HOME POT GROWERS FACE LONGER SENTENCES

KITCHENER - People convicted of operating large-scale marijuana grows in
residential areas have a greater chance of going to jail following a
landmark decision this week by the Ontario Court of Appeal, a Kitchener
drug prosecutor says.

"The appeal basically, as far as the Crown is concerned, confirms that
conditional sentences are most often not appropriate" for pot growers who
endanger the lives of neighbours and others in the community, said David
Rowcliffe, a federal drug prosecutor, who heads a Kitchener-based satellite
office of the federal Department of Justice.

"The Crown will be using the Court of Appeal decision as a precedent for
all future sentencing," Rowcliffe said.

Even Hal Mattson, a Kitchener lawyer who represents many of the people
charged locally with these indoor grows, said the decision will decrease
the possibility of future conditional sentences, the most common sentence
given in local cases.

Rowcliffe called the decision a "test case," as it should give the lower
courts guidance on sentencing. Locally, the sentences have ranged from
suspended sentences to 15 months in jail for this crime. More than 100
cases are slowly moving through the court system.

The case that caused the three appellant judges to turn their eye, for the
first time, to this crime involved a two-year sentence a Stoney Creek man
received last June for turning his family home into a large-scale grow
operation.

In sentencing Khuong Van Nguyen last June, Justice Bernd Zabel of Hamilton
said courts across Canada have tended to treat residential grow operations
leniently, but it was now time to make the "risk-reward ratio" less
favourable for these people.

"They have invaded our community with apparent impunity," Zabel said in June.

"They have boldly entered residential areas where our citizens have saved
to purchase dream homes for themselves and their families only to be
confronted with large scale, high risk criminal activity on their street
and even next door," the judge said.

Nguyen's defence lawyer appealed the sentence saying it was too harsh, and
Rowcliffe, who was the Crown who argued the case before the Ontario Court
of Appeal, said he argued that the sentence was appropriate considering the
negative impact of such operations on communities.

The appellant court agreed that jail was appropriate, but said two years
less a day was too long. Instead, they imposed a sentence of time already
served, which Rowcliffe said amounted to about 14 months.

"We agree that the trial judge was entitled to decline to impose a
conditional sentence in light of the evidence of increasing prevalence of
this form of offence in the local communities," and the danger caused by
bypassing hydro lines to steal the large amounts of electricity needed to
grow the plants, the three higher court judges ruled.

"However, in our view, the trial judge failed to give sufficient weight to
the fact that the appellant (Nguyen) was a first offender; and that he (the
trial judge) overemphasized the evidence of increasing prevalence when he
imposed a sentence that is beyond the range for similar offences in
Ontario," the judges said in their hand-written decision.