R v. St. Arnault, 2008 ABPC 207 CanLII The accused has pleaded guilty to three charges: (1) Possession of merchandise having a value exceeding $5,000.00, the property of Staples Business Depot, and obtained from the commission in Canada of an indictable offence (section 355(a) of the Criminal Code);
R. v. St. Arnault, 2008 ABPC 207 (CanLII)
| Date: | 2008-07-09 |
| Docket: | 060809928P101003; 060809928P101005; 060809928P101007 |
| Citation: | R. v. St. Arnault, 2008 ABPC 207 (CanLII), <http://canlii.ca/t/225bq>, retrieved on 2017-12-30 |
- Cited by 0 documents
In the Provincial Court of Alberta
Citation: R. v. St. Arnault, 2008 ABPC 207
Date: 20080709
Docket: 060809928P101003
060809928P101005
060809928P101007
Registry: Calgary
Between:
Her Majesty the Queen
- and -
Denis Philias St. Arnault
Corrected judgment: A corrigendum was issued on November 4, 2008; the corrections have been made to the text and the corrigendum is appended to this judgment.
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Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment.
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[1] The accused has pleaded guilty to three charges:
(1) Possession of merchandise having a value exceeding $5,000.00, the property of Staples Business Depot, and obtained from the commission in Canada of an indictable offence (section 355(a) of the Criminal Code);
(2) Theft of mail sent by post, after it was deposited at a post office and before it was delivered (section 356(1)(a) of the Criminal Code);
(3) Possession of merchandise having a value exceeding $5,000.00, the property of Rona Building Supplies, and obtained from the commission in Canada of an indictable offence (section 355(a) of the Criminal Code).
Issues
[2] The overarching issue is the appropriate sentence to be imposed; the primary issue is whether a Conditional Sentence Order is appropriate.
Facts
The Offences
[3] The facts relating to the offences were entered into the record by the filing of a “Statement of Agreed Facts”.[1] The relevant portion of that document reads as follows:
STATEMENT OF AGREED FACTS
The accused, Dennis St. Arnault, who stands charged on Information 060809928-P-1, hereby admits the following facts:
1. The accused started working for Canada Post in February 2003. His duties included picking up letters, flyers and parcels from Depot 16, located at 431 - 68th Avenue N.W., and delivering these items of mail to addresses in Calgary.
2. Between February 1, 2006 and May 19, 2006, Canada Post investigated the accused because it was concerned he was not delivering all of the letters, flyers and parcels entrusted to him.
3. The Canada Post investigation concluded the accused had not delivered all of his mail. It terminated his employment on May 19, 2006 and it contacted the Calgary Police Service.
4. Based on the Canada Post investigation and its own inquiries, the Calgary Police Service obtained a search warrant and executed it at the accused’s residence, located at [...], on May 23, 2006.
5. Police arrested the accused when it executed the search warrant.
6. Police seized numerous items, linked to Canada Post by packaging and labeling, at [...]. The seized items belonging to Canada Post included:
a. packaging including 25 empty plastic Canada Post containers and 2 big boxes containing numerous empty paper boxes with Canada post labels;
b. electronics including a cell phone, a cordless phone, a camera and a camera security system, an HP computer, 2 monitors, 2 modems ink cartridges and assorted software;
c. home entertainment items including a retro stereo, a subwoofer, 2 DVD players, 40 assorted DVDs, 12 satellite receiver boxes, 2 digital projectors, 2 satellite dishes, a home theatre system and an X-box;
d. toys including a chess set, a dart board set, a playground set, a collectable toy car and a Sony toy robot;
e. collector hockey items including a jersey, cards and an opened addressed parcel containing new hockey accessories;
f. other collectors items including 14 coin sets and 7 Swarovski figurines;
g. jewelry including costume jewelry, a jewelry box and 14 watches;
h. a virtual aquarium;
i. 3 wrapped Christmas gifts addressed to different people;
j. 3 parcels in a garbage bag;
k. assorted, addressed and undelivered mail throughout the residence;
l. 1 black garbage bag containing assorted opened mail;
m. 72 addressed and undelivered magazines; and
n. 63 plastic Canada Post containers with undelivered flyers inside.
7. The accused worked part time for Rona Building Supplies from October 1999 to May 2006.
8. While executing the search warrant for the Canada Post related items, Police also encountered items with Rona and Staples Business Depot packaging and labeling.
9. Based on the discovered Rona and Staples items, Police obtained a second search warrant and executed it at the accused’s residence on May 24, 2006.
