Jim Finnel
Fallen Cannabis Warrior & Ex News Moderator
BC - A Supreme Court judge has cut a Surrey pot grower a break by ordering that he forfeit only a third of his interest in his house to the government, rather than the entire property.
Trung Van Nguyen pleaded guilty to growing marijuana inside the crawl space of his Surrey house and was sentenced to nine months in jail on June 4, 2010, but was released on parole after serving six.
The Crown also applied to have Nguyen's house forfeited to the government, under provisions of the Controlled Drugs and Substances Act.
Justice Christopher Grauer, the judge who sentenced the Surrey resident, dealt with the forfeiture hearing in B.C. Supreme Court in New Westminster in January.
Nguyen's lawyer, Dave Albert, argued the forfeiture of his client's house would be "disproportionate" to the gravity of the offence.
The judge was asked to consider the affect outright forfeiture would have on Nguyen's wife, Thi Men Tran, and their daughter Linda, who also lived in the house.
"I am satisfied that total forfeiture of the entirety of this asset built up by the family since their arrival in this country as refugees would represent a serious blow to Miss Nguyen as well as to her parents," the judge decided.
Considering the evidence, he said, only a "relatively minor" portion of the value of the house could be attributed to the proceeds of crime.
The Crown prosecutor argued that there had to be ongoing criminal activity for the couple to cover their mortgage payments and other expenses, given the couple's declared income. But judge found there was sufficient equity built up in their previous house that wasn't used up in the down payment for this one that could assist in covering those expenses.
"The equity was built up over many years, and there is no evidence whatsoever to suggest that it was built up with the assistance of criminal activity," he said.
Grauer agreed with defence counsel that total forfeiture of the house would be disproportionate to the crime, and ordered instead that Nguygen must forfeit one-third of his interest in the house to the state. Of $315,000 he has in equity, Nguyen must forfeit $105,000.
"In my view if the offender and his family are able to obtain financing to pay for that forfeiture amount, they should be able to remain in the house," Grauer said.
Grauer found that although Nguyen's crime was "serious" and that his grow operation was a "sophisticated commercial operation," the marijuana grower wasn't a drug trafficker himself, but rather tended the pot and took his orders from someone else.
The judge noted that Nguyen's grow op presented a fire risk to neighbours, as well as put them at risk of violence from potential "grow-rip" robberies. "Of course it presented a specific risk to Mr. Nguyen's family," Grauer added.
Still, he found that the part of the house not occupied by the illegal operation was indeed a home.
"On the evidence before me all of the living space in the house was in fact used as living space, the only exception being the garage where equipment was put in to by-pass the B.C. Hydro power."
The judge noted Nguyen had no prior criminal record or ties to organized crime, "and there is no risk of further use of the house for the same purpose as far as I can determine on the evidence."
He said he's "unable to accept" Nguyen's wife didn't know about the pot, but believes she had nothing to do with it. That said, he added that collusion "does not mean failing to blow the whistle on someone."
"She is in fact an immigrant with little English and no real control over what was going on. There was in fact little she could reasonably have been expected to do about it."
But complicit behavior, he noted, "is a little different."
The Crown argued that mere knowledge and failure to act was sufficient for the purposes of outright forfeiture, but Grauer found she was complicit only by fact of her marriage.
"The dictionary definition indicates that complicity means involvement with others in an unlawful activity. What we have here was in my view no more than passive acquiescence."
As for the couple's daughter, Grauer said he is not persuaded she is "somehow doomed" if her family moves. She could still stay at her school and maintain her friendships," he noted. He added that the girl "appears innocent of any complicity or collusion" in respect to her dad's grow-op.
NewsHawk: Jim Behr: 420 MAGAZINE
Source: Now, The (Surrey, CN BC)
Copyright: 2011 Canwest Publishing Inc.
Contact: bsimpson@thenownewspaper.com
Website: Surrey Now
Details: MapInc
Author: Tom Zytaruk
Trung Van Nguyen pleaded guilty to growing marijuana inside the crawl space of his Surrey house and was sentenced to nine months in jail on June 4, 2010, but was released on parole after serving six.
The Crown also applied to have Nguyen's house forfeited to the government, under provisions of the Controlled Drugs and Substances Act.
Justice Christopher Grauer, the judge who sentenced the Surrey resident, dealt with the forfeiture hearing in B.C. Supreme Court in New Westminster in January.
Nguyen's lawyer, Dave Albert, argued the forfeiture of his client's house would be "disproportionate" to the gravity of the offence.
The judge was asked to consider the affect outright forfeiture would have on Nguyen's wife, Thi Men Tran, and their daughter Linda, who also lived in the house.
"I am satisfied that total forfeiture of the entirety of this asset built up by the family since their arrival in this country as refugees would represent a serious blow to Miss Nguyen as well as to her parents," the judge decided.
Considering the evidence, he said, only a "relatively minor" portion of the value of the house could be attributed to the proceeds of crime.
The Crown prosecutor argued that there had to be ongoing criminal activity for the couple to cover their mortgage payments and other expenses, given the couple's declared income. But judge found there was sufficient equity built up in their previous house that wasn't used up in the down payment for this one that could assist in covering those expenses.
"The equity was built up over many years, and there is no evidence whatsoever to suggest that it was built up with the assistance of criminal activity," he said.
Grauer agreed with defence counsel that total forfeiture of the house would be disproportionate to the crime, and ordered instead that Nguygen must forfeit one-third of his interest in the house to the state. Of $315,000 he has in equity, Nguyen must forfeit $105,000.
"In my view if the offender and his family are able to obtain financing to pay for that forfeiture amount, they should be able to remain in the house," Grauer said.
Grauer found that although Nguyen's crime was "serious" and that his grow operation was a "sophisticated commercial operation," the marijuana grower wasn't a drug trafficker himself, but rather tended the pot and took his orders from someone else.
The judge noted that Nguyen's grow op presented a fire risk to neighbours, as well as put them at risk of violence from potential "grow-rip" robberies. "Of course it presented a specific risk to Mr. Nguyen's family," Grauer added.
Still, he found that the part of the house not occupied by the illegal operation was indeed a home.
"On the evidence before me all of the living space in the house was in fact used as living space, the only exception being the garage where equipment was put in to by-pass the B.C. Hydro power."
The judge noted Nguyen had no prior criminal record or ties to organized crime, "and there is no risk of further use of the house for the same purpose as far as I can determine on the evidence."
He said he's "unable to accept" Nguyen's wife didn't know about the pot, but believes she had nothing to do with it. That said, he added that collusion "does not mean failing to blow the whistle on someone."
"She is in fact an immigrant with little English and no real control over what was going on. There was in fact little she could reasonably have been expected to do about it."
But complicit behavior, he noted, "is a little different."
The Crown argued that mere knowledge and failure to act was sufficient for the purposes of outright forfeiture, but Grauer found she was complicit only by fact of her marriage.
"The dictionary definition indicates that complicity means involvement with others in an unlawful activity. What we have here was in my view no more than passive acquiescence."
As for the couple's daughter, Grauer said he is not persuaded she is "somehow doomed" if her family moves. She could still stay at her school and maintain her friendships," he noted. He added that the girl "appears innocent of any complicity or collusion" in respect to her dad's grow-op.
NewsHawk: Jim Behr: 420 MAGAZINE
Source: Now, The (Surrey, CN BC)
Copyright: 2011 Canwest Publishing Inc.
Contact: bsimpson@thenownewspaper.com
Website: Surrey Now
Details: MapInc
Author: Tom Zytaruk
