TOUGH JUDGE REJECTS POT GROWERS' 'ROBIN HOOD' DEFENCE

We'll Pay To Hold Them In Prison When Property Forfeiture Is Sensible

B.C. Supreme Court Judge Ian Pitfield is single-handedly trying to
stem the province's green tide of marijuana-growing operations by
bucking precedent and dishing out stiff jail terms.

In a tough-talking judgment in which he finds wanting the judiciary's
response to the hazard and danger of grow-ops, Pitfield sent two
middle-aged guerrilla gardeners to jail for two years less a day.

"I consider each of them to be a danger to the public by
reoffending," Pitfield wrote of the duo described in pre-sentence
reports as reliable, honest, hard-working, trustworthy and caring.

The judge stridently dismissed as "wholly unrealistic" the
prosecution's suggested one-year sentence for Allan Douglas Koenders
and Allan Wayne Simpson, both of Courtenay.

"If Mr. Koenders and Mr. Simpson are to see the error of their ways,
time in an institution will be required," Pitfield said.

"In my opinion, the circumstances of the offences and the offenders
warrant a penitentiary sentence."

Federal prison time, however, would have been truly egregious.

So Pitfield gave both men two years less a day. They'll be on parole
for two years after their release.

After a three-day trial in March, they were found guilty of growing
and possessing marijuana for the purposes of trafficking.

They were arrested in July 2003 in connection with a farm near
Courtenay from which police seized a total of 2,144 plants as well as
oscillating and furnace fans, fluorescent lights and other
paraphernalia, including fertilizers and chemicals used to grow pot.

Police experts estimated a harvest would earn them between $560,000
and $840,000, depending on the yield of each plant.

However, the two argued that was an over-estimation and that they
were growing primarily for themselves, friends and medical marijuana
patients on Vancouver Island.

Koenders, a 43-year-old construction worker with a Grade 10
education, was born in Port Alberni, but grew up in the
Parksville-Qualicum area. Single and living in a motor home on a
friend's property, Koenders said he wasn't a threat to society and
didn't need counselling because he smokes pot.

The court was told he has a criminal record that includes five prior
convictions for the possession of marijuana and he has been on
probation four times -- convicted of offences during three of those
periods, and convicted of a breach of probation in 1985.

A 55-year-old, Simpson was born in Montreal and has been
intermittently self-employed as a furniture and cabinet-maker since
1984. Now he is on a disability pension and says he started using
marijuana in 1981 because of a back injury.

In 2001, Simpson was convicted at Parksville of producing marijuana
and given a 12-month conditional sentence.

Both men said part of their harvest was destined for terminally ill patients.

Pitfield noted neither had a government exemption to grow for medical
use, nor had either applied for such a licence.

In the last five years, what had been an epidemic of growing
operations in B.C. has become a plague, the judge noted.

He quoted a decision from Court of Appeal Justice Mary Southin, who
said back in 2001 there was no longer any judicial consensus on the
right thing to do in marijuana cases.

"With respect," he noted, "the statement is as accurate today."

Surveying the situation, Pitfield concluded that if current sentences
are not having the desired effect, judges should change their approach.

"The plethora of charges related to grow-ops provides support for the
proposition that the present range of sentences, particularly in
respect of grow-ops of considerable size, does not promote the
principle of general deterrence," the judge said.

"Unless other means of reducing illegal production specifically and
generally can be found, custodial sentences ... will likely provide
the only realistic means of constraining illegal activity of this
kind, and the penitentiary terms ... may be preferred."

He said it was obvious Koenders and Simpson were unrepentant and
would probably reoffend.

"Each has a criminal record for drug offences," Pitfield added.
"Neither expresses any sincere remorse for what he has done. In fact,
each regards the production of marijuana as a worthy pursuit,
particularly if some of their product is made available for medical
use. Each has advanced what amounts to a Robin Hood defence by
claiming that their offences are less criminal because they were
committed to help others."

Specific and general deterrence are factors of greater importance in
this case, Pitfield sternly concluded.

It's enough to make you weep.

That taxpayers will spend in the neighbourhood of $80,000 to keep two
middle-aged incorrigible dope smokers in jail is ridiculous.

With all due respect to Judge Pitfield, I think his sentence is a
waste of resources, does not make the community any safer and
probably erodes confidence in the administration of justice.

Both of these men could have been appropriately handed conditional
sentences and the forfeiture of their property.