A man convicted for his involvement in a marijuana grow-op has had his sentence cut by a third on appeal after Ontario’s top court found the judge made a “negative and stereotypical” comment, amongst other errors, in his decision.
Ontario Court Justice Gregory Pockele sentenced Nhu Van Nguyen to 15 months in jail, less two months credit for pre-trial custody, back in March 2011.
According to the Ontario Court of Appeal decision, Nguyen was the “gardener” in a $1.2-million grow-op scheme involving more than 1,200 marijuana plants at a large residential home in London, Ont. He had pleaded guilty to theft of hydro, possession of marijuana for the purpose of trafficking, and production of marijuana.
In a decision dated Jan. 28, the Court of Appeal for Ontario chopped five months from the sentence to 10 months less two months for pretrial custody.
Nguyen’s lawyers wanted a conditional sentence, arguing Pockele’s decision demonstrated a reasonable apprehension of bias by referring to his personal experience with grow-ops near his home and for discussing general deterrence in the context of a specific ethnic group.
The three-judge appeal court panel was fine with Pockele’s incorporation of his personal observations on grow-ops but it was less comfortable with his comments on ethnicity.“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,” the appeal court stated.
However, the appeal court said a conditional sentence would be inappropriate since “only in rare cases involving large-scale commercial marijuana grow operations” should a non-custodial sentence result.
According to the decision, Pockele also made a mathematical error when calculating Nguyen’s sentence. After concluding that 18 months was an appropriate sentence, Pockele said anyone entering an early guilty plea should get a 20- to 30-per-cent discount. But even using the smaller 20-per-cent discount, the sentence should have fallen below the 15 months he ultimately imposed.
“The midpoint of the trial judge’s reduction for a guilty plea, 25 per cent, would generate a starting point of 13.5 months. In these circumstances, we regard an appropriate sentence as 10 months imprisonment,” the appeal court stated.