10. Police seized the following merchandise belonging to Rona including:
a. patio furniture and accessories including a patio table with 4 chairs and 2 loungers, 2 deck chair cushions, 4 plastic lawn chairs, an overhang umbrella, 2 wall speakers, 2 gas barbeques, a hot tub, a patio gas heater and a propane poweredmosquito magnet;
b. lawn and garden items including a metal shed, a garden gate, 10 cement stepping pads, 23 solar lights, 2 plastic swings, 16 bags of decorative landscaping rock, 11 sprinklers, a garden fountain and parts, a cordless trimmer and a power pack, a leaf blower, 3 lawnmowers, a fertilizer spreader, 10 bags of potassium chloride, 2 bags of turf builder, 2 rolls of weed barrier, a garden hose with a cart and a wheel barrow;
c. tools including 2 mitre saws (one with a planer stand), a pressure washer, an electric paint sprayer, 2 Shop Vacs, a stud finder, 2 ladders, a red tool box, 2 lock boxes and a portable air conditioner;
d. bathroom renovation and plumbing items including a toilet, a toilet seat, 3 shower doors, a pedestal and sink, a faucet set, a bathroom cabinet, 4 packages of silver and brass bathroom fixtures, 6 iron rails, 15 boxes of black slate tiles, a cocking gun, a shower base, a shower facet kit, a shower light kit, a heating lamp, an exhaust fan, a bath faucet set, a sink erator and a water softener;
e. lumber and fastening supplies including 173 cedar 2 x 4s in 8ft length, 93 cedar 5/4 x 6s in 8ft length, 79 cedar 4 x 4s in 8,9, & 10 ft lengths, 78 cedar 5/4 x 6s in 6 ft length, 74 cedar 2 x 6s in 14ft length, 55 cedar balasters, 46 pierces of deck lumber, 24 oak balasters, 10 2 x 8 in 6 ft length, 10 cedar 1 x 4s in 8ft length, 3 cedar 6 x 6 in 6ft length, 3 treated stair risers, 1 bundle of 2 x 2s and 2 boxes of screws;
f. lighting and electrical supplies including 37 light fixtures, 6 table lamps, 1 floor lamp, a 6 light chandelier, a GFI breaker and 2 spools of electrical wire;
g. 7 doors including 2 mirror doors, a garage door opener, a patio screen door, 2 folding closet doors and 2 French doors;
h. ceiling, wall and flooring supplies including hanging ceiling materials, 5 packages of ceiling tiles, 2 ceiling fans, 8 panels of slot wall, 6 heavy lattice pieces, 30 packages of cork flooring and a central vacuum;
i. insulation materials including 2 rolls of weeping tile, 6 packages of insulation, 4 insulation kits and 1 roll of vapour barrier;
j. wood finishing materials including 2 plastic pails of deck stain, 11 metal 3.79L cans of water proof finish, 1 case of wood cleaner, 1 large pail of deck and siding stain; and
k. an iron Christmas tree holder.
11. Police also seized the following merchandise belonging to Staples:
a. 2 Toshiba laptops and 2 laptop bags;
b. 4 printers, 72 ink cartridges, 108 packages of printer paper and a paper trimmer;
c. other computer hardware including 2 computer monitors, 3 speaker systems, 2 headsets, a document scanner, an emergency back-up pack, 1 x 120 GB external hard drive, 2 x 160 GB external hard drives, 7 wireless PC cards, a video card, 2 rumble pads, 3 mouse pads, 4 routers, a network adapter, a sound card, ,[sic] a modem, a cordless keyboard and mouse, 4 quickcams, 3 cordless optical mice, 2 x 128 MB memory sticks, 2 x 512 MB memory sticks, a cable lock, 2 DVD/CD rewritable drives, a digital pen, a connector for internet service, 7 usb cables, 10 usb ports, a usb adapter, 2 x 512 MB usb drives, a notebook security system, a wireless notebook adapter, a mobile power inverter, 24 packages of DVD spindles, 6 boxes of blank DVDs, a mini vacuum, 3 packages of lint wipes, 5 packages of cd [sic] cases, a powerbar, an extension cord, 48 blank cds [sic], 4 DVD drawers, 3 screen protectors, a screen filter, 3 CD walltes and a CD drive cleaner;
d. computer games and accessories including 5 joysticks and 89 computers games;
e. 55 software packages and 18 educational software programs;
f. 6 digital cameras, 2 digital camera docking ports and 10 packages of rechargeable batteries;
g. 3 PDAs and accessories including 3 palm pilots, 2 palm keyboards, 2 palm accessory kits, 2 palm hotsync usb cables, a palm stylus, 3 palm software kits, a leather PDA case, a screen protector and a palm usb adaptor;
h. office equipment including a 9" document laminator, an electronic dictionary and a scientific calculator;
i. miscellaneous items including a silver pen, a silver mini tripod, a wall clock, 3 desk lamps, 2 remote control holders, a hair dryer, a pedicure set, a watch / flashlight / multi-tool set, an aquarium lamp, a globe and an electric heater;
j. assorted office supplies including 2 plastic tubs and 1 Rona lock box containing assorted office supplies; and
k. children’s items including a learning game system with 21 games and 3 plastic tubs full of new arts and crafts supplies.
12. The accused admits he unlawfully stole the above mail sent by post, after it was deposited at a post office and before it was delivered. The accused also admits he was unlawfully in possession of the above items belonging to Canada Post, Rona Building Supplies and Staples Business Depot and that the total value of these items is in excess of $ 100,000.
Dated at the City of Calgary, in the Province of Alberta this 1 day of April 2008.
The Accused
[4] The accused is a 46 year old married male with no criminal record.
[5] The accused graduated from high school in 1979, and attended Okanagan College from September 1980 until April 1982. In 1982, he transferred to the geology programme at the University of Calgary. He completed three years of that programme, but left before graduating.
[6] His employment history is as follows: Canada Safeway Limited (December 1987 to May 2006); Rona Canada (part time; October 1999 to May 2006); Canada Post Corporation (part time; February 2003 to May 2006); Royal Bank of Canada (March 1990 to July 1998); Sears Canada Inc. (December 1985 to February 1992); Nuvista Homes Ltd. (January 29, 2007 to present). His current employer seems very satisfied with his work.[2]
[7] In 1995, the accused met his current wife and they married in 1998. They have two children, both of whom have medical problems (though the younger of the two suffers from the most serious problems with right sided weakness).
[8] The accused’s wife has suffered from depression for a long time. In spite of denials by the accused, there is some indication that the family struggles financially. There is now some counselling being provided to the family through a local counselling agency and social services.
