



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Do,







2007 
          BCCA 18



Date: 20070105





Docket: CA033985

Between:

Regina

Respondent



And

Lai 
    Xuan Do

Appellant








Before:


The 
          Honourable Madam Justice Newbury




The 
          Honourable Mr. Justice Lowry




The 
          Honourable Madam Justice Kirkpatrick



Oral Reasons for Judgment




G.D. 
          McKinnon, Q.C.


Counsel for the Appellant




P. 
          Eccles


Counsel for the (Crown) Respondent




Place 
          and Date:


Vancouver, British Columbia




5 January 2007



[1]

KIRKPATRICK, J.A.
: On 7 February 2006 the appellant was convicted 
    in Supreme Court on two counts contrary to s. 5(2) of the
Controlled 
    Drugs and Substances Act
:
Count 1 concerned the unlawful possession 
    of cocaine for the purpose of trafficking; and Count 2 concerned the unlawful 
    possession of marihuana for the purpose of trafficking.

[2]

The appellant was sentenced on 27 April 2006 to eight months imprisonment 
    on Count 1 and eight months imprisonment on Count 2, to be served concurrently.

[3]

The appellants conviction appeal was dismissed on 30 October 2006, 
    at which time he was granted leave to appeal his sentence: 2006 BCCA 492.

[4]

The circumstances of the offence may be briefly stated.  The appellant 
    and Thi Su Bui lived in Ms. Buis residence in Nanaimo.  They both used her 
    cars.  While the police conducted surveillance of a known drug house they 
    happened also to see Mr. Do and, over two days, observed him to drive to various 
    locations and have suspicious meetings.  An expert testified that the meetings 
    were consistent with dial-a-dope drug transactions.  The police also observed 
    Ms. Bui driving the car on at least two occasions.

[5]

The police executed a search warrant of Ms. Buis home and cars, at 
    which time they located 21 spit balls of cocaine in a jacket in a hallway 
    closet; one spit ball in a womans lingerie drawer; one spit ball in the console 
    of one car; and six packages of marihuana in the refrigerator freezer.    
    The value of the cocaine was between $500 and $960.  The wholesale value of 
    the marihuana was $1,530; the street value was $3,150.

[6]

Ms. Bui pleaded guilty on 29 June 2005 in Provincial Court to one count 
    of possession for the purpose of trafficking in cocaine.  Her sentencing hearing 
    was adjourned to 29 January 2006 to await the outcome of Mr. Dos trial.  
    She was ultimately sentenced on 22 February 2006 to a 15 month conditional 
    sentence to be served in the community.  That sentence was the product of 
    a joint submission by Crown counsel and Ms. Buis counsel.

[7]

At the appellants sentencing hearing, the Crown sought a sentence 
    of 12 months imprisonment.  Central to the Crowns position was the fact 
    that Mr. Do is not addicted to drugs and was thus purely motivated by greed 
    in committing these offences.  The Crown also emphasized Mr. Dos previous 
    conviction in 1994 for trafficking in narcotics as an indication that he has 
    not been deterred from criminal activity by his earlier sentence of two months 
    in jail.

[8]

Counsel for Mr. Do urged the sentencing judge to impose a conditional 
    sentence of 18 months (evidently in the mistaken belief that Ms. Bui had been 
    sentenced to an 18 month conditional sentence).  His counsel emphasized that 
    the proposed conditional sentence would accomplish the principles of sentencing 
    if appropriate conditions were imposed and would achieve parity with Ms. Buis 
    disposition on sentence.  He noted that Mr. Do had not committed any offences 
    in the 12 years since his 1994 conviction.  Apart from a minor breach of his 
    bail terms, he had abided by the bail order and thus, it was submitted, he 
    posed no threat to society.  Further, his counsel submitted that a conditional 
    sentence order would permit Mr. Do to continue to work and pay $400 per month 
    child support for his three children.

[9]

In his reasons, the sentencing judge noted Mr Dos birth in 1962; his 
    Vietnamese background; and the 1994 conviction.  He then stated:

[6]        
    The allegation of the Crown was that Mr. Do was involved in what is commonly 
    referred to in the jargon of the street, the Dial-A-Dope enterprise.  I 
    found that that was the case and now I must sentence Mr. Do for the two offences 
    that he has committed.

[7]        
    I agree with the pre-sentence officer as to the devastating impact drug addiction 
    has on individuals and on the community generally in that it is notorious 
    that persons using drugs generally are irresponsible and commit offences to 
    obtain the funds to pay such people as Mr. Do to obtain these drugs.  This 
    is an insidious form of harm that is being perpetrated throughout not just 
    Nanaimo, but other communities in Canada.



