R. v. Vu

2015 BCSC 1441 R. v. Vu IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Vu, 2015 BCSC 1441 Date: 20150724 Docket: 26074 Registry: Vancouver Regina v. Van Van Vu Restriction on Publication: Pursuant to 486.5(1) CCC; Inherent Jurisdiction Before: The Honourable Madam Justice Fisher Oral Reasons for Sentence Counsel for the Crown: M.J. Sheardown D.Y.D. Sim Counsel for the Accused Vu: B.V. Bagnall Place and Date of Trial/Hearing: Vancouver, B.C. July 23, 2015 Place and Date of Judgment: Vancouver, B.C. July 24, 2015 [1] THE COURT: On June 22, 2015, after a long trial, the accused, Van Van Vu, was found guilty of conspiracy to kidnap under s. 465(1)(c) of the Criminal Code, kidnapping under s. 279(1.1)(b), and assault causing bodily harm under s. 267(b). Circumstances of the offences [2] The circumstances of the offences are set out in my reasons for judgment at 2015 BCSC 1073. Mr. Vu was a participant in a fairly elaborate kidnapping scheme along with five former co-accused. He was not involved in the actual kidnapping itself. His role involved driving his co-conspirators around and installing and removing tracking devices on the victim's vehicles. Details of Mr. Vu's acts of participation and how they assisted the scheme are set out at paras. 328 to 343 and 359 of my reasons for judgment. The victim, Eric Low, was assaulted during the kidnapping and suffered bodily harm as a result. [3] In my judgment, I did not make specific findings about the motive for the kidnapping, but I referred to evidence (admissible against Mr. Vu) which established a profit motive. The co-conspirators were tracking Mr. Low because they believed he was a drug dealer who had access to large amounts of cash. It is clear that the motivation behind this conspiracy was financial gain. [4] A significant amount of planning was involved for over a week prior to the kidnapping that included installing and removing tracking devices on vehicles used by Mr. Low, monitoring those devices, and physically tracking the victim. The kidnapping itself, which was done in broad daylight under the eyes of police surveillance, was over very quickly due to quick police action, so the conditions and length of the planning and confinement, other than Mr. Low's rather violent abduction and apprehension in a van, are unknown. Sentences of the co-conspirators [5] Four of Vu's former co-accused pleaded guilty earlier this year, most at a stage in the trial when the Crown's case was substantially concluded subject to the recall of some witnesses as a result of late disclosure. Derek Stephens and Troy McKinnon were each sentenced on the basis of joint submissions. Stephens received four years less time served and 18 months' probation, and McKinnon received seven years less time served. Cody Sleigh was sentenced to six years, two months, and 10 days, while John Powers was sentenced to a similar term of six years, two months. Circumstances of the offender [6] Mr. Vu was 25 years old at the time of these offences and he is now 28. He has no criminal record. At the time of the offences, he was on bail for assault causing bodily harm, although that charge was later stayed by the Crown. [7] Mr. Vu was born in Vietnam and came to Canada when he was four years old. He is the second of four children. His parents are unskilled workers and his family has always been poor. He is close to his mother but not his father. [8] Mr. Vu attended a number of schools due to his family moving residences. He left school in Grade 11, but did not work and had no goals. He lived in Montreal with his family between 2008 and 2010. After he returned to B.C. in 2010, Mr. Vu had sporadic employment doing landscaping and casual labour. After his arrest in February 2012 and while out on bail, Mr. Vu worked for an aunt at a coffee shop in Vancouver. [9] I have received letters from Mr. Vu's mother, his aunt, and his sister that describe how helpful he is at home and at work. I have also received a letter from Mr. Vu himself, in which he expresses remorse for his actions, acknowledges that what he did was wrong, and says that he will stay away from his co-accused and anyone that will get him into trouble. Importantly, Mr. Vu says that he wants to learn from his mistakes, use his time in prison to finish grade 12, and plan a future running a house renovation business. Mr. Vu also spoke to me in court expressing similar sentiments, which I am prepared to accept as genuine. Position of the Crown [10] The Crown seeks sentences of seven years less credit for time served for the conspiracy and kidnapping charges, to be served concurrently, and two years less time served on the assault charge, also to be served concurrently. [11] The Crown submits that there are numerous aggravating factors that serve to place Mr. Vu's blameworthiness at a higher scale and no mitigating factors other than his lack of a record. It also submits that the impact of the parity principle on sentencing Mr. Vu should be attenuated in light of the unique circumstances of the sentences imposed on his former co-accused. Position