Supreme Court

R. v. Martin, 2003 NWTSC 55
Date: 20030926
Docket: S-1-CR-2003000037; S-1-CR-2003000038

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- and -


CURTIS ROY MARTIN


Transcript of the Reasons for Sentence delivered by The Honourable Justice V.A. Schuler, sitting in Yellowknife, in the Northwest Territories, on the 22nd day of September, A.D. 2003.


APPEARANCES:

Ms. S. Smallwood:  Counsel for the Crown

Mr. J. Terhart:   Counsel for the Defendant


(Charges under a. 334(a) and 356(1) (a) of the Criminal Code of Canada and s. 4 of the Controlled Drugs & Substances Act)


THE COURT:   Now, with respect to Mr. Martin, he has entered a guilty plea and has now been convicted of theft over $5,000. I have already referred to the facts in Miss Lepine's case, but I will just summarize them again for purposes of this sentencing.

On two occasions, June and November of 2000, while working for Matco moving company, Mr. Martin stole packages of money destined for the Bank of Montreal. Matco had the courier contract from Canada Post to deliver the mail, and the packages were in the mail. The two packages taken contained a total altogether of $100,000.

Various informants or tipsters led the police to Mr. Martin and his common-law spouse, Ms. Lepine, and they were arrested in December 2002 and each gave a warned statement.

Only Mr. Martin had actually carried out the thefts, but Ms. Lepine helped him spend the money. None of the money has been recovered. It was spent on friends, trips, recreational items, and drugs. Both Ms. Lepine and Mr. Martin were employed at the time, so this wasn't a situation of financial need. The only conclusion I can come to is that it was simply greed on the part of Mr. Martin in taking the money.

Now, there is an indication from the facts in the Agreed Statement of Facts that Mr. Martin may have

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been trafficking in marijuana, although the Crown has not pursued the possession for the purposes of trafficking charge. So I'm not sentencing him for that. I think at most it can be considered an aggravating factor.

Defence counsel characterizes the thefts as opportunistic, and on the Agreed Statement of Facts before me, there is certainly no indication of any great amount of planning. But I do note paragraph 13 of the Agreed Statement of Facts does indicate that Mr. Martin had told Ms. Lepine that he knew there was money in the packages because he had previously seen and delivered a similar money package which was damaged and he could see that it contained cash. So this does not seem to be a case of money just falling into the hands of Mr. Curtis (sic). He gave it some amount of thought, or at least that is what I conclude from the circumstances.

Mr. Martin was held in custody for six months, having been released in June 2003 on a recognizance with conditions.

His counsel has indicated that it was from the beginning Mr. Martin's intention to plead guilty and not require a trial. He waived the preliminary hearing in this matter. And I do take those as substantial mitigating factors, along with the fact, obviously, that he did plead guilty.

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Mr. Martin is 26 years old. He is originally from Ontario, has a Grade 13 education, and left Ontario to look for work in the west. In the summer of 1999, he arrived in Fort Smith and he has had various jobs since then, including the job that he had with Matco. He had begun training as a teacher's aide shortly before his arrest and then was not able to receive the funding through the Workers' Compensation Board for a work injury which had allowed him to take the teacher's training and so was obliged to obtain other employment. As I understand it, it was because of the charge, in effect, that he was not able to receive the funding; that they didn't think that the teacher training was any longer a viable option for him. However, he has indicated that he does hope to go back to the teacher's aide course.

Mr. Martin does have a criminal record. He was convicted in 1995 as a young offender in Ontario of the offence of armed robbery and use of a firearm in the commission of an offence. He received 12 months secure custody for that. I do take note of the fact that that was eight years ago. In 1999, as an adult, he was convicted of possession of stolen property (that involved a licence plate) and he received a $200 fine. So the record is related, and the 1999 offence, although it is not what we would normally consider very serious, wasn't -- or occurred not long before

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the offence for which he is now being sentenced. In my view, the real concern with the record is the robbery offence, and I do, as I said, keep in mind that he was convinced of that, or found guilty of that, as a youth and that it was eight years ago. Nevertheless, I infer from what is on the record and the sentence that it must have been a serious example of robbery.

The Crown in this case seeks a sentence of two years and or in the range of two years, and acknowledges that Mr. Martin should be given credit for his remand time. Defence seeks a sentence of less than two years and asks that it be made conditional. In other words, that it be served in the community.

