R. v. Le, 2015 ONSC 1464
DATE: 20150305
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
HU HAT LE
Rick Visca and Ian Bell, for the Crown
Robert N. Morris, for Hu Hat Le
REASONS FOR SENTENCE
J.D. McCOMBS J.
March 5, 2014
The Offences
Mr. Hu Hat Le appears today for sentencing for his role in a marijuana grow operation on a farm in Grey County. He has been convicted of production (count 4), possession for the purpose of trafficking (count 5), and conspiracy to produce marijuana (count 6), and forgery (count 7).
In my reasons for judgment convicting Mr. Le, I discussed the background and my findings of fact. Today, I will restrict my comments to the issues I consider relevant to sentence.
Positions of the Parties
- The parties are far apart. The Crown asks that I impose a sentence of five years imprisonment plus “a significant six figure fine”, while the defence seeks a conditional sentence of imprisonment and no fine.
The Law—General Principles
Determining an appropriate sentence is an inexact process. The sentence must be consistent with the governing legislation and within the range established by appellate courts; but every case is different, and a multitude of factors are relevant in determining sentence.
The fundamental purpose of sentencing, as set out in the Criminal Code of Canada, is “to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions” with one or more of a number of objectives, including denunciation of the conduct, deterrence of the offender and others, acknowledgement of the harm done to victims and to the community, and rehabilitation of the offender[1].
In deciding on a just sentence, the most important guiding principle is that the sentence must be proportionate to the gravity of the conduct and the degree of moral blameworthiness of the offender[2]. It should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances[3].
Discussion
(a) Position of the Crown
The Crown position is that Mr. Le stood at or near the top of a sophisticated marijuana grow operation that was motivated by greed. Mr. Visca describes Mr. Le as the operating mind of the enterprise; that he recruited underlings, not only to assist in the scheme but also to insulate him from detection. He submits that the actions of the RCMP in arranging for an undercover officer posing as a businessman interested in making money in the drug business do not detract from Mr. Le’s moral culpability in the commission of the offences. He submitted that Mr. Le was not coerced in any meaningful way to commit his crimes. Rather, he was provided with an opportunity to exploit the benefits of a willing investor and he was predisposed to commit the offences. Mr. Visca submitted that Mr. Le “used his experience and well-established resources to locate, fund and develop” the 5000-plant grow operation, and that he stood to gain enormous profits. He submits that although Mr. Le has no prior criminal record, the evidence adduced at trial shows that he had been heavily involved in the drug trade for many years, and that he should therefore not be treated as a first-time offender whose offences are out of character.
He submits that having regard to all the circumstances, an “eminently fair” disposition is a sentence totaling five years, including a consecutive six-month sentence for the related forgery offence and with consideration for the equivalent of 45 days of pre-trial custody already served by Mr. Le. He further submits that a six-figure fine should be imposed.
(b) Position of the Defence
Mr. Morris, on behalf of Mr. Le, submits that a conditional sentence is appropriate. He submits that although I have ruled that the targeting of Mr. Le by the RCMP and the introduction of an undercover agent to stimulate commission of the offence did not amount to entrapment, it is nevertheless true that Mr. Le was stimulated into action by the RCMP through the undercover officer and by the RCMP purchasing the farm property to facilitate the marijuana grow operation. He submits that on the evidence, the offences would not have been committed but for the actions of the RCMP, and argues that that is a significant mitigating factor.
Mr. Morris also submits that the evidence does not support the Crown’s assertion that Mr. Le stood at the top of a sophisticated operation. Mr. Morris submits that the evidence shows that Mr. Le was a broker who had knowledge of and connections with people who were ready and able to source, fund, plant, and harvest the marijuana. Mr. Morris points to the evidence concerning a person known as “Gary”, who, on the evidence adduced at trial, is clearly more culpable than Mr. Le. Yet as far as is known from the evidence, the police did nothing to bring “Gary” to justice. He has never been arrested for the offences, despite strong evidence that he was the financier and the source of the marijuana. Mr. Morris submits that a myopic and lax approach to the investigation has led to Mr. Le becoming the lone scapegoat in the marijuana operation and that it is unfair that he bear the weight of responsibility for the crimes when he has been shown, at most, to be a mid-level participant.
Mr. Morris submits that a fine is not appropriate in the circumstances of this case. He has produced documentary evidence supporting his contention that Mr. Le has virtually no assets, is unemployed and perhaps unemployable. Mr. Morris submits that Mr. Le did not profit from his crimes and there is no evidence that he has hidden assets.
Mr. Morris called evidence in support of his submission that sentencing Mr. Le to imprisonment would cause great hardship to his 87 year-old mother and his teen-age daughter, who allegedly depend on him to take care of them.
Mr. Morris points also to the lack of a prior criminal record and the five-year passage of time since the commission of the offences, and submits that in all the circumstances, a period of imprisonment of less than two years is appropriate; and that a conditional sentence of imprisonment that allows Mr. Le to serve his sentence in the community would not endanger the public safety and would be consistent with the fundamental purpose and principles of sentencing.
(c) The Offences and Hu Hat Le’s Role and Degree of Moral Blameworthiness
I do not accept the Crown’s characterization of Mr. Le as the operating mind of this enterprise. The evidence shows that Mr. Le was mainly a broker. Mr. Le knew the right people to put the operation together, but the bigger operators were the suppliers and the financiers.
The RCMP put considerable resources into this investigation and apparently had the information and the means to target and to apprehend the higher-ups, but for whatever reason, they did not. The likely explanation is that the investigation shifted to other more significant crimes and the RCMP resources and focus shifted accordingly. In any case, I am required to sentence Mr. Le based on what has been proved against him, and not speculate about other matters.
