Saying your dead when you are not dead is to act in False Pretences. R. v. King (E.G.), 1993 CanLII 8388 (NL SC).
R. v. King (E.G.), 1993 CanLII 8388 (NL SC)
Newfoundland Supreme Court Trial Division
Citation: R. v. King (E.G.)
Date: 1993-06-29
Docket: 1993 St. J. Nos. 647, 648, 649
Between:
Her Majesty the Queen
and
Elam Gregory King
Green, J.
Counsel:
Jennifer Colford and Edward Cardwell, for the Crown;
Sunitha Anjilvel, for the accused.
[1] Green, J. [orally]: Elam Gregory King has pleaded guilty to three counts of break, enter and theft contrary to s. 348(1) of the Criminal Code, six counts of false pretences contrary to s. 362(1)(a) of the Criminal Code and five counts of breach of undertaking contrary to s. 145(3)(a) of the Criminal Code.
The Offences
[2] The first break and enter offence, in point of time, occurred on September 10th, 1992. The offender and his brother, attended at the Kwick-Way Store, Shoal Harbour, Newfoundland and gained entry by breaking a side window on the building. Approximately $50 in cash was taken from the store.
[3] The second break and enter offence occurred on October 10th, 1992 at the Balbo Elementary School in Shoal Harbour. The offender, again with his brother, broke a window at the back of the school, enabling entry of the building to be obtained. While inside, the photocopy room door was damaged and the school safe was removed and broken open. Cash in the amount of approximately $300 was taken.
[4] The third break and enter offence occurred on November 10th, 1992 at the premises of Random Ford Sales Limited in Shoal Harbour. Entry had been gained to the building through a small window on the roof. Nothing appears to have been taken or damaged.
[5] The six false pretence offences all involved the tendering of bad cheques to various commercial establishments in Clar-enville or Shoal Harbour, Newfoundland. These offences all occurred between January 23rd and 29th, 1992. Two days before the offences occurred, the offender had opened up a bank account at Bank of Montreal, Clarenville with an initial deposit of $10 and obtained a number of free cheques. Without depositing any further money in the account, he wrote cheques in favour of various commercial establishments to obtain merchandise which totalled in excess of $900 knowing that there was not enough money in his account to cover the cheques.
[6] The break and enter and false pretence offences were committed to obtain money to buy hashish. The offender acknowledges having had alcohol and drug addictions in the past.
[7] The five counts of breach of undertaking resulted from the commission of the false pretence offences at a time when the offender was bound by an undertaking to keep the peace and be of good behaviour which was given on November 12th, 1992, at the time of his release respecting the break and enter offences.
The Offender
[8] The offender is 27 years of age and has a grade eight education. He is separated from his common law spouse and young child who presently live in Manitoba. He is currently unemployed and has been unemployed since leaving Manitoba in August 1992 to return to Newfoundland, his home province. Prior to that time he lived and worked at a variety of places in Ontario and Manitoba.
[9] He presently supports himself on unemployment insurance benefits.
[10] Although admitting that his criminal activity can be attributed to his dependency on hashish he, somewhat paradoxically, denies having any current substance abuse problem. The author of the presentence report comments in this regard:
“The accused appears unmotivated to address his addiction to soft drugs (i.e., hashish) at this time and thus mandating him into treatment would probably be of little benefit. It is the opinion of this writer that the accused remains a high risk to reoffend unless his current attitude towards his drug usage changes. It should be noted that the effectiveness of any community based addiction counselling program is certainly dependent on one’s level to fully participate.
“Given the accused’s past performance while on probation and the fact that he appears to be unwilling to address the problem areas within his life at this time, this writer does not feel that the accused would be a suitable candidate for supervised probation.”
Sentencing Principles
[11] (a) Approach to Sentencing. The protection of the public should be the primary objective in sentencing cases like the present. How this protection can be best achieved depends, however, on the facts of each case.
[12] The prime factor to be considered in protecting the public from break and enter offences is deterrence. Reformation and rehabilitation ought normally to be accomplished through a prison term and probation, rather than measurably diminishing the length of any incarceration: R. v. Powers; R. v. Waye (1991), 1991 CanLII 6838 (NL CA), 96 Nfld. & P.E.I.R. 1; 305 A.P.R. 1 (Nfld. C.A.).
