FILE NO: CR-13-2805
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
Chun Zhen SU
SENTENCING PROCEEDINGS
BEFORE THE HONOURABLE JUSTICE CAREY
On Monday, March 3, 2014, at 245 Windsor Ave., Windsor, Ontario
APPEARANCES:
R. Pollock
Counsel for the Crown
D. Gosbee
Counsel for the Defence
SUPERIOR COURT OF JUSTICE
TABLE OF CONTENTS
EXHIBITS
EXHIBIT NUMBER
ENTERED ON PAGE
1
Pre-sentence Report
5
Transcript Ordered:
December 15, 2015
Transcript Completed:
December 29, 2015
Ordering Party Notified:
January 13, 2016
MONDAY, March 3, 2014:
R E A S O N S F O R S E N T E N C E
CAREY, J: (Orally)
Exhibit 1 in this matter regarding Chun Zhen Jimmy Su is a pre-sentence report. I am advised by counsel for Mr. Su that he accepts the contents of the pre-sentence report. In addition and supplementing the pre-sentence report I am advised that Mr. Su has made restitution in full for the theft of water and electricity that was used illegally by bypassing the metres for the water and the electricity for this residence in Windsor. I am advised that the total amount of the water theft was $121 and the electricity theft amounted to $18,612.91. These amounts resulted in a lien in favour of EnWin Utilities that was satisfied at the time of the sale of this property. I am advised that the property has been sold and in fact demolished and the property divided between the adjoining landowners on either side so that any trace of this house where this marijuana grow operation was has been eliminated from the neighbourhood. I am told that Mr. Su has paid $2400 towards fines levelled under the Provincial Fire Act and violations of the Municipal Fire Code, to which he pled guilty and was fined $8000, including the victim fine surcharge.
The pre-sentence report filed in this matter indicates that there were a number of sources for the pre-sentence report, including Mr. Su’s mother, his common-law wife, his brother, and two friends. The pre-sentence report indicates in terms of background that Mr. Su was born in Guong Dong Province in China on July 22, 1984. So he is currently 29. He’s the second of three sons and his parents divorced when he was 11. His father was described as abusive, a heavy smoker and drinker. It indicates that he rarely saw his father after his parents’ separation. He was raised in the country. His mother didn’t work and the family was dependant on the charity of his mother’s aunt who was in Canada and sent back money for school and living expenses. His younger brother described life in China as average. He also described that the family has worked hard to make a living. Mr. Su says he doesn’t have much time to socialize. His brother reported the death of the father about a year ago from cancer. Despite the obvious difficulties that the family had with the father and his personality and the abuse, that death was met with sadness. Money was sent back for both the father’s medical treatment and for his funeral. Mr. Su and his family immigrated to Canada in 2004, sponsored by his stepfather and he has been a citizen for approximately three years. His mother’s remarriage has not been successful and that marriage ended in 2007 and Mr. Su and his siblings are not in contact with the stepfather. He is described by friends as a good friend and his friends were surprised at these charges. They considered this offence out of character. His mother lives with her oldest son in Markham. She works fulltime and his younger brother is in Markham with aunt and uncles. Three brothers and the mother remain close and they are in close proximity. His educational background: in China he attended school until he was 20 but never expelled or suspended. In Canada he took English as a second language course and he was employed for five years at a door company in Vaughn where he worked alongside his brother. He left in an apparent dispute over his pay as compared to other employees. His common-law wife indicates he was unemployed before he returned to work where he’s currently employed with a company that manufactures kitchen cabinets. He has acquired some skills there and he supplements his income from the company doing kitchen and bathroom painting and cabinets. He works Monday to Saturday typically from 9 a.m. to as late as 11 p.m. He says on average he works eight hours a day. He indicates that he gets enjoyment from work and he wants to continue working as a cabinet painter and his long-term plans are to build his own business. His employment was confirmed in writing with the probation office. His mother indicates that her son’s family is under financial stress. He has monthly apartment rent just under $1000 and his mother is assisting. They are paying off $200 a month towards the fines levied in the Fire Code violations under the Fire Protection and Prevention Act and that conviction dates back to October 24, 2012. The probation officer who prepared the report confirmed that he had paid $2400 off, as he indicated, against that fine. He and collateral sources indicate that he neither drinks or smokes, is allergic to alcohol and he has no history of drug use and has not experimented. One of his friends, Mr. Lo, who has known Mr. Su for five or six years says that since he’s become a father Mr. Su has spent more time at home and he doesn’t see him as much. Mr. Su has expressed to the probation officer that he really regrets committing the offence and indicated, “I’ve caused a lot of trouble in my life.” That expression could be taken as somewhat self-centered, indicating as Mr. Gosbee said, ‘I feel bad because I got caught.’ However, Mr. Gosbee indicated that he reviewed that statement with his client and his client indicated that he felt bad for all of the trouble he caused others in his life by his criminal acts. I accept that as an indication of genuine remorse, not simply an indication that he is sorry for all of the trouble that he got into as a result of the offence. The probation report author confirms that Mr. Su is prepared to comply with whatever conditions may be imposed upon him. His children are currently aged three and one. At the time of the offence the oldest child was an infant and his second child has been born since this offence. The motivation for this offence has been described as being unemployed and feeling desperate in terms of an inability to support his family. That is indicated on page five of the report. Furthermore, the author indicates that Mr. Su, throughout the preparation of the report was “cooperative” and respectful. The author, Ms. Dempsey, indicated that he was candid and readily responded to questions.
