Supreme Court

R. v. Mulligan, 2002, NWTSC 34
Date: 20020419
Docket: S-1-CR2001000085

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- vs. -


KEVIN MICHAEL MULLIGAN


Transcript of the Oral Reasons for Sentence by The Honourable Justice J.Z. Vertes, at Yellowknife in the Northwest Territories, on April 18th A.D., 2002.


APPEARANCES:

Ms. S. Kendall:   Counsel for the Crown

Mr. G. Boyd:   Counsel for the Accused


Charge under s. 380(1) Criminal Code of Canada


THE COURT:   The offender, Kevin Michael Mulligan, has pleaded guilty to a charge of fraud contrary to Section 380(1) of the Criminal Code. That offence carries a potential maximum penalty of ten years in jail.

In this case the Crown suggests, as punishment, a term of actual imprisonment of 18 to 24 months. The defence submits that this is an appropriate case for a conditional sentence, that is to say, no actual imprisonment.

The plea of guilty came in the course of the trial on this charge, indeed it came partway through the offender's cross-examination, in front of the jury, by Crown counsel. While all guilty pleas are worthy of some credit, some are obviously worth more than others. Here, I give some credit for the guilty plea but, in all frankness, not very much. It came in the midst of a very effective cross-examination at a point where the offender literally put himself in a box by what appeared to me at least to be some blatant lies. I do not criticize his counsel in any manner. Defence counsel, in my opinion, has done the best that he could with an overwhelming case against his client.

The fraud was a business venture proposed by the offender to Jim Maysenholder. The project was to purchase some snowtrac vehicles from government

[Page 1]

surplus in Ontario, ship them to the Northwest Territories, and resell them for a profit. The offender was to handle all of the details and Mr. Maysenholder was to put up the money. Unfortunately there was no evidence of the existence of these vehicles much less any evidence of any actual attempts to purchase them. The offender forged correspondence from people in Ontario so as to deceive Mr. Maysenholder. Eventually the deception was discovered. Mr. Maysenholder has lost $9,500 in this scheme.

The offender, although he pleaded guilty and although he has said that he is sorry, still shows some signs of a lack of remorse. He still refers to this as a business venture gone bad. It was not. I think the evidence is overwhelming that it was a criminal fraud.

The offender is a mature man, 50 years old, responsible for a spouse and a young child. He is experienced in construction engineering. He is evidently well-liked as indicated by letters of support. Unfortunately, however, this is not the first time that he has ever been convicted.

In 1993, in Ontario, the offender was convicted of four offences. One was a conviction for fraud for which he was sentenced to six months in jail. He was also convicted of theft for which he was

[Page 2]

sentenced to nine months in jail (concurrent) . He was also convicted of obtaining merchandise by false pretences and breach of undertaking. I recognize that these convictions are almost ten years old but they have an impact on this sentencing, particularly so because of the fact that the past convictions, as the present one, were not the acts of some impulsive youth. They were the acts of a mature man; a man with an education and experience in business.

The fundamental principle of sentencing is proportionality. A sentence must be proportionate to the seriousness of the offence and the degree of blameworthiness of the offender. It is by necessity an individualized approach.

Counsel have referred me to numerous relevant cases for which I thank them. In some cases of fraud, even ones more apparently serious than this one, conditional sentences were imposed. In other cases, imprisonment was imposed. This just illustrates the individualized approach that I mentioned.

There is no doubt that the conditional sentencing provisions of the Criminal Code were introduced as a way of expanding the use of sentencing practices other than actual incarceration. I recognize that no type of crime and no type of offender is automatically eliminated from

[Page 3]

consideration. In this case, I would not have imposed in any event a sentence of more than two years of imprisonment so I have given, as I must, serious consideration to the appropriateness of a conditional sentence.

I readily acknowledge that the offender is not a danger to the safety of the community. I also recognize that conditional sentences are particularly well-suited to non-violent offences and offenders. But there is, in my view, a greater concern here.

Obviously one of the objectives of sentencing is the deterrence of the offender and others from committing similar crimes. A conditional sentence undoubtedly has deterrent effect but, in all honesty, not as much as imprisonment.

Here, we have a mature offender who engaged in a fairly deliberate scheme of deceit for, frankly, not that much money. But it certainly took some planning on his part. He has already in his life been convicted and punished for the same type of conduct. In this situation the degree of personal moral blameworthiness on the part of the offender is obviously and particularly high. Hence the need to satisfy the objective of deterrence is high. And, when punitive objectives such as deterrence and denunciation are particularly pressing, then

[Page 4]

generally incarceration is the preferable and more appropriate sanction.

There is no evidence that the offender engaged in this scheme because of external financial or emotional pressures. There are indeed, with the exception of the guilty plea, even coming as late as it did, no mitigating circumstances.

For these reasons, I have concluded that there is no alternative to a term of imprisonment.

Stand up, Mr. Mulligan.

Mr. Mulligan, you are a mature man and an intelligent one so I am not going to lecture you any further. I am sure that you understand the sentence and why I impose it.

The sentence is that you are to serve a term of imprisonment, of actual incarceration, of 12 months. In addition, I place you on probation for a period of 18 months following your release. The terms of that probation will be the usual statutory terms; that is, you are to keep the peace and be of good behaviour. If you commit any further crimes during that period, if you do not follow these conditions, you may be charged for that. You are to report to a probation officer upon your release. You are to make restitution during the period of your probation in the sum of $9,500 to Jim Maysenholder. Do you understand those terms, sir?

[Page 5]

THE ACCUSED:  Yes, sir.

THE COURT:   Under the circumstances, I decline to impose a victim of crime fine surcharge.

You may have a seat.

Is there anything else, counsel, that I have neglected?

MS. KENDALL:  No, sir.

MR. BOYD:   No, sir.

THE COURT:   Then thank you for your submissions, counsel, and we will close court.

(AT WHICH TIME THE ORAL REASONS FOR SENTENCE CONCLUDED)


Certified pursuant to Rule 723 of the Supreme Court Rules.


Lois Hewitt,
Court Reporter

[Page 6]