[13] Having said that, it nevertheless must be borne in mind that, in the last analysis, the specific facts of the case and the circumstances surrounding the particular offender must be considered and will have an important effect on the ultimate sentence. All appropriate mitigating and aggravating facts must be considered.
[14] Deterrence should also be emphasized in false pretences cases because this crime usually involves premeditation in the form of a plan or scheme to misrepresent a state of facts and dupe an innocent and unwilling victim to part with money or property.
[15] (b) Consecutive Sentencing and Totality. In R. v. Crocker (B.J.) (1991), 1991 CanLII 2737 (NL CA), 93 Nfld. & P.E.I.R. 222; 292 A.P.R. 222, the Court of Appeal affirmed the general principle that all sentences should be consecutive unless there is a valid reason for making them concurrent. The two situations where sentences may be concurrent are where there are multiple convictions arising out of a single criminal adventure or where it is necessary to make them concurrent to achieve a proper totality.
[16] For break and enter offences, the Court of Appeal has held, in R. v. Dyson and Hawe (1982), 36 Nfld. & P.E.I.R. 532; 101 A.P.R. 532; 1982 CanLII 3708 (NL CA), 69 C.C.C.(2d) 265 (Nfld. C.A.), that concurrent sentences may be given for distinct and separate offences if they can be regarded as part of “an ongoing scheme” (per Mifflin, C.J.N, at 268 C.C.C.). Factors to be considered would be the length of time between the commission of the offences, the methodology used and the purpose for committing the offences.
[17] In this case, it is to be noted that the three break and enter offences occurred approximately one month apart and were all engaged in by the offender and his brother. The false pretences offences all occurred ‘ within less than a week of each other. All offences were committed for the same purpose of supporting a drug habit.
[18] The breach of undertaking offences all relate to the breach of the same undertaking by the commission of each of the false pretences offences. Whilst the commission of each separate offence while subject to an undertaking does constitute a separate offence under the Code, it has to be recognized that these offences in fact resulted from the fact that the offender was bound by a single undertaking, rather than separate undertakings given to the court.
[19] (c) Prior Record. The existence of a prior criminal record is obviously something that has to be considered by a sentencing court. Where, however, the offender has committed prior offences that are disparate in subject matter and time, they are generally not given any significant weight, although as the Court of Appeal has pointed out in R. v. Bennett (1981), 30 Nfld. & P.E.I.R. 512; 84 A.P.R. 512 (Nfld. C.A.), a long record of dissimilar offences may be relied on as showing a lack of regard for the law and a general propensity for criminality.
[20] Where the offender’s record relates to prior offences of a similar nature, this will normally be regarded as an aggravating factor: R. v. Murin (1980), 27 Nfld. & P.E.I.R. 9; 74 A.P.R. 9 (Nfld. C.A.).
[21] In this case, the offender has a prior record of property-related offences both in Newfoundland and Manitoba.
Analysis
[22] In this case, the facts as presented disclose two bursts of criminal activity, one in the fall of 1992 involving three break and enters and one in January of 1993 involving the six false pretence offences.
[23] The aggravating factors in this case are:
(i) The repetition of the offences.
(ii) The motivation for the offences, i.e., to supply a drug habit.
(iii) The offender’s prior criminal record which included a number of property-related offences. This has to be regarded as an aggravating factor because it indicates that the criminal acts for which the offender is now to be sentenced are not isolated incidents and he appears not to have learned his lesson from his convictions in the past.
[24] The mitigating factors I consider to be as follows:
(i) The guilty plea.
(ii) The relatively young age of the offender.
(iii) The co-operation shown by the offender to the police upon his arrest.
[25] In my view, the break and enter offences are sufficiently separate in time and in circumstance that they cannot, even under the principles in R. v. Dyson and Hawe, supra, be regarded as an “ongoing scheme” and therefore ought to be the subject of consecutive sentences.
