CITATION: R. v. Chen, 2007 ONCA 230

DATE: 20070329

DOCKET: C45665

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – WEI KEE CHEN (Appellant)

BEFORE:

MOLDAVER, GILLESE and LaFORME JJ.A.

COUNSEL:

Vincenzo Rondinelli

for the appellant

Robert Goldstein

for the respondent

HEARD & ENDORSED:

March 27, 2007

On appeal from sentence imposed by Justice Anthony E. Cusinato of the Superior Court of Justice on July 11, 2006.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant was convicted of production of marijuana, two counts of possession of marijuana for the purpose of trafficking and two counts of committing wilful damage to property.

[2] The facts established that the appellant, who lived in Toronto, came to Windsor for the sole purpose of participating in two sophisticated commercial grow operations for personal gain. In sentencing the appellant to 18 months imprisonment in total, the trial judge recognized that general deterrence was paramount and he found, correctly in our view, that a conditional sentence would not satisfy that principle on the facts of this case.

[3] Contrary to the appellant’s submission, we are not persuaded that the trial judge sentenced the appellant as if he were part of a criminal organization. In the impugned portion of the reasons, the trial judge was merely setting out the position of the Crown.

[4] As for the submission that the trial judge improperly used the appellant’s immigration status (naturalized Canadian) as an aggravating factor, while we accept that some of the language used by the trial judge could have been phrased differently, we are not satisfied that the trial judge imposed a higher sentence on the appellant because of his status. The sentence imposed, in our view, was entirely fit having regard to the gravity and seriousness of the appellant’s crimes.

[5] Accordingly leave to appeal sentence is granted but the appeal is dismissed.