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SENTENCING - Controlled drugs and substances - Cultivation or production - Particular sanctions - Imprisonment - Intermittent - Sentencing considerations - Deterrence - Denunciation - Previous dated record - Accused’s health

Thursday, January 18, 2018 @ 8:34 AM  

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Appeal by the Crown from a 90-day intermittent sentence imposed on the respondent, 62-year-old Bentley, for production of marihuana and fraudulently consuming electricity. The respondent carried on a grow-operation at a rental house. Police seized 3,618 marihuana plants and seven pounds of processed marihuana. The respondent was stealing electricity at the house to power the grow-operation equipment. The respondent pleaded guilty. He had a dated previous conviction for the production of a Schedule II substance. He was under the care of a psychiatrist, suffering from a series of chronic psychological ailments, including a history of depression and anxiety. At the time of sentencing, a letter submitted by the respondent’s psychiatrist indicated that the respondent presented as a high risk for decompensating if he were to be incarcerated. In his reasons, the sentencing judge stated that it was morally and rationally untenable for the federal government to seek to legalize the use of recreational marihuana while at the same time continuing to enforce the existing marihuana laws. In his view, the intended change in the law "[cut] the legs out from under all of the traditional sentencing rules in this area." The respondent was now fully employed and was under the care of a psychiatrist for anxiety and depression. He had completed serving his 90-day intermittent sentence and was fully reintegrated back into his community.

HELD: Appeal allowed. The sentencing judge erred in principle by failing to give appropriate reasons for sentence. The sentence imposed was also unfit, given the high number of plants seized, the respondent’s antecedent record, as well as the pre-existing jurisprudence on sentencing for similar types of cases. The sentencing judge focused entirely on his personal views, which he advanced without inviting submissions from either party. However, the principles of specific deterrence and rehabilitation had been met in this case. To re-incarcerate the respondent would not be in the interests of justice. Accordingly, the sentence was increased to 18 months, but the execution of the sentence was stayed.

R. v. Bentley, [2017] O.J. No. 6553, Ontario Court of Appeal, K.N. Feldman, M.H. Tulloch and M.L. Benotto JJ.A., December 15, 2017. Digest No. TLD-January152018008