R. v. South, 2009 MBPC 12 (CanLII)
Cite # 2009 MBPC 12
THE PROVINCIAL COURT OF MANITOBA
SELKIRK CENTRE
BETWEEN
Her Majesty the Queen | ) | ZANE TESSLER |
| ) | for the Crown |
- and - | ) |
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| ) |
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JAMES ROBERT SOUTH | ) | RICHARD ALCOCK |
| ) | for the Accused |
| ) | Judgment delivered: |
| ) | February 11, 2009 |
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SANDHU, P.J.
I. INTRODUCTION
[1] James South has entered guilty pleas to 2 counts of fraud under $5000 between December 16, 2002 and January 26, 2003 contrary to section 334(b). Also entered are guilty pleas to 3 counts of fraud over $5,000 between October 10, 2002 and March 10, 2003, contrary to section 334(a). The Crown has proceeded by indictment where applicable. The maximum penalties on each count are 2 years imprisonment and 10 years imprisonment respectively.
[2] Guilty pleas were entered on October 26, 2007, charges having been laid on July 25, 2007 and December 21st, 2006 respectively. A presentence report was ordered and prepared on March 28, 2008.
[3] The matter came before me in Selkirk Provincial Court on January 20, 2009 for submissions on sentencing. The matter was reserved by the Court to today’s date.
FACTS
[4] At the time of the offences Mr. South was employed by Young’s and Yaremchuk Stonework’s Limited in the City of Selkirk. Essentially he stole monies to the amount of $64,000 by diverting credit card payments to his own credit cards, concealing the payments as refunds to customers, but diverted to his own credit cards. He was at the relevant times the sales manager for the business. As such he had complete access to the business’s accounts and was trusted by the elderly owner who was in poor health. Mr. South was laid off by the owner in December of 2002 for reasons that are not clear. Despite that, he had continued access to the building and continued to enter the business after hours to refund his credit card fraudulently using his knowledge of the business accounts. Even during the times he was employed by the business and was stealing from it, he was attempting to buy the business from the owner. Mr. South ascribes these crimes and this behaviour to requiring money in order to support an addiction to Ocycontin. He became addicted to the subsistence to self medicate for pain for a hip replacement that required surgery, while on a waiting list for that surgery. The surgery eventually took place in April, 2006. After being laid off from the company from which he stole, he started his own business competing in the same field. He then admittedly began to steal from his own company for about a year. He no longer owns that company, but is an employee, being given a second chance by family and friends.
[5] From March of 2003 for about one year, after Mr. South left the company, Young and Yaremchuk was being managed by the owner’s two daughters as the owner was not medically fit to do so. The Public Trustee took over and sold the business, apparently at some discount. It is difficult to conclude that the accused’s actions were the cause of the business’s decline during this period, though it certainly did not help. The victim impact statement of one daughter, Sandra Young, shows the harm caused not only to the business, but to the family members who took over the business due to the owners’ failing health. To quote in part
“The RCMP were contacted in August-September of 2003 with this information (questionable refunds), the investigation was long drawn out and a real ordeal due to a lack of officers the point I had to make a formal complaint. I was filled with so much anxiety, stress and so heartbroken to find out Mr. South stole all this money from a sick elderly man who had already lost all his retirement and more. Ernie Yaremchuk who had been watching over the company the years when he was in charge; fought with me insisting there was no thefts, no credit card were refunded by Jim South. Ernie fought with me over time spent going back into the records, insisting I did not know what I was doing, and I was plain stupid. There was so much stress between Ernie and myself, seeing the damage done to the business and my father, and what Jim and Gary got away with…”.
BACKGROUND OF THE ACCUSED
[6] Mr. South is 47 years of age, single with no children. He has a criminal record: robbery (x2), theft over $5,000 from B.C. in 1998 for which he received 29 months incarceration and restitution of $27,638, assault from B.C. in 1999 for which he received a one year suspended sentence and a theft under from Winnipeg in 2005 for which he received a $300 fine.