In summary the pre-sentence report indicates that there is no criminal record prior to this event, that remorse has been expressed. At the time of the offence the accused was unemployed and feeling desperate for money for himself and his family. He currently has a dependant spouse and two young dependant children. He is an immigrant to this country who had obtained citizenship and there is evidence that he and his siblings were abused, along with his mother, by his now deceased father. The community sources indicate he’s a hard worker and well regarded in the community.
Position of the Parties
The position of the Crown is that this serious offence that endangers the community and an appropriate sentence is between two and three years in the Federal penitentiary. The position is that if this court feels that less than two years is an appropriate sentence that a conditional sentence in any event is not appropriate.
The defence submitted a substantial brief of authorities. The Crown has as well. They suggest that a conditional sentence is appropriate in the conditions of this offender and this offence. The defence says that following the dicta in R. v. Proulx [2000] SCR 1 at page 61 it is clear that deterrence can be addressed by a conditional sentence. The defence says and acknowledges that absent exceptional circumstances a conditional sentence would be a rare one for this kind of offence.
Analysis
There are two preliminary prerequisites for a conditional sentence as provided in the Criminal Code. The first condition that has to be met is that the appropriate sentence for the offence be one that is less than two years in jail. I am satisfied on a review of the relevant case law, the range of punishment for this offence is between 12 and 24 months. I am therefore satisfied and the first prerequisite has been met.
The second prerequisite for a conditional sentence is the necessity that I conclude that the presence of the accused in the community would not endanger the community. While it is clear that a marijuana grow operation in a residential community is a dangerous activity and is potentially dangerous to the community and to immediate neighbours, nothing in the presentence report or in the facts of this case suggest to me that Mr. Su is a current risk to his community. I am satisfied that since his arrest in 2011 he has been a law-abiding member of the community who has not been in breach of any of the terms of his release and has not committed new offences. I am satisfied as well that he has received some related punishment arising from the unsafe grow operation that involved illegal wiring in the house, the dismantlement of smoke alarms and the very real presence of combustible materials in the house. I am satisfied that deterrent value is in the punishment that he has received to date. I am also satisfied that, to some extent, the need to emphasize the aggravating features of this residential grow operation is reduced by the punishment and censure that has occurred with the sentence in the Provincial Court under the fire protection legislation. I am satisfied that his remorse is real and I take into account that he has made full restitution through the sale of the house.
