R. v. Punko

2010 BCSC 320 R. v. Punko IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Punko, 2010 BCSC 320 Date: 20100312 Docket: 24696 Registry: Vancouver Regina v. John Virgil Punko Before: The Honourable Mr. Justice Leask Reasons for Sentence Counsel for the Crown: M. Devlin, Q.C. J. Torrence Counsel for Mr. Punko: R. Cairns, Q.C. L. Fleming Place and Date of Hearing: Vancouver, B.C. January 18, 20 and 25, 2010 Place and Date of Judgment: Vancouver, B.C. March 12, 2010 INTRODUCTION [1] On December 7, 2009, John Virgil Punko entered guilty pleas to the following counts on Indictment 24696-1: Count 2 - conspiracy to produce and traffic in methamphetamine between April 1, 2004 and June 3, 2005, s. 465(1)(c) of the Criminal Code of Canada, R.S.C. 1985, c. C-46; Count 3 - trafficking in cocaine on November 19, 2004, s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19; and Count 4 - possession of proceeds of crime, s. 354(1)(a) of the Criminal Code. [2] Sentencing submissions were given by counsel in January 2010 and I reserved judgment. These are my Reasons for Sentence. BACKGROUND [3] The charges arose as part of a two-year RCMP project known as Project E-Pandora, which consisted of an investigation utilizing a paid police agent, Michael Plante, to infiltrate the East End Charter of the Hells Angels ("EEHA"). [4] Mr. Plante became a police informant in July 2003 after he was arrested on criminal charges; he signed a letter of agreement to become a full police agent in April 2004. The agreement was that Mr. Plante was to receive money from the police based on the number of members of the Hells Angels against whom he collected evidence. [5] A year before he became a police agent, Mr. Plante started to associate with certain members of the EEHA. Mr. Plante met Mr. Punko during this time and began to supply Mr. Punko with Percocet, which he continued to supply, along with steroids and cocaine for personal use, throughout the time that Mr. Plante was a police agent. Mr. Plante knew that Mr. Punko had a serious addiction to Percocet. [6] Prior to the investigation, Mr. Punko had been employed as an elevator technician, but he took three months off work to complete the Hells Angels' recruitment program. Mr. Punko had been on the program to become a Hells Angel for eight years and became a full patch member on January 21, 2004. By the spring of 2004, Mr. Punko had been off work for six months and was trying to deal with his Percocet addiction. [7] Prior to April of 2004, Mr. Punko was not involved in the production or distribution of methamphetamine. In early April, Mr. Plante was holding methamphetamine that Ryan Renaud had produced for Randall Richard Potts. Mr. Plante and Mr. Punko stole some of Mr. Potts' methamphetamine to provide funds so that Mr. Punko could invest in methamphetamine production with Mr. Renaud. Mr. Punko and Mr. Plante then financed the methamphetamine production; Mr. Punko relied on Mr. Renaud and others to distribute the product and provide him, through Mr. Plante, his share in the profits from the sales. [8] In addition to Mr. Punko's involvement in the methamphetamine production and distribution, he also sold Mr. Plante 5 kilograms of cocaine for $142,500 in November 2004. Mr. Punko had not had any previous involvement in trafficking cocaine. [9] The following is a detailed chronology of the events that form the basis for the charges. CHRONOLOGY [10] On April 12, 2004, Mr. Plante and Mr. Punko had decided to invest in a methamphetamine production with Mr. Renaud, however, neither of them had money at the time. Prior to this, Mr. Plante had been involved in a methamphetamine production with Mr. Potts and Mr. Renaud. To fund their investment Mr. Punko and Mr. Plante decided to rip-off and sell approximately 3 kilograms of methamphetamine that Mr. Plante had been holding for Mr. Potts. That evening, acting in concert, Mr. Plante and Mr. Punko attended at the residence of Wissam Ayach and gave him a portion of the methamphetamine that they had stolen from Mr. Potts, to distribute on their behalf. [11] On April 15, 2004, Mr. Ayach gave Mr. Plante $16,000 of which $13,000 was partial payment for the methamphetamine. Mr. Plante subsequently delivered this money to Mr. Punko. [12] That same day, Mr. Plante signed the letter of agreement with the RCMP whereby he became a police agent. Prior to that, he had just been an informant. [13] On April 16, 2004, the Surrey RCMP Drug Section executed a search warrant at Mr. Ayach's residence and he was arrested. The police seized the methamphetamine which had been delivered by Mr. Plante. Mr. Ayach was held in custody. [14] In the meantime, Mr. Punko had invested $20,000 with Mr. Renaud for the production of methamphetamine. On April 19, 2004, Mr. Plante and Mr. Punko discussed meeting with Mr. Renaud regarding methamphetamine production; the drugs seized from Mr. Ayach's residence, including 2 pounds of methamphetamine belonging to them; how they were going to deal with the remaining methamphetamine that they had stolen from Mr. Potts; and the fact that Mr. Ayach still owed Mr. Punko and Mr. Plante $10,000. Mr. Plante suggested that they give their remaining methamphetamine to Mr. Renaud to sell, to which Mr. Punko agreed. Mr. Punko also talked about how he wanted to start a methamphetamine production by purchasing a half-barrel of ephedrine (a primary ingredient in methamphetamine), which would cost $80,000. Mr. Punko and Mr. Plante then discussed how much money they had to invest in the production. Mr. Punko