[7] The presentence report has been carefully reviewed by the court. Mr. South “appeared to express a great deal of remorse in regards to the incident. He indicated that it has affected his life and the people he loves around him. He informed that the owner of the company had been one of his mentors, and his actions have negatively impacted this relationship.”
[8] There are continued areas of concern regarding Mr. South as expressed by the probation officer, at page 7,
“Mr. South’s coping mechanisms to financial stress are of some concern to the writer. Through information presented by Mr. South, it is evident in his past that when undergoing financial stress he would often turn to illegal activities in terms of robbery, theft or fraud in order to compensate himself and others around him. He attributes his offences partially to his wanting to please others around him by providing for them financially. On the other hand, when asked what the money he obtained would be spent on he made indication that approximately 1/3 would be spent on luxury items for himself.”
At page 8.
“Mr. South had admitted that there problems evident in terms of substance abuse. He claimed to have received no counseling in the past and has recently admitted attending to the Addictions foundation of Manitoba for an assessment. Unfortunately the writer has not received this documentation to date.”
[9] The probation officer has assessed Mr. South as a medium risk to reoffend in general. Factors of concern include substance abuse, financial situation, issues with gambling, previous criminal record and the nature of the offences. Nevertheless he is assessed as being viable for a community based disposition.
[10] In addition to counsel has advised that Mr. South is willing and able to make full restitution and has approximately $24,000 available immediately for payment towards the full amount.
[11] The Crown position is for a period of incarceration in provincial jail, while the defence agrees to a period of incarceration, but to be served in the community under the conditional sentencing regime.
ANALYSIS OF A FIT AND PROPER SENTENCE
[12] It can seem difficult sometimes to differentiate between various factors affecting decisions in this area of sentencing and to determine the significance of, for example, the amount of the loss, the personal circumstances of the offender, the presence or absence of psychological factors or addictions, the impact on the victims and the significance of restitution having been made or likely to be made. While I acknowledge the reason for these comments, I also note the sentencing provisions of the Criminal Code and the overriding factor that the court is to take into account in crafting any sentence. Pursuant to Section 718.1 the sentence imposed must be proportionate to both the gravity of the offence and the degree of responsibility of the offender.
[13] The gravity of the offence has been outlined by the court above. This is a case in which there is a high degree of moral blameworthiness. There was a planned and deliberate pattern of deceit, fraud and theft spanning a considerable period of time. The amount of money stolen is significant. There has been considerable negative impact on the victim, as evidenced by the victim impact statement files. A portion of the funds were used to purchase luxury items, not to support the addictive habit that is said to be the root of the frauds and thefts.
[14] The sentencing principles contained in section 718 of the Criminal Code that are relevant to this case are as follows:
"718.1, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
718.2, a court that imposes a sentence shall also take into consideration the following principles:
(a) sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing... evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim...shall be deemed to be aggravating circumstances."
Finally:
"(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances."
[15] The jurisprudence relating to breaches of trust contains examples of actual gaol sentences, and more recently, conditional sentences for property offences involving breaches of trust.
[16] The primary factors to be considered in cases of theft or fraud involving a breach of trust are deterrence and denunciation. In R. v. Paul et al (2003) MBCA 153, the Court of Appeal dismissed an appeal from a 12-month custody sentence, where the accused pled guilty to conspiracy, forgery, uttering a false document, and breach of probation while serving as an employee of the finance office of a First Nation.
[17] Over several months, he deposited and cashed 24 cheques, totaling more than $11,000. He was in a position of trust. He had an unrelated short record. The accused sought a conditional sentence, not a conditional discharge.
[18] The court of first instance sentenced the accused to 12 months custody, and ordered the payment of restitution. The sentence appeal was dismissed by the Manitoba Court of Appeal. Freedman, J.A., wrote, at paragraph 15:
“Since the introduction of conditional sentences, courts have confirmed that abuse of a position of trust will tend to result in a custodial term. See R. v. Pearce (1997) 1997 CanLII 3020 (ON CA), 114 CCC (3d) 23.”
