ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-G5313
DATE: 2014-10-01
B E T W E E N:
HER MAJESTY THE QUEEN
James Meloche, for the Crown
- and -
HAN PHUONG SU
Mark Ertel, for the Defendant
Defendant
HEARD: October 1, 2014
REASONS FOR SENTENCE
T.D. RAY J.
1. Overview:
[1] February 5, 2014, the defendant pleaded guilty to the following counts:
Count 1: THAT HE, THE SAID Han Phuong SU on or about the 16th day of February in the year 2011 at the City of Ottawa in the East Region unlawfully did produce a substance included in Schedule II of the Controlled Drugs and Substances Act, to wit: Cannabis Marihuana, contrary to Section 7, subsection 1 of the said Act, Thereby committing an indictable offence under Section 7, subsection 2, paragraph B of the said Act.
Count #3: AND FURTHER THAT HE, THE SAID, Han Phuong SU on or about the 16th day of February in the year 2011 at the City of Ottawa in the East Region unlawfully did commit theft by fraudulently using electricity, the property of Hydro Ottawa, contrary to Section 326, subsection (1) of the Criminal Code of Canada.
2. The Facts:
(a) Circumstances of the offence
[2] On the 16th day of February 2011, a CDSA Sec. 11 Warrant to Search the address of 1089 Minnetonka Road, Ottawa was granted. At 1155hrs the Asian male that had been seen on numerous occasions entering and exiting 1089 Minnetonka Road was observed leaving the residence. The male left the residence in a Honda Odyssey van bearing Ontario licence ARLE373 where he was stopped and arrested a short distance away. The male was positively identified by Ontario Drivers licence as the defendant, Han Phuong SU 621215. He was in possession of $210 in Canadian currency. The vehicle was seized as offence related property and the defendant was transported to cells where he contacted duty counsel.
[3] At 1240hrs, entry was gained to the residence with a key from the ignition of the Odyssey van. A marihuana grow operation was located in the basement of the home with 536 marihuana plants being produced. A hydro bypass and processing area complete with scale and packaging was located on the main level of the home. 47grams of dried cannabis marihuana was located within a kitchen cupboard of the home. The Crown values the plants at approximately $500,000 but concedes that would depend on the kind of plant, the health and condition of the plants – none of which was in evidence.
(b) Circumstances of the offender
[4] The presentence report assesses the defendant as a first offender who is at low risk to reoffend. He is recommended for community supervision.
[5] The defendant apparently takes responsibility for his actions and recognizes the seriousness of the offences. He is assessed as having experienced a stable upbringing, and stable employment except for a period after a car accident. He is noted to have positive emotional support from his family.
[6] The defendant is 51 years old and was born in Vietnam. He came to Canada in his teens with his family, and settled in Ottawa. He is married with three children. One of the children attends University. All own and operate their own restaurants in Ottawa. The home and family life is described as stable. In May, 2013, the defendant was seriously injured in a car accident; and then a second car accident in October, 2013. These accidents caused financial strains for the family since he was the principal breadwinner. He has always been employed except for the period after the car accident. The family was unaware of the defendant’s criminal activities in the grow op until his arrest, and have been a strong influence to not repeat his behaviour. A friend, and interpreter, referenced in the PSR, expressed the view that the defendant deeply regrets his actions.
[7] He was convicted in 1994 of dangerous driving and paid a fine. As a result of the convictions in this case he has forfeited his house and a van, a loss of a considerable amount of money.
[8] The defendant currently requires physiotherapy for two hours twice a week to manage his car accident injuries.
(c) Impact on the Victim and/or Community
[9] It is hard to call this a victimless crime since it is a matter of public policy as well as the Criminal Law that drug grow ops are not to be tolerated. However, in this case, there is no identifiable victim. The theft of electricity is theft, pure and simple. Theft is not tolerated, and theft of electricity raises the costs for other residents.
3. Legal Parameters:
[10] There is no minimum sentence relevant to these offences; however Parliament recently imposed a mandatory minimum such that if this offence were to have been committed today, the minimum would be two years.
[11] I am satisfied that the usual range of custodial sentence applicable in this case would be in the 9 month to 15 months range. I am also satisfied that a conditional sentence is rarely appropriate in a case like this.