had the $16,000 from Mr. Ayach, plus another $30,000 and Mr. Plante had the 2 pounds of methamphetamine that Mr. Renaud could sell for $13,000. [15] On April 21, 2004, Mr. Punko and Mr. Plante met with Mr. Renaud to discuss methamphetamine production and distribution. Mr. Renaud agreed that he wanted to work with them. They also discussed the location of the methamphetamine production ("cook"), and Mr. Renaud's partner "Dave" Pearse. Mr. Renaud explained that he would be able to buy a half barrel of ephedrine and the other ingredients within two weeks and that they would need to invest $35,000 each, into the cook, which would produce a return on the investment of 12.5 kilograms of methamphetamine, worth $175,000, for a profit of $23,000 each. [16] On April 23, 2004, Mr. Renaud provided Mr. Plante with $36,550 which was the net proceeds from the sale of 3.5 kilograms of methamphetamine which had been produced as a result of the previous investment by Mr. Punko of $20,000. At the same time, Mr. Renaud agreed to sell the 2 pounds of methamphetamine that Mr. Plante still had from the rip-off of Mr. Potts. Mr. Plante told Mr. Renaud that he and Mr. Punko were going to make another investment with Mr. Renaud. They discussed a $70,000 investment for a half barrel of ephedrine. Following this meeting, Mr. Plante met with Mr. Punko to tell him about the profit they had made. [17] On several occasions in early May 2004, Mr. Plante and Mr. Punko were intercepted discussing methamphetamine production and distribution. Mr. Plante told Mr. Punko that Mr. Renaud was also producing methamphetamine for Mr. Potts, which upset Mr. Punko who wanted Mr. Renaud producing only for him. They also discussed what Mr. Plante was going to tell Mr. Potts about the 3 kilograms of methamphetamine that they had stolen from him. With respect to investing, Mr. Plante told Mr. Punko that he had a discussion with Mr. Renaud who said that if they did not have enough cash, they could also invest finished product. Mr. Plante still had 2 pounds of methamphetamine left, worth $11,000 and he had $10,000 cash. Mr. Plante gave Mr. Punko $9,050. Later, Mr. Punko said he had $34,000 available and Mr. Plante had another $5,000. [18] On May 11, 2004, Mr. Plante told Mr. Renaud that he and Mr. Punko would be investing $50,000, being $39,000 cash and the 2 pounds of methamphetamine, in Mr. Renaud's next cook. Mr. Renaud confirmed that he would use the money to purchase a half barrel of ephedrine and that he could get an advance on the other materials from his contact. Mr. Renaud also confirmed that he would maintain receipts for everything. Later that evening, Mr. Punko and Mr. Plante gave Mr. Renaud the $39,000 cash and Mr. Plante promised to deliver the 2 pounds of methamphetamine the following day. Mr. Renaud then explained the quantity of methamphetamine that would be produced, the profit yield and the profits that could be earned if they had a full barrel of ephedrine. [19] On May 14, 2004, Mr. Plante delivered the 2 pounds of methamphetamine to Mr. Renaud as a portion of Mr. Punko's and Mr. Plante's investment in the cook. [20] On June 13, 2004, Mr. Plante, Mr. Renaud and Mr. Punko met and Mr. Renaud answered Mr. Punko's questions about the stage of production, about who Mr. Renaud was going to sell the product to, and about profits. Mr. Renaud told Mr. Punko when he expected to be finished and said he anticipated that he would produce 12.5 kilograms of methamphetamine and discussed the profit margin which would be $162,500, less the $20,000 shortfall, divided three ways, which would be $47,500 each. Mr. Renaud explained that they could reinvest a portion of these proceeds to work up to purchasing a full barrel of ephedrine. [21] On June 24, 2004, Mr. Plante was made aware by his handlers that, the RCMP would be executing a search warrant at the Renaud/Pearse Abbotsford methamphetamine lab. Mr. Plante was strongly opposed to this because he felt it was his only in with the targets. At the trial of R. v. Violette, Vancouver Registry No. 23500 (B.C.S.C.), Mr. Plante's handlers testified that he was angry with them, because he had just signed his letter of agreement a month ago, whereby his payment was contingent on the number of targets he could implicate, and taking down the methamphetamine lab would hinder his ability to do so. [22] On June 25, 2004, the RCMP executed a search warrant at the Renaud/Pearse Abbotsford methamphetamine lab, and equipment related to the production of methamphetamine was seized, however no actual drugs were seized. [23] Between June 26 and 30, 2004, Mr. Renaud, Mr. Plante and Mr. Punko had various discussions about the execution of the search warrant. Mr. Punko expressed concern about Mr. Renaud getting arrested, because they needed Mr. Renaud to continue the production. Mr. Punko suggested that he wanted to get Mr. Renaud a place outside of the city where he could cook. [24] On July 16, 2004, Nima Ghavami delivered $44,800 to Mr. Plante from Mr. Renaud, the proceeds from the distribution of the methamphetamine for Mr. Plante and Mr. Punko. Mr. Plante then delivered $25,000 of that money to Mr. Punko and confirmed with him that Mr. Renaud still owed them $10,000 each. [25] On August 2, 2004, Mr. Renaud met with Mr. Plante and provided him with $9,000 as an advance on the future proceeds from the sale of a kilogram of methamphetamine that he had taken from Jay Brown's apartment, one of his distributors of methamphetamine who was in custody at the time. Mr. Renaud also gave Mr. Plante a