DATE: 20060302

DOCKET: C42910

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – THINH MINH NGUYEN (Applicant/Appellant)

BEFORE:

WEILER, ARMSTRONG and JURIANSZ JJ.A.

COUNSEL:

Joseph Wilkinson

for the appellant

Marie Comiskey

for the respondent

HEARD & RELEASED ORALLY:

February 28, 2006

On appeal from judgment of Justice W. Bradley of the Ontario Court of Justice dated July 19, 2004.

E N D O R S E M E N T

[1] The appellant appeals his conviction, by a judge of the Ontario Court of Justice, for conspiracy to traffic in marijuana. He submits that while the evidence may establish the appellant sold the drugs to the same buyer, one Rubino, on several occasions, it does not establish a general on going conspiracy to traffic.

[2] We are satisfied that there was ample evidence to support the trial judge's conclusion that the conspiracy was proven beyond a reasonable doubt. While no drug transaction took place on June 9, 2002, the phone calls made that day constituted evidence, which along with the other evidence, could be used in deciding whether the appellant was a party to the ongoing conspiracy. The evidence included the frequent and close contact between the appellant and Rubino, the pattern of their drug transactions; the quantity of marijuana involved, the fact that the appellant sold marijuana to Rubino for resale to third persons, and that the appellant and Rubino were not acting independently but were linked together and to someone else who had control over the price. The trial judge also relied on Rubino’s description of his function as acting as a “broker”.

[3] This evidence provided an adequate basis for the trial judge’s conclusion that the Crown had proven the conspiracy beyond a reasonable doubt. The conviction appeal is dismissed.

[4] The trial judge was entitled to consider the appellant’s lack of remorse in considering whether it was appropriate to give the appellant a conditional sentence. While the trial judge may have gone further and considered the appellant’s lack of expression of remorse as an aggravating factor, having regard to the quantities of marijuana involved, we would nevertheless impose the same sentence.

[5] Although leave to appeal sentence is granted, the appeal of sentence is also dismissed.

“K.M. Weiler J.A.”

“R.P. Armstrong J.A.”

“R.G. Juriansz J.A.”