



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 judges 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 judges 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 courts
    decision in
R. v. Song
, [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
    judges 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.