note to give to Mr. Punko explaining the Brown situation, the cash and that he would be gone for two weeks. Mr. Plante went to Mr. Punko's residence and gave him the $9,000 and the note. He also showed Mr. Punko the search warrant from the search of the methamphetamine lab in Abbotsford. Mr. Punko stated that he and Mr. Plante both had an additional $40,000 coming from Mr. Renaud. Mr. Plante confirmed with Mr. Punko that Mr. Renaud and Mr. Pearse had the ingredients for the next cook ready. [26] On September 1, 2004, Mr. Plante met Mr. Renaud who explained that the total revenue from the methamphetamine sales was $162,500. Mr. Renaud explained that some of the kilograms had sold for $13,000 and some went for higher, $13,500 and $14,000. Mr. Renaud further explained that he had subtracted various expenses from the net amount and then divided the remainder by four, for the shares of himself, Mr. Pearse, Mr. Punko and Mr. Plante. Mr. Renaud gave Mr. Plante $56,000 as profit, Mr. Punko's portion being $34,500 and Mr. Plante's portion being $21,500. Mr. Plante received less because Mr. Renaud had given a kilogram of methamphetamine to Mr. Ghavami who was holding it for Mr. Plante, who had agreed to sell it to Ronaldo Lising, another EEHA member. Finally, Mr. Renaud also provided Mr. Plante with a detailed list of the cost of the production and how the proceeds were distributed. Mr. Renaud and Mr. Plante then had a conversation about continuing with production and Mr. Renaud told Mr. Plante to set aside $7,000 for the next cook and to tell Mr. Punko to do the same. [27] Later that day, Mr. Plante met Mr. Punko at the EEHA Club House and showed him the list provided by Mr. Renaud and explained the breakdown and distribution. Mr. Plante gave Mr. Punko $34,500 for his share and discussed further production and distribution. [28] On September 18, 2004, Mr. Punko gave Mr. Plante $6,800 to reinvest with Mr. Renaud. [29] On September 20, 2004, Mr. Plante gave Mr. Renaud $14,800 as his and Mr. Punko's investment in the next cook. Mr. Renaud told Mr. Plante that he would start production within two weeks or sooner, once he had obtained all the necessary ingredients. [30] Over the month of October and early November, the three parties met on several occasions to discuss the cost, ingredients, current state of production and profits of the cook, as well as other corollary issues. Mr. Punko frequently expressed impatience and the details had to be repeatedly explained to Mr. Punko, partly because of his lack of experience with methamphetamine production. [31] On November 15, 2004, Mr. Renaud gave Mr. Plante $34,540 for the proceeds of production and distribution of the cook. Mr. Renaud said he was waiting for the proceeds from the sale of 4 more kilograms of methamphetamine and confirmed that they would be getting $70,000 each. Mr. Plante said that he would give Mr. Punko the full amount he had received and then wait for his share. Mr. Plante and Mr. Renaud discussed investing the money into another barrel of ephedrine. [32] On November 16, 2004, Mr. Plante met Mr. Punko and gave him the $34,540 he had received from Mr. Renaud. Mr. Plante then told Mr. Punko about a kilogram of cocaine he had just purchased from Jonathan Bryce Jr., a "friend" of the Hells Angels, which he said he had then sold in Alberta for a profit of $6,000. This was a fictitious sale, and Mr. Plante had actually turned the drugs over to the RCMP. This was Mr. Plante's introduction of the fictitious Alberta buyer. [33] Because Mr. Punko had never been involved in cocaine trafficking and knew nothing about the deal, Mr. Punko asked Mr. Plante what Mr. Bryce Jr. had charged him for the kilogram of cocaine and Mr. Plante told him he had paid $24,000 per kilogram, and he sold it for $30,000 per kilogram in Alberta. Mr. Plante told Mr. Punko that he met his Alberta buyer halfway between Vancouver and Alberta. Mr. Plante told Mr. Punko that it would be faster to turn a profit doing this than with methamphetamine production. Mr. Punko was impressed with this and expressed interest in making money this way. Mr. Plante said he would talk to his buyer. Again, in reality this buyer was fictitious. The conversation then turned back to methamphetamine production. [34] On November 17, 2004, Mr. Plante met Mr. Punko to discuss the possible cocaine sale in Alberta. Mr. Punko told Mr. Plante that through his connections the cost of a kilogram of cocaine would be $20,000. The plan was for Mr. Punko to buy 3 kilograms of cocaine for $60,000, with him and Mr. Plante each contributing $30,000, and also for Mr. Punko to get an additional two kilograms fronted to him that he would pay for later. [35] On November 18, 2004, Mr. Plante gave Mr. Punko $30,000. Mr. Punko told Mr. Plante that he was getting 5 kilograms of cocaine but that each kilogram actually cost $25,000, however Mr. Punko assured him that the cocaine was of the best quality. He told him that he would pay the $60,000 and get fronted for 3 kilograms. Mr. Plante said they would split the net proceeds. Mr. Punko calculated that they would each make $12,500. During this conversation, they had an argument over the Hells Angels program and Mr. Punko called-off the cocaine deal. Mr. Plante urged Mr. Punko not to and convinced him to change his mind. [36] On November 19, 2004, Mr. Punko and Mr. Plante met to further discuss the sale of cocaine to Mr. Plante's buyer in Alberta. Mr. Plante told Mr. Punko that if the quality was good, Mr. Plante's buyer would be willing to buy 5 more