R. v. Pocasangre,
2013 BCSC 193
Douglas Ernesto Pocasangre
Before: The Honourable Mr. Justice Melnick
Oral Reasons for Sentence
Counsel for the Crown:
Counsel for the Accused:
G.G. Ewan, Q.C.
Place and Date of Trial:
November 20-26, 2012
Place and Date of Sentencing:
January 17, 2013
 THE COURT: On November 26, 2012, I convicted Mr. Pocasangre of two offences: unlawful possession of cocaine for the purpose of trafficking; and importing that cocaine into Canada contrary to ss. 5(2) and 6(1), respectively, of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA or CDS Act). Because I dealt with the facts at some length on that occasion, I will not repeat them here other than as follows.
 Mr. Pocasangre, a truck driver, crossed the border into Canada at Kingsgate, B.C., on March 6, 2010. He was hauling a specialized trailer called a Convert-a-hopper. It has a fold-down floor above a hopper which facilitates hauling bulk cargo with the floor up and palletized cargo with the floor down. There are hoppers below the floor when it is in place. In that hopper, below the floor, loaded with pallets of cargo, border officials discovered a backpack containing nine kilograms of cocaine. It was conceded that this cocaine has a wholesale value of between $270,000 and $305,000 and a street value of about $720,000, in other words, a very substantial amount.
 Mr. Pocasangre gave evidence on his trial. He denied any knowledge of the cocaine being in the trailer. I rejected his evidence with respect to that.
 Mr. Pocasangre is 48 years of age. He is married and has a 22-year-old son who lives at home with them in Calgary. He was born in El Salvador and immigrated to Canada as a political refugee while still a student. His counsel described his having been mistreated by the military. The Red Cross helped him to escape. He still has family in El Salvador and has been instrumental in financially assisting them for many years. His father just died in November 2012. As he was on bail conditions not to leave Canada, he could not see his father before he died or attend any service for him.
 Prior to his arrest, Mr. Pocasangre earned a good living as a truck driver. He owned his own tractor unit, probably worth about $50,000 according to Mr. Ewan, his counsel. He was regularly employed on a contract basis with Signature Truck Lines Inc., hauling loads to and from points in the United States. He earned about $70,000 a year. Since his arrest, he has not, of course, been able to leave Canada. His tractor unit remains impounded by Canada Customs, but he has borrowed money and purchased another tractor unit. He hauls material to a landfill site near Calgary. He has two men working with him. Mr. Ewan described it as a successful business, although he earns much less now, about $40,000 a year. Due to his inability to go to El Salvador, he has apparently lost a restaurant business he started there with a consequent loss of about $150,000. His modest home in Calgary is mortgaged. He owes $240,000, said Mr. Ewan. Going to jail will mean his having to sell the new landfill hauling business, likely at a loss.
 A number of individuals provided letters of reference respecting what they know to be Mr. Pocasangre's good character in their dealings with him and respecting his involvement in the music industry and community affairs. He is clearly well regarded by a number of people who know him. During the trial, his former employer, Douglas Martin, described Mr. Pocasangre as a valuable employee and one who had been provided, and apparently confirmed he had read, material given to employees on the importance of safeguarding the security of their loads and their vehicles.
 All of that said, the fact remains that he now stands convicted of these two offences. On this hearing, Mr. Ewan suggested that Mr. Pocasangre should not be convicted of the possession charge, but that on the Kienapple principle a conditional stay should be entered respecting that offence. I do not agree that all the elements of each of the offences are subsumed into the other such as to engage Kienapple. I agree with Mr. Bick, Crown counsel, that each has an element requiring proof that is not required by the other. If I am in error in this conclusion, then I would have entered a conditional stay. That I may be in error is certainly possible because I recognize that two very experienced judges of this court did what Mr. Ewan has suggested in R. v. Sandhu and R. v. Dhaliwal, cases that I will refer to below.
 The Crown seeks a sentence of nine to 10 years on the importing conviction and three years concurrent on the possession for the purpose of trafficking conviction. Defence suggest a sentence in the range of two to three years for the importing and did not specifically address a length of sentence for the possession, having taken the position I have outline above.
 There is little doubt that denunciation and deterrence, particularly of others, is the prime objectives in sentencing in cases involving the importation into Canada of substantial quantities of drugs. The other principles in s. 718 of the Criminal Code, R.S.C. 1985, c. C-46, really take a back seat in these instances.
 The Crown put before me a number of authorities: R. v. Sandhu, 2003 BCSC 2033; R. v. Dhaliwal, 2005 BCSC 1576; R. v. Epp, 2006 BCCA 570; R. v. Dyal, 2007 BCSC 623; and R. v. Sibrian, 2011 BCSC 1516. Crown also made mention of R. v. Awasis, 2009 BCCA 134. The defence put forward four decisions: R. v. Nghiem, 2009 BCCA 170; R. v. Larsen, 2012 SKQB 345; R. v. Eshghabadi, 2009 BCSC 1875; and R. v. Aghabeigi, 2004 BCCA 263.
 In R. v. Sandhu, Mr. Justice Williams noted that from having reviewed numerous decisions he concluded that the large-scale importation of hard drugs is a very serious offence. He quoted from the decision of Mr. Justice Lamer in R. v. Smith,  S.C.J. No. 36, as follows:
Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts. The direct cause of the hardship cast upon their victims and their families, these importers must also be made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts in order to feed their demand for drugs. Such persons, with few exceptions (as an example, the guilt of addicts who import not only to meet but also to finance their needs is not necessarily the same in degree as that of cold-blooded non-users), should, upon conviction, in my respectful view, be sentenced to and actually serve long periods of penal servitude.