Full restitution has been made on the theft charges and I am satisfied that he has been regularly paying his fine from the Fire Code violations. It is clear that Mr. Su wants to work. I am satisfied that his unemployment at the time of these offences led to him deciding on this wrong and criminal path to eliminate his debt. I am satisfied that based on the contents of the presentence report that the chances of his re-offending in the future are very low. He has community and family support. His income is required to support his family, as well as to continue to pay the fines that have already been awarded against him in the Provincial Court. I am satisfied therefore, that Mr. Su’s circumstances bring him into the category of a rare case as illustrated in the Ontario Court of Appeal decision of R. v. Vien, (2009) ONCA 729. I am also satisfied that the circumstances of his situation are in many ways similar to the circumstances of Mr. Choi in the case of R. v. Choi, [2013] ONSC 5082 in the service. As in that case (the facts of which are outlined in very compelling reasons of Justice MacDonnell) I am of the view that a careful balancing of all of the relevant factors leads me to the conclusion that a non-custodial sentence is not unfit. I find myself in similar circumstances to Justice MacDonnell who similarly found the Crown’s suggestion of a custodial sentence not to be unfit. That leads to a consideration of the principle of restraint that underlies s.742.1 and the authority for that comes from R. v. Whittmaier [1997] ONCA 1380 paras. 67-68. The principle of restraint tips the balance between the two alternatives in favour, in my view, of a community-based disposition. I am satisfied that a community-based disposition can be imposed without endangering the community and is in the best interests of the community. It will benefit from Mr. Su’s community service as well as his continued observance of his obligations for the previous fine. I have not been persuaded that either Mr. Su or the community would be farther ahead by expending further community resources on imprisoning Mr. Su and in all likelihood, having his family, his two children and his wife dependant, at least in part, although if he were imprisoned there would be some family support of his dependants. Certainly I am not persuaded that situation would be preferable to him residing in the community and continuing to be a working, tax-paying and it is hoped, law-abiding member of the community. I am satisfied as reflected in R. Proulx that in many ways a community-based sentence can have more of a bite for the offender than a jail-based sentence. While he is performing community service, in all likelihood in his ethnic community, Mr. Su will be a visible offender, visible to the community who will know why he is serving a sentence. If he breaches any conditions of his community service order that I intend to make, or any other conditions of his conditional sentence, he will presumptively be required to serve the rest of his sentence in custody. Through his counsel, Mr. Su has prepared a list of conditional sentence conditions, including 240 hours community service and for the entirety of his conditional sentence that he be subject to house arrest.
Mr. Pollock, before I propose conditions, did you have any comment on the proposed conditions that your friend has submitted?
MR. POLLOCK: I didn’t have a chance to review those conditions because I received the case brief...
THE COURT: Sure.
MR. POLLOCK: ...shortly before court commenced.
THE COURT: Well, I intend to make an order that substantially as set out in the proposal of the defence, and when I am finished if there are any comments that you wish to make regarding anything that I have missed or that you think should be added please let me know.
MR. POLLOCK: Thank you.
THE COURT: So there will be a sentence of 24 months in custody but this sentence will be served in the community. For the entirety of this conditional sentence Mr. Su shall obey the following conditions:
He shall keep the peace and be of good behaviour.
He shall appear before the court as and when directed by the court.
He shall notify the court or probation office of any change of name, address, occupation or employment.
He shall reside at 1014 George Martin Drive, Markham, Ontario and not change his place of residence without having the written permission of his conditional sentence supervisor at least 48 hours in advance of such change.
He shall abstain absolutely from the possession and consumption of non-medically prescribed drugs.
He shall abstain from the possession of weapons as defined by the Criminal Code.
He shall perform 240 hours of community service to be completed within 18 months and at a rate of not less than 15 hours each month.
He shall remain inside his place of residence 24 hours per day, seven days per week with the following exceptions:
a) He may leave his place of residence for prearranged meetings with his conditional sentence supervisor.
b) He may leave his place of residence to travel to and from, perform community service as authorized by his conditional sentence supervisor.
c) He may leave his place of residence to attend and travel directly to and from his place of employment as approved by his conditional sentence supervisor.
d) He may leave his place of residence for prearranged medical and dental appointments, provided that,
i) He notify his conditional sentence supervisor at least 24 hours in advance of any such appointment.
ii) He travel directly to such appointment and return directly to his place of residence at the conclusion of such appointment.
iii) Within 72 hours of any such appointment he provide his conditional sentence supervisor with written confirmation from the medical professional with whom he had the appointment that he in fact attended at the appointment and the time of such attendance.
iv) He provide any medical or dental practitioner for whom he seeks treatment with a medical release allowing that practitioner to release information respecting the time of any such appointments and the general nature of the treatment sought or received to the extent required to permit the conditional sentence supervisor to verify that any such appointment was genuine in nature and;
v) He be away from his residence no more than four hours in total for any such appointment.
e) He may leave his place of residence for the purpose of attending to any genuine medical emergency provided that:
i) He travel directly to the location at which he is to receive treatment for such emergency and return directly to his place of residence at the conclusion of such attendance.
ii) Within 72 hours after any such emergency he provide his conditional sentence supervisor with written confirmation from the medical professional who treated him of the fact that he attended for emergency treatment and the time of such attendance for treatment.
f) He may leave his residence every Sunday between the hours of 10 a.m. and 2 p.m. for the purpose of attending to lawful personal needs, provided that he does not leave the Regional Municipality of York and provided that he is back inside his residence by 2 p.m.
g) He may leave his residence for no more than one hour each day between the hours of 12 noon and 2 p.m. provided that he does not leave the municipal lot upon which that residence is located. For the remainder of the day he is to remain inside his residence.
h) He shall not have or receive visitors inside his place of residence except he may receive visitors in his residence every Saturday between the hours of 12 noon and 4 p.m. and provided such visitors who are not members of his immediate family are not known to him to have a criminal record.