kilograms the following week. They also discussed further methamphetamine production and the possibility of selling methamphetamine in Alberta for a greater profit than in British Columbia. When Mr. Plante left, Mr. Punko gave him a backpack that contained 5 kilograms of cocaine. [37] On November 20, 2004, Mr. Plante met Mr. Punko and gave him $112,500 as the proceeds from his fictitious trip to Alberta. Mr. Punko explained that he would keep $25,000 as profit and $75,000 would go back to the supplier of the cocaine. They discussed further sales and whether Mr. Plante's buyer would take methamphetamine as well. [38] The 5-kilogram sale of cocaine from Mr. Punko to Mr. Plante took place between November 18 and 20, 2004. On November 18, Mr. Plante gave Mr. Punko $30,000 as down payment for the purchase. On November 19, Mr. Punko gave Mr. Plante 5 kilograms of cocaine and on November 20, Mr. Plante gave Mr. Punko $112,500 for a total of $142,500. The $30,000 that Mr. Plante invested and the $112,500 of fictitious proceeds for the sale were provided by the RCMP. The 5 kilograms of cocaine given to Mr. Plante by Mr. Punko were seized by the RCMP. [39] On November 23, 2004, Mr. Punko, Mr. Plante and Mr. Renaud met to discuss the next cook and Mr. Renaud said he may be able to complete it by Christmas, but that he was still waiting for ephedrine. After Mr. Renaud left, Mr. Plante told Mr. Punko that he had given Mr. Renaud $35,000. Later that day, Mr. Plante met Mr. Renaud and Mr. Renaud gave him $28,000, being the profits from the last cook. [40] On November, 24, 2004, Mr. Plante told his RCMP handlers, with respect to Mr. Punko: "he's all fucked up on Percs now, you know. The guy is all fucking delusional, man." Two days later, Mr. Plante told them that Mr. Punko's appearance was being affected by drug use. That same day, Mr. Plante's handler informed Mr. Plante that he had an exemption for 50 Percocet tablets to give to Mr. Punko. [41] Between November 29 and 30, 2004, Mr. Punko gave Mr. Plante $34,500, which Mr. Plante gave to Mr. Renaud along with $28,000 from himself, to invest in the next cook. [42] On December 8, 2004, Mr. Plante and Mr. Renaud met. Mr. Renaud told Mr. Plante that the production would be complete in 8 to 10 days and Mr. Plante explained that Mr. Renaud was not to sell the methamphetamine himself this time, because he and Mr. Punko wanted to sell it themselves in Alberta. [43] On December 27, 2004, Mr. Renaud, Mr. Ghavami and Mr. Plante met and Mr. Renaud gave Mr. Plante 8 kilograms of methamphetamine. Mr. Plante later met Mr. Punko and they discussed Mr. Plante's next fictitious trip to Alberta. Mr. Plante told Mr. Punko that he would receive $20,000 for each kilogram of methamphetamine. Mr. Plante explained that for Mr. Punko's 4 kilograms he would receive $80,000 minus the $32,000 he invested, for a net profit of $48,000. They also discussed their next move and decided to see what the Alberta buyer wanted. [44] On December 30, 2004, Mr. Plante called Mr. Punko and told him that he had returned from Alberta and subsequently met up with him and gave him $80,000 from the fictitious sale. Again, as with the fictitious cocaine sale, the money was provided by the RCMP and the drugs were seized. [45] On January 21, 2005, Mr. Plante left the EEHA recruitment program. After this date, Mr. Plante had no further face-to-face contact with any of the targets of the E-Pandora investigation, including Mr. Punko and Mr. Renaud. The E-Pandora investigation, however, continued until at least July 15, 2005, when Mr. Punko was arrested. In that time period, there was a wiretap in place, listening devices were employed and surveillance continued on the targets. [46] In January 2005, Mr. Punko returned to work in the elevator industry. [47] On January 25 and 29, 2005, Messrs. Punko, Renaud and Ghavami met to discuss Mr. Plante's departure from the EEHA program. They also discussed their plans to continue producing and trafficking methamphetamine, cost and profits of production and the possibility of finding another investor, Mr. Ghavami. They also discussed getting 5 kilograms of cocaine to sell in Alberta, since Mr. Punko had made $30,000 there in the past with Mr. Plante. Mr. Renaud suggested exporting methamphetamine to England. [48] On July 15, 2005, Mr. Punko was arrested and a search warrant was executed at his residence. Among the items seized were: a Smith and Wesson 9 mm handgun with clip and bullets; a 9 mm magazine with bullets; a "Royal Sovereign" money counting machine; and a Hells Angels' vest with "colours". Summary of Mr. Punko's Drug Trafficking Activities I. Conspiracy to Produce and Traffic Methamphetamine: Date Cash Invested Cash Received April 2004 $20,000 April 15, 2004 $16,000 April 23, 2004 $36,550 May 10, 2004 $9,050 May 11, 2004 $34,000 May 14, 2004 2 pounds methamphetamine July 16, 2004 $25,000 August 2, 2004 $9,000 September 1, 2004 $34,500 September 18, 2004 $6,800 November 16, 2004 $34,540 November 30, 2004 $34,500 December 30, 2004 $80,000 TOTAL $95,300 $244,640 II. Trafficking Five Kilograms of Cocaine Date Transaction November 18, 2004 $30,000 from Mr. Plante November 20, 2004 $112,500 from Mr. Plante TOTAL $142,500 [49] Of these sums, the entirety of the money paid for cocaine was funds supplied by the RCMP. The last $80,000 paid for methamphetamine was also RCMP money representing a sale to Mr. Plante's fictional Alberta buyer. Of the $381,140 Mr. Punko had in his possession, $222,500 came from the RCMP. DISCUSSION [50] The principle of proportionality is central to the sentencing process: R. v. Solowan, 2008 SCC 62 at para. 12, [2008] 3 S.C.R. 309; and R. v. Nasogaluak, 2010 SCC 6 at para. 41. Proportionality requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. Mitigating and aggravating factors will serve to push the sentence up or down to reflect the offender's moral blameworthiness. 