POT-GROWER AVOIDS JAIL, FINED $30,000

A Kitchener judge refused yesterday to strike a man's guilty plea in a
marijuana home-grow case because of a suggestion the judge may have been
influenced by a letter from regional politicians urging stiffer sentences.

"I did receive the letter," Justice David Carr told lawyer Hal Mattson, who
made the request.

"It has not influenced me in any way in the disposition I'm going to make,
nor am I biased in any way. I'm not going to strike the plea."

Carr then imposed a 15-month conditional sentence of house arrest --and a
$30,000 fine -- on Cuong Luong, 46.

Luong pleaded guilty in November to possession of marijuana for the purpose
of trafficking, production of marijuana, and theft of hydro electricity.

The charges related to a marijuana-growing operation at 204 Mitchell St. in
Ayr. Police found 163 mature plants and 85 baby plants, with a street value
of $173,600, in the basement of the home last spring.

Mattson wanted Carr to strike Luong's guilty plea if he was considering
sending him to jail. The defence lawyer said he was obligated on behalf of
his client to make the request so Luong could receive "a full and fair"
hearing.

"I think it would be impossible for anyone to explain to this man why he's
going to jail," Mattson said. "It would be very difficult to explain to my
client that somehow the judiciary has not been influenced by a politician."

Waterloo Region council recently sent letters to all local judges
containing copies of a council resolution urging five-year sentences for
people convicted of running home pot operations.

Many have received conditional sentences to be served at home.

Two local judges expressed concern at the time that council was trying to
inappropriately influence judges. Regional Chairman Ken Seiling has said
council was only trying to pass along the community's concerns about the
growing number and dangers of pot gardens.

Mattson said if Carr was considering a jail term, he wanted Luong's plea
struck, and a new sentencing hearing held with a judge who didn't receive
the letter.

He said outside court that he thinks Carr rejected his request because he
intended to impose a conditional sentence anyway. Mattson said he will be
making the same request of all judges who got the letter.

"We have an obligation to our clients," he said.

Meanwhile, another issue became evident at yesterday's sentencing -- the
need for Crown prosecutors to present evidence of the impact of home-grows
when asking judges for jail terms.

Carr noted that although prosecutor Ed D'Agostino told him pot grows were
proliferating and presented dangers such as fires in the community, he
presented no proof.

In another recent case, Justice Colin Westman imposed a jail term in a
similar pot case after hearing from hydro officials and police about the
effects of the operations on the community.

Carr said although the media have been publishing the concerns of police
and the community about pot grows, "That's not evidence before me."

Outside court, D'Agostino said from now on, such evidence will be presented
in every marijuana cultivation case.

"Judge Westman heard what the impact on the community is and it's important
other judges hear the impact on the community as well," he said. "It's
clear the evidence has to be presented and we'll do it."

Mattson said defence lawyers will still be able to challenge that evidence,
however. About the suggestion that rigging a home's wiring to bypass the
hydro meters presents a fire hazard, for example, Mattson asked, "How many
fires are caused in this community by faulty toasters?"

Carr didn't let Luong off lightly, however. He imposed the $30,000 fine to
strike at the large profits that can be made from the grows.

Luong, who now lives in Toronto, can't leave his home except to go to work
or to medical appointments.

The Mitchell Street house has since been sold.