of the defence [12] The defence submits that a global sentence of three years is appropriate on the basis that Mr. Vu played an insignificant role in the kidnapping scheme relative to the co-accused, the scheme itself lacked sophistication or planning as demonstrated by the manner in which the kidnapping was carried out, and therefore Mr. Vu does not bear the same level of moral responsibility as the other participants. Defence counsel says that the principle of parity should be applied here without limitation, justifying a sentence for Mr. Vu that is lower than those imposed on the others. Sentencing principles [13] The objectives of sentencing, as set out in s. 718 of the Criminal Code, include the principles of denunciation, general and specific deterrence, protection of the public, and rehabilitation. A fundamental principle that is central to the sentencing process is proportionality: R. v. Nasogaluak, 2010 SCC 6; R. v. Ipeelee, 2012 SCC 13. This is a mandatory consideration in s. 718.1, which provides that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender". [14] The parity principle is reflected in s. 718.2(b) which provides that a sentence "should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances". Sentences should also be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, as provided in s. 718.2(a). The gravity of the offences [15] The offences of conspiracy and kidnapping are serious. As the trial judge noted in R. v. Bacon, 2012 BCSC 983 and cited by the Court of Appeal, 2013 BCCA 396, "to a great extent, the gravity of the offence of conspiracy lies in the willingness of people to combine together and in the propensity and attitude it betrays, rather than in the actual harm that it is capable of achieving". Because this was a conspiracy to kidnap, the same considerations should apply to assess its gravity as for the kidnapping itself. [16] As the B.C. Court of Appeal stated in R. v. Brar, 2014 BCCA 175, the jurisprudence identifies multiple criteria indicative of the gravity of the offence of kidnapping on a spectrum. These criteria include: a) the purpose of the kidnapping, specifically whether it is carried out for ransom or as a means of extorting a payment or repayment from the victim; b) the extent to which there is planning and premeditation; c) the length and conditions of the confinement; d) the extent to which there is violence, torture or significant physical injuries; e) whether third parties are threatened; f) whether guns are used; g) whether there is gang involvement; h) whether the kidnapping occurs in the course of the commission of another offence; and i) the circumstances in which the kidnapping ends. [17] As I have already indicated, the purpose of the kidnapping here was for financial gain. Whether or not this was to be by way of a ransom, extortion, or something else matters little. The amount of money the leaders were seeking was substantial, as reflected in messages from Mr. Margison which referred to $1 million. There was extensive planning and premeditation. The group met and communicated quite regularly, mainly using encrypted BlackBerrys. Two tracking devices were installed on vehicles used by Mr. Low and monitored throughout the week on laptop computers, and Mr. Low was followed with the assistance of the trackers. The actual abduction was quite violent and it involved the use of a gun, although as a bludgeon rather than a firearm. I agree with the Crown that it was brazen, taking place in broad daylight in a public parking lot, and after an aborted attempt at another parking lot the previous day. The group persisted with the scheme despite being aware of police surveillance, telling each other to take precautions to avoid being followed. The kidnapping ended quickly only because of police action. [18] I consider these offences to be serious ones where the principles of denunciation and deterrence are paramount. The degree of responsibility of Mr. Vu [19] Given the group endeavour, each of the participants had an important role to play. Mr. Vu's role was, as I said, to install and remove tracking devices and to drive the others around. While these may have been tasks requiring little skill, the installation of the trackers was important because it allowed the others to locate and follow Mr. Low, and driving members of the group around clearly assisted them, not only to communicate, but also to access the kidnap van. All of the vehicles used by the group, other than the rented kidnap vans, were associated to Mr. Vu. As part of the group, he expected to receive some of the financial benefit from the endeavour. [20] It is proper to draw a distinction between participants in a joint criminal enterprise on the basis of factors that speak to culpability, but it is important not to draw too fine of a distinction: Brar; R. v. Wong and Poon, 2008 BCCA 64. In R. v. Hennessey, 2010 ABCA 274, the court cautioned that distinctions between physical acts of participants should not be the main emphasis. [21] I consider Mr. Vu to have a role with a similar