Drug grower unable to escape mandatory minimum sentencing
BILL PHILLIPS PG Daily News Robert Edward Hofer is caught between two governments. On one hand, the Liberals’ relaxing or perhaps legalization of marijuana laws can’t come fast enough. On the other hand, he is also caught in a former Conservative government machination that the Liberals may, or may not, change. On April 10, 2013, a BC Hydro employee detected the smell of growing marijuana at a residence on a rural property outside Burns Lake. They reported it and the subsequent investigation discovered 720 marijuana plants in the early stages of growth, high intensity lights with shrouds, fans, ventilation ducts, and reflective sheeting on the walls, according to court documents. The basement contained 908 marijuana plants in the budding stage of growth, high intensity lights with shrouds, fans, ventilation ducts, reflective sheeting, drying nets, watering barrels and hoses, fertilizer containers, ballasts and wiring, and a carbon filter.  The main floor of the residence contained marijuana production equipment, including digital scales, dried marihuana, an instructional book for growing marihuana indoors, handwritten grow instructions, and a live video surveillance feed displaying the three access points to the property.  There were additional supplies in an outbuilding. Hofer was arrested and charged with possession for the purpose of trafficking and production for the purpose of trafficking. Given that he could not produce and production or possession licences under the Medical Marihuana Access Regulations, it’s likely he would have escaped charges even if the Liberal government had legalized possession. And, even though he tried, he couldn’t escape the Conservative government throwback either … mandatory minimum sentencing. One can avoid a mandatory minimum sentence if they can prove the sentence is “cruel and unusual” punishment. In Hofer’s case, mandatory minimum sentencing calls for two years in jail. Madam Justice Warren, in her written ruling on the case, stated that without mandatory minium sentencing, Hofer would likely have received a sentence of one year in jail. “ The question is whether a sentence of two years' imprisonment is grossly disproportionate for Mr. Hofer,” she wrote. Counsel for Hofer submitted that there are several mitigating factors present including that Hofer pleaded guilty, had a positive Pre-Sentence Report, and has no serious criminal convictions prior to this offence.  “With respect to moral blameworthiness, his counsel emphasizes that the grow op was in a rural environment with no other houses nearby; there was no indication of any children or other persons in the vicinity; there were no weapons or significant fortifications; and there was 'minimal' security.  He says the remote location reduces the likelihood of a theft or ‘grow rip’ and thereby militates against the violence and risks typically associated with grow ops.” The Crown submitted that the choice to become involved in a large-scale commercial grow operation for personal gain is highly culpable criminal conduct.  “Commercial marijuana production is not a crime of impulse that occurs as a result of a momentary lapse of judgment.  To the contrary, it requires ongoing daily effort and a deliberate choice to break the law for personal gain.” Madam Justice Warren agreed with Crown counsel and Hofer was sentenced to two years in prison, given a 10-year firearms prohibition, ordered to submit a DNA sample, and will forfeit items seized when RCMP raided his Ootsa Lake property where the grow op was discovered.