B.C.’s Court of Appeal has declined to overturn prison sentences of men convicted of trafficking heroin and fentanyl in Vernon and on Vancouver Island.
Both cases mentioned the catastrophic effects the opioid crisis is having in the province, a public health emergency that claimed a record 2,224 lives in 2021.
Vancouver Island case
Peter Reiner Niederhumer appealed concurrent 18-month and 30-day sentences for fentanyl and heroin trafficking, and possession of fentanyl, asserting the sentencing judge should have allowed him to serve conditional sentences in the community.
Justice David Frankel said in a March 8 decision that the sentencing judge was entitled to consider Niederhumer's lack of insight into his offending, including not recognizing the illegality of his actions and his history of non-compliance with court orders.
On Oct. 19, 2018, RCMP conducted an undercover operation in the Oceanside area on Vancouver Island. Based on information, a house in Parksville was targeted.
An undercover Mountie went to the house; a male opened the door and let the officer in.
Niederhumer came out of a room and the officer asked him for “two points of down” — meaning 0.2 grams of heroin or fentanyl. Niederhumer left and returned with a “flap,” for which the officer paid $40. That flap contained 0.17 grams of a mixture of heroin and fentanyl.
The following day, the Mountie called the number Niederhumer had given him. When they met at the house, the officer again asked for two points of down.
From a jar containing four or five flaps, Niederhumer removed two flaps and handed them to the officer, saying the price was $50. Since the officer only had $40, he gave one flap back. That flap the officer kept contained 0.19 grams of fentanyl.
Niederhumer was arrested on Dec. 6, 2018; he was found to be in possession of 3.8 grams of fentanyl.
He was charged with two counts of trafficking.
Frankel, writing for the unanimous three-judge panel, said the sentencing judge was entitled to decide a conditional sentence was not appropriate.
“Niederhumer continued to minimize the seriousness of his offending, had failed to comply with the reporting condition of his bail, and did not have a plan to support his rehabilitation and manage the risk he posed to the community,” Frankel said.
Sung Hwan Choi was convicted of trafficking “a small quantity of heroin mixed with fentanyl.”
The ruling said the first-time offender was 21 years old at the time of the offence, 23 at the time of sentencing and not addicted to drugs.
The court said in a March 3 decision, released March 8, that the high school graduate was lured by a friend to travel from the Lower Mainland to Vernon to participate in the street-level distribution of drugs in an established dial-a-dope operation.
“His motive for making this foolish decision was purely financial,” Justice James Fitch said. “He thought he could make a quick buck and was seemingly unconcerned that he would do so at the expense of others and the broader community of Vernon.”
Choi’s drug-selling career lasted several weeks before his Oct. 27, 2017 arrest. Even then, Fitch said, Choi remained in contact with others in the illicit drug trade and lived in a drug house.
“The judge concluded that having trafficked drugs in Vernon for a couple of weeks before getting caught, the appellant would have encountered drug-addicted buyers and must have appreciated the harmful consequences of what he was doing,” Fitch said.
Choi had sought a reduction of his sentence to either a suspended sentence with three years probation on strict terms or six months imprisonment.
The court disagreed.