Ontario Superior Court Judge Anne Molloy was absolutely right in saying a three-year sentence to Leroy Smickle for photographing himself on a computer camera with a pistol is "cruel and unusual punishment."

It's also a ridiculous sentence for no crime.

For as long as I can remember, people like me have been railing that carrying a gun while committing a crime should get an automatic, irreversible sentence with no time off, regardless of whether the weapon was used.

In other words, if swiping a candy bar is the offence, the perpetrator might get a token sentence for that crime -- but a mandatory three years for carrying a weapon while committing it.

The mandatory aspect seems not to apply in many cases: witness some of the shootings that have occurred in Toronto, where the shooter is out on bail for another crime in which he carried a gun.

Smickle, 30, was not committing a crime. In fact, he apparently has no record.

What he was doing was using a laptop computer to photograph himself posing with the pistol. It wasn't even his gun. The police broke in to the apartment in search of someone else's illegal gun.

Judge Molloy is dead on when she says to impose a mandatory three-year prison sentence on Smickle would be "an onerous punishment . . . grossly disproportionate to what Mr. Smickle deserves for a single act of bad judgment and foolishness."

Instead, she gave him a one-year conditional sentence to be served under house arrest. Even that seems a bit disproportionate for his alleged "crime."

Judge Molloy is quite aware that the Crown may appeal, and that she may be reprimanded for breaking ranks with the mandatory law. But she served the cause of common sense and did what was right. Her conscience is clear.

Sending an innocent man to prison for three years could actually make him into a criminal, and does absolutely nothing to deter gun crimes. Our prisons, enlightened as some may think them, are often better at creating professional criminals than reforming the guilty.

Prime Minister Harper's "tough on crime" legislation is defendable if it's aimed at those who commit violent crimes, or even to deter those who may be tempted into gun crimes. It should not apply in the case of Smickle, unless there's added information that we know nothing about.

Judge Molloy thinks the mandatory sentence for no crime might violate the Charter of Rights, as well as having grave consequences for a citizen who intended no harm.

The suggestion that Smickle was threatening police with a gun when they broke into his cousin's apartment on the belief that he possessed illegal weapons, doesn't make sense. It's mindful of the gaggle of charges laid against David Chen a while back, when he made a citizen's arrest of a shoplifter stealing from his store. The charges were asinine and eventually dropped.

Smickle is fortunate that Judge Molloy is sensible, compassionate, realistic, and gutsy. She realizes that prison would serve no positive purpose but could ruin his life. That is not the purpose of the law, nor the purpose of the three-year mandatory sentence for carrying a gun in a crime.

Let's hope the Crown shows some common sense and refutes Mr. Bumble's observation in Charles Dickens' Oliver Twist "the law is a ass."