Paragraph 16:
“These crimes were not victimless. Money was taken from a community which sorely needed it, and was frittered away by the appellants who had access to this money solely because the community placed them in a position of trust. The very strong message referred to by the judge -- that is, the trial judge -- that persons in such a position who engage in this sort of conduct will be severely dealt with, cannot, in my opinion be adequately communicated in this case by a sentence served in the community.”
[19] Those are Mr. Justice Freedman's words, and I think they are apt in this case. He goes on:
"While such a sentence can, obviously, have a deterrent aspect, especially when sufficiently stringent conditions are imposed, there are some cases where denunciation and deterrence can only be effectively achieved by incarceration in custody. A breach of trust, committed over a long period of time and involving considerable sums of money, will typically be such a case. In these two situations we concluded for the reasons stated that custody is required, that the sentences were not unfit and that appellant intervention would be unwarranted."
[20] In the matter of the accused Mr. South the court has reach the conclusion that given the nature of the offence, the breach of trust involved, the continues nature of the frauds and thefts, the criminal record, the harm occasioned and the general purposes and principals of sentencing, a custodial terms of 15 months should be imposed.
[21] As the sentence is one under 2 years, the application of the conditional sentence regime must be considered.
[22] With regards to a potential conditional sentence, the law mandates that once a jail terms is determined to be appropriate, the primary considerations are the danger or risk posed to the public by the offender, and the general application of the fundamental principles and purpose of sentencing. It is not complicated. If jail is appropriate and the offender is not a danger to the public, then it is only an unfavorable application of the fundamental principles of sentencing that would deny a conditional sentence being imposed, subject to the other pre-conditions of s. 742.1.
[23] The Criminal Code sets up a comprehensive regime applicable to the definition, imposition, administration, supervision and enforcement of conditional sentences, through ss. 742.1 to 743.
[24] The Criminal Code sets out the principles of sentencing in sections 718 and 718.1 and 718.2.
718: The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,
(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or
(v) evidence that the offence was a terrorism offence
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
[25] Paragraph (e) of s. 718.2 is not simply a codification of existing sentencing principles but was intended to be remedial. As a general principle, it applies to all offenders, and states that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender. Paragraph (e) and other provisions in Part XXIII have placed a new emphasis upon decreasing the use of incarceration: R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688.
[26] The principles set out by the Supreme Court of Canada in R. v. Proulx (2001), 1 S.C.R. 61 in considering the provisions of section 742.1 of the Criminal Code include that the term may be longer if served in the community than that which would have been imposed as a jail sentence.
[27] Section 742.1 sets out four conditions that must be met before a sentence of imprisonment may be served in the community as suggested by the defence in this case:
1. There cannot be a minimum sentence required;
2. The sentence must be less than two years;
3. Permitting the offender to serve a sentence in the community would not pose a danger to the community;
4. Permitting the offender to serve the sentence in the community would be consistent with the fundamental purpose and principles set out in sections 718 to 718.2.
[28] The conditional sentence regime is clear and comprehensive. It is clear, and the Manitoba Court of Appeal has made it abundantly clear that a conditional sentence is a serious consequence; it has deterrent value and can often be considered harsher than a real jail term for various reasons.
[29] The conditional sentence regime is, in its entirety and in its philosophical thrust, an eminently reasonable and workable alternative to bricks and mortar jailhouses. In this regime the Courts are entrusted to impose conditional sentences in relatively restricted situations, and only upon satisfaction of a low degree of risk. The correctional system is entrusted to vigorously and effectively supervise the conditional sentence order.
[30] The gate keeping function of the judiciary is not to allow those with a high degree of danger to public safety the opportunity to serve a sentence conditionally, a danger which is presumed in sentences of two years or more. For those who are not a danger to the public, and who do not otherwise offend the fundamental purpose and principles of sentencing, they are to be permitted the privilege of serving their jail time in their homes under house arrest and supervision of restrictive conditions.
[31] The perceived public and, to a degree, prosecutorial negativity to conditional sentences can be deduced to be a by-product of a lack of enforcement and supervision. A person on a conditional sentence is theoretically and legally under the direction of a Supervisor, whose role and function are defined in the Criminal Code. The Supervisor, in the case of Manitoba an assigned probation officer with Community Services and Corrections, is given considerable summary power to both detect and enforce breaches of a conditional sentence order.