1. Aggravating Factors (a) Seriousness of the Offence [51] The first aggravating factor in this case is the seriousness of the offence to which Mr. Punko pled guilty. In R. v. Francis, 2008 BCCA 309 at para. 13, Madam Justice Ryan quoted with approval these remarks of the sentencing judge: [13]... [83] These reports, the expert evidence, and the conclusions drawn by the judges in these authorities all underscore the dangerous and highly-addictive nature of methamphetamine and related drugs. The advent of increased availability and use of methamphetamine and like substances is a true scourge and a tragedy for the people -- often young people -- who become addicted. Evidence indicates that users are often permanently harmed. They often become less or non-productive members of society caught in a downward spiral of addiction. They require additional health care. Their addictions require medical and psychiatric treatment. They need financial and emotional support from their families and their communities. Many remain unsuccessful in overcoming their addictions. [84] Insofar as courts are able to impose sentences that denounce and deter the increased use and distribution of methamphetamine, in my view they must do so. To do otherwise is to fail to appreciate the harm that these substances cause to the basic health and life of the people in the community... [52] In light of the Court's recognition of the harm that methamphetamine causes, the production and distribution of that drug is a serious offence and is an aggravating factor in this case. (b) Criminal Record [53] The Crown urges me to find that Mr. Punko's criminal record is an aggravating factor. Prior to E-Pandora, Mr. Punko's criminal record was: CRIMINAL CONVICTIONS CONDITIONAL AND ABSOLUTE DISCHARGES 1995-01-23 (1) CULTIVATION OF NARCOTIC (1) 1 DAY & $1000 I-D 45 DAYS VANCOUVER BC SEC 6(1) NC ACT CONSEC (2) POSS OF NARCOTIC SEC SEC 3(1) NC ACT (2) $100 1-D 3 DAYS (VANCOUVER PD 187577) 2001-11-28 VANCOUVER BC MISCHIEF UNDER $5000 SEC 430(4) CC (VANCOUVER PD 187577) $350 2002-01-24 VANCOUVER BC ATT OBSTRUCT JUSTICE SEC 132(2) CC (VANCOUVER PD 187577) 8 MOS & PROBATION 2 YRS [54] During the prosecution of the charges laid as a result of the E-Pandora investigation, Mr. Punko was sentenced to 15 months' imprisonment for contempt of court for refusing to testify in R. v. Giles, 2008 BCSC 367. [55] In R. v. Violette, another E-Pandora trial, Mr. Punko was convicted by the jury of: 1. counselling mischief; and 2. possession of firearm. [56] Mr. Justice Romilly in his Reasons for Sentence stated that the appropriate sentence for Mr. Punko's crimes was four years' incarceration for the counselling charge and 15 months consecutive for the firearms possession charge. Because of the time he spent in custody awaiting trial, he was sentenced to one day in jail for those two offences. [57] I consider Mr. Punko's pre-E-Pandora record to be an aggravating factor. In particular, his obstruction of justice charge demonstrated an attitude toward Canada's criminal justice system deserving of denunciation. (c) Role [58] At all material times, although Mr. Renaud had the most active role in the conspiracy, Mr. Punko, Mr. Plante and Mr. Renaud were financially equal partners. Despite Mr. Punko's desire that Mr. Renaud work exclusively for himself and Mr. Plante, Mr. Renaud was clearly an independent contractor who made his money on a cook by cook basis, sharing the product with those who put up the money with him to buy the necessary ingredients. Mr. Punko and Mr. Plante were investors in approximately three or four of Mr. Renaud's cooks, with Mr. Plante acting as the middle man. Mr. Punko only handled money with respect to the methamphetamine production. Mr. Renaud produced and sold it and on one occasion, with the fictitious Alberta sale, Mr. Plante "sold" the drugs. The proceeds were always split evenly. With respect to the cocaine transaction, which was Mr. Plante's idea, they both divided the net profits equally and so again, were equal partners. 2. Mitigating Factors (a) Early Plea [59] At his first appearance before me on this Indictment, Mr. Punko offered to plead guilty to all of the charges currently before me. The only obstacle was the Crown's desire to pursue the "criminal organization" count. Mr. Punko proceeded to enter guilty pleas once I ruled that the "criminal organization" count was precluded by issue estoppel: R. v. Punko, 2010 BCSC 70. [60] The guilty pleas by both Mr. Potts and Mr. Punko made it unnecessary to hold a three-month trial. This involves significant savings for the public purse, as well as easing congestion in the court system. Guilty pleas are also a meaningful acknowledgment by an accused person of his responsibility for his actions and may represent genuine remorse and a measure of progress towards rehabilitation. [61] Calculating the benefit an accused should receive for entering a guilty plea is not a scientific endeavour. In sentencing Mr. Renaud and Mr. Pearse in a related case, I gave them two years' credit for their guilty pleas. In Mr. Punko's case, I intend to give him one year's credit. (b) Rehabilitation [62] I have received the material supplied