[9] I have had the benefit of both a Pre-Sentence Report[3] prepared by the probation services of Alberta Solicitor General and Public Security, and a Pre-Sentence Risk Assessment and Treatment Recommendations Report[4] prepared by Dr. Denis Morrsion (psychiatrist with the Calgary Health Region). As part of Dr. Morrison’s report, I was provided a psychological report and a social worker report. I will refer to those reports later in these Reasons.
[10] In his report, Dr. Morrison made the following observations (which I accept):
On mental status examination the author of the present report observed and focused on [the] following:
The offender was well oriented as to time, space and persons, was of an adequate and appropriate level of consciousness, did not display any anomaly with reference to lower attention/concentration span, was able to focus correctly, did not display any memory impairment.
He did neither display impairment in thought process nor stream of thought.
However, as for content of thought, relating [to] the history of his life, noting also the peculiar affect displayed during such, the author was greatly perplexed by the following:
Somewhat of a flat affect, numb, without facial expression, as with someone who has been overwhelmed by too many stressors, as if desensitized of everything, not knowing what to think, how and what to feel; there is overwhelming more likely dysthymia, but not sufficient evidence to confirm still the presence of [a] major depressive episode; as if also the offender was still in a phase of shock and denial in the context of a post-traumatic stress disorder. He is not sad, helpless, hopeless, he is not desperate, he is not actively suicidal, has some hope that things will get better. His affect and mood are difficult to grasp and elicit, with great shyness, reserve and remoteness about self; there is no assertiveness, more a schizoid, withdrawn, remote type of relating or not relating to others. There is some sort of great indifference in mood and quasi absence of affect.
Judgement and insight are poor.
Law and Analysis
Crown Submission
[11] The Crown submitted that the appropriate global sentence is three years incarceration. The submission was to the effect that the combination of the mail theft and the possession of large amounts of stolen property necessitated a penitentiary term of imprisonment.
Defence Submission
[12] The accused submitted, through counsel, that the appropriate sentence is a period of incarceration served within the community pursuant to a Conditional Sentence Order followed by three years of probation.
Court Analysis
Sentencing Objectives
[13] The sentencing objectives in this matter are deterrence and denunciation.
Case Authorities
[14] In order to consider the appropriate range for this sentencing, a review of a representative collection of the case law is in order. From the many cases to which both counsel referred me, I will address only the ones which I find most helpful.
R. v. Lefebre (1982), 41 A.R. 26 (Alta. C.A.)
[15] A 21 year old male with a lengthy criminal record (including property offences, and house breaking) was convicted of possession of approximately $40,000.00 worth of stolen property. The property came from a residential house breaking, but the accused was not convicted of the break and enter.
[16] The majority of the Court of Appeal reduced the sentence imposed at trial from two years less one day to a period of 15 months incarceration.
R. v. Abbott (1992), 1992 CanLII 7086 (NL CA), 71 C.C.C. (3d) 444 (Nfld. C.A.)
[17] The Court of Appeal upheld sentences of three years for possession of $25,000.00 worth of jewellery stolen in a jewellery store break and enter. He was also sentenced to a consecutive one year term for a separate commercial premises break and enter. In approving the global four year sentence, Chief Justice Goodridge said, at paragraph 25:
It must be pointed out that the appellant did, in fact, have an extensive record extending back to 1969. He appears virtually to be an incorrigible criminal.
R. v. Andrews 1987 CarswellBC 908 (B.C.C.A)
[18] The 47 year old male accused was convicted of being in possession of stolen jewellery having a retail value of $35,000.00. The accused “had an extensive record between 1956 and 1977", but from then until this offence in 1985 there were no new convictions. The accused had led a stable life since 1977. He had married and was the father of a child. As a result of this offence he lost his employment, and his house. He was sentenced to two and one half years imprisonment on the basis that he was “fencing” the property. The sentence was upheld by the Court of Appeal.
R. v. Friesen, 1998 CarswellBC 1363; 1998 CanLII 4712 (BC CA), 109 B.C.A.C. 317 (B.C.C.A.)
[19] The 21 year old accused (20 years old at the time of the offence) pleaded guilty to 18 counts of possession of stolen property (the guilty plea was entered after the preliminary inquiry commenced). The accused had an unrelated youth record (it consisted of an offence of dangerous driving causing bodily harm) and an adult record of possession of marihuana. The accused had spent one year in pre-trial custody. The learned sentencing judge imposed a sentence of 15 months on each count, concurrent one to the other, followed by probation for two years.
[20] The circumstances of the offences for which he was being sentenced were described by Lambert, J.A. at paragraph 4:
4 The circumstances of the offences were that $30,000 worth of goods comprising some 90 different items were being stored in the house where this man was living with his grandparents, in the part of the house under the control of this applicant. The kind of items involved were household furniture and appliances and office furniture and appliances but they included a number of wetsuits, golf clubs, mountain bicycles, and a range of items of that description. From the total value of $30,000 it is apparent that the items or some of the items were of considerable value. Most of the items were identified as having been the subject of break and entry and theft offences in the regions of Osoyoos, Oliver, Okanagan Falls, and Penticton and one item from a more sophisticated burglary of a bicycle shop in Maple Ridge.
[21] Further, the Court noted that the serial numbers of some of the items had been removed which indicated “some degree of sophistication in the persons associated with the theft or the person responsible for possession of the stolen goods.” The evidence did not permit an inference that the accused was involved in “fencing” the items. He was just finishing a term of probation as the items were accumulated in the basement of his residence.