[32] Upon an allegation of a breach of a conditional sentence, one is essentially guilty until proven innocent. Reverse-onus provisions apply on bail. A breach hearing must be held within 30 days. Upon admission of proof of a breach, the entire balance of the conditional sentence, without parole credit for time already served, can be ordered. Almost invariably the breach charges, along with any new criminal charges, are heard before the same Judge granting the conditional sentence. It is a good regime.
[33] It may be argued that Judges should not be entrusted to determine who is a danger or not. But Judges make such decisions every day in many contexts. The Courts are often, as in this case, given a wealth of material, written and oral on each individual. The vast bulk of this important information is not disseminated to the public in any real way. The Court draws upon its individual and collective wisdom along with the individual case material before a decision is made. The Crown advocates for the Province in all cases and does not hesitate to advocate its position where a danger to public safety is perceived. There are considerable checks and balances systemically built within the sentencing process to minimize the likelihood of an improper assessment of risk and danger being made. This argument is without merit.
[34] As I have already said, in my opinion, the true culprit of a perceived lack of public confidence in the conditional sentence regime is the lack of supervision of sentenced offenders. In my considerable experience dealing with breaches of conditional sentence there is unarguably a singular lack of resources to enforce and supervise conditional sentences to the degree contemplated by the codified conditional sentencing regime.
[35] The enlightened and well legislated system of laws governing the conditional sentencing regime is regrettably undermined by this lack of resources.
[36] A judge is entitled to take a chance with a convicted person, particularly a youthful one, by exercising leniency in circumstances where leniency might not otherwise appear to be called for, provided there is some factor present in the case that is sufficient to warrant a reasonable belief on the part of the trial judge, going beyond a mere hope, that the leniency proposed to be extended holds some prospect of succeeding where other dispositions available might fail. Such a fact might be the indication of remorse, a glimpsed change in attitude on the part of the accused, or some other sign that the accused may have learned something beneficial from his past and present encounter with the criminal justice system: R. v. Quesnel and Smith (1984), 1984 CanLII 3475 (ON CA), 14 C.C.C. (3d) 254 (Ont. C.A.)
CONCLUSION
[37] In the case of Mr. South the Court has concluded that a conditional sentence is not appropriate. None of the factors that are cited in R. v. Quesnel ET. Al. is present, except perhaps an indication of remorse as expressed by the relatively early guilty pleas and as expressed in the PSR. I am not satisfied that Mr. South is not a danger to the public. The fundamental principals and purposes of sentencing would be contravened by the imposition of a conditional sentence. As I stated earlier the scope of this crime, the accused’s background including his criminal record, the harm done, his risk for reinvolvement, unresolved personal issues and the overall intent and purposes of sentencing do not militate in favor of a conditional sentence. The court also notes that the commencement of these crimes occurred within a short period of time after the conclusion of term of imprisonment of 29 months for robbery(x2), theft over $5,000 on May 6, 1998. That sentence would have been served by October, 2000, with these crimes commencing about 2 years later. Even as these crimes had occurred and were completed he appeared before the court again on a theft conviction in 2005.
SENTENCE
[38] The sentence will therefore be one of 15 months imprisonment, to be followed by 2 years of supervised probation on the following conditions:
1) to keep the peace and be of good behavior;
2) to report to the court as may be required;
3) to abstain absolutely from alcohol and non-prescription drugs
4) attend, participate and complete an addictions assessment at the Addictions Foundation of Manitoba and any treatment/counseling as required thereafter;
5) attend, participate and complete any other counseling and or programming as directed;
6) pay restitution of $64,000 to Sandra Young through the clerk of the court by the end of the probationary period.
[39] In addition, on the fraud over $5,000 charges the accused is to submit to the proper authorities a sample of his blood suitable for a DNA analysis pursuant to s. 487.051 of the Criminal Code.
[40] Costs and surcharges are waived.
“Original signed by:”
_____________________
FRED H. SANDHU, P.J.
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