level of complicity as Mr. Stephens. Stephens was involved in preparing the tracking devices and monitoring them. He also provided technical information such as passwords for accounts, and was involved in renting the kidnap vans. Mr. Vu spent a lot of time with Mr. Stephens, often when Stephens was monitoring the trackers, and he also spent a lot of time with Mr. McKinnon and Mr. Margison. I do not agree with the defence submission that Stephens' role was more significant, nor do I agree with the Crown submission that Vu's role was more significant. The facts on which Mr. Stephens was sentenced were consistent with my findings and his role within the group was similar to that of Mr. Vu in terms of culpability. [22] In his reasons for sentence for John Powers, the Associate Chief Justice considered Mr. McKinnon to be one of the leaders and, as such, had a greater level of complicity than Mr. Stephens who, in turn, had less complicity than Mr. Sleigh or Mr. Powers. I agree with that assessment and I place Mr. Vu at the same level of complicity as Mr. Stephens relative to the others. Parity [23] I agree with the Associate Chief Justice in his reasons for sentence in Stephens (published as R. v. McKinnon, 2015 BCSC 1077) that this is a case where the conspiracy and kidnapping offences should be within the five to ten year range. This is derived in part from Brar, where Willcock J.A. held at para. 51 that "[c]arefully planned kidnapping, confinement at another location and extortion, even without a ransom demand, usually attracts a sentence in the five to ten-year range, depending upon the violence inflicted on the victim, among other factors." Here, we do not know how the financial goal was to be realized, but as I found in my reasons for judgment at para. 294, the only logical inference to be drawn was that the agreement involved the abduction and movement of Mr. Low to a different place by force. [24] Where the actions of one co-accused are qualitatively different than another, disparate sentences may be imposed in kidnapping cases. While I am only sentencing Mr. Vu, the parity principle requires me to consider the sentences imposed on the other co-accused and the basis for those sentences. [25] The Crown submits that while the parity principle is relevant, it is not the only factor in sentencing and it should not be an overwhelming one. This is particularly so here where the sentences imposed on Stephens, McKinnon, Sleigh and Powers arose after guilty pleas in rather unique circumstances. Stephens and McKinnon were sentenced on the basis of joint submissions. At the time, the Crown was prepared to agree to lower sentences in exchange for certainty given the consequences arising from some of the late disclosure issues. Counsel referred to R. v. Mann, 2012 BCSC 1266, where the court considered the sentence of a co-accused made after a guilty plea to be of little value in determining a fit sentence after trial. There, the guilty plea was made at the outset of the trial when the Crown's case was extremely tenuous due to the reluctance of certain witnesses to testify. The Crown submits that similar factors arise here, albeit to a lesser extent given the later timing of the guilty pleas. [26] The defence submits that the guilty pleas have much less significance since they were made late in the day, when the Crown's case, which was not tenuous, was substantially complete. This, he says, makes this case distinguishable from Mann. Counsel also suggested that the Associate Chief Justice considered parity among Stephens, McKinnon, Sleigh, and Powers. [27] In my opinion, the sentences imposed on the other co-accused must be considered carefully. [28] Mr. Stephens pleaded guilty to Counts 1 and 2, the conspiracy and the kidnapping, and was sentenced on January 8, 2015, about two months after I dismissed the defence mistrial applications and granted leave for the recall of some of the surveillance witnesses, and before the trial had reconvened. The Associate Chief Justice made it clear that he considered a sentence in the five to ten year range to be appropriate for Stephens "in ordinary circumstances" and he was well aware that the agreed four-year sentence was below the appropriate range. At paras. 16 and 18 he said this: What sets this case apart is that counsel for the Crown and counsel for the offender have made a joint submission that, in all the circumstances, a sentence of four years, taking into account time served at a one‑to‑1.5 ratio, is an appropriate sentence. That joint submission rests in part on the offender's guilty plea, but also in part on circumstances that have afflicted the trial of this matter resulting in a finding by the trial judge that the offender's right to make full answer and defence and his fair trial rights have been implicated . . . it is incumbent on the Court to give deference to a joint submission agreed to by counsel who fully understand the case they are dealing with and the impact of the plea and sentence on issues that may not be apparent to the Court. Here, it is clear that the trial