This is a case of breach of trust, clearly. It was theft from an employer. Or perhaps in this case it is more correct to say by means of his employment, he was able to commit the theft from the bank.

Counsel have put many cases before me, some of which are very familiar to me and some which are not. I have reviewed them all, and as always, they have similarities to, and also differences from, Mr. Martin's case.

Sentencing always has to be individualized, bearing in mind that fairness requires that there be some parity in the sentencing of those who commit similar crimes in similar circumstances.

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The sentence to be imposed in this case must serve the principles of denunciation; in other words, show that society condemns this offence, and also general deterrence. In other words, the sentence should try to discourage others from committing similar offences. Also because of his record, the sentence I impose should serve individual deterrence. In other words, it should discourage Mr. Martin from committing similar offences in the future. Now, previous and also some of the guiding cases have indicated that a conditional sentence can serve those purposes. So in that sense, a conditional sentence is available.

In light of the six months pre-trial custody, which I would credit as one year according to the principles that are set out in the Wust case from the Supreme Court of Canada, I take a view that a sentence of less than two years is available and would be appropriate in this case, and therefore, again, that is the reason mandating a conditional sentence at least be considered.

I have to be satisfied under the conditional sentence provision, Section 742.1, that Mr. Martin serving a sentence in the community would not endanger the safety of the community. As has been pointed out, the Supreme Court of Canada, in the Proulx case, indicated that consideration of whether an individual

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serving a sentence in the community would not endanger the safety of the community has to include consideration of the risk of any future criminal activity including property of fences. So Mr. Martin's criminal record is relevant in this sense. Also relevant to this consideration is the fact that while on release, which was for a period of some three to four months, he was on fairly strict conditions and apparently was able to comply with them, and he does not have any prior of fences on his record of breaching Court orders.

In considering this issue, the main factor, I think -- or the factor that is perhaps the most troublesome is the robbery conviction. I suppose the question is whether I should conclude from that and the offence of which he's now convicted that he is therefore a danger to the safety of the community, or should I consider or perhaps put more weight on the fact that the robbery conviction forms part of a youth record and, as I've said, is eight years old?

So on balance, in considering all those factors, I have come to the conclusion that Mr. Martin serving his sentence in the community would not endanger the community safety and that any risk that may be present there can be addressed through conditions.

I take into account that the offence for which I am sentencing Mr. Martin is not a violent offence. In

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my view, that is important. It is, however, an offence involving theft of a -- what I would call a very large amount of money. And it's also serious because of the fact that this was theft from the mail, and I think that has to be considered perhaps differently from some other types of theft considering that the community at large puts its trust in the mail and when someone steals from the mail, someone in the position of trust, that can only damage the community's trust in the mail system and cause concern to those who do use the mail system for important transactions.

I do take into account that in this case there are two instances of theft rather than an accumulation of many or repeated instances of smaller thefts as occurred in some of the cases that counsel have provided to me. For example, the Cleary case. I also take into account that there is no indication in this case of any real scheme or well-devised plan as there was in the Mulligan and Bedard cases.

So considering all the circumstances, and again, as I say, what has perhaps been the most troublesome in this case is the robbery conviction, but seeing it in light of the fact that it did occur when Mr. Martin was a youth and that it was eight years ago, I have come to the conclusion that I can and will impose a conditional sentence, and I also consider very

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important to this decision the pre-trial custody. In other words, he has already served a year, in effect, and in my view, his efforts should now go into repaying the money.

So stand, please, Mr. Martin.

I'm going to sentence you to a term of imprisonment of 18 months to be served in the community. The conditions are that you keep the peace and be of good behaviour, that you appear before the Court when required to do so by the Court, that you report to the conditional sentence supervisor within four working days of today here in Yellowknife and thereafter when and where required by the supervisor and in the manner that he or she directs.

The fourth condition will be that you remain within the Northwest Territories unless you have written permission to go outside the Northwest Territories from this court or your supervisor.

The fifth condition is that you will 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 in employment or occupation.

Six, you will advise the supervisor of your employer's name, place of employment, hours of employment, and any change in the place, in other words, location, or hours of employment. And if you have more than one employer, that will include all

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employers.