[26] With respect to the false pretences offences, however, although they involve separate victims and the acquisition of different property in each case, these offences are very closely related in time and in criminal purpose. The three offences involving Foodland, Woolco and Shopper’s Drug Mart all occurred on January 23rd and should receive concurrent sentences. In like manner, the offence committed at Sobeys on January 25th, 1993, and at Mary Brown’s on January 26th, 1993 should also be sentenced concurrently.
[27] With respect to the breach of undertaking offences, they are all offences, as I have indicated, which involve the same breach of undertaking. A breach of undertaking is serious because it represents a disregard for legal authority and is an indication that the accused has little or no intention to reform. Sentencing for these offences should, therefore, be consecutive to the break and enter and false pretences offences. However, I do not think it appropriate that each of the breach of undertaking offences be sentenced consecutively. I will, therefore, make each of those sentences concurrent with each other.
Disposition
[28] Please stand.
[29] Having considered the submissions of the Crown and your counsel, the principles of sentencing and the mitigating and aggravating factors involved, I sentence you as follows:
[30] On Count No. 1, namely break and enter of Kwick-Way Store, Shoal Harbour, on September 8th, 1992 contrary to s. 348(1)(b) of the Criminal Code of Canada, I sentence you to a term of imprisonment of four months.
[31] On Count No. 2, namely break and enter of Balbo Elementary School, Shoal Harbour, on October 10th, 1992, contrary to s. 248(1)(b) of the Criminal Code, I sentence you to a term of imprisonment of five months consecutive to the sentence in Count No. 1.
[32] On Count No. 3, namely break and enter of Random Ford Sales Limited, Shoal Harbour, Newfoundland, on November 10th, 1992, contrary to s. 348(1)(b) of the Criminal Code, I sentence you to a term of imprisonment of six months consecutive to the sentence on Count No. 2.
[33] On Count No. 4, namely defrauding Foodland, Shoal Harbour, Newfoundland on January 23rd, 1993, contrary to s. 362(1)(a) of the Criminal Code, I sentence you to a term of imprisonment of two months consecutive to the sentence on Count No. 3.
[34] On Count No. 6, namely defrauding Woolco, Clarenville on January 23rd, 1992, contrary to s. 362(1)(a) of the Criminal Code, I sentence you to a term of imprisonment of two months consecutive to the sentence on Count No. 3 but concurrent with the sentence on Count No. 4.
[35] On Count No. 8, namely defrauding Shoppers Drug Mart, Clarenville on January 23rd, 1993, contrary to s. 362(1)(a) of the Criminal Code, I sentence you to a term of imprisonment of two months consecutive to the sentence on Count No. 3 but concurrent with the sentence on Count No. 4.
[36] On Count No. 10, namely defrauding Sobeys, Clarenville, on January 25th, 1993, contrary to s. 362(1)(a) of the Criminal Code, I sentence you to a term of imprisonment of three months consecutive to the sentence on Count No. 8.
[37] On Count No. 12, namely defrauding Mary Brown’s Restaurant, Clarenville, on January 26th, 1993, contrary to s. 362(1)(a) of the Criminal Code I sentence you to a term of imprisonment of three months consecutive to the sentence on Count No. 8 but concurrent with the sentence on Count No. 10.
[38] On Count No. 14, namely defrauding Canadian Tire Associate Store, Clarenville, on January 29th, 1993, contrary to s. 362(1)(a) of the Criminal Code, I sentence you to a term of imprisonment of three months consecutive to the sentence on Count No. 12.
[39] On Count No. 5, namely breach of an undertaking entered into before Judge R. Whiffen on the 12th day of November, 1992, contrary to s. 145(3)(a) of the Criminal Code, I sentence you to a term of imprisonment of two months consecutive to the sentence on Count No. 14.
[40] On Count Nos. 7, 9, 11 and 13, each involving breaches of undertaking contrary to s. 145(3)(a) of the Criminal Code, I sentence you to terms of imprisonment, with respect to each count, of one month to be served concurrently with the sentence on Count No. 5.
[41] For greater certainty the total period of imprisonment shall be two years.