[22] As to the appropriate sentence in this case, Lambert, J. A. said at paragraphs 11-14:
11 I would apply that approach to the decision of the sentencing judge in this case. In my opinion, the acceptable range for this offender in the circumstances of this offence, bearing in mind particularly that this was a first property offence committed by someone with no relevant record, aged 20 years old, and having regard to the particular characteristics of the offence, would be somewhere between a sentence of six months and a sentence of 12 months. I say that is the acceptable range having regard to the cases to which we were referred. But I add that many of those cases as is often the case, were a markedly different offenders committing markedly different offences and of course with, in many cases, markedly different criminal histories.
12 I also say that the applicant in this case has spent six and a half months in prison and is not seeking a conditional sentence at this point. It is clearly not in his interest to do so. So in setting the range as an appropriate range of incarceration I do not wish to suggest that for a similar offender in similar circumstances it would be inappropriate to submit initially to the sentencing judge that a conditional sentence might be the appropriate punishment in the particular case.
13 The sentences in this case are outside the range which I have concluded is appropriate.
14 I would therefore grant leave to appeal, allow the appeal, and substitute a sentence that is a fitting one. Having regard to all of the evidence before us and to the particular circumstances I have mentioned I would set a sentence in the middle of the range that I have indicated as the appropriate range. Accordingly, I would substitute a sentence of nine months imprisonment for the sentences of 15 months on each count, all to be served con-currently. The probation order for a period of two years in the terms set by the sentencing judge should be retained with the exception of condition 5 about allowing police officers to enter his place of residence. That provision should be struck from the probation terms.
[23] No comment was made about the pre-trial custody credit which, if given at the usual credit of two for one and added to the 15 months ultimately imposed, would effectively make this sentence three years and three months. Given the comments that a CSO would have been available initially, I doubt the Court intended to send a message that the appropriate sentence was a penitentiary sentence. I think the better view is that the Court simply considered the pre-trial custody as one of the factors relevant to the determination of a fit and proper sentence. The sentence is the one imposed by the Court (i.e., 15 months each count, concurrent one to the other, plus probation). The sentence is not to be considered as being 15 months plus one year pre-trial custody: R. v. Mathieu, 2008 SCC 21 (CanLII), [2008] S.C.J. No. 21 (S.C.C.).
R. v. Tran 1995 CarswellBC 1283; 1995 CanLII 2038 (BC CA), 66 B.C.A.C. 60 (B.C.C.A.)
[24] The two accused persons pleaded guilty to possession of stolen property having a value in excess of $12,000.00. In affirming sentences of nine and twelve months respectively, Wood, J.A. said at paragraphs 4-8:
4 The appellants were charged following an investigation of residential premises at [...]. When the search warrant was executed at those premises on 10 December 1993, a large quantity of stolen clothing was seized. Subsequently, a portion of the clothing, worth over $12,500, was identified as having been stolen from various retail clothing outlets on the lower mainland. As was the case with the other three locations involved in the investigation, prior surveillance and under cover police investigations established a high volume of turnover in the sale of stolen clothing. An undercover police officer made a number of purchases from both appellants at that location.
5 Thanh Thi Tran is 29 years of age. She and her brother fled from Vietnam in 1983, making their way to a refugee camp in Hong Kong from which they were eventually sponsored to Canada by Canadian Immigration. She has resided for most of the past 11 years in Edmonton, Alberta. She married in 1984 and now has two children aged 10 and 5 years. She and her husband separated in 1993. In the year prior to this offence she was living in Edmonton on social assistance.
6 Ms. Tran has three prior convictions; two for theft of property under the value of $1,000 and one for possession of stolen property of a value not exceeding $1,000.
7 Minh Thi Nguyen is 34 years of age. She fled from Vietnam with her husband in 1983, eventually arriving in Edmonton, Alberta through Canadian Immigration sponsorship, after a short stay in a refugee camp in Hong Kong. She has three children, two by her husband from whom she separated in 1988, and one child born in 1994.
8 Ms. Nguyen has three prior convictions; two for theft of property over the value of $1,000 and one for theft of property of a value not exceeding $1,000.
[25] His Lordship concluded with these words (at paragraph 11):
11 As I indicated, when giving reasons disposing of the Crown appeals brought in connection with the sentences imposed on those other five persons, these are unique cases. This was a highly sophisticated stolen clothing operation, of tremendous size. It was obviously well organized. In those circumstances, in the absence of compelling circumstances peculiar to the offender, a custodial sentence was required, even in the case of first offenders, in order to satisfy the principle of general deterrence. There are no compelling circumstances peculiar to either of these appellants which would have justified the imposition of non-custodial sentences. On the contrary, each had three prior convictions for similar or related offences, this indicating the need for a custodial sentence which would address the requirement from both specific as well as general deterrence.
R. v. Altenhofen, [2003] A.J. No. 1206 (Alta. C.A.)
[26] The accused was a 50 year old married businessman with an old criminal record for possession of stolen property. He was convicted after trial on 11 counts of possession of stolen property and two counts of fraud. The total value of the property involved in both the possession of stolen property charges and the frauds was in excess of $400,000.00. The offences were committed over a period of more than one year. The stolen property was “large, expensive equipment such as loaders, crawlers and trucks. The fraud involved lease-back agreements for non-existent equipment” (paragraph 1).
[27] The Court of Appeal dismissed an appeal from the sentence of two years imprisonment imposed by the learned trial judge.
R. v. Jones, [2006] A.J. No. 263 (Alta. C.A.)
[28] The accused, who had no criminal record, pleaded guilty to a charge of fraud involving a breach of trust of some complexity which occurred over a four-year period and amounted to $26,800.00. The fruits of her crime were used for personal purposes.