Seven, for the full term of the conditional sentence order, you will remain indoors at your residence, 24 hours a day, except for the following: (a) to report to the sentence supervisor as directed by him or her; (b) to go to and from and be at your employment; (c) to obtain emergency medical attention for yourself or your common-law spouse; (d) for one period per week of not more than three hours to obtain groceries and other necessaries.

Condition number eight, you will cooperate fully with random checks by telephone and in person by your supervisor or the RCMP to verify your compliance with this conditional sentence order.

Condition number nine. And, Counsel, the conditions with respect to restitution, although I am not inviting you to re-argue the case, when I finish this, if you feel that I have done something that is unworkable or may cause some problems, I invite you to comment. You will pay $7,000 before the end of this month and, thereafter, $1,200 per month on or before the last day of the each month during the term of this order as restitution payable to the Clerk of the Court for furtherance to the Bank of Montreal.

Now, a copy of this order will be given to you by the clerk who will explain it to you and will explain also the substance of Section 742.4 and 742.6, and the

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procedure for applying to change the optional conditions.

I want you to be aware, Mr. Martin, that if you breach any of the conditions, you may be brought back and you may be ordered by the Court to serve any or all of the unexpired portion of the sentence in jail. In other words, it would turn into a jail sentence. It may turn into a jail sentence if you breach the conditions. Do you understand that?

THE ACCUSED:  Yes, I do.

THE COURT:   All right. Now, what I'm going to do with respect to restitution apart from what is already in the conditional sentence order, I have decided not to impose a period of probation in this case. I am going to make a restitution order in the amount of $68,000 in favour of the Bank of Montreal, and all payments made under the conditional sentence order are to be credited to the restitution order, and the proceeds of sale of any of the items seized by the police, which are hereby forfeited, are also to be credited to the restitution order, and execution on the restitution order is stayed until the community service order is completed. So in other words, all the money will come through the community service order while it is in effect. And at the conclusion, then, of the community service order, my intention is that the Bank of Montreal will then have a judgment

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for the balance, and I will leave it to Mr. Martin and the bank to work out an appropriate repayment scheme.

Now, I will in a minute invite counsel if you do have comments on the way that I have structured the restitution.

I think, Mr. Martin, I have given you a bit of a break here, and I certainly hope that you will follow through with that and that you won't be back here in court. And if you really are serious about getting involved in teaching as a teacher's aide, you should bear in mind that if you continue in this type of activity, you are not going to be a good example for children. If you make this a turning point and you do turn things around, then at least you will be able to say that you have made mistakes in the past and you have paid your debt and you have turned your life around. So I think it is up to you which course you take. But I think it is good that you have found an interest that you want to pursue. So don't let what you have done in the past make it impossible for you to pursue that. You can have a seat now.

Is there anything with respect to the restitution?

MR. TERHART:  Not from my perspective, Your Honour. Thank you. I think the order as you've couched it covers it as well as it could be done.

MS. SMALLWOOD:  Yeah, I agree. I don't have any

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comments with respect to it.

MR. TERHART:  And I can indicate as an officer of the Court I'll explain very fully the ramifications to both Ms. Lepine and Mr. Martin of any breaches of the respective order that they're now bound by, and I'll direct them to see that those orders are entered into before they leave the building today.

THE COURT:   I should say that with respect to the 7,000, I am assuming that you -- as you said, you have that and you will see

MR. TERHART:  I will give those cheques to the Clerk of the Court today.

THE COURT:   That's fine then. Thank you very much, Counsel, for your submissions in this matter, and if there is nothing else, then we will close court.

MR. TERHART:  Thank you very much.

THE COURT CLERK:  Sorry about this again. These two charges (inaudible).

THE COURT:   Just so that it is absolutely clear, as I understand it, the Crown then has stayed proceedings on the charge of stealing a parcel sent by post --

MR. TERHART:  Count 2.

THE COURT:   -- the second count of the Indictment and the charge of possession for the purpose of trafficking that was on a separate

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Indictment?

MS. SMALLWOOD:  Yes, Your Honour.

THE COURT:   I think that should cover all the Court's files. Thank you, Counsel.


Certified to be a true and accurate transcript, pursuant to Rules 723 and 724 of the Supreme Court Rules of Court

Jane Romanowich,
Court Reporter

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