The weekly Angel Ronan Law Report as brought to you by the Black Community Law Group(TM) (BCLG(TM)): Mail theft in Canada. The law in Alberta is the same in Ontario and right across the whole country. . R. v. McConnell, 2006 ABPC 128 (CanLII)
R. v. McConnell, 2006 ABPC 128 (CanLII)
Date:
2006-05-03
File number:
050505817P1
Citation:
R. v. McConnell, 2006 ABPC 128 (CanLII), <http://canlii.ca/t/1nm37>, retrieved on 2019-09-30
In the Provincial Court of Alberta
Citation: R. v. McConnell, 2006 ABPC 128
Date: 20060503
Docket: 050505817P1
Registry: Calgary
Between:
Her Majesty the Queen
Crown
- and -
Jason John McConnell
Accused
Sentence
[1] For the offence of theft from the mail, Jason John McConnell is sentenced to 18 months, to be served in the community, that is, a conditional sentence order.
[2] There is a victim fine surcharge of $100.
[3] These are my reasons for this sentence.
Introduction
[4] During his 14-month employment as a contract driver with Canada Post, delivering mail to rural Alberta, Mr. McConnell stole at least 69 pieces of mail, targeting letters and parcels that appeared to contain DVDs or cash; one of the parcels contained a stereo speaker.
[5] Mr. McConnell was apprehended after he had been placed under surveillance because of complaints from his delivery area of missing letters and parcels; while under surveillance, Mr. McConnell was seen opening mail and handling mail he was not authorized to handle.
[6] After his arrest, Mr. McConnell gave a full confession and consented to a search of his home; the search yielded three gift cards, letters, cards, parcels, DVDs and the stereo speaker.
[7] The Crown urges a 12 to 15-month jail sentence, citing the seriousness of the offence, the breach of trust and Mr. McConnell’s significant record for property offences. In support of this submission, Crown counsel refers to the 1957 Ontario Court of Appeal decision in R. v. Bennett (1957) 1957 CanLII 519 (ON CA), 119 C. C. C. 215. The Crown opposes a conditional sentence.
[8] Defence counsel argues that Mr. McConnell qualifies for a conditional sentence of 12 to 18 months. In support of this position, Defence counsel points to: the guilty plea; the almost five-year gap from the end of Mr. McConnell’s last sentence to the beginning of this offence; the favourable recommendation in the pre-sentence report; the psychological evaluation that rates Mr. McConnell as a low to moderate risk to re-offend; and the fact that Bennett is a very dated case, decided 40 years before the availability of conditional sentences.
[9] In reaching my decision, I have reviewed, besides Bennett, all the mail theft sentencing cases I could find: R. v. Tonks 2003 BCPC 475 (CanLII), [2003] B. C. J. No. 3042 (P. C.); R. v. Stevelman [2003] A. J. No. 1188 (Q. B.); R. v. Swiston [1995] A. J. No. 1659 (P. C.); R. v. Nookiguak [1989] N. W. T. J. No. 97; R. v. Caparelli 1989 ABCA 226 (CanLII), [1989] A. J. No. 809 (C. A.); R. v. Clark [1988] M. J. No. 392 (C. A.); R. v. Miller 67 Nfld. 7 P. E. I. R. 327 (S. C. T. D.); R. v. Sowerby (1982), 8 W. C. B. 94 (O. C. A.) allowing appeal from(1982), 7 W. C. B. 268 (Co. Ct.); R. v. Bertrand (1978), 3 W. C. B. 78 (Q. C. A.); R. v. Belau [1978] A. J. No. 84 (C. A.); R. v. Lachance [1976] O. J. No. 652 (C. A.); and R. v. Smith [1976] B. C. J. No. 618 (C. A.). Some of these cases were reported only as one-paragraph summaries.
Mr. McConnell’s Background
[10] Twenty-nine years old at the time of sentencing, Mr. McConnell has a criminal record of 19 convictions over nine years, for property offences, including break-ins, thefts and fraud. Thirteen of the 19 convictions were youth matters. For Mr. McConnell’s last conviction, for fraud, he received a one-year conditional sentence order. From the end of that conditional sentence to the beginning of the mail theft offence, almost five years elapsed without Mr. McConnell running afoul of the law. This time period began with the birth of Mr. McConnell’s daughter and his determination to be a responsible parent.
[11] Mr. McConnell has a high school education and has had regular employment. He has recently been off work with a back injury but expects to return in the next couple of weeks; he is a night shift supervisor with a door manufacturing company.
[12] Mr. McConnell has had a series of fairly short-lived marital relationships but believes that his present relationship with his girlfriend of seven months is a long-term, committed one. He lives with his girlfriend and her daughter; she is supportive of him and characterizes him as a good father.
[13] As a child and young adult, Mr. McConnell was diagnosed with, and treated for, Attention Deficit Disorder (ADD). In 2003, he was devastated by his younger brother’s suicide.
[14] The pre-sentence report confirms that Mr. McConnell enjoys good family and community support and rates him a suitable candidate for a community-based sentence.
[15] The psychological assessment rates Mr. McConnell a low to moderate risk to re-offend and recommends that he receive counselling to deal with grief and other issues.
Purpose and Principles of Sentencing
[16] In 1996, Parliament enacted amendments to the Criminal Code that amount to a mini-Code on sentencing. The objectives of sentencing, as codified in section 718 of the Criminal Code, are: denunciation; deterrence, both individual and general; separation of the offender from society, where necessary; rehabilitation; reparation; and, promotion of responsibility in the offender and acknowledgment of harm done.