[29] I was the sentencing judge at first instance, and the Court of Appeal dismissed an appeal from my sentence of 12 months imprisonment followed by 12 months of probation. I specifically rejected the use of a Conditional Sentence Order in the circumstances of that case. I held that properly considered, there was nothing unique about the offender or the circumstances of the commission of the offence which would justify deviating from the usual custodial sentence for a breach of trust.[5]
R. v. Headrick,[2005] A.J. No. 1032 (Alta. Prov. Ct.)
[30] I was the sentencing judge in this case. The accused pleaded guilty to three counts fraud/theft. The most egregious of the offences was that of stealing $43,045.69 from the Little League association of which he was President. He had no record, and used the money for gambling.
[31] I sentenced him to a global sentence of 12 months incarceration followed by 18 months probation.
R. v. Jaikaran, 2007 ABCA 98 (CanLII), [2007] A.J. No. 317 (Alta. C.A.)
[32] Chief Justice Fraser set out the facts in paragraph 2 of the decision:
2 Jaikaran, who had been the branch manager of a bank, pled guilty to theft over $5,000 as a result of his having stolen $633,000 over a five year period from the bank he managed. This was accomplished by charging discretionary commercial loan fees to clients of the bank which Jaikaran then diverted in multiple transactions to his own benefit. To implement his scheme, Jaikaran directed six different bank employees to divert the funds. He stopped only when a bank employee questioned a transaction which led, in turn, to an audit of the bank. The bank terminated Jaikaran’s employment immediately thereafter.
[33] Her Ladyship summarized the facts with this observation (at paragraph 6): “...The theft was deliberate, calculated and planned; it took place over a number of years; its motivation was greed; and it was carried out by Jaikaran’s involving innocent bank employees who fell under suspicion while the theft was being investigated.”
[34] The accused made full restitution to the bank.
[35] The Court of Appeal set aside a Conditional Sentence Order and replaced it with a term of actual imprisonment of two years.
R. v. McConnell, 2006 ABPC 129 (CanLII), 2006 ABPC 129 (Alta. Prov. Ct.)
[36] The facts were set out by Judge Brown as follows (at paragraphs 4-6):
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.
[37] The accused was 29 years old at the time of sentencing and had “a criminal record of 19 convictions over nine years (13 of which were incurred while he was a young offender), for property offences, including break-ins, thefts and fraud.” Five years separated the current offence and the last entry on the accused’s record. The Pre-Sentence Report was favourable.
[38] The learned sentencing judge said, at paragraphs 21-22:
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 judges’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.
[39] At paragraph 25, Her Honour said:
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.
[40] In reviewing the case law relating to the sentencing for mail theft, Judge Brown said (at paragraphs 28-29):
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 10 ½ 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 mus 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.
[41] Her Honour imposed a Conditional Sentence Order of 18 months.
R. v. Brazeau, 2007 ABPC 105 (CanLII), 2007 ABPC 105 (Alta. Prov. Ct.)
[42] A female, 25 year-old with no prior criminal record pleaded guilty to theft of mail (Criminal Code), and tampering with mail (Canada Post Corporation Act). The facts were summarized by Judge Shriar as follows (at paragraphs 3-4):
3 A detailed Statement of Facts, entered as Exhibit 1 at the sentencing hearing, was read into the record. In brief, Ms. Brazeau was employed by Canada Post for approximately five years and as of the start of the offence period was a Rural Suburban Mail Carrier, delivering mail both to individual residences and to community mail-boxes containing numerous units corresponding with different residential addresses. She also worked at a Canada Post office located in Okotoks, Alberta, and had access to mail distributed from that location.
4 She was arrested as a result of an investigation prompted by numerous complaints of missing or opened mail items. A search of her residence and vehicle resulted in seizure of dozens of credit cards, cheques, drivers’ licenses, social insurance cards, bank cards, gift cards, assorted bills, greeting cards, letters and other documents. Many, but not all, of the items claimed as missing by local residents on Ms. Brazeau’s mail routes were recovered.
[43] The accused had a drug dependency and the only reasonable implication one could draw is that the thefts were motivated by the financial pressures of feeding the drug habit.
[44] Judge Shriar imposed a Conditional Sentence Order of 15 months.
The Circumstances in the Case at Bar
[45] I agree with Dr. Morrison in his report when he says “[t]he offences for which this individual is appearing before the Courts are quite bizarre, especially with reference to the explanations given by the offender of why he did commit them....” Dr. Morrison went on to set out what the accused told him regarding the motivation for the offences:
He states the purpose of such was to give his depressed wife “presents so that it would make her going and be happy”. His wife Shannon would have had post-partum depression and would also be suffering from chronic pain syndrome, either fibromyalgia or chronic fatigue. In order to preserve his family, he decided to take “the brunt of the accusations”, and also for her not to have any charges against.
Asked why lumber from Rona building supplies was found in his garage, he answers both for renovations and “that things would get better”; he could not give me a more detailed explanation to that question. He also answers that the Canada Post parcels “were not for sale, it was for trying to keep her going (Shannon)”.
[46] With respect to the risk of re-offending, and overall conclusions, Dr. Morrison said:
RISK ASSESSMENT
With reference to risk of re-offending, one interesting and surprising data in the actuarial-historical static factors assessment of risk in the present dossier is that the offender is without any prior criminal history, which makes him already in the low risk category to re-offend; dynamic factors are not more impressive: neither actual nor prior substance issues, no negative peer influence but lack of social and community support system on the negative side with more likely facing major financial difficulties. Nevertheless overall if one looks at both static and dynamic factors on an HCR-20 basis for example, risk to re-offend is assessed as low.
