R. v. Luu

2007 BCCA 486 R. v. Luu

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Luu, 2007 BCCA 486 Date: 20071010 Docket: CA033241 Between: Regina Respondent And Van My Luu Appellant Before: The Honourable Mr. Justice Low The Honourable Mr. Justice Thackray The Honourable Mr. Justice Chiasson S. Goldberg Counsel for the Appellant W.P. Riley and R.D. Leong Counsel for the Respondent, Federal Crown K. Kerr Counsel for the Intervenor, Attorney General of British Columbia Place and Date of Hearing and Judgment: Vancouver, British Columbia 18 September 2007 Place and Date of Reasons: Vancouver, British Columbia 10 October 2007 Written Reasons by: The Honourable Mr. Justice Low Concurred in by: The Honourable Mr. Justice Thackray The Honourable Mr. Justice Chiasson Reasons for Judgment of the Honourable Mr. Justice Low: [1] We dismissed this sentence appeal from the bench with reasons to follow. Leave to appeal had been previously granted. [2] The appellant pleaded guilty to the following two offences: Count 2 Van My LUU, between the 1st day of October, 2003 and the 22nd day of January, 2004, inclusive, at or near Langley, in the Province of British Columbia, did unlawfully produce a controlled substance, to wit: Cannabis (Marihuana), contrary to Section 7(1) of the Controlled Drugs and Substances Act. Count 3 Van My LUU, between the 1st day of October, 2003 and the 22nd of January, 2004, inclusive, at or near

Langley, in the Province of British Columbia, did fraudulently abstract, consume, use or cause to be diverted electricity, the property of British Columbia Hydro and Power Authority, and did thereby commit theft, contrary to Section 326(1)(a) of the Criminal Code. [3] On 19 August 2005 Devitt P.C.J. sentenced the appellant to imprisonment for one year. He also ordered forfeiture of the residential real property on which the appellant committed the offences. [4] On appeal, the appellant contended that the sentence should be served conditionally and that the forfeiture order should be set aside. He also raised issues as to the constitutional validity of the real property forfeiture provisions in the Controlled Drugs and Substances Act, S.C. 1996, c. 19. [5] In a comprehensive judgment, the sentencing judge carefully set out his reasons for rejecting a conditional sentence and for making the order of forfeiture. His reasons accurately anticipated the law of forfeiture as later explained by this court in R. v. Craig, 2007 BCCA 234 and R. v. Huynh and Ta, 2007 BCCA 235. He was not asked to address any constitutional issue. [6] The judge described the circumstances of the offences as follows: [7] Mr. Luu was at all material times the registered owner of the residence situate at 2418 - 268th Street in the Aldergrove area of Langley. The RCMP received information from BC Hydro

regarding the theft of electricity at that address. As a result a search warrant was obtained, which was executed on January 22nd, 2004. [8] The residence was in an area of new homes. On attending the residence the police knocked on the door and Ms. Dam attended and spoke with the police officer. Ultimately Mr. Luu came to the door. At home were two small children and Mr. Luu's common-law wife, Ms. Dam. [9] The basement of the home was divided into various rooms in which 239 plants were found. It was a three-stage grow operation. The vegetative plants were in one room, the budding plants were in other rooms, and clones were upstairs. There were 104 plants in the vegetative state, about six to eight inches, with five timed high-intensity lights. In the second room there were 84 budding plants, about three feet in height, with eight high-intensity lights. In the third room there were 51 budding plants with six lights. Upstairs in the laundry room there were 148 clones and a Ziploc bag with 66 grams of dried bud. [10] Photos of the house were entered as exhibits. [11] Not including the clones, based on a yield of 44 pounds, a value for the crop was estimated by the Crown's expert at $110,000. The clones were estimated to have a value of $69,000, which was not included in the estimated value of the crop, as it was not clear that they would be harvested. [12] There was a hydro

bypass in the living room hidden behind a poster on the wall. Taking into consideration that this was a three-stage operation, which typically would involve a period of 90 days, the loss to Hydro was estimated to be $1184. [13] The house was fortified, that is, the front door had metal gates and there were bars on the windows at the back. There were no weapons found in the house. [7] The appellant was 43 years old as of the date of sentencing. He came to Canada from Vietnam in 1990 and became a citizen of this country in 1993. Since 1995 he had a periodic common law relationship with Ms. Dam. She did not work outside their home. The appellant had worked as a mushroom picker from August 2003 but later was laid off due to a fire at his place of employment. [8] The appellant and Ms. Dam have three children, aged eight, three and two years at the date of sentencing. [9] It is significant that in February 2000 the appellant received a suspended sentence with probation for 18 months following conviction of a drug trafficking offence. This offence involved a "dial-a-dope" operation but the record before us does not indicate what drug was involved. The appellant was not deterred by that sentence. [10] The present convictions were for a sophisticated marihuana cultivation operation that was conducted solely for substantial profit in a residential neighbourhood. The hydro-electric

by-pass was not professionally done and it was unsafe. It created a serious potential to cause a fire. There were exposed electrical wires. Small children in the house when the police arrived were at risk. [11] There are other important facts that go to both the appropriate length and form of sentence and to the issue of forfeiture of the real property. The marihuana plants were at different stages of growth indicating an ongoing operation. There was apparatus for drying harvested marihuana and leaves, stalks and branches of marihuana were present. This would lead to the conclusion that there had been a previous harvest or harvests. [12] The appellant was the registered owner of the house. The purchase price in September 2001 (about 28 months prior to the police search) was $336,000. The mortgage had a face amount of $218,400 and payments on it were $1,326 per month. The most recent tax assessment showed a value of the house of $383,000. The equity at the date of sentencing was about $164,000. [13] A letter from the appellant's employer shows that his income as a mushroom picker from August 1993 (prior to the offence dates) to October 2004 (ten months prior to the sentencing date) was $22,988.01. His T4 slip for 2004, which included only a small part of the offence period, shows income of $14,840.89 with tax remission of $1,726.14. He and his wife both drove automobiles. As

