JAIL TIME NOW MORE LIKELY FOR MARIJUANA GROWERS

People convicted of operating large-scale marijuana operations in
residential areas have a greater chance of going to jail after a landmark
decision this week by the Ontario Court of Appeal, a local drug prosector said.

"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 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 sentencings," Rowcliffe said.

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

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 appeal court 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
marijuana-growing operation.

In sentencing Khuong Van Nguyen last June, Justice Bernd Zabel of Hamilton
said courts across Canada have tended to treat residential
marijuana-growing 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, the Crown prosecutor who argued the case before the Ontario
Court of Appeal, said he argued that the sentence was appropriate,
considering the negative effect of such operations on communities.

The appellate court agreed that jail was appropriate, but said two years
less a day was too long a sentence. Instead, they sentenced Nguyen to the
jail time he'd 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 handwritten decision.