DIAGNOSIS AND DIFERENTIAL DIAGNOSIS
More likely than not, Mr. St-Arnaud [sic] comes across with some form of dysthymia on axis I of the DSM; axis II is perceived as more prominent to the author in explaining both the functioning and especially dysfunctioning of the offender.
He comes across more likely as someone presenting with schizoid personality disorder, distancing himself if too close to someone, presenting with inadequacies in coping and social skills, not knowing how to address marital and family issues, thinking very irrational why trying t o [sic] solve human problems, as with the solution offered by the offences which inevitably lead to ultimate discovery and dire-straights legal and financial consequences. He also suffers from asthma; he has marital, family, work, financial and finally as consequence legal stressors; his global average functioning is rated at 40.
He does not come across more likely than not with major depressive episode or prior major depressive episode.
OVERALL OPINION AND RECOMMENDATIONS
There are a number of issues to be addressed in this complicated and strange dossier:
1- The offender is at low risk to re-offend considering the above discussion of static and dynamic factors considered both by the author and Mr. Lee.
2- The offender presnets more likely with personality functioning which is very problematic, schizoid and avoidant in nature necessitating treatment in the form of assertiveness training if this can be done either in outpatient facilities or correctional settings.
3- This personality dysfunctioning can explain the inadequacy of offending solution the accused chose in order to address his marital and relational difficulties.
4- Dysthymia can be approached through medication and counseling either in outpatient settings or within the context of incarceration.
5- Marital counseling and therapy should be fostered as soon as possible if there is no incarceration sentencing.
6- All of these opinions and recommendations do not rule out in a categorical way some possible concomitant instrumental purpose in the offender’s behaviour for which he was apprehended.
[47] Attached to Dr. Morrison’s report was a copy of a report by Mr. Daryl Dick (Social Worker with Forensic Assessment and Outpatient Services). In that report, Mr. Dick stated:
His wife Shannon stated that after the marriage things quickly began to change and she felt that they did not feel so close to each other in their relationship. She admits that although she felt this distance in the relationship she kept it to herself and did not discuss it with Denis. They had a number of significant stressors, especially when their two daughters were born. The oldest daughter is now five years of age and the youngest is two years of age and it appears that they both had significant medical complications in their early years which caused a huge amount of stress for Shannon and Denis and they were involved with many agencies including the Alberta Children’s Hospital..[sic] Shannon voiced concerned [sic] that they have no family or friends that will support them and even though her parents, two sisters and a brother are here in Calgary they show little interest in Shannon and Denis and the family. About four years ago she states that they “tried marital counseling” and that they attended once or twice a week for about three months but she says the agency kept changing the counselors on them and things just did not work out. Later the had been seeing a Counselor again, as recently as 2005, but after six months of counseling they were charged with their current offenses and the counseling ended.
According to Shannon, they experienced extreme stressors with the birth and subsequent complications [of] each of their daughters have had and she feels that they have struggled terribly since the children were born. Also, she says that she experiences chronic pain and her back which had started at age 17 but has been much worse since the children have arrived. Currently she has been attending the Pain Clinic but is uncertain as to how long she will be able to go because social services is paying for it and apparently there is a limit to how long the will fund her treatment.
Shannon states that she has had her own mental health issues and apparently she was seen at the Rockyview Hospital in February 2003 and by Dr. Gabriel in October 2005 but she seems to only have had some sort of assessment in each case and has not received follow-up care. She stated that she has phoned Access Mental Health for help and was told that because they’re facing legal charges they couldn’t be helped and because they haven’t been convicted of criminal charges there is also no help. She summed it up saying she fells “the door has been slammed” in their faces every time they try to get help no matter whether it is Social Services, Access Mental Health, or the other agencies they have had some contact with. She says that as far as their current relationship is concerned, “right now we are just roommates.”
Shannon says that she feels terribly about what happened and she believes that Denis only “did what he though was the right thing to do to keep them going as a family,” having felt neglected and even rejected by their own families (particularly her mother) and by the agencies they attempted to get help from.
In conclusion, although I spent quite a bit of time with him, it was difficult to get concrete and concise information from Denis. At times he tended to be a bit overinclusive [sic] and at other times he was vague and lacked clarity in his presentation. It was clear from his wife’s contribution that this couple’s relationship is in serious trouble and they continue to struggle on a daily basis to manage their own affairs and care for their children. I’m hopeful that I can identify some additional resources of recommend to her and have already given her one or two ideas.
