Court of Appeal for Ontario

CITATION: R. v. Nguyen, 2013 ONCA 51

DATE: 20130128

DOCKET: C53636

MacPherson, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nhu Van Nguyen

Appellant

Joanne Park, for the appellant

Amber Pashuk, for the respondent

Heard and released orally: January 18, 2013

On appeal from the sentence imposed on March 11, 2011 by Justice Gregory A. Pockele of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant pleaded guilty to theft of hydro, possession of marijuana for the purpose of trafficking, and production of marijuana. The appellant was a so-called ‘gardener’ in a large residential marijuana grow operation in London. There were more than 1200 marijuana plants and a hydro by-pass in the residence; the street value of the plants was about $1.2 million.

[2] The trial judge sentenced the appellant to 15 months’ imprisonment, less two months credit for pre-trial custody. The appellant appeals on two principal bases.

[3] First, the appellant contends that the trial judge’s reasons demonstrate a reasonable apprehension of bias in two respects: (1) he referred to his personal experience with marijuana grow operations near his own residence in London; and (2) he discussed general deterrence in the context of a specific ethnic group.

[4] We do not accept the first component of this submission. There was nothing wrong with the trial judge’s observations about the prevalence of marijuana grow operations in his community and the need for denunciation. Indeed, in R. v. Nguyen, [2007] O.J. No. 291, at para. 2, this court endorsed a similar observation by a different trial judge:

The trial judge... pointed to the “substantial number of these marijuana grow house operations” in the rural community of Prescott and Russell where he served as the administrative judge.

[5] On the second point, we agree that, against the backdrop of no evidence in the record, the trial judge should not have said that “[t]o a certain extent, there is an ethnic element in that certain groups of new Canadians, or Canadian citizens sharing cultural and ethnic heritage, appear before the court in unusual numbers charged with marijuana production.” There is no place in the Canadian criminal justice system for this type of negative and stereotypical comment.

[6] Second, the appellant submits that the trial judge erred by not imposing a conditional sentence.

[7] We disagree. A complete answer to this submission is this court’s decision in R. v. Song, 2009 ONCA 896, [2009] O.J. No. 5319 where, at para. 9, the court said that only in rare cases involving large-scale commercial marijuana grow operations should a conditional sentence be imposed. This case is not one of those rare cases. The trial judge fairly assessed the various factors and imposed a custodial sentence that defence counsel conceded was within the appropriate range. We agree with that concession.

[8] However, in our view, the trial judge also made a calculation error in his reasons for sentence. Very near the end of those reasons, he said:

I personally feel this is a matter which requires a sentence of approximately 18 months in custody. I also believe that anybody entering an early guilty plea should receive a reduction of 20 to 30 percent.

[9] In the next sentence, the trial judge continued: “The prosecution has asked for 15 months, and that is a number I cannot argue with.” He then used 15 months as the foundation for the sentence he imposed. However, deductions of both 20 per cent and 30 per cent from 18 months would reduce the sentence below 15 months, to 14.4 and 12.6 months respectively. The mid-point of the trial judge’s reduction for a guilty plea, 25 per cent, would generate a starting point of 13.5 months.

[10] In these circumstances, we regard an appropriate sentence as 10 months imprisonment, less credit of two months for pre-trial custody. The appeal is allowed accordingly.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“S.E. Pepall J.A.”