SIZE OF POT CROP DOESN'T MATTER, APPEAL COURT RULES

The B.C. Court of Appeal has decided a one-year conditional sentence
is more appropriate than a three-month jail sentence for two Vancouver
men caught growing 1,535 marijuana plants worth more than $500,000.

Muhuammad Rafeeq Shah and Onur Kokak were busted two years ago with a
marijuana growing operation on Granville Street.

Kokak, 28, came to Canada from Turkey when he was four years old.
Shah, 29, was born and raised in Alberta. Both were steadily and
regularly employed. Each expressed remorse for the offence and entered
guilty pleas to unlawful production of marijuana.

The sentencing judge decided that a conditional sentence order would
be inappropriate because of the size of the crop. She also concluded
that the factor relating to public safety would not be met.

"In my view, the sentencing judge erred in this regard," B.C. Court of
Appeal Justice Richard Low concluded in a judgment released last week.

"The size of the crop should not stand in the way of the imposition of
a conditional sentence. It is in my opinion that in all of the
circumstances of this case, a conditional sentence was
appropriate."

Two other appeal court judges agreed with Low's ruling, which
substituted a one-year conditional sentence for the three-month jail
sentence imposed at trial.

The judge said the terms of the conditional sentence, which the pot
growers will serve at home, will include a nightly curfew and
restrictions on the use of cellular phones and pagers.

The court was told the seized pot plants were worth about $537,000 if
sold at the pound level. A pound of B.C. pot fetches about $2,000; an
ounce about $200.

The court cited the previous decision in the case of Ricky Vincent
Whyte, 36, who was sentenced to a year in jail for possession for the
purpose of trafficking marijuana after he was busted with several
hundred marijuana plants.

Last year, the appeal court substituted a conditional sentence of two
years less a day.

"For many years it has been an important consideration in sentencing
in this province to avoid, if possible, incarcerating first offenders
for non-violent crimes and this is such a case," Appeal Court Justice
Mary Southin said in the Whyte appeal.

"I think one of the aspects of conditional sentences is to continue
that approach which the law has taken in recent years, I would say
since the Second World War," the judge added.