[48] Through Dr. Morrison’s report, I have also had the benefit of a report authored by Michael Lee (a Clinical and Forensic Psychologist with FAOS). Mr. Lee stated in his report:
Mr. St. Arnault indicates he has no previous youth or adult criminal history. He has no history of behavior problems as a child or adolescence or substance abuse. He indicated at the time of his offences he was working 2 full time jobs at Canada Post and Safeway. He was also working a part time job and for a 3 year duration he only slept for 4 hours a day. His justification was “I had to do it”. He indicated he was trying to make things “better for us” and indicated that his wife was suicidal at times and he was quite worried about her. He has pled guilty to his offences that they also involved a breach of trust (Canada Post) and that he does not know the specifics because he doesn’t “ask questions”. When questioned about this, he indicated he is reluctant to ask for information from others because he views it as “prying” and he is a private person. He indicated that he pled guilty because he “doesn’t want the family pulled apart”. The victims of his thefts included Canada Post, Staples, Rona, and Sears according to the medical file review. He indicated that the thefts occurred for over a 3 year duration and started off at Rona. He indicated that he would steal lumber, lights, a garden shed, and a swing set for his children. He also took hardwood flooring and his perception was it was “for the house”. He denies he ever sold any of these objects. With Canada Post, he would take parcels and indicated it would have “different stuff”. He indicated the papers estimated the value was $200,000 dollars. He reports the material was “just in the house”. He reports that he was quite worried about his wife, he did not want her to hurt herself, he was fearful of her committing suicide, and reports his wife cut her arms last summer. When questioned about the motive or pay offs for his offences, he became quite vague and unable to articulate his motives except for family reasons. He did acknowledge, however, that on a few occasions he sold things through the bargain finder and the paper. Basically the theme was “to help my wife”, a relationship goal that he was trying to accomplish by stealing things. He felt, with distorted thinking, that this would “keep her going”. Overall, therefore, he denies a profit or financial motive for his offences and generally showed a lack of insight. The stressors preceding his offences included working 2 full time jobs (workaholic). He was only sleeping 4 hours a day and therefore one can assume he was quite fatigued. There were relationship issues that were chronic including his wife’s depression, chronic pain, and being suicidal at times. Because of his work schedule, he did not have time to spend with is wife or children. He indicated that he did not feel any support from his family and his wife was estranged from her own biological family. He also indicated that he felt quite depressed at times. Based upon his history and personality type, his offences appear out of character and related to significant psychosocial stressors.
[49] Mr. Lee’s report concludes with this summary:
Mr. Denis St. Arnault is a married 46 year old male with 2 daughters age 5 and 2. He has pled guilty to a variety of Theft convictions including a Breach of Trust situation with Canada Post. Mr. St. Arnault reports that he was raised in a small town in a large Catholic family being the 2nd youngest of 10 children. He reports that he was a sickly child with Asthma and Eczema and may have been somewhat over protected. Mr. St. Arnault initially completed his education in the vocational stream, but upgraded and took university transfer courses at Okanogan [sic] College. He subsequently attended the University of Calgary for 3 years in Geology but did not complete his degree. He acknowledges committing thefts over an approximate 3 year period and during this time frame was working excessively, not sleeping properly, fatigued, and reporting significant family problems and concerns related to his wife’s health (pain and depression). Also, during this time frame, he was unavailable emotionally to his wife and children because of his long work hours. The significant difference between his performance and verbal based abilities. His cognitive strength is with nonverbal problem solving consistent with his interest in the vocational stream while in high school. In contrast, he is showing much weaker verbal skills compared to himself, but not to the general population, but this may have been a contributing factory [sic] in having more difficulty in a university environment with its heavy emphasis on verbal problem solving and verbal skills. THE MMP1-2 indicates the presence of Depression and Anger. Due to psychological defensiveness, repression, and denial, it likely his anger is either denied or unrecognized. He presents with a profound lack of insight or unwillingness or inability to self disclose personal information due to being a very private person. He appears to operate on a cognitive vs. emotional level. Mr. St. Arnault has no criminal history, no history of substance abuse, and no behavioral onset problems in childhood. From a risk perspective, using traditional predictors of criminal recidivism, these factors are absent and therefore in my opinion his risk to reoffend is likely Low. From a clinical perspective, he appears to be in need of treatment for depression, stress management, assertiveness training, and couples therapy. Diagnostically, he presents with an Adjustment Disorder with Mixed Disturbance of Emotions and Conduct (chronic), Dysthymic Disorder (late onset), and V code of Partner Relational Problem. This is in the context of an individual who has passive, avoidant, and schizoid personality features and traits. Due to his difficulty with self disclosure, it will be important to rule out whether he has had a Major Depressive Episode.
[50] I have quoted at length from these reports (which I accept) because Mr. St. Arnault presents a very difficult sentencing problem. As Dr. Morrison pointed out, what the accused did is rather “bizarre”. He accumulated vast quantities of stolen items, and, for the very large part, simply kept them at his home. His explanation is somewhat disjointed and garbled, but it appears to be that he had the items in some effort to provide solace and support for his spouse who was undergoing great stress due to her health and that of her children. It seems evident from the reports of the mental health professionals that Mr. St. Arnault was also trying to compensate for his perceived failings as a supportive husband.
[51] In my view, greed did not motivate Mr. St. Arnault to commit these offences. Rather, these offences are better described as the clumsy, ill-considered acts of a beleaguered man facing family problems which overwhelmed him. The situation which developed was primarily due to the accused’s own psychological tormentors. Faced with a personal situation which engulfed him, and suffering from his own psychological difficulties, he chose a most inappropriate way of trying to deal with his family problems.
[52] It is my opinion that while each of the offences committed by the accused would usually attract a gaol sentence, those individual sentences would be less than two years, and would therefore fall within the range requiring Conditional Sentence Order consideration. However, assuming one were to impose consecutive Conditional Sentence Orders, one could not do so if the total of those sentences exceeded two years less one day: R. v. Frechette(2001), 2001 MBCA 66 (CanLII), 154 C.C.C. (3d) 191 (Man. C.A.). Consequently, it is necessary to determine whether the sentences imposed in this case should be served concurrently or consecutively.
[53] When one considers the entirety of the circumstances of these offences, I am of the view that one is compelled to conclude that were all part of one on-going occurrence (i.e., the accused’s response to his family problems, as he perceived them). These offences ought to be considered as one continuing event; they were the same sort of acts repeated over and over again and for the same psychological reasons. In these unique circumstances, I have concluded that Mr. St. Arnault’s commission of these offences justifies a sentencing response different from the usual. As a result, it is my opinion that the sentences imposed should be served concurrently.