Is there anything you would like to add to those conditions before I get to some of the mandatory orders?
MR. POLLOCK: Yes, thank you Your Honour. I had an opportunity to review those conditions as you were considering imposing them and I submit that Your Honour, it would be appropriate to add as an additional condition that the accused be obliged to carry a copy of this conditional order with him at all times while outside his residence.
THE COURT: Any comment on that, Mr. Gosbee? MR. GOSBEE: No, not at all, Your Honour.
THE COURT: Thank you for that useful addition Mr. Pollock. Finally:
h) He shall be required to carry upon his person a copy of this order at all times when he is outside his residence as set out in the conditions and produce a copy of this order to any peace officer or community order supervisor or member of the probation office who so requests to see such order.
It is my proposal that the conditional sentence conditions, as proposed in the accused’s brief be. with the amendments I’ve made, I should note that I purposely left out an alcohol prohibition. There was no indication that he drinks. He’s apparently allergic to it and there is no reason on the facts to have such a prohibition, so I have deleted that.
So those conditions I have reduced to writing what I have said in “H”, a slightly more compact version:
h) He shall be required to carry a copy of this order upon himself at all times when outside of his residence and produce it when requested by law enforcement or probation personnel.
Mr. Su, do you understand those terms of the conditional sentence?
THE ACCUSED: I understand.
THE COURT: And do you think are there any of those conditions that you can’t comply with?
THE ACCUSED: No.
THE COURT: All right. Thank you. You may be seated. In terms of mandatory orders....
MR. POLLOCK: Yes, Your Honour there is a mandatory weapons prohibition order...
THE COURT: All right.
MR. POLLOCK: ...under s. 109 that....
MR. GOSBEE: I take no issue with that Your Honour.
THE COURT: Okay, there will be a mandatory
prohibition under s. 109 of the Criminal Code for ten years or....
MR. POLLOCK: Ten years, yes Your Honour. I am also asking the court to exercise its discretion and impose an order that the accused provide a sample of his blood for DNA purposes.
MR. GOSBEE: It is a primary designated offence, I think, Your Honour, and I don’t have any compelling submissions to make.
THE COURT: All right. There will be an order in the usual form that he attend today or within 48 hours, ordinarily I think it can be done by the police here, within 48 hours attend where directed to provide a sample for the purpose of determining your DNA pursuant to....
MR. GOSBEE: Your Honour, can I address you on one other...
THE COURT: Yes.
MR. GOSBEE: I understand that if you so directed in your order the sample could be taken by the authorities in Toronto.
THE COURT: All right.
MR. GOSBEE: I don’t see him having to come back to Windsor just to give them...
THE COURT: All right.
MR. GOSBEE: ...affect the DNA and also I am asking the probation, I think also, if it can be, I don’t know if the court needs to direct it be undertaken in Toronto. I don’t think so actually, for that.
THE COURT: Other than the conditional sentence there is no other request for a period of probation. I will direct that the conditional sentence order be supervised in, from the office that prepared this order, which is Probation and Parole Services 1550, 16th Avenue, Building E, Richmond Hill, Ontario. Ordinarily I would expect that his probation officer may be involved in this. In terms, Mr. Pollock, any comment on his, having his DNA taken in another region?
MR. POLLOCK: I have no....
THE COURT: Can I order him to report for the purpose of the DNA order to York Regional Police Headquarters?
MR. POLLOCK: I have no, no issue with that Your Honour.
THE COURT: All right.
MR. POLLOCK: Thank you.
THE COURT: And the York Regional Police Headquarters is in Newmarket?
MR. GOSBEE: Yes, it is on Eagle Street, but I can’t remember, or Prospect Street in Newmarket, but I can’t remember the...
THE COURT: All right.
MR. GOSBEE: ...exact address.
THE COURT: All right. So you will attend within 48 hours at the Headquarters of the York Regional Police Services on Prospect Street in Newmarket. If that address is not correct, in any event the Headquarters of the York Regional Police for the purpose of providing a sample to determine your DNA for the DNA bank.
MR. POLLOCK: Could I just perhaps suggest, Your Honour, or such other place as they may direct?
THE COURT: All right.
MR. POLLOCK: Because I think they may do it at the courthouse.
THE COURT: Okay, or such, all right. Or such place as they may direct.
MR. POLLOCK: Thank you.
THE COURT: Any other requested orders?
