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Court's decision to free drug trafficker upheld

Nov 24 2011

The B.C. Court of Appeal has upheld a lower court decision in an "exceptional case" in which a man with a long criminal record did not go to jail for drug trafficking and was instead sentenced to probation.

Monte Edward Darcy Tucker admitted in an agreed statement of facts presented at his trial that on Dec. 5, 2008, he tried to throw marijuana and crystal meth over a wall into the grounds of the Vancouver Island Regional Correctional Centre.

Tucker was a longtime drug addict with an extensive criminal record.

He was convicted of possession of the drugs for the purpose of trafficking.

Tucker testified at his trial that he was asked by a known gang leader to buy a cellphone, tobacco and illicit drugs, and throw them over the prison's perimeter wall.

Tucker told the court that the prison inmate code had an expectation of obedience or else suffer dire consequences, so he complied. Co-operating with the gang leader also meant Tucker would likely in the future obtain money and drugs in return, court heard.

During sentencing on March 30 this year, the Crown asked Justice Randall Wong of the B.C. Supreme Court to imprison Tucker for two years or more in a federal penitentiary.

Wong suspended the passing of sentence on Tucker for three years, meaning he avoids a jail sentence but must obey conditions and report regularly to a probation officer.

Wong said this case was unusual because of the way Tucker turned his life around while on bail awaiting trial.

"It appears that for over a year you have indeed been heroin-free and you are undergoing methadone treatment," said Wong.

Tucker moved from Victoria to Campbell River, was in a stable relationship with a woman and working part-time painting houses.

"I am loath to send you to prison at this time because I fear it will undo any progress that you have made thus far," said Wong.

The Crown appealed against the sentence, arguing that incarceration should have been ordered.

Failing to impose a jail sentence gave undue priority to the offender's rehabilitation over the need for general deterrence of others who would commit similar offences, the Crown said.

Chief Justice Lance Finch of the B.C. Appeal Court agreed with Wong's decision on a sentence of probation.

"This was perhaps an unusual disposition for the court to make, but I am not persuaded that this court should intervene," said Finch in his reasoning, released Wednesday.

"Appellate courts are reluctant to substitute a custodial sentence for a non-custodial sentence when doing so would be detrimental to the offender's successful and continued rehabilitation."

smcculloch@timescolonist.com

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