operation. They searched him, he had on his person score sheets, and I think about 6.6 grams of cocaine, mostly crack cocaine.

He had a small quantity of heroin and $680.00 in cash on him. [ 13 ] Aggravating the situation again is the fact that it is a dial-a-dope operation.

The comments from the Court of Appeal about the scourge of these kinds of operations on the community include that a hard drug is involved; that there are multiple transactions, which in many cases has been noted and observed by judges and defence counsel that these operations often lead to the aggravating factor of multiple transactions because they are set up in a fashion so that there is no interdiction or interference with their activity until the operation is over. Had they nabbed Mr. Voong on the first occasion, it would be defence counsel saying that there was only one transaction.

In any event, it indicates Mr. Voong's entrenched position as at least a person who is on the street dealing with these transactions on a consistent basis at least over that period of time. [ 14 ] Mr. Voong is 40 years old and I have the benefit of a pre-sentence report that can only be characterized as positive. He was born in Viet Nam. At the age of five, his family immigrated to Richmond, B.C. He had some events in his childhood that were negative including physical discipline by his father but for the most

part it certainly was not the worst upbringing these courts have ever seen. [ 15 ] Mr. Voong feels that he was characterized by the family as kind of the black sheep because he did not complete his schooling and he did not live up to his father's standards and with whom he had a rocky relationship. [ 16 ] He started at a young age involved in drugs and the only conviction he has for a narcotics offence was back when he was about 19 or 20 years old at the time he moved in with a friend and he got involved with the wrong crowd. He has never been married, he has no children, he was working for a long period of time.

In fact, it has been 12 years since his last foray into the criminal justice system. On this occasion, he had certainly relapsed and fallen again into the criminal element -- and was only I am told and there is no reason not to accept it -- that he was only involved in this scheme in order to obtain narcotics himself. [ 17 ] Mr. Voong has a Grade 11 education and he is currently on social assistance and living with his mother because he has had some difficulties over the last few years.

He has been diagnosed with anxiety and panic disorder and he has been prescribed medication for that. [ 18 ] He began using drugs again as I indicated at a very young age. His initial choice of drug was heroin but he would continue to use cocaine and he was also consuming alcohol. He has attended treatment centres in the past, but 2012 was his most recent to a treatment centre, the Pender Community Health Centre.

They have been treating him for some period of time and since his attendance there, he has decreased his methadone dosage for which he has a prescription for 50 milligrams in the past year to the current 25 milligrams.

[19] He has a current disorder counsellor because of his diagnosis with the panic disorder and anxiety and the drug issues, a Ms.Klinkhammer at Pender Community Health. She confirmed to the writer of the report that Mr. Voong has been free of any illegalsubstances as of May 2013. He has been having drug tests and he has been free of illegal substances.

He has been attending that clinicsince the offence here in January of 2013 and has attended individual counselling with her during that time as well. [20] He has completed an eight-week methadone support program and is no longer required to attend that program because he hascompleted it, but he still attends on his own accord. He is involved as a peer facilitator for the methadone support program. Ms.Klinkhammer has nothing but positive things to say about Mr. Voong and his consolidation of his rehabilitation. [21] Obviously, it is not difficult to believe that his criminal history is linked to substance misuse.

He is willing to abide by anyconditions that the court imposes. [22] The issue here is whether jail is necessary or not. I have been given several case authorities to outline the parameters of thatenquiry. [23] The Crown has provided me with a case a called R. v. Barrick, 2012 BCCA 83. Mr. Barrick was an offender while on bail. Hewas trafficking in cocaine as well, but he had two counts of breaching his undertaking by failing to comply with bail conditions. In fact,while on bail he was stopped once and he had 3.2 grams of cocaine on him. Obviously, Mr.

Barrick did not present himself as a verygood candidate for a non-custodial sentence but in any event, his case is somewhat different obviously from the facts here. [24] R. v. Cisneros, 2014 BCCA 154 is a case dealt with by Justice Groberman on appeal where a 27-year-old fellow with noprevious criminal record who was given by a fine of $2,000 and one year of probation by the trial judge. He had indicated he hadsupplemented his income by selling drugs.

This fellow had a Grade 12 diploma, a two-year automotive technician course, and collegecourses in marketing; quite a well-educated young man and in fact, at the time of trial he was in his third year of a carpentry apprenticeprogram. He did not consider himself a drug user. He was just in it for the money, purely for economic gain. [25] The Court of Appeal found that it was clear that the trial judge harboured some reticence about the efficacy of the custodialsentences in furthering the principle of general deterrence.

The Court of Appeal was not particularly happy with the pronunciations thatwere in that vein by the trial. Justice Groberman said at para. 12: [12] An individual judge's opinions on the efficacy of general deterrence cannot be allowed to override established principles ofsentencing. [26] The Court of Appeal found that this sentence was a marked departure from the norm where there was no justification anddecided that the sentence was unfit and substituted six months' imprisonment with no probation, given the time that Mr. Cisneros hadalready completed on probation. [27] In R. v.