[17] The sentencing amendments also establish principles of sentencing, including:
(a) a sentence must be proportional to the seriousness of the offence and the level of responsibility of the offender;
(b) a sentence should be increased or decreased to reflect aggravating or mitigating factors;
(c) a sentence should be similar for similar offences, offenders and circumstances; and
(d) jail should be used as a sentence of last resort.
[18] In line with the principle of jail being used as a last resort, the 1996 amendments created the conditional sentence, a jail sentence that can be served in the community.
The Conditional Sentence
[19] A conditional sentence is available when certain pre-conditions are met:
(a) there is no minimum period of imprisonment prescribed by law;
(b) neither a penitentiary term of two years or more, nor probation, is an appropriate sentence;
(c) serving the sentence in the community would not pose a danger to the community; and
(d) serving the sentence in the community would be consistent with the fundamental purpose and principles of sentencing.
[20] The Supreme Court of Canada provided valuable direction to sentencing judges deciding the appropriateness of a conditional sentence in the case of R. v. Proulx, 2000 SCC 5 (CanLII), [2000] 1 S.C.R. 61. That direction included the following points:
(a) no offences except those with a minimum of imprisonment are excluded from eligibility for a conditional sentence;
(b) two factors should be considered in assessing danger to the community: the risk that the offender will re-offend; and the seriousness of the damage that could result from re-offending;
(c) because of Parliament’s clear message to use jail as a last resort, a conditional sentence should be considered in all eligible cases;
(d) although there may be cases in which the objectives of denunciation and general deterrence are so important that only jail will suffice, a conditional sentence can also adequately address denunciation and deterrence; and
(e) a conditional sentence will usually be more appropriate when the relevant sentencing objectives are both punitive and restorative.
Sentencing in Mail Theft Cases
[21] The abiding theme in mail theft sentencing cases is that mail theft is an extremely serious offence that must be met with a jail sentence. In Caparelli, the Alberta Court of Appeal approved of the trial judge’s comment about deliberate mail theft: “This kind of offence requires incarceration, and it doesn’t matter the amount at all. These are serious offences, and they just cannot be dealt with lightly.”
[22] Mail theft is a separate offence from the general theft section; it is an indictable offence with a maximum penalty of 10 years. The seriousness of the offence is a reflection of the enormous public trust invested in a postal service to provide a safe means of conducting personal and commercial business, with no invasion of privacy.
Application of Sentencing Objectives and Principles to the Facts of this Case
Sentencing Objectives
[23] The applicable sentencing objectives in the McConnell case are: denunciation, general and specific deterrence, encouragement of rehabilitation, acknowledgment of harm done to victims and the community and promotion of a sense of responsibility in the offender.
[24] For reasons I include in my discussion of the conditional sentence I am imposing, I am satisfied that the objective of separating the offender from society does not need to be met in this case.
Sentencing Principles
1. Proportionality
[25] Mail theft is one of the most serious forms of theft, involving as it does an abuse of the public trust. Usually, a jail sentence is called for.
2. Aggravating and Mitigating Factors
[26] I find the following aggravating factors in this case:
(a) the length of time over which the theft occurred;
(b) the number of incidents;
(c) the significant, related criminal record; and
(d) the breach of public trust.
[27] I find the following mitigating factors in this case:
(a) the cooperation with the investigation;
(b) the guilty plea;
(c) the favourable pre-sentence report recommendation;
(d) the 5-year gap in criminal activity;
(e) the low to moderate risk to re-offend; and
(f) the family and community support.
3. A Similar Sentence for a Similar Offender, Offence and Circumstances
[28] The only reported cases of mail theft sentencing decided since the creation of the conditional sentence were Tonks, in which the sentence imposed was 10½ months and 2 years’ probation (after 72 days of remand custody), and Stevelman, in which a conditional discharge was given. Both of these cases are distinguishable from Mr. McConnell’s offence and circumstances: Tonks had stolen and used debit cards from the mail and was being sentenced also for theft of a motor vehicle in a case involving a total loss of some $29,000 and one in which the Crown established that the community was experiencing a widespread mail theft problem; Stevelman’s offence was characterized as one of mischief, rather than dishonesty, in that he walked over to his neighbour’s house and removed a parcel from the mailbox.
[29] In the remaining mail theft sentencing cases, all of which pre-date the availability of a conditional sentence, despite the oft-repeated principle that mail theft is an offence that must be dealt with sternly, the sentencing range is a two-year suspended sentence to a jail sentence of 9 months. Within that range, an intermittent sentence and probation was often imposed.
[30] In Mr. McConnell’s case, the pre-conditions for a conditional sentence are met. The main issue to consider is the risk to the community and his likelihood of re-offending.
[31] My reasons for concluding that Mr. McConnell may serve his sentence in the community are:
(a) his criminal record has no convictions for breaching court orders;
(b) he is rated a low to moderate risk to re-offend and specific counselling is recommended to minimize the risk;
(c) the pre-sentence report recommends a community-based disposition; and
(d) he enjoys the support of his family and the wider community.
Conclusion
[32] Therefore, the sentence is an 18-month conditional sentence order and a $100 victim fine surcharge. I shall set the specific terms of the order with the assistance of counsel.
[33] This concludes my reasons for sentence.
Heard on the 11th day of April, 2006.
Dated at the City of Calgary, Alberta this 3rd day of May, 2006.
A. J. Brown
A Judge of the Provincial Court of Alberta
|
Appearances:
D. C. Elliott
for the Crown
M. J. G. Kiss
for the Accused
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