by Mr. Punko's counsel dealing with rehabilitation. Despite the fact that most of the material comes from family members, I am satisfied on the balance of probabilities that Mr. Punko has used his time in custody productively and has made real progress in his own rehabilitation. I do not believe he has made as much progress as either Mr. Renaud or Mr. Pearse, nevertheless I believe his efforts towards rehabilitation should be reflected in his sentence. (c) Addiction to Percocet [63] During the time frame of this Indictment, Mr. Punko was addicted to the painkiller Percocet. The police agent, and through him, the police, were fully aware of this addiction. Despite this, the police agent, with the full co-operation of the police, supplied Mr. Punko with large quantities of Percocet and occasionally cocaine and steroids. [64] It is traditional to evaluate people being sentenced for drug trafficking offences in two categories - addicts and non-addicts. Normally addicts receive lower sentences because of the recognition that they engage in trafficking to "feed their habits". Non-addicts are generally classified as "greedy", exploiting the suffering of others for their own monetary reward. This categorization is not helpful in Mr. Punko's case. He was an addict but his trafficking was not motivated by the need to "feed his habit". At the relevant time, the police were "feeding his habit" without demanding payment. In the result, Mr. Punko does not receive the sentencing benefit normally accorded to the addict trafficker. [65] The defence argues that the police conduct in "feeding Punko's habit" should, by itself, be a mitigating factor in sentencing. This issue is sufficiently complex to deserve separate treatment. (d) Police Conduct [66] The Supreme Court of Canada in R. v. Nasogaluak, stated that police misconduct which impacts the offender and aligns with the circumstances of the offence such that it is pertinent to sentencing, may be a relevant mitigating factor warranting a reduced sentence, and therefore can be taken into account in determining a fit and proportionate sentence, without having to resort to s. 24(1) of the Charter. This principle is applicable in cases where the state misconduct does not amount to a Charter breach, but which impacts the offender: Nasogaluak, at para. 53 and 55. The Court found that focusing on whether impugned acts constitute a Charter breach and relying on s. 24(1) as the authority to reduce a sentence misapprehends the flexible and contextual nature of the sentencing process. The sentencing regime itself, under ss. 718 to 718.2 of the Criminal Code provides the scope for sentencing judges to consider not only the actions of the offender but those of state actors and take the relevant facts into account in crafting a fit sentence: Nasogaluak, at paras. 2-4. [67] Section 718 of the Criminal Code describes the fundamental purpose of sentencing as contribution to "respect for the law and the maintenance of a just, peaceful and safe society". The Supreme Court held that this function provides scope for sentencing judges to consider not only the actions of the offender, but also those of state actors, provided the conduct relates to the offender and the circumstances of his offence: Nasogaluak, at para. 49. This allows a sentencing judge to include a consideration of society's collective interest in ensuring that law enforcement agents respect the rule of law and the shared values of our society. [68] In light of the decision in Nasogaluak, counsel for Mr. Punko submits that, in determining an appropriate sentence for Mr. Punko, this Court should consider the conduct of the state as a mitigating factor. Specifically, Mr. Punko urges this Court to consider the fact that the police agent supplied Mr. Punko with drugs for personal use, despite knowing that he was addicted and trying to kick the habit; and the fact that Mr. Punko was drawn into the drug activities with which he was charged by the police agent. [69] The Crown, on the other hand, argues that there is no evidence that the conduct of the police or the agent somehow undermined or diminished the moral blameworthiness of Mr. Punko. The Crown's position is that there are three limitations on the consideration of state misconduct in determining the fitness of a sentence under the reasoning in Nasogaluak. First, where the state misconduct is put forward by the offender as a mitigating factor, the onus is on the offender to prove that misconduct on a balance of probabilities. Second, the state conduct must be illegal, unconstitutional or clearly and demonstrably inappropriate, and does not include legally sound investigative techniques. Finally, the state misconduct must align with the circumstances of the offence or offender and thus a court should not reduce an otherwise appropriate sentence in order to hold the state accountable. (i) Agent's Role in Obtaining Percocet for Mr. Punko [70] With respect to Mr. Plante supplying Mr. Punko with Percocet, counsel for Mr. Punko argues that Mr. Plante knew Mr. Punko for a considerable period of time, knew Mr. Punko was addicted to Percocet, knew that Percocet was addictive, but in any event, continued to encourage and facilitate Mr. Punko's drug use. This encouragement continued despite the fact that Mr. Plante described Mr. Punko as delusional and that the drug use was affecting Mr. Punko's appearance. Mr. Punko's position is that this conduct could reflect badly on the administration of justice (R. v. Pigeon (1992), 73 C.C.C. (3d) 337 (B.C.C.A.); and R. v. McCrea, 2004 BCCA 229 at para. 24, 185 C.C.C. (3d) 222) and in light of Nasogaluak, it is a mitigating factor that this Court should take into consideration in determining a fit sentence. [71] In response, it is the Crown's submission that the legality and propriety of the agent's conduct was considered by Mr. Justice Curtis in R. v. Lising and Ghavami, 2007 BCSC 369, who found the conduct of the police and the agent to be lawful and fully justified given the nature of the criminal activity under investigation. In addition, the Crown argues that the evidence shows that Mr. Plante obtained the Percocet at Mr. Punko's request, and Mr. Plante did not force him to take them. Finally, the Crown argues that there is no evidence that the decision of Mr. Punko to engage in the conspiracy was in anyway influenced by his use of drugs. [72] As noted in the chronology above, by April 2004, Mr. Punko had been off work for six months and was attempting to deal with his Percocet addiction, which at times had risen to the level of 30-50 pills a day and was affecting his health. Mr. Plante was aware of this fact and continued to supply Mr. Punko with Percocet, steroids and cocaine for his personal use. Mr. Plante testified at the R. v. Violette trial that he was aware that Mr. Punko had a serious addiction and that he was trying to kick the habit, however, in his own words he was still "feeding" Mr. Punko's addiction, all the while acting as a police agent, collecting evidence against Mr. Punko. [73] In addition, it is clear from the evidence given at the R. v. Violette trial, not only were Mr. Plante's police handlers aware of the fact of Mr. Punko's addiction, the police were granting Mr. Plante exemptions to possess these drugs, so that he could supply them to Mr. Punko. [74] It is my view of the facts that Mr. Punko was a pawn in this investigation. It was always the intention of the E-Pandora investigation to go after targets higher up in the EEHA. In addition, Mr. Plante was being paid for the number of targets he could ensnare. To do so, Mr. Plante started by working with Mr. Punko and Mr. Potts, who were considered "low level mopes", and gained their trust, in the hopes that it would serve as a gateway to other members. In doing so, Mr. Plante supplied both Mr. Punko and Mr. Potts with drugs, free of charge, evidently to gain their favour. While this may be a legitimate investigative technique used by the police to be able to get at targets higher up in the Hells Angels' organization, there is no doubt that this conduct had a negative impact on Mr. Punko, who was attempting to rid himself of this habit and should go to diminishing his moral culpability. While the evidence with respect to Mr. Punko's drug abuse was insufficient to allow this Court to draw an inference that it affected his intent to commit crime, the conduct of the police, in supplying drugs to Mr. Punko, is a mitigating factor in this case. (ii) Agent's Role in Drug Trafficking Offences Committed by Mr. Punko [75] Mr. Punko's counsel has also argued that Mr. Punko was drawn into illegal drug activity by Mr. Plante. Mr. Punko was not involved in the production and distribution of methamphetamine before or after Mr. Plante's involvement in the investigation. While Mr. Punko's counsel are not arguing that he was entrapped and while they acknowledge that he was a greedy and willing participant, they submit that Mr. Plante was the catalyst and without him, there was no production or drug dealing by Mr. Punko and this factor should result in a reduction of the sentence to be imposed on Mr. Punko. [76] In reply, the Crown argued that there is no evidence to support the suggestion that Mr. Punko was entrapped or inappropriately ensnared. The Crown's position is that Mr. Plante was at all times subordinate to Mr. Punko and that Mr. Punko directed Mr. Plante to divert the proceeds of Mr. Potts' cook to finance his own production. Mr. Punko used his status as a full-patch member of the EEHA to insert himself into a pre-existing methamphetamine distribution scheme, established by Mr. Potts, using the agent as an intermediary. The Crown argues that the suggestion that the police contributed to or manufactured Mr. Punko's criminal activity is baseless and that Curtis J. in R. v. Lising and Ghavami, at para. 104, found that he had little doubt that the activities engaged in by the EEHA would have continued, very much as it did, whether or not the agent was involved. Mr. Plante's role in the drug activities does not in any way diminish the culpability of Mr. Punko for his part in these crimes. The agent did not act unlawfully, and his conduct was approved of by the police and authorized by the CDSA Regulations. The Crown argued that, to hold otherwise, would be tantamount to suggesting that an accused is somehow less culpable for a crime simply because an undercover operator is involved. The Crown's position is that Nasogaluak does not support such an approach. [77] On this issue, defence counsel have convinced me on a balance of probabilities that Mr. Punko's drug crimes would not have occurred but for Mr. Plante's facilitation. I reject the Crown argument that Mr. Plante was at all times subordinate to Mr. Punko. In addition, I reject the Crown argument based on para. 104 of Curtis J.'s decision in R. v. Lising and Ghavami. Mr. Justice Curtis very properly stated, at para. 7, that his findings for the purpose of the issues before him could not and should not bind other courts hearing E-Pandora cases. It is true