has, to some extent, been compromised, and the certainty and finality of a guilty plea and sentence serves the administration of justice. [29] Mr. Stephens had a record that included one relevant prior conviction for possession of a weapon and another firearms-related conviction which postdated these offences. He also had a positive supportive family and a job prospect in Alberta upon his release from custody. [30] Ultimately, the Associate Chief Justice was satisfied that despite the agreement reached by counsel resulting in a sentence less than the offender and the offence might otherwise attract, this was not a case where he should be "too quick to look behind a plea bargain." He added, significantly in my view, that he would "not expect this sentence to have any precedential effect given its unique circumstances". It is also noteworthy that a period of probation, not part of the joint submission, was added to the sentence despite resistance from the defence. [31] Mr. McKinnon pleaded guilty to the same two counts and was sentenced a month later, on February 3, 2015 (published as R. v. McKinnon, 2015 BCSC 1078). Not only was McKinnon considered to play a significant leadership role, but he also had a serious criminal record dating back to 1999 that included crimes of violence and the use and possession of weapons. The Associate Chief Justice accepted another joint submission for a sentence of seven years on the same basis as he accepted the joint submission for Stephens - the guilty plea and the impact on the trial arising from the late disclosure. He did not refer to parity in respect of the sentence imposed on Stephens. [32] Mr. Sleigh and Mr. Powers were sentenced several months later, Sleigh on May 29, 2015 (published as R. v. McKinnon, 2015 BCSC 998) and Powers on June 17, 2015 (published as R. v. McKinnon, 2015 BCSC 1116). By then, the trial was over and judgment had been reserved. Sleigh pleaded guilty to three counts, conspiracy, kidnapping, and possession of a restricted firearm. Powers pleaded guilty to conspiracy, kidnapping with a firearm, and possession of a restricted weapon. There were no joint submissions. The Crown sought global sentences for each of seven years. [33] The Associate Chief Justice considered seven years to be an appropriate sentence for Mr. Sleigh due to his possession of a weapon and ammunition, his involvement in inflicting violence on Mr. Low, and the fact that he was on bail for a very serious offence at the time of this one. He did not consider the guilty plea to be that significant since it was made "in the face of being caught red-handed." [34] However, the sentence was reduced to one of six years, two months, and 10 days, less credit for time served, under the totality principle, as this sentence was to be consecutive to a six year sentence Sleigh was serving on a very recent conviction arising from a home invasion. [35] The Associate Chief Justice considered Mr. Powers' complicity in the offence to be essentially similar to Sleigh's and determined that the sentence imposed on Powers should be the same as that for Sleigh. He reduced a seven year sentence to six years, two months, due to Powers' original cooperation with the police and his lesser (but still significant and serious) role in the enterprise than McKinnon. [36] In my view, the sentence given to Mr. Stephens is of very limited value, if any, in the determination of a fit sentence for Mr. Vu. Not only was it lower than the court would otherwise have imposed given the joint submission, it was below the range considered to be appropriate for the offence and the offender, and the court made it clear that it would have no precedential effect. [37] The sentence given to Mr. McKinnon is also of limited value because it also stemmed from a joint submission, but it was within the appropriate five to ten year range. [38] The sentences given to Mr. Sleigh and Mr. Powers are of much greater assistance. They were not the result of joint submissions, they were imposed at a time when the Crown no longer had the same concerns about the trial, and the Associate Chief Justice did not consider their guilty pleas to be that significant in light of the strong evidence against them. [39] In the Sleigh decision, the Associate Chief Justice referred to the sentences for Stephens and McKinnon, but pointed out that they were conditioned by joint submissions. It was only in the Powers decision that he applied the parity principle, and only in relation to McKinnon. After comparing their relative levels of complicity, the Associate Chief Justice stated at para. 22 that "[o]n that footing, it seems to me that parity dictates a sentence for the offender Powers that is somewhat less than McKinnon's". He considered that sentence comparable because it was within the five to ten year range, as he referred to what he said at para. 12 of the McKinnon reasons: Here, while the sentence may be lower than the nature of the offence, the offender's role in it, and the offender's background might otherwise attract, this is not a case where I should