APPEAL COURT OKS TOUGHER PENALTIES FOR POT GROWERS

'Model Citizen' Father With Clean Record Jailed For 15 Months After
Four Years Of Impeccable Living

B.C.'s highest court says jail time is okay in first-time marijuana
cultivation cases even if the offender is a model citizen.

In one of two important pot-sentencing decisions released Friday, the
Court of Appeal upheld a 15-month jail term for a 32-year-old with a
clean record, four years of impeccable behaviour since his offence
and a report that says he's a textbook case for a conditional sentence.

All three judges -- Justices Risa Levine, Allan Thackray and Pamela
Kirkpatrick -- thought the sentencing judge "unreasonable" in
describing as dangerous Keith Gordon Wallis, who was caught in
February 2003 growing 638 plants in Delta.

Nevertheless, Justices Levine and Kirkpatrick said Provincial Court
Judge John Lenaghan's harsh sentence was within the approved spectrum
of punishment, leaving Justice Thackray to write an eloquent
dissenting opinion that no good will come of putting Wallis in jail.

In the second case, a differently constituted appeal court panel
upheld the two-years-less-a-day jail term handed Allan Douglas
Koenders -- in the process surveying the state of the marijuana law
and the sentences being meted out.

In that case, B.C. Supreme Court Justice Ian Pitfield put the legal
boots to an unrepentant grower on Vancouver Island with a record of
pot offences stretching way back.

The appeal court saw no reason to overturn his decision either.

Tough, but not unreasonable, said the appellate panel.

These are key rulings because they lay out the landscape for judges
and provide a means of parsing these offences when it comes to sentences.

The justices say each case turns crucially on the commercial nature
of the offence and the personal circumstances of the offenders.

In both these cases, the sentencing judges believe the societal harm
that flows from flouting the marijuana laws dictates the need for
stiff penalties.

Still, I think the Lenaghan sentence in the Wallis case was way out
of line and the appeal court should have said so.

Justice Thackray thankfully did.

He noted what the Crown said: "I don't think in recent history I have
seen one [pre-sentence report] that was more supportive of an accused."

Wallis expressed remorse, reimbursed his parents for a loss they
suffered on the house that was involved, maintained steady
employment, made regular payments in support of his daughter and
constructed a close relationship with her and her mother over the
more than four years that he has been on interim judicial release.

A conditional sentence would fulfil all of the principles and
purposes of sentencing in this case, Thackray concluded.

His colleagues disagreed.

Then 28, Wallis ran a growing operation using stolen hydro in a home
he co-owned with his parents, which he sold after his arrest at a
loss because of the damage from the agricultural operation.

Since his arrest, he has been working, he has reimbursed his parents
for their loss on the house and supported his 12-year-old daughter,
who lives with her mom and step-dad. He has lots of support from
friends, his family and the community. Wallis pleaded guilty Feb. 15, 2005.

The Crown suggested a year in jail but didn't care whether that was a
conditional sentence or not. Defence counsel suggested a year's
conditional would be appropriate.

Judge Lenaghan didn't see it that way on June 17, 2005, when he
sentenced Wallis to jail for 15 months and probation of one year.

The judge went overboard in calling Wallis a danger to the community
and all three judges on the court of appeal saw that.

"Motive and manner of carrying out an offence may be relevant
factors, but if greed and secrecy were determinative, there would be
few offenders who would not be found to be a continuing danger to the
community," wrote Justice Levine, supported by benchmate Kirkpatrick.

"[The judge's] conclusion that the appellant remained a danger to the
community was unreasonable."

Thackray was more pointed, underscoring the words in Lenaghan's
sentencing that betrayed his personal pique -- "greed...breathtaking
in its brazen boldness ... callously ... deceitful ... the
defendant's true character ... callousness ... greed ... secret planning."

"I have highlighted words in the above quotations that show just how
personally offended the judge was over Mr. Wallis' entry into crime
and the fact that he kept his criminal activity secret," Thackray said.

"It is not the place of the judiciary to take personal offence and
turn that into a factor in sentencing .... No benefit to society can
be made out in this case by now putting Mr. Wallis in jail. Indeed,
to the contrary, the detriment to his child, her mother and Mr.
Wallis' employer and employment are readily obvious. Paraphrasing
Madam Justice Levine, it would be counterproductive to send Mr.
Wallis to prison."

His colleagues were not persuaded and their view is the prevailing
one on the high bench.

In the second case, Justice Catherine Anne Ryan, Levine and Kenneth
Smith unanimously rejected Koenders' appeal of his July 14, 2006,
jail sentence.

The 40-year-old with five prior convictions for growing marijuana was
caught a year earlier with 480 pot plants in the basement of his home
and another 1,644 scattered around the house. Koenders said he was
growing for the local compassion club.

In sentencing Koenders, Pitfield waxed on about the dangers of pot
production and raised concerns that the range of sentences and
decisions by the appeal court sometimes made it difficult for judges
to know what to do.

Ryan, writing for the panel, paused in her judgment to address his concerns.

"There is no question that this court's decisions on this subject can
be difficult to reconcile," she wrote. "This court has held on a
number of occasions that sentencing is an individualized process, in
which the trial judge has considerable discretion in fashioning a fit
sentence."

That being said, Justice Ryan went on to enunciate that a discernible
range has developed.

She recommended Sentencing Drug Offenders, a loose-leaf legal
crib-sheet that organizes growing-operation sentences into two
categories: non-commercial and commercial. Within the last category
the authors classify the operations as low-level (up to 100 plants),
mid-level (100 to 500 plants) and large-scale production (over 500 plants).

"In my view, this reflects the way the courts in this province have
looked at commercial grow operations for purposes of sentencing," Ryan said.

She said sentences can include everything from house arrest with
conditions for low-level grows to incarceration for large-scale operations.

Recently, the court upped an offender's sentence from a $20,000 fine
to a year in jail because he ran an extensive, sophisticated operation.

By contrast, a 32-year-old mother of two young children had her
nine-month jail sentence reduced by the court of appeal to a one-year
conditional sentence. She had only tended the crop and it was unclear
if she profited at all from the production.

Ryan essentially said that where a judge has been lenient, there are
usually mitigating circumstances.

She said Justice Pitfield had reviewed the case law and concluded
Koenders' history and the lack of mitigating factors called for a
stiffer sentence.

"As discussed above," she wrote, "the period of incarceration, though
lengthy, falls within the range found in the jurisprudence of this Court."