Gill, 2013 BCCA 320 the accused was 30 years old, a single man, and he was not an addict either. He advised that hesold drugs simply for the money and to primarily support his "party scene lifestyle". He had a criminal record for possession of acontrolled drug for the purposes of trafficking which was about ten years prior to this case which was dealt with in 2013, for which in the2003 case he received a nine-month conditional sentence order. The only issue was whether Mr.

Gill should serve a sentence in thecommunity or be incarcerated. [28] The accused had appealed the six-month custodial sentence that the trial judge had given him. The Court of Appeal said inpara. 23 that there is a range and the Court has repeatedly indicated that a fit sentence for dial-a-dope traffickers will generally be acustodial term of six to 12 months. The Court notes in para. 25 that his previous conditional sentence failed to deter him some ten yearsearlier and that his motive for selling cocaine was purely profit.

It was not an issue where he was an addict trying to support his habit. [29] The last case I have from the Crown is R. v. Lloyd, 2014 BCCA 224 which is a very recent decision of Court of Appeal thatgenerally dealt with the minimums, so it is not entirely helpful because that individual obviously was in a much more aggravatedsituation than Mr. Voong is in. Certainly, the Court of Appeal in that case found as a fact and made the observation as the trial judgehad indicated that Mr.

Lloyd's attempts at any kind of rehabilitation were not entirely credible and he showed very little insight into theharm that he has caused to others by furnishing them drugs. [30] The defence has given me a case from a judge that sits in these Courts, my colleague Judge Woods, called R. v. Voss, 2014BCPC 43 , 2014 BCPC 0043. Mr. Voss was an Aboriginal man who had 22.5 grams of powder and 56.2 grams of rock cocainein his house when it was searched and the drugs were seized. [31] Judge Woods spent a considerable period of time looking at the principles of sentencing, discussing the impact and the importof Mr.

Voss's Aboriginal status, and his ongoing attempts to rehabilitate himself. At para. 124 Judge Woods said: [124] I believe that a properly restrictive and demanding probationary order, like a properly restrictive and demanding conditionalsentence order, can have general deterrent force. So too did Madam Justice Griffin when sentencing Mr. Owens…. [I will get to Mr.Owens in a minute. That is a B.C.

Supreme Court case where Justice Griffin imposed a probationary order on a young man who had noprevious record]. [32] In Voss, supra, there was a suspended sentence and a period of probation for 30 months for possession of cocaine for thepurposes of trafficking. [33] Those are the cases and Judge Woods refers to a few. There is the case of R. v. Ton Anh Nguyen, 2009 BCSC 1727 where thecircumstances are quite different and a suspended sentence was granted. [34] There is the case of R. v. Ilicic, [2012] B.C.J.

No. 2056 where Justice Williams from our Supreme Court was dealing withtrafficking of marihuana and five grams of cocaine was found as well. That person had no record. He was a 31-year-old man who had

substantially rehabilitated himself by the time of sentencing. In that case, Justice Williams imposed a conditional discharge. [ 35 ] There is also the case I have just referred to from Justice Griffin called R. v. Owens , [2014] B.C.J. No. 25 . That fellow had no record. He was 21 years old. Justice Griffin found that a jail sentence would not promote rehabilitation. A period of probation with terms with a serious restriction on the accused's liberty Justice Griffin found appropriate and had a better prospect of reintegrating the accused into the society.

There was a two-year probation order. [ 36 ] Finally, I looked at a case called R. v. Tucker , [2011] B.C.J. No. 2212 an odd case from our B.C. Court of Appeal which involved the trafficking of methamphetamine. This fellow was outside the Wilkinson Road prison throwing methamphetamines over the fence for distribution by the inmates. It was quite an aggravated situation on the face of it. There was an appeal because the judge imposed a probation order with a number of conditions.

The Crown appealed seeking a period of incarceration. [ 37 ] In the Court of Appeal decision authored by Chief Justice Finch, it was noted that Tucker was on a methadone maintenance program and he had not committed any breaches of the terms of his probation order or committed any other offence. The Court of Appeal noted the sentence was an unusual disposition, but the Court was not persuaded that it should intervene.

Appellate courts, the Chief Justice said, are reluctant to substitute a custodial sentence for a non-custodial sentence when doing so would be detrimental to the offender's success and continued rehabilitation. [ 38 ] No one can suggest that a suspended sentence is the usual sentence for people involved in dial-a-dope trafficking cases. The question is whether it is appropriate in the circumstances, whether it can meet the principles of sentencing, and whether jail is necessary in order to achieve those goals. I really cannot conclude that jail is necessary in order to meet those goals with respect to Mr.

Voong. [ 39 ] Mr. Voong has by the people who are dealing with him at the Pender Community Health Centre so consolidated a path of rehabilitation that in my mind it would not serve society or the public at all to take him off that path and to send him to jail for a period of time, notwithstanding that these are very serious offences, and they deserve a serious response by the courts. [ 40 ] Every case is different; every case involves the personal circumstances of an accused and here we have Mr. Voong who was obviously suffering from multiple concurrent disorders.