[54] In my view, the sentencing principles and objectives set out in the Criminal Code would be properly served by the imposition of Conditional Sentence Orders. Accordingly, on each count, and to be served concurrently, I sentence the accused to a period of incarceration of two years less 1 day to be served in the community subject to the terms of Conditional Sentence Order. The terms of the Orders are as follows:
1. Keep the peace and be of good behaviour.
2. Appear before the court when required to do so by the court.
3. Report to a supervisor within two working days after the making of this order, and thereafter when required by the supervisor and in the manner directed by the supervisor.
4. Remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor.
5. Notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.
6. Attend Forensic Assessment and Outpatient Services (FAOS) at the Peter Lougheed Centre of the Calgary General Hospital, and such other agencies or counsellors as may be designated by the supervisor, to take such counselling and treatment (including medication), as recommended by FAOS or other health-care providers or the accused’s supervisor. Such counselling and treatment shall be directed towards, at least, assertiveness training and marital counselling, and dysthymia (if those treating the accused continue to be of the view that such treatment is appropriate). The accused shall provide proof satisfactory to his supervisor that he has taken such assessment, counselling and treatment, and he shall provide a waiver of confidentiality and privilege in favour of his supervisor so that his supervisor may receive reports and information from those assessing, counselling, or treating the accused.
7. Perform 200 hours of community service to the satisfaction of the supervisor within the first 18 months of this order, and in any event at a rate of not less than 10 hours per month. At the end of each month of the term of this Conditional Sentence Order the accused shall provide proof in a form satisfactory to his supervisor of the accused’s completion of his community service hours that month.
8. Reside only where approved by the supervisor.
9. For the entirety of this Order, but subject to paragraph 4 of this order, the accused shall be in his residence, or its grounds, at all hours except when:
(a) At his place of employment for purposes of work, or at the educational institution at which he is registered for the purpose of completing course related work or classes;
(b) travelling from his approved residence directly to and from work, or the said educational institution;
(c) performing his community service hours, or travelling directly to or from his approved residence for that purpose.
(d) authorized in writing by his supervisor to be absent from his approved residence;
(e) attending court as required;
(f) attending to medical emergencies involving himself or his immediate family;
(g) attending, or travelling directly to or from, the counselling or treatment required by this Order;
(h) attending or travelling directly to or from, religious services in pursuance of his religious faith.
The accused shall provide to his supervisor, in advance and in writing, details of the times and locations of his work, school attendance, religious services, and performance of his community service hours, together with the routes and modes of transportation he proposes to use to attend the said work, school, religious services, or the location at which he is to perform his community service hours. The routes and modes of transportation must be approved, in advance and in writing by his supervisor.
10. The accused shall maintain a non-portable, land line telephone at his approved residence (sometime referred to herein as “his telephone”), and shall keep his supervisor apprised at all time of that current telephone number. His telephone number shall not be subject to call-forwarding feature or service.
11. During those times that the accused is required by the Order to be in his residence, and is not excused in accordance with the terms of this Order from being in his residence, he shall facilitate supervision of compliance with the terms of this Order by presenting himself to the door of his residence when required to do so, and by personally answering his telephone when it is called.
12. At any time during the entirety of this Conditional Sentence Order, if the accused is outside his approved residence or its grounds, he shall have in his immediate possession a copy of this Conditional Sentence Order and any applicable permissions granted hereunder by his supervisor. He shall present that copy of his Conditional Sentence Order and any applicable permissions to any Peace Officer so requesting.
13. For the purpose of facilitating supervision of this Conditional Sentence Order, the accused shall consent to warrantless searches by a peace officer or such other person charged with the duty of providing supervision of this Order, of his person, residence, or any motor vehicle in which he is an occupant, or the registered owner, if that person has reasonable grounds to believe, and does believe, that a violation of this Order has occurred, or is about to occur.
14. To further facilitate supervision of this Conditional Sentence Order, the Accused shall, within ten days of the date of this Order, provide to his supervisor a consent to search the approved residence properly executed by each adult (or in the case of a minor, by a person authorized in law to sign on behalf of the minor) who resides, permanently or otherwise, with the accused in the approved residence. The consent to search shall be in a form approved by the Calgary Crown Prosecutor’s Office. Any such consent to search can only be used if the peace officer or other person charged with the duty of providing supervision of this Order has reasonable grounds to believe and does believe that a violation of this Order has occurred or is about to occur.
15. He shall not possess, purchase or consume alcohol or any substance forbidden by the Controlled Drugs and Substances Act, except as may be prescribed by a physician or a dentist.
Victim Fine Surcharge
[55] Finally, considering the financial struggles of the accused, I decline to impose any victim surcharges.
Dated at the City of Calgary, Alberta this 9th day of July, 2008.
A.A. Fradsham
A Judge of the Provincial Court of Alberta
|
Appearances:
A. Grobler
for the Crown
A. Sanders
for the Accused
_______________________________________________________
Corrigendum of the Reasons for Sentence
of
The Honourable Judge A.A. Fradsham
_______________________________________________________
Amendments done on September 29, 2008
1. Paragraph 9 (b): “... said educational institute” amended to read as “... said educational institution”.
2. Paragraph 11.: “... Order by presenting him ...” amended to read as “... Order by presenting himself ...”.
Amendments done on November 4, 2008
3. Page 25, under Appearances: corrected the spelling of Defence’s last name from “Saunders” to read as “Sanders”.
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