noted, she did not have outside employment. There was no other evidence of the appellant's income. From the level of employment income disclosed, he could not have maintained the mortgage much less have met family expenses, including insuring and maintaining two vehicles. The inescapable inference (inherent in the reasons of the sentencing judge) is that the appellant's illicit drug earnings maintained the mortgage and the family lifestyle. [14] Without abandoning his submission that the custodial sentence should be served conditionally, counsel for the appellant conceded during argument that the sentence of one year in gaol was fit. It was within the appropriate range set by the cases: see R. v. Su, 2000 BCCA 480; R. v. Tran, 2001 BCCA 504; R. v. Santvoord, 2007 BCCA 23; R. v. Wallis, 2007 BCCA 377; R. v. Koenders, 2007 BCCA 378; and R. v. Le, 2007 BCCA 139. The sentencing judge made no error in concluding that because there was "considerable risk that the accused will re-offend" a conditional sentence would not sufficiently address the principles of sentencing set out in the Criminal Code. [15] The appellant suggested in written argument that the forfeiture provisions in ss. 14 to 20 of the Controlled Drug and Substances Act as they apply to dwelling houses breach the constitutional rights of the appellant under s. 7 (life, liberty and security of the person), s. 8

(unreasonable search and seizure), s. 11(a) (not to be compelled to be a witness), s. 11(b) (presumption of innocence), and s. 12 (cruel and unusual punishment) of the Canadian Charter of Rights and Freedoms. At the hearing of the appeal, counsel for the appellant referred only to s. 12, and then only briefly. [16] In neither written nor oral submissions did counsel develop these Charter arguments. There was no attempt to demonstrate how the dwelling-house forfeiture provisions impact on rights generally or on the rights of the appellant in particular. I am unable to discern from the brief Charter submissions of the appellant what constitutional deficiencies he alleges. They are not particularized in the notice his counsel provided under the Constitutional Questions Act, R.S.B.C. 1996, c. 68, as required by s. 8(4)(d) of that statute. Perhaps that deficiency could have been overcome if particulars had been provided in written argument, but that was not done. [17] In any event, I am unable to see any basis for concluding that any Charter rights of the appellant were breached by the forfeiture provisions in question, either procedurally or substantively. [18] The appellant raised non-Charter procedural arguments with respect to the forfeiture provisions that were addressed in Craig contrary to his position. The sentencing judge correctly anticipated those matters and I see no

need to discuss them further. [19] The appellant argues that on the evidence the sentencing judge should have concluded that the marihuana house was also the principal family residence, that the appellant must have no other financial resources, and that forfeiture would have a severe impact on the family, particularly on the children. The problem with this argument is that the appellant chose not to disclose his assets or reveal his true income and the evidence that the house was the principal residence of the family was equivocal at best. Under Craig, at para. 103, the evidentiary burden with respect to these matters rested with the appellant. The only witness called by the defence was an adult daughter of Ms. Dam whose evidence was given little weight. The appellant presented to this court an affidavit sworn by Ms. Dam but, in my opinion, it does not meet the test for the receipt of fresh evidence. There is no basis for finding error in the following conclusions reached by the sentencing judge: [67] I now turn to the impact of an order of forfeiture on any member of the immediate family. The defence called, as I have said through Susan Dam, evidence as to the effect on the family residing in the house. However, Susan Dam was only at the house five times since 2001. Each time it was during the holidays. While she was able to identify what bedrooms each child occupied and her

parents, she could not say they were there all the time. Indeed, she said that her parents separated for a time and that they had a rocky relationship. [68] Furthermore, her mother told the attending police searching the house that she did not live there. In addition, the address on her licence demonstrated that the house was not her address. [69] There is no evidence before me as to the effect of an order for forfeiture on the immediate member[s] of the accused's family whose principal residence was the property at the time the charge was laid and continues to be their principal residence [70] I do not find the daughter's evidence as reliable on that issue. She only attended the property five times in as many years. Her mother did not give evidence. Even if I accepted her evidence, I am left to speculate on the effect of an order of forfeiture. [71] Moreover, the accused's lifestyle seems inconsistent with his disclosed income on his T4 slips. I have no sworn statements of the accused's assets or liabilities. The evidentiary burden, as has been stated in a number of authorities, is with the accused on the basis of persuasion. [20] Finally, the appellant says that the sentence of one year in gaol plus forfeiture of the house was excessive. I disagree. The sentencing judge properly considered the form of sentence and the forfeiture issue together. Having regard to the

circumstances of the drug offence and the circumstances of the offender as described above, the sentence was not unfit and forfeiture of the house was not disproportionate. On the facts this case is similar to Huynh and Ta in which this court ordered forfeiture, the difference between the two cases being that in that case the offenders were given conditional sentences because neither of them, unlike the appellant, had a previous conviction. [21] For these reasons the appeal should stand dismissed. "The Honourable Mr. Justice Low" I agree: "The Honourable Mr. Justice Thackray" I agree: "The Honourable Mr. Justice Chiasson"