[9]        On Count 1, I sentence you to eight months imprisonment.  
    On Count 2, I sentence you to eight months imprisonment, each to be served 
    concurrently.

[10]

The appellant submits that the sentencing judge erred in failing to 
    give effect to the principle of parity codified in s. 718.2(b) of the
Criminal 
    Code
.  The appellant contends that the eight months sentence of incarceration 
    imposed on Mr. Do is extremely disparate to the 15 month conditional sentence 
    imposed on Ms. Bui.

[11]

The appellant submits that the position of the Crown throughout was 
    that Mr. Do and Ms. Bui were equal participants in a joint venture.  The appellant 
    contends that the Crown, having taken the position that Ms. Bui was a favourable 
    candidate for a conditional sentence, cannot go before a different court and 
    contend for a jail sentence for Mr. Do.  The sentencing judge did not express 
    any view as to the propriety of Ms. Buis sentence and did not expressly remark 
    on the parity of the sentences or the availability of a conditional sentence.

[12]

The appellant contends that the disparity in sentence is bound to create 
    a sense of injustice, especially when, in the appellants submission, the 
    only distinguishing feature between the circumstances of the appellant and 
    Ms. Bui is that Ms. Bui pleaded guilty whereas Mr. Do insisted on his constitutional 
    right to a trial.

[13]

The respondent Crown argues that the parity principle has no application 
    in this case because there is no true parity between Mr. Do and Ms. Bui.

[14]

I think an examination of the circumstances of the offence and the 
    offenders in this case supports the Crowns position.

[15]

Mr. Do was convicted on two drug related counts, the narcotics in question 
    having a maximum value of $4,110.  Ms. Bui pleaded guilty to one drug related 
    count in which the maximum value of the cocaine was $960.

[16]

Mr. Do is 42 years of age.  He came to Canada in 1991.  He is the father 
    of three children who reside with his former wife in Surrey.  Ms. Bui is 35 
    years of age.  She is a single mother with two children whose father abandoned 
    them.  She came to Canada in 1991.  There is no indication as to who would 
    care for Ms. Buis children if she were to be incarcerated.  That was evidently 
    the motivating factor in Ms. Buis guilty plea and the subsequent joint submission.

[17]

Mr. Dos previous criminal record was for two counts of trafficking 
    in heroin in 1994 for which he was sentenced to two months in jail.  Ms. Buis 
    previous criminal record consists of two convictions for theft under $2,000 
    in 2000 and 2001 and a conviction for simple possession of a narcotic, suggesting 
    that Ms. Bui suffers from a drug addiction, unlike Mr. Do.  All convictions 
    resulted in fines.

[18]

There was some confusion at Mr. Dos sentencing hearing as to the defence 
    position at Ms. Buis sentencing hearing as to Mr. Dos role in the offences.  
    Nevertheless, the Crown position at Mr. Dos sentencing was that, notwithstanding 
    the joint nature of the offences, Mr. Dos role in the offences demonstrated 
    higher moral culpability.

[19]

The sentencing judge was fully informed of all these circumstances.  
    Although he did not expressly say so, it is evident that the individual circumstances 
    of the offenders and their respective roles in the joint enterprise (if it 
    was such) warranted different treatment.  It cannot be said that the relevant 
    circumstances of each offender are equal, thus necessitating equality of treatment:  
    see
R. v. Chisholm
(1985), 18 C.C.C. (3d) 518 (N.S.S.C. Appeal 
    Division).

[20]

It is clear from the sentencing judges remarks that he considered 
    that only a jail sentence would adequately address the insidious harm inflicted 
    by drug trafficking, especially by those offenders motivated purely by profit.

[21]

The sentencing judge was referred to the decisions in
R. v. Franklin
, 
    2001 BCSC 706;
R. v. Martinez
,
2001 BCCA 712; and
R. 
    v. Nguyen & Bui
, 2003 BCCA 686, all of which supported the sentence 
    imposed on Mr. Do.

[22]

Notwithstanding Mr. McKinnons able submissions on behalf of the appellant, 
    I am not persuaded that the sentencing judge made any error of law or principle.  
    I would dismiss the appeal.

[23]

NEWBURY, J.A.
: I agree

[24]

LOWRY, J.A.
: I agree.

[25]

NEWBURY, J.A.
: Leave to appeal is granted but the appeal 
    is dismissed.

The 
    Honourable Madam Justice Kirkpatrick