 Mr. Justice Williams went on to state that from his review of the authorities, the general range in British Columbia for convictions under s. 6(1) of the CDSA is six to 10 years. He noted the applicability of s. 718 of the Code as well as s. 10 of the CDSA. That section provides:
Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.
 Section 718.1 provides that any sentence I pronounce must be proportionate to the gravity of the offence. With that section in mind, Mr. Ewan referred me to R. v. Larsen, a recent Saskatchewan decision, where Mr. Larsen was sentenced to 12 years in a case involving the importation of 600 kilograms of cocaine, surely, an astronomical amount by any measure. Mr. Larsen apparently transported some of these drugs between Saskatchewan and British Columbia. Mr. Ewan suggested that if I use Larsen as a benchmark by comparing the quantities involved, Mr. Pocasangre should get but a fraction of 12 years.
 I reject that analysis. The cases suggest that one does not simply use a comparative scale of the quantity involved as compared with the length of sentence received, but rather the factors involved in each case, particularly those that are regarded as involving significant quantities of drugs, and nine kilograms of cocaine is a significant quantity just as six kilograms (Dhaliwal), 45 kilograms (Sandhu), or 100 kilograms (Epp) are significant quantities.
 Section 718.2 directs that I consider aggravating and mitigating circumstances. In Mr. Pocasangre's case, I find that the aggravating factors are:
1. The considerable quantity of cocaine, a hard drug capable of resulting in something like 90,000 individual retail sales to end users with the resultant grief that would inflict on thousands of people.
2. Mr. Pocasangre used his position as a driver for a company that had special U.S. security clearance, taking advantage of the efforts and the reputation of his employer.
3. From the record of cellphone messages, this was clearly a planned and deliberate act, not a decision taken on the spur of the moment. Mr. Ewan submitted that this was not an aggravating factor, but I am satisfied that it is.
4. Mr. Pocasangre clearly was motivated by profit. There can be no other explanation. He has had a good job and a good income. His truck was paid for. He had a new business venture in El Salvador.
5. I am satisfied from the evidence that Mr. Pocasangre was aware of the risk he took, but took it anyway.
 As for mitigating circumstances, I note that:
1. Mr. Pocasangre has no criminal record (in Sandhu, Mr. Justice Williams did not find that to be a mitigating factor as he noted that was the type of person who needed to be deterred). However, I will assign a measure of mitigation to this factor here.
2. Mr. Pocasangre is a good family provider with a wife and son.
3. He has been actively involved in his community.
4. He has no other involvement with drugs of any sort.
 Mr. Ewan suggested a further mitigating factor, that Mr. Pocasangre has been on what he described as stringent bail conditions for close to three years. He referred me to what Mr. Justice Groberman had to say about that in R. v. Nghiem in that a judge may give some relief in sentencing where fulfillment of stringent bail conditions have assisting in furthering the goals of sentencing respecting denunciation, deterrence, and rehabilitation.
 In this case, I am not at all satisfied that Mr. Pocasangre's conditions of bail can be described as stringent. While on them, he has, as Mr. Ewan noted, built up a successful trucking business. Nor am I satisfied that there has been any demonstrated furtherance of the goals of sentencing other than, of course, Mr. Pocasangre has, in fact, lived with restrictions on his life due to being on bail for close to three years. On a personal level, tragically, that meant not being able to be with his father before his father died. I would not consider his bail conditions as a mitigating factor.
 Mr. Ewan also suggested that the cocaine in this case was not hidden in the sense that it was hidden in the tractor units in secret compartments in a couple of the cases noted. However, in my view, while not hidden in the same fashion, equally, the drugs were hidden in this case in the hopper no doubt in the hope and expectation that they would not be discovered there.
 I regard the sentences in Eshghabadi and Aghabeigi of two years less a day and three years, respectively, for importing opium to turn on their particular facts and not be as relevant to the sentence I must impose for importing cocaine, a more widely-used and pernicious drug in Canadian society than is opium. The range set out by Mr. Justice Williams in Sandhu of six to 10 years is, I repeat, the range I find is applicable in these circumstances in British Columbia.
 In the result, Mr. Pocasangre, I have determined that the appropriate sentence in your case is eight years' imprisonment for the offence of importing cocaine. I sentence you to three years concurrent for the possession of cocaine for the purpose of trafficking.
 Your counsel has indicated that you consent to a DNA test so I order that you provide a sample for that purpose.
 I make the order respecting forfeiture in the terms approved between your counsel and the Crown. I will sign that shortly. I make no further order respecting forfeiture.
 I prohibit you from the possession of such non-prohibited firearms, weapons, ammunition, and explosives as set out in s. 109(2) of the Criminal Code of Canada for 10 years and for life for those that fall into the prohibited and restrictive categories as set out in that section.
 Have I covered everything?
 MR. BICK: Victim fine surcharge. My friend asked for it to be waived. I make no submissions.
 THE COURT: All right, I overlooked that. In Mr. Pocasangre's present circumstances, notwithstanding that he has a measure of income, I would waive the victim impact surcharge, and I have now signed the order that counsel have provided to me.
 THE CLERK: My Lord, is the DNA order on all counts?
 MR. BICK: It is.
 THE COURT: Yes, that is fine.
 MR. BICK: Both counts are secondary designated --
 THE CLERK: Thank you.
 THE COURT: Okay, it is on both counts.
 MR. BICK: -- and that is 487.051(3).