R. v. N., 2002 CarswellOnt 3480

Her Majesty the Queen, Respondent and K.N., Appellant

Ontario Court of Appeal

Carthy J.A., McMurtry C.J.O., Simmon J.A.

Judgment: October 15, 2002
Docket: CA C38686

Counsel: Graham T. Clark, for Appellant

Accused pleaded guilty to unlawfully producing controlled substance, contrary to s. 7(1) of Controlled Drugs and Substances Act, and to committing theft of electricity after police found substantial sophisticated commercial marijuana grow operation in his home and seized over 500 marijuana plants with street value of up to $532,000 — Emphasizing increase in number of large hydroponic grow operations, risk to community, and need for deterrence, trial judge sentenced accused to 18 months for production offence and six months less a day consecutive for theft of hydro, for total of two years less a day with 10 months’ credit for four months of pre-sentence custody — Appeal by accused allowed — Trial judge was entitled to decline to impose conditional sentence in light of evidence of increasing prevalence of this form of offence in local community, and of danger caused by hydro by-pass — Trial judge failed to give sufficient weight to fact that accused was first offender, overemphasized evidence of increasing prevalence, and imposed sentence that was beyond range for similar offences in Ontario — Sentence for theft should have been concurrent sentence — Sentence reduced to time served — Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 7(1).

Narcotic and drug control — Sentencing — Principles of sentencing — Deterrence

Accused pleaded guilty to unlawfully producing controlled substance, contrary to s. 7(1) of Controlled Drugs and Substances Act, and to committing theft of electricity after police found substantial sophisticated commercial marijuana grow operation in his home and seized over 500 marijuana plants with street value of up to $532,000 — Emphasizing increase in number of large hydroponic grow operations, risk to community, and need for deterrence, trial judge sentenced accused to 18 months for production offence and six months less a day consecutive for theft of hydro, for total of two years less a day with 10 months’ credit for four months of pre-sentence custody — Appeal by accused allowed — Trial judge was entitled to decline to impose conditional sentence in light of evidence of increasing prevalence of this form of offence in local community, and of danger caused by hydro by-pass — Trial judge failed to give sufficient weight to fact that accused was first offender, overemphasized evidence of increasing prevalence, and imposed sentence that was beyond range for similar offences in Ontario — Sentence for theft should have been concurrent sentence — Sentence reduced to time served — Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 7(1).

Criminal law — Offences — Theft and related offences — Theft — Sentencing — Adult offenders

Accused pleaded guilty to unlawfully producing controlled substance and to use of electricity of value exceeding $5,000 without colour of right, thereby committing theft contrary to s. 344(a) of Criminal Code, after police found substantial sophisticated commercial marijuana grow operation in his home and seized over 500 marijuana plants with street value of up to $532,000 — At sentencing hearing, hydro official testified as to dangers inherent in hydro by-pass, and gave evidence that loss to hydro utility was $16,742 — Emphasizing increase in number of large hydroponic grow operations, risk to community, and need for deterrence, trial judge sentenced accused to 18 months for production offence and six months less a day consecutive for theft of hydro, for total of two years less a day with 10 months’ credit for four months of pre-sentence custody — Appeal by accused allowed — Trial judge was entitled to decline to impose conditional sentence in light of evidence of increasing prevalence of this form of offence in local community, and of danger caused by hydro by-pass — Trial judge failed to give sufficient weight to fact that accused was first offender, overemphasized evidence of increasing prevalence, and imposed sentence that was beyond range for similar offences in Ontario — Sentence for theft should have been concurrent sentence — Sentence reduced to time served — Criminal Code, R.S.C. 1985, c. C-46, s. 344(a).

APPEAL by accused from sentence imposed upon conviction for unlawfully producing controlled substance and theft of electricity.

McMurtry C.J.O.:

1        We agree that the trial judge was entitled to decline to impose a conditional sentence in light of the evidence of the increasing prevalence of this form of offence in the local community and the danger caused by the hydro by-pass. However in our view the trial judge failed to give sufficient weight to the fact that the appellant was a first offender and that he overemphasized the evidence of increasing prevalence and he imposed a sentence that is beyond the range for similar offences in Ontario. We are all of the view that the sentence for theft should have been a concurrent sentence. Leave to appeal granted, appeal allowed and sentence reduced to time served.

Appeal allowed; Sentence reduced to time served.