that the agent's behaviour was lawful and did not amount to entrapment. It is also true that Mr. Punko was greedy and more than willing to engage in criminal activity with Mr. Plante and others. Nonetheless, I give great weight to the simple facts that before Mr. Plante's involvement, Mr. Punko was not committing crimes involving methamphetamine or cocaine and after Mr. Plante's departure Mr. Punko returned to his elevator technician job and did not participate in further drug crimes. Many of the other E-Pandora accused persons were not affected in their criminal activities by Mr. Plante's departure - Mr. Punko was. As part of the larger goals of E-Pandora, supplying Mr. Punko with addictive pain-killers and facilitating his participation in serious drug crimes was justifiable. Nevertheless, in passing sentence on Mr. Punko, the conduct of the state agents is relevant and needs to be taken into account. [78] The conduct of the police agent and the police in both creating the crimes and feeding his addiction to Percocet should be reflected in Mr. Punko's sentence. CONCLUSION [79] Taking into account the seriousness of the offence, Mr. Punko's criminal record, his role in the crimes and his rehabilitation, if Mr. Punko had been found guilty of the offences to which he has entered pleas after a trial, I would sentence him to six years in prison for the conspiracy to produce and traffic methamphetamine. [80] On the same hypothetical basis, I would sentence him to five years in prison concurrent to his other sentence for trafficking in cocaine. I arrive at five years by comparing his culpability to that of Mr. Bryce Jr., sentenced to six years for trafficking in cocaine by Associate Chief Justice Dohm. I would make his sentence concurrent because I see this offence as part of a continuing process by which the police agent, Mr. Plante, assisted Mr. Punko to make "easy money" from drug dealing. [81] As far as the proceeds of crime charge, I accept the Crown's recommendation that a three-year sentence, concurrent to all other sentences, is appropriate. [82] To sum up, without considering the issues of the early guilty plea or the police conduct, I would sentence Mr. Punko to six years in prison for the methamphetamine conspiracy; five years concurrent for trafficking cocaine; and three years concurrent for possession of the proceeds of crime. [83] As I indicated when discussing the early guilty plea, I believe that Mr. Punko should receive one year's credit for his express willingness to plead to all charges except the "criminal organization" count on his first appearance before me and his actual pleas as soon as I ruled that the "criminal organization" count was precluded. Pausing there, the proper sentence for Mr. Punko would be a global sentence of five years' imprisonment. [84] Counsel for Mr. Punko urge that the Court should find that the police conduct in this case calls for mitigation and a significant reduction in sentence. For the reasons already given, I agree with their submission. In my view, Mr. Punko is entitled to a reduction in his sentence for two reasons. One is the fact that the police, through Mr. Plante, pandered to Mr. Punko's Percocet addiction to a very significant extent. The other reason is best expressed in counsels' words: "[w]ithout Michael Plante there was no drug production or drug dealing by John Punko." Both of these reasons relate to the fact that the police treatment of Mr. Punko was dictated by the overall strategy of their investigation. They were anxious to gather evidence to support the proposition that the East End Charter of the Hells Angels was a criminal organization. They were also anxious to gather evidence that would implicate certain senior members of the EEHA in serious criminal offences. For these purposes, Mr. Plante was working with Mr. Punko and Mr. Potts to try to "look up" in the EEHA organization and get the opportunity to engage in criminal activity with more senior targets. For this purpose he created and developed Mr. Punko's involvement with drug production and distribution and he "fed" Mr. Punko's Percocet habit. If Mr. Punko had been the sole target of the investigation these tactics would have been questionable. I adopt Curtis J.'s finding in R. v. Lising and Ghavami that Mr. Plante committed no illegal actions directly related to this investigation. I also am satisfied that the police strategy should not be criticised with hindsight because it failed to develop evidence against senior members of the EEHA. Mr. Punko, who willingly took the bait that Mr. Plante offered him, clearly motivated by greed, must pay the price for his crimes. On the other hand, the level of police involvement in both creating the crimes and fostering and encouraging his addiction to Percocet, should also be reflected in Mr. Punko's sentence. After careful consideration, I believe Mr. Punko should receive a further reduction in his sentence of one year. The effect of this mitigating factor will be to reduce his methamphetamine conspiracy sentence to four years' imprisonment and his concurrent cocaine trafficking sentence to four years as well. Credit for Time Served [85] There is one last calculation that remains to be done. Counsel are in agreement that he is entitled to 34 months' credit for time served in remand awaiting trial. [86] In the result, I sentence Mr. Punko to 14 months in prison concurrently on his methamphetamine conspiracy charge, his trafficking in cocaine charge and his possession of the proceeds of crime charge. "P. LEASK, J."