MR. POLLOCK: Yes, there is an additional ancillary order, Your Honour, pursuant to s.16 of the Controlled Drugs and Substances Act. I have provided an order to Madam Clerk.
MR. GOSBEE: I have reviewed that order, Your Honour. I have no issue with it.
MR. POLLOCK: It is on consent that the items set out in Schedule A as described as offence related property be forfeited to Her Majesty the Queen. The hydroponic grow equipment at paragraph two, Your Honour may consider adding to that as being found in Trial Exhibit Number 1.
MR. GOSBEE: If that’s necessary – I have not issue with the way it is.
MR. POLLOCK: In any event that order....
THE COURT: Um, I am sorry, I just – the hydroponic grow equipment?
MR. GOSBEE: Yes....
THE COURT: You’d...
MR. POLLOCK: Make that....
THE COURT: ...like to make that as found in Exhibit...
MR. POLLOCK: Number 1, Trial Exhibit Number 1. The balance of those items the accused acknowledges as having had in his possession on the offence date and acknowledges that the items constitute offence related property.
MR. GOSBEE: He has no interest in their return, Your Honour.
THE COURT: When we say that these are found in the Trial Exhibit Number 1, this isn’t the photo brief, it is in the agreed statement of facts?
MR. POLLOCK: Yes sir, the admissions under s.655...
THE COURT: All right. Okay.
MR. POLLOCK: ...sets out or in more particular fashion describes the grow equipment, both by description and by number of items.
MR. GOSBEE: I’d be content with all equipment seized, Your Honour but if you wish to, or my friend wishes to more particular I have no issue with it either. I don’t think there’s any issue as to what it is that is being forfeited.
THE COURT: This sentence is on the, in terms of, he pled guilty to Count 1, 2, and 4.
MR. GOSBEE: That’s my recollection.
THE COURT: And are you both satisfied that the sentence be on Count Number 1 and concurrent on Count 2 and 4?
MR. POLLOCK: Well, Your Honour may decide that it would be more appropriate to impose a lesser term of imprisonment to be served within the community with respect to the theft electricity and I would....
THE COURT: Run concurrently?
MR. POLLOCK: Yes, I would suggest the range of three to six months...
THE COURT: Okay.
MR. POLLOCK: ...would be appropriate.
MR. GOSBEE: That is a fair position for my friend to take...
THE COURT: All right.
MR. GOSBEE: ...Your Honour.
THE COURT: And in terms of the trafficking offence?
MR. POLLOCK: The sentence...
THE COURT: That will run concurrent?
MR. POLLOCK: ...yes. Concurrent to the....
THE COURT: One and two concurrent. Right so the sentence will be, the sentence I’ve imposed of 24 months is on Count 1, concurrent on Count 2.
MR. GOSBEE: To be, Your Honour, just so I am clear, I hate to interrupt you. You say it is 24 months, is it 24 months less one day?
THE COURT: Yes.
MR. GOSBEE: I believe it needs to be.
THE COURT: Yes, 24 months less one day. If I had said otherwise –
In terms of Count 4....
MR. POLLOCK: That was withdrawn, Your Honour.
THE COURT: Sorry? MR. POLLOCK: I believe Count 4, I am sorry the last count was the water bill.
THE COURT: No, there are two to be withdrawn, but in terms of the conditions in Count 4, just to – I am going to impose a three-month community sentence, the conditions will be....
MR. GOSBEE: They would mirror the other conditions.
THE COURT: Okay, but there are, in terms of – and it will end in three months. Okay. The DNA order is the section, Mr. Pollock?
MR. POLLOCK: Yes, sir. DNA?
THE COURT: The DNA ordered, it is section, pursuant to which section?
MR. POLLOCK: I don’t have my Code here either, Your Honour, but the drafted orders (inaudible).
THE COURT: Oh, okay, 487.05(1). And Counts 3 and 5 are to be marked withdrawn?
MR. POLLOCK: Yes, sir. Thank you.
THE COURT: And, there’s a forfeiture order, the forfeiture order is to be signed as well. Anything else that....
MR. POLLOCK: Not from my perspective.
MR. GOSBEE: No, Your Honour.
THE COURT: Okay. Thank you, very much.
...UNRELATED MATTERS ARE DEALT WITH
A D J O U R N E D
Form 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Debbie Knight, certify that this document is a true and accurate transcript of the recording of R. v. Su in the Superior Court of Justice held at 245 Windsor Avenue, Windsor on March 3, 2014 and taken from Recording 0899_245-CRTRM2_20140303_093628, which has been certified in Form 1.
January 13, 2015
Date D. Knight
Debbie Knight
416-550-4710