R. v. Vellani

2017 BCSC 2521 R. v. Vellani IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Vellani, 2017 BCSC 2521 Date: 20171220 Docket: 27106 Registry: Vancouver Regina v. Alim Vellani Before: The Honourable Mr. Justice Davies Oral Reasons for Sentence Counsel for the Crown: P. Mann Counsel for the Accused: M. Smith Place and Date of Trial/Hearing: Vancouver, B.C. December 20, 2017 Place and Date of Judgment: Vancouver, B.C. December 20, 2017 [1] THE COURT: The accused, Alim Vellani, has pleaded guilty to one count of possession of a controlled substance for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. [2] I am not going to include the full pharmacological descriptors of those drugs. It is not necessary. [3] What is crucial in this case is the fact that included within that potpourri of drugs was fentanyl which has recently been identified not only in this province but in all of North America as a scourge which has caused many, many deaths and much harm to the public, and especially, to the addicted public. [4] In the recent Court of Appeal decision in R. v. Smith reported at 2017 BCCA 112, Justice Harris stated that the range of sentencing for dealing in fentanyl at the street level must be increased from that which was previously the case of 6 to 18 months, to 18 to 36 months. [5] Also important, however, is the fact that the Court of Appeal stated that the new range should be in effect from and after 2016. [6] This case involves trafficking controlled Schedule I drugs having a value of approximately $2,500 that occurred in October of 2015. [7] The Crown rightly says that the older range of from 6 to 18 months remains applicable given the determination in Smith as to when the newer higher range should be implemented. [8] Mr. Vellani says that the offence to which he has pleaded guilty was a one-time occurrence, and that he committed the offence to help out a friend. That is not disputed by the Crown. [9] That does not, however excuse his behaviour because he still deliberately committed the offence for profit and having in the past been a regular user of marihuana and while not now an addict, knows the harm that addiction can cause. [10] By pleading guilty to an offence which includes trafficking in heroin and fentanyl Mr. Vellani has acknowledged having at least general knowledge that he was trafficking in both. [11] While he has acknowledged no more than that general knowledge of the existence of fentanyl in the drugs he was trafficking and since the Crown does not allege that he had more than that general knowledge it remains a significant factor. Decided cases establish that those who traffic in Schedule I drugs which are inherently dangerous, take the risk that those drugs may, in fact, cause great harm. [12] Those are aggravating circumstances as is the fact that Mr. Vellani engaged in the trafficking of these drugs for profit even if it was only once. [13] I need not recount the principles of sentencing applicable to this case. They are set forth in the Criminal Code, R.S.C. 1985, c. C-46 and are well known. [14] In this case, the most important and applicable of those principles of sentencing are: personal deterrence; general deterrence; and, denunciation. [15] Personal deterrence has been established to a large extent by Mr. Vellani's guilty plea indicating his remorse, as well as his expressions of remorse, and by the fact that Mr. Vellani has not engaged in further offending since he was engaged in this one-time offence. [16] General deterrence requires that Mr. Vellani must be sentenced to a minimum of six months of incarceration. There is nothing in these circumstances that would allow a sentence of less than six months and indeed Mr. Vellani does not ask me to do so by alleging exceptional circumstances. [17] Of all the cases to which I was referred, including many from this Court and our Provincial Court which have had to deal with the issue of trafficking in fentanyl in the last number of years, I am most struck by the similarity of Mr. Vellani's offending to that of the co-accused in R. v. Rutter, 2017 BCCA 193. [18] In Rutter, the co-accused, Mr. Ramstead pleaded guilty to a single count of trafficking fentanyl and cocaine in Fort St. John between April 25, 2014, and May 10, 2014. That plea was in respect of a single count encompassing three transactions involving the sale of drugs to an undercover officer. [19] On each occasion the transaction was set up by phone and concluded when Mr. Ramstead arrived at an agreed-upon location in a pickup truck with the drugs. [20] Mr. Ramstead was not an addict. He was youthful and had no prior record, was convicted after a relatively brief period of offending and had, by his guilty pleas expressed remorse. [21] Mr. Ramstead was involved in what he was doing for profit in order to fund his education. The Court of Appeal determined that that was not a mitigating factor. [22] I reach the same conclusion in this case with respect to Mr. Vellani offending to help a friend. [23] Mr. Ramstead was sentenced to six months for his involvement relatively early in 2014 for the three episodes of trafficking drugs which included fentanyl. [24] The offending for which Mr. Vellani has pleaded guilty occurred in late 2015 and I am satisfied by the evidence adduced by the Crown that well publicized public information concerning the harm being caused by fentanyl was not static. [25] Fentanyl was becoming more and more and well known as the destructive force in society that was denounced by the Court of Appeal in Smith. [26] While I would have sentenced Mr. Vellani to the same six months to which Mr. Ramstead was sentenced by the Court of Appeal in Rutter given that Mr. Vellani's offending occurred in late 2015 when the dangers of fentanyl were more well known I am satisfied that it would not be appropriate to do so. [27] Also, although Mr. Vellani's criminal record is dated and does not include conviction for drug related matters the fact that he has a criminal record does distinguish his circumstances from those of Mr. Ramstead. [28] In addition, while the manner of the commission of the offences for which Mr. Vellani was relatively unsophisticated, the quantity and variety of Schedule 1 drugs, number of drugs which he had in his possession was significant. [29] In all of the circumstances I am satisfied that Mr. Vellani's offending, will be appropriately addressed by a sentence of nine months of incarceration. [30] I also make the mandatory s. 109 firearms order. [31] Mr. Vellani does not object to the DNA order that has been sought by the Crown. Given the circumstances and his prior offending I exercise my discretion in favour of the DNA order sought. [32] The Crown also seeks an order of forfeiture of the drugs, the cash and a cellular phone seized from Mr. Vellani. That order will also go. [33] This has been dealt with as a one-count indictment with the other counts that were initially charged being stayed. Accordingly, the victim impact surcharge is $200. [34] MR. SMITH: I was just going to suggest -- I had not addressed that, but given the time he is going to be in custody, if he could have the time to pay that is permitted, which is up to two months I think. [35] THE COURT: Mr. Vellani will not be required to pay the $200 victim impact until warrant expiry. [36] THE COURT: Mr. Vellani will also be subject to probation for nine months following the completion of his sentence of incarceration. [37] The terms of that probationary order will be those that are recommended in the presentence report, that being Mr. Vellani will keep the peace and be of good behaviour; appear before the court when required to do so by the court; notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation; report to a probation officer as directed by the correctional authorities upon his release and, thereafter, as directed by his probation officer. [38] Mr. Vellani, I appreciate the efforts you have made since your offending. I sincerely hope that they will continue. I hope this will be a one-time matter because I can assure you if you are ever back before the court on something like this, it will be much worse for you. "The Honourable Mr. Justice Davies"