DATE: 20060419 DOCKET: C43540

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) –and– THI LEN NGUYEN (Appellant)

BEFORE:

SIMMONS, CRONK AND LANG JJ.A.

COUNSEL:

Neil R. Jones

for the appellant

Frank Au

for the respondent

HEARD & RELEASED ORALLY:

April 12, 2006

On appeal from the conviction entered on December 10, 2004, and the sentence imposed on April 28, 2005, by Justice C. Speyer of the Superior Court of Justice.

ENDORSEMENT

[1] This is a conviction and sentence appeal arising from the appellant’s participation in a sophisticated marijuana growing operation of some 239 mature plants located at an otherwise unoccupied residential home. The trial judge sentenced the appellant to nine months’ imprisonment.

[2] The appellant was apprehended when she used a key to enter the home at a time when the police were already in the home pursuant to a search warrant. The appellant’s car, or a car similar to her car, was identified by the police and a neighbour as having been at the home on several prior occasions. Vent tubing, similar to the tubing used in the cultivation operation and a bottle of fungicide were found in her car.

[3] The appellant relies on two grounds of appeal. First, in rejecting the appellant’s explanation the trial judge misapprehended the evidence. Second, the verdict was unreasonable.

[4] On the issue of the appellant’s explanation, the appellant argues that the trial judge failed to analyze whether the tubing and fungicide in her car were sufficiently unique as to be connected to the cultivation operation inside the house. We reject this submission.

[5] Viewing all the evidence cumulatively, including the evidence of the appellant’s access to the house, her entry into the premises, and the previous presence of her car or a like car at the house, it was open to the trial judge to implicitly infer, as in our opinion he did, that the tubing and fungicide – about which there was extrinsic evidence at trial – constituted circumstantial evidence of the appellant’s involvement in the cultivation operation.

[6] In arguing that the verdict is unreasonable, the appellant submits that the trial judge erred when he reasoned: “I do not accept that she had never been there before.”

[7] However, there was evidence to support this finding. Although the appellant denied any earlier presence at the home, a fair reading of the trial judge’s reasons leads to the conclusion that, in making his finding, he relied on the other affirmative Crown evidence identifying the appellant’s car or a similar car as present in the driveway of the house on earlier occasions, one of which was only six days before her arrest.

[8] We note that, although the appellant claims that other people had access to her car, no other evidence at trial linked the appellant’s car to any other driver.

[9] Accordingly, the conviction appeal must be dismissed.

[10] In respect of sentence, the trial judge rejected the defence submission of a conditional sentence, and imposed one of nine months’ imprisonment. The appellant argues that the trial judge made an error in principle because he presumed that a conditional sentence was not available.

[11] The record does not support this assertion. In our view, the particular passages in the trial judge’s reasons relied upon by the appellant cannot be considered in isolation from the reasons as a whole, or outside the context of counsels’ submissions, which immediately preceded the sentencing.

[12] In the course of those submissions, the trial judge specifically commented on the need to consider a conditional sentence in the individual circumstances of the case. Moreover, a fair reading of the trial judge’s reasons indicates, in reaching the conclusion that a conditional sentence was not appropriate in this case, that he considered the circumstances of this offence and this offender.

[13] In so doing, in response to submissions made by defence counsel at the sentencing hearing, the trial judge concluded that denunciation and deterrence mandated a custodial sentence in this case.

[14] When these factors are considered in combination, it is clear that the trial judge did not err in the manner asserted by the appellant.

[15] Accordingly, while leave to appeal sentence is granted, the sentence appeal is dismissed.