4. Positions of Crown and Defence:
[12] The Crown’s position is a 10 month custodial sentence, plus a weapons ban for 10 years and a DNA order.
[13] The defendant’s position is that this might be one of those rare cases for a conditional sentence, otherwise a 6 month custodial sentence. He opposes the DNA order.
5. Case Law:
[14] I have considered the following authorities:
i. R. v. Tran 2006 0 J. No. 3223 (ONSC)
ii. R. v. Camuso [2004] O.J. No. 4606 (ONSC)
iii. R. v. Song, 2009 ONCA 896, [2009] OJ. No. 5319 (Ont. C.A
iv. R .v. Paldus, [2007] O.J. No. 3465 (Ont. C.A.); appeal granted from [2007] O.J. No. 3629 (ONSC.)
v. R. v. Tran, 2010 ABCA 317, [2010] A.J. No. 1224 (Alb. C.A.)
vi. R. v. Jacobson, 2006 12292 (ON CA), [2006] O.J. No. 1527 (Ont. C.A.)
vii. R. v. Thu Huong Thi Nguyen, 2007 ONCA 645, [2007] O.J. No. 3570 (Ont. C.A.)
viii. R. V. Ingster, [2003] O.J. No. 4586 (Ont. C.A.)
ix. R. V. Thi Len Nguyen, [2006] O.J. No. 1745 (Ont. C.A.)
6. Mitigating and Aggravating Factors:
[15] Mitigating factors are to be determined on a balance of probabilities whilst aggravating factors are to be determined on the standard of beyond a reasonable doubt. It is a mitigating factor that this is the defendant’s first offence, and that he accepted full responsibility by pleading guilty.
7. Principles of Sentencing:
[16] The fundamental purpose of sentencing is set out in section 718 of the Criminal Code of Canada. Its objectives are denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, making reparations, promotion of a sense of responsibility in the offender and acknowledgement of the harm done to the victims and to the community.
[17] I am also guided by section 10(1) of the CDSA which states:
“Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part 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 to the community.”
[18] A sentence must be proportionate to the gravity of the offence and the moral blameworthiness of the offender. Consideration must be given to similar sentences for similar offenders for similar offences in similar circumstances.
[19] The process of analysis requires that the offence first be placed in a category. Secondly, a range of sentences is identified for that category through reference to texts and decisions. Lastly, the sentence is placed at the appropriate point according to all of the circumstances.
8. Reasons:
[20] I am struck by the positive tone of the PSR, and the absence of any negative indicia save the convictions themselves. The defendant’s plea of guilty is a further positive sign, and consistent with the tone of the PSR that the defendant accepts responsibility for his actions
[21] The defendant’s only conviction is irrelevant to this sentencing process. He has a strong supportive family. While it is unusual in cases of this nature, I feel this is the kind of case that would ordinarily require a conditional sentence. Incarceration would be a terrible punishment. He does not speak English or French and would not only be alone, but would likely be ostracized in a foreign environment separated from his family. Furthermore, a conditional sentence in the unique situation of this defendant would enable the defendant to continue his medical treatments.
[22] Notwithstanding that I consider a lengthy conditional sentence would be a fit and proper sentence, I am concerned at the need for general deterrence. I have no concerns for the defendant’s specific deterrence. The current provisions place great emphasis on a lengthy custodial sentence. While those provisions are inapplicable in this case, I cannot ignore them.
[23] I conclude that a 6 month custodial sentence acknowledges the need for general deterrence while taking into account the particular circumstances of this defendant. Conceptually, he would find jail twice as difficult as a person with no need for medical treatment, who could speak French or English, and who would not have the same obstacles to social integration in jail as the defendant.
9. Ancillary Orders:
[24] Weapons prohibition for 10 years.
[25] I am not imposing a DNA order in this case.
10. Final Decision
[26] Count #1: 6 months.
[27] Count #3, concurrent to Count #1.
Honourable Justice Timothy Ray
Released: October 1, 2014
COURT FILE NO.: 11-G5313
DATE: 2014-0-10-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
HAN PHONG SU
Defendant
REASONS FOR SENTENCE
Honourable Justice Timothy Ray
Released: October 1, 2014