To be clear, the evidence does not show Mr. Le to have been at the head of this enterprise. He was middle-management at best. His statements to the contrary to the undercover officer have not been shown to be anything more than exaggerated salesmanship.
I cannot determine from the evidence how much profit Mr. Le stood to gain if the enterprise had been successful, but I am satisfied that given his position as a mid-level operator, it would have been nowhere near the profits asserted by the Crown. In any case, because the operation was interrupted and taken down before the plants could be harvested, Mr. Le gained nothing.
I reject the Crown submission that Mr. Le should be treated as having been heavily involved in the drug trade for many years, and therefore should not be treated as a first- offender. The plain fact is that Mr. Le has no prior criminal record. The aggravating factors relied upon by the Crown have not been established beyond a reasonable doubt, and it would be plainly unfair to punish Mr. Le for things that have not been proved against him.
However, although Mr. Le was not the operating mind of the criminal enterprise, his proven activity nevertheless involved considerable moral blameworthiness. He knew that this was a large criminal operation. And as I stated when giving my reasons for convicting him, he was heavily involved in the production of the marijuana. Were it not for his willingness to help get the operation up and running, the grow would never have happened.
While I do not minimize his moral responsibility in committing these crimes, I reject the Crown’s assertion that he must be treated as a high-level operator with a history of marijuana cultivation over a period of years.
(d) Circumstances of the Offender
Mr. Le is 48 years old. He is a caring son to his 87 year-old mother, and a loving father and primary caregiver of his 16 year-old daughter.
The defence asserted that if he is sent to prison, there would be no-one to care for them. At the sentencing hearing, I received an affidavit from the mother and heard evidence from the daughter. As well, the Crown called a police officer to shed light on the issue of the extent to which Mr. Le is needed at home in order to care for his mother and daughter.
I reject the claim that Mr. Le’s incarceration would mean that no-one would be able to care for his mother and daughter. The evidence called at the sentence hearing showed that family members in the GTA are devoted to caring for their mother and for Mr. Le’s daughter. I am satisfied that if Mr. Le is sent to prison, family members will step and provide love and support.
I accept the claim on behalf of Mr. Le that he has no ability to pay a fine. The uncontradicted evidence before the court is that Mr. Le is in debt and unemployed with little prospect of meaningful employment in the future.
(e) The Appropriate Disposition
Generally, the appropriate range of sentence in large-scale marijuana grow operations is a mid-range penitentiary sentence of between three and seven years. Where there are mitigating factors, the appropriate sentence can be as low as 18 months imprisonment. In rare cases, where there are truly exceptional circumstances, conditional sentences of imprisonment have been imposed.
This was a large-scale operation with the potential of generating millions of dollars. Mr. Le was a mid-level participant in the scheme. He became involved as a result of having been introduced to an undercover police officer posing as a businessman looking to make quick money in the marijuana grow business. Mr. Le was more than willing to become involved and he clearly was not entrapped into committing the offences. However, I have found that the introduction stimulated the enterprise and that it would not have been undertaken but for the undercover operator’s stimulation of the scheme. Mr. Le likely would have received a percentage of the take if it had succeeded, but in any case, he received nothing. He has no prior criminal record.
Conclusion and Disposition
In all the circumstances, I have concluded that there are sufficient mitigating factors to take this case outside the general range of sentence for large-scale marijuana grow operations. I have concluded that the purpose and principles of sentencing would be met by imposition of a reformatory sentence.
Weighing all the factors, I have concluded that an effective sentence of two years less one day is appropriate. With credit of 45 days of pre-trial custody, I conclude that the total sentence Mr. Le should receive is 22 ½ month imprisonment. The drug offences all relate to the same events and will run concurrently. I do not accept the Crown submission that the forgery charge should attract a consecutive sentence; it is intertwined with the grow operation and was committed to facilitate it. The appropriate sentence for that offence is six months imprisonment. It will be served concurrently with the sentence imposed for the other offences, which will also run concurrently.
I decline to impose a fine for the reasons I have stated.
When the sentence imposed is less than two years, S. 742.1 of the Criminal Code permits the imposition of a conditional sentence if the community would not be endangered, and if a conditional sentence would be consistent with the fundamental purpose and principles of sentencing. I accept that Mr. Le is not a danger to the community, but I am firmly of the view that the fundamental purpose and principles of sentencing would not be respected if Mr. Le were permitted to serve his sentence in the community. The crimes committed by Mr. Le are too serious to attract a conditional sentence of imprisonment.
Mr. Le is sentenced to imprisonment for two years less one day. He is entitled to credit of 45 days for his time in pre-trial custody. The indictment will be endorsed as follows. Sentenced to imprisonment for 22 ½ months in addition to time already served (equivalent to 45 days). On counts 4, 5, and 6, the sentence is 22 ½ months on each count concurrent. On count seven, the sentence is six months concurrent.
Ancillary Orders
- In addition to the sentence imposed, I make the following ancillary orders: a DNA order under Code s.487.051(3)(b) and a section 109(1) weapon prohibition order for 10 years after Mr. Le’s release from custody.
J.D. McCOMBS J.
Delivered Orally and released on March 5, 2015
[1] Criminal Code s. 718.
[2] Criminal Code s. 718.1; R. v. Ipeelee 2012 SCC 13, [2012] 1 S.C.R. 433; 280 C.C.C. (3d) 265, at para. 37.
[3] Criminal Code s. 718.2 (b