[42] I hereby place you on probation for a period of two years from the day you are released from prison subject to the statutory conditions to keep the peace and be of good behaviour and to appear before the court when required to do so, and subject as well to the following additional condition:
“Not to be within 20 metres of Kwick-Way Store, Balbo Elementary School or Random Ford Sales Limited, Shoal Harbour, Newfoundland, at any time for any reason except when specifically invited in by the proprietor or principal, as the case may be.”
[43] I am not ordering you to pay a victim fine surcharge in this case because I am not satisfied that you have any ability to pay it.
[44] Pursuant to s. 737(4) of the Criminal Code, I direct the Clerk of the Court to cause a Probation Order to be read by or read to the offender and to cause a copy of the Order to be given to him. I hereby inform you that, pursuant to s. 740 of the Criminal Code, a person bound by a Probation Order and who wilfully fails or refuses to comply with that Order is guilty of an offence punishable on summary conviction. I hereby further inform you that, pursuant to s. 738(4) of the Criminal Code, where a person bound by a Probation Order is convicted of an offence, including the offence of breach of probation, the court may, in addition to any punishment that may be imposed for that other offence, make changes in or addition to the conditions in your Probation Order and extend it for up to one further year.
CORRIGENDUM TO SENTENCING DECISION OF GREEN, J.:
[45] On June 29th, 1993, I sentenced Elam Gregory King with respect to three counts of break, enter and theft, six counts of false pretences and five counts of breach of undertaking.
[46] Individual periods of incarceration were given with respect to each count. Some sentences were expressed to be served consecutively to each other and others were expressed to run concurrently with respect to the sentences on certain other counts.
[47] It was my intention in sentencing Mr. King that he serve a total period of imprisonment of two years. Taking into account the principles of totality and the interrelationship of some of the offences, I felt that this was the appropriate total sentence. Both counsel for the Crown and counsel for Mr. King expressed a similar point of view during the sentencing hearing.
[48] It has now been brought to my attention that the 14 warrants of committal of Mr. King to a Penitentiary which were issued and signed by the Assistant Deputy Registrar of this court pursuant to the oral sentencing decision given by me in court, although reciting in each case a total period of imprisonment on all 14 counts of two years, stipulate individual terms of imprisonment with respect to each count which, when totalled, amount to 25 months.
[49] The individual consecutive sentences are as follows:
Count No. 1: 4 Months
Count No. 2: 5 Months
Count No. 3: 6 Months
Count No. 4: 2 Months (Count Nos. 6
and 8 concurrent)
Count No. 5: 2 Months (Count Nos. 7,
9, 11 & 13 concurrent)
Count No. 10: 3 Months (Count No. 12
concurrent)
Count No. 14: 3 Months
25 Months -- Total Consecutive
Imprisonment
[50] I have reviewed the official tape recording of what I said in court during the delivery of my sentencing decision and it appears that when each of the individual consecutive sentences is added together, the total amount of consecutive time does in fact amount to 25 months. The record of the hearing also discloses, however, that I expressly indicated that my intention was to impose a total period of imprisonment of two years, or 24 months. This period of imprisonment was necessary if Mr. King was to be imprisoned in a Federal Institution and nevertheless be made subject to a Probation Order upon his release. Any period of imprisonment exceeding two years would not give the court jurisdiction to impose probation. The fact that I did impose a probation order confirms that it was my intention, as expressed during the Sentencing Decision, to impose a total period of incarceration that would be exactly two years.
[51] Having entered court with the intention of imposing consecutive periods of imprisonment on individual counts that would total to exactly two years, and having checked the addition on each count before entering court, it is clear to me that for some inexplicable reason, when sentencing on Count No. 5, I stated that the period of imprisonment would be two months when in fact it was my intention to impose one month on that particular count (and on the related concurrent counts). That accounts for the discrepancy between the total of the periods of incarceration on all counts and my statement in court that the total period of imprisonment would be two years.
[52] Accordingly, my sentencing decision, as stated in court does not reflect my true sentencing intent at that time; indeed, the disposition is inconsistent on its face.
[53] I believe that I have power in these circumstances to correct what is obviously an error in what was expressed in court.