be "too quick to look behind a plea bargain", particularly where the sentence falls within the general range as identified in R. v. Brar, 2014 BCCA 175 at para. 51 [40] From this, it is clear that the Associate Chief Justice did not consider the seven-year sentence imposed on Mr. McKinnon to be a significant upper ceiling. Despite McKinnon's more significant role and criminal record, he reduced Mr. Powers' sentence by less than a year. Sentence [41] Ultimately, proportionality takes precedence over parity. In my view, a fit sentence for Mr. Vu for the conspiracy and kidnapping offences, given their seriousness and his level of complicity, is five years, less credit for time served, to be served concurrently. This is the bottom of the appropriate range and is in parity with the sentences imposed on the other co-accused that are reasonably comparable. [42] With respect to the offence of assault causing bodily harm, I agree with the Crown that a sentence of two years is appropriate, less credit for time served, also to be served concurrently. [43] In crafting these sentences, I have given paramount consideration to the principles of denunciation and deterrence due to the gravity of the offences, but I have also given some consideration to the principle of rehabilitation. While I am concerned about the extent of Mr. Vu's involvement in kidnapping plans as reflected in some of the evidence at trial, he has acknowledged that what he did was wrong and he has indicated to me that he intends to use his time in custody wisely. I sincerely hope he does so and I wish him well. [44] Now, counsel, the net sentence will be five years less time served. Have you agreed on the number of days of credit? [DISCUSSION RE TIME SERVED] [45] THE COURT: I think four years eight months sounds fair. It will not be an exact calculation based on the number of days, but I am going to impose a net sentence -- for purposes of the correctional authorities -- of four years, eight months. [46] I will also issue the ancillary orders requested by the Crown. There will be a firearms prohibition for life under s. 109(2), a DNA order under s. 487.051(1), and an order under s. 743.21(1) prohibiting Mr. Vu from having any contact directly or indirectly with Eric Low during the custodial portion of his sentence. The only remaining matter is the forfeiture order. [47] MR. BAGNALL: There are actually two matters -- but we will deal first, if we can, with the forfeiture matter. I think what we propose, because we have had some back and forth about this this morning, is that we leave it for a desk order. There is only one item that is in dispute, but there are some items that Mr. Vu has nothing to say about because he does not know anything about their origin, or their ownership, or any possessory rights. My friend has suggested, then, the order ought to be silent on those matters and I would agree with that, and he has included a number of matters that Mr. Vu has nothing to say about. [48] So if Your Ladyship is prepared to simply let that go, we will deal with that on another day. Your Ladyship can either receive a desk order, if you are prepared to do so, or waive jurisdiction and it can be done by any judge of this court. [49] THE COURT: Well, I could make an order of forfeiture under sections 490, 490.1, and 491 on terms to be decided by counsel. [50] MR. BAGNALL: That is fine. I think we will come to an agreement about that. I do not think there is going to be any issue about what is and is not subject to forfeiture, as far as Mr. Vu can speak to those matters because some are not his. For example, sums of money were received and/or seized. He has nothing to say about those because they are not his. [51] The final matter is this, and it's not something that Your Ladyship ever dealt with, but it is something that Your Ladyship has jurisdiction over, and that is the matter of bail monies that were received from time to time as a result of alleged breaches. [DISCUSSION RE BAIL MONIES] [52] THE COURT: All right. It is confirmed on the record that $10,000 of bail money was not marked for estreatment and since there is no claim on this $10,000, it is to be returned to Mr. Vu through his counsel, Mr. Bagnall. [53] MR. BAGNALL: My friend was good enough to try and sort this out today by attending to the registry after I gave him notice and apparently was not able to speak to the JP, but all of this has come as a result of my discussions with the JP about two or three weeks ago. So that is why we are before you asking for this relief. [54] THE COURT: All right. So that is directed. Do we have to impose a victim fine surcharge? [DISCUSSION RE VICTIM FINE SURCHARGE] [55] THE COURT: Well, considering that the offences took place in 2011 and that Mr. Vu is going to be in custody for a considerable period of time, I am prepared to waive the surcharge. [56] I thank you very much. This is the end of a long road. Mr. Vu, I hope that you make something of yourself and use the time that you have in custody to take those programs and to improve your life. "Fisher J."