He has an anxiety panic disorder combined with a drug addiction that he was dealing with at the time. He was dealing in drugs in order to receive a discount on drugs and that was his involvement. [ 41 ] Mr. Voong has left that business. He is on a path that is different from that; he is on a path that society would want to support and help him to consolidate further instead of imposing a sentence that would take him off that path. [ 42 ] I am going to suspend the passing of sentence of Mr. Voong and place him on a period of probation for 30 months.

He is going to be under a Court order for a long period of time and this is going to assist Mr. Voong and society because if Mr. Voong succeeds, we all succeed. He is not going to be involved in this kind of activity again if he stays on the path that he has currently proved that he can be on. He had a 12-year absence from the criminal justice system. This seems like a step backwards for him, but rehabilitation is not a linear path and I do not think in this particular circumstance he needs to lose his liberty in order for the principles of sentencing to be met. [ 43 ] The terms of the probation order are: 1.

You are to keep the peace and be of good behaviour. 2. You will report to a probation officer no later than 4:00 p.m. tomorrow and then thereafter as directed by the probation officer. 3. You will provide your residential address to your probation officer and do not change it unless you advise your probation officer. 4.

For the first six months of this order, you are not to be outside your residence between the hours of 9:00 p.m. and 5:00 a.m. daily except for medical emergencies, or with the written permission of your probation officer, or if you are travelling directly to or from or while at your place of employment. If you are doing that, then you will have advised your probation officer and you will have written permission for that. 5.

You are not to have in your possession any cell phone or paging device or wireless communication device, except you may possess one cell phone that is registered in your own name and you will provide the number of that cell phone to your probation officer and not change that number without the written permission of your probation officer. 6. You are not to have in your possession any weapons as defined in the Criminal Code . 7. You are to abstain absolutely from the possession or consumption of any drugs or substances defined by the Controlled Drugs and Substances Act for which you do not have a prescription. 8.

You will perform 80 hours of community work service within the first 18 months of the term of this probation order to the satisfaction of your probation officer. 9. You must promptly present yourself to the front door of your residence at the request of a peace officer or probation officer who attends to confirm your compliance with those curfew conditions. 10.

Anytime you are away from your residence, you are to carry a copy of this order and any written permission that your probation officer has supplied you if required and you will produce them to a peace officer who stops you or questions you for the purposes of determining compliance with this order. 11. You will attend, complete, and accept any counselling or other programs as may be directed by your probation officer which may include drug abuse counselling.

[ 44 ] That is a long period of time, Mr. Voong, but you deserve it. You took a step back when you were on the path, you were 12 years out from criminal offending and unfortunately you made the decision to get back into it, a decision that was no doubt fuelled by some of the challenges you have not overcome, but still a decision, a bad one, because it is going to impact you for the next two and a- half years. [ 45 ] There are the ancillary orders you were asking for Ms. Gulamhussein.

You were asking for a DNA order which I think should go, and a s. 109 ban for life which is mandatory by virtue of this being a second conviction, and a forfeiture order will go as requested and you will draft the order I take it. [ 46 ] MS. GULAMHUSSEIN : I will, and Your Honour, I can direct a stay of proceedings on the remaining counts. [ 47 ] THE CLERK : And reporting for the DNA please. [ 48 ] THE COURT : Yes, this is a Maple Ridge case, right? Tuesdays and Thursdays. Do they need time to get the file over there or what? [ 49 ] THE CLERK : Ridge Meadows is between 9:00 a.m. and 10:00 a.m.

Tuesdays and Thursdays. [ 50 ] THE COURT : July 15th. [ 51 ] MR . SHKWAROK : July 15th to Ridge Meadows Detachment. [ 52 ] THE COURT : Between 9:00 and 10:00 a.m. okay and they will explain that to you when you leave. Now, I should ask you Ms. Gulamhussein are there any conditions that the Crown was seeking that I may have not addressed? [ 53 ] MS . GULAMHUSSEIN: There was one condition that Your Honour did not address that was mentioned in the PSR. In the conditions I would suggest maybe helpful for Mr. Voong is some kind of education or employment condition.

I know that he has been out – Your Honour noted a gap between 2002 and 2012 but at least this way his probation officer will help him to seek out employment or education opportunities. [ 54 ] THE COURT : I thought about that too as well. I am not sure, it sounded like his -– I do not know his current situation. Is he in residential treatment? [ 55 ] MR . SHKWAROK: No, he's helping out at -- [ 56 ] THE COURT : He is helping out at the -– [ 57 ] MR . SHKWAROK: Yeah, he's helping out at the Centre. [ 58 ] THE COURT : Okay.

Well, I think it is appropriate that a condition that he will seek or maintain employment or attend an educational facility as directed by the probation officer unless he is involved in a residential treatment program. I think that will assist Mr. Voong to stay out of trouble, I mean you are just doing the things that normal people do. You have to go to work or you have to go to school. [ 59 ] THE CLERK : I'm sorry, the firearms is mandatory, Your Honour? [ 60 ] THE COURT : It is 109 for life. [ 61 ] THE CLERK : Thank you. (ORAL REASONS FOR SENTENCE CONCLUDED)