[54] Generally speaking, once a court has imposed sentence, it becomes functus officio. An exception to this principle exists where, however, it is necessary to correct clerical errors: Ewaschuk, Criminal Pleadings and Practice in Canada (2nd Ed.), para. 18.1190.
[55] In Ruby, Sentencing (3rd Ed.), pp. 8285, the author discusses a number of cases where the doctrine of functus officio prevented a sentencing judge from subsequently. altering a sentence previously imposed. In those cases, however, the sentencing judge either purported to add a further disposition to the sentencing decision or to change his disposition on the basis of further facts having come to light. Ruby draws the following distinction:
“A general distinction has been made between matters of judicial adjudication, where the doctrine of functus officio applies, and administrative acts which are not part of the judicial function reposing upon a court by virtue of the Criminal Code for the purposes of a judicial disposition of a case.”
[56] In Ex parte Stokes (1951), 1951 CanLII 421 (ON SC), 100 C.C.C. 238 (Ont. H.C), the appeal court on an appeal against conviction and sentence intended to substitute a conviction for another offence and to impose a sentence for that other offence, but the formal order omitted any reference to the fact that the court passed a sentence in substitution for the sentence passed by the trial court. In an application for habeas corpus on the basis that the warrant of committal of the prisoner was defective and unsupported by the order as varied on appeal, McRuer, C.J.H.C., commented at p. 241:
“While it is perfectly apparent that the intention of the court-was to sentence the prisoner to suffer the same punishment as had been imposed on him by the magistrate ... the formal order does not disclose that such sentence was in fact imposed.
“Unless the court finds it is functus officio there would appear to be nothing to prevent the court of appeal now passing sentence. In any case a court has always jurisdiction to control its own orders so that the formal order may express the true meaning and judgment of the court.” (emphasis added)
On a subsequent motion before the Court of Appeal for rectification of its formal order the court made the necessary rectification: 1950 CanLII 407 (QC CA), 100 C.C.C. 242 n.
[57] Although in Stokes, changes were made to conform with the expressed judicial disposition, it seems to me that where for whatever reason the words uttered by the judge in fact do not conform with his true intent and that is demonstrated by an inconsistency with the language of the rest of his judgment, it is open to the sentencing judge to clarify his true intent and, once his sentencing disposition is so clarified, the warrant of committal must then be rectified to conform with the judicial disposition according to its true intent.
[58] Whilst I recognize that this is not a case of a clerical error in an administratively-prepared document following disposition, it is also not a case of the court attempting to revise or change its originally-intended disposition. There was an error, a slip of the tongue, so to speak, in what was stated in court based upon an addition error. That is akin to a technical or clerical change rather than a substantive change. It amounts to a rectification to conform with what was originally intended, rather than a subsequent amendment.
[59] The fact that the original judgment and the warrants of committal disclosed an inconsistency on their face between the stated total period of imprisonment (two years) and the total of the periods of imprisonment for reach individual count (25 months) confirms that any correction made now is not an attempt to alter a previously imposed sentence but is to clarify what the original sentencing intent was.
[60] I have considered whether it would be more appropriate to leave it to one of the parties to appeal the judgment and to obtain relief in that manner; however, I do not believe that it is consonant with justice that a party ought to be put to the time, inconvenience and expense of a formal appeal, even if the other side were not to oppose it. In any event, it seems to me that an appeal court might have difficulty in dealing with the matter as an appeal since, aside from the inconsistency in the judgment, an understanding of the nature of the error and what was really intended depends upon information which does not form part of the record.
[61] Accordingly, I hereby correct my reasons for judgment in my sentencing decision of June 29th, 1993, by deleting the words [in paragraph 39] relating to Count No. 5, “I sentence you to a term of imprisonment of two months consecutive to the sentence on Count No. 14” and substituting therefor the following:
“I sentence you to a term of imprisonment of one months consecutive to the sentence on Count No. 14.”
[62] The Assistant Deputy Registrar is hereby directed to rectify Warrant of Committal No. 10 (corresponding to Count No. 5) accordingly and to forward forthwith a Warrant of Committal, as rectified, to the appropriate authorities. Order accordingly.
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