Supreme Court

R. v. Avery, 2004 NWTSC 56
Date: 20040902
Docket: S-1-CR-2004000057

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

 IN THE MATTER OF:


HER MAJESTY THE QUEEN


- vs. -


THOMAS KENNETH AVERY


Transcript of the Oral Reasons for Sentence by The Honourable Justice J.Z. Vertes, at Yellowknife, in the Northwest Territories, on August 26th, A.D. 2004.


APPEARANCES:

Ms. L. Colton:   Counsel for the Crown

Mr. G. Boyd:   Counsel for the Accused


Charges under s. 348(1) (a) and 348(1) (b) Criminal Code of Canada


THE COURT:   I must admit, counsel, that I find this case to be difficult, to say the least. On the one hand, we have a relatively young man, still only 22 years old, who apparently has had a number of difficulties in his life, having left school at age 16, living on his own, apparently developing a drug and alcohol habit that he cannot control up until now, that seems to have controlled him and that has resulted in his accumulating a lengthy record at a young age. I have to bear in mind, considering those factors, the prospects of rehabilitation and the self-professed awareness that Mr. Avery spoke about just a few minutes ago.

On the other hand, we have an individual who has entered guilty pleas to nine offences, seven of break, enter and theft, one of break and enter with intent, one of mischief, all of these offences having been committed within a period of 12 days shortly after he had just been released from prison after serving a sentence on other break and enter charges.

By my count, he has a record of 17 convictions since 2001, and that is not counting the offences for which he has been convicted today. He had six convictions in Youth Court in 1998.

But what his record tells me is that it is quite apparent that these are the types of crimes committed by individuals who cannot control their drug and

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alcohol dependency and are looking for quick cash and quick scores so as to feed their habits. Mr. Avery is well on his way to becoming, as I said during the sentencing hearing, an habitual criminal, even if he cannot be regarded as a “professional” one.

Crown counsel suggested a global sentence of three years imprisonment. At first blush, I must say that I thought this was quite lenient. I could easily see someone in Mr. Avery's position, someone who seems to have led a pattern of crime and seems to have been a scourge on the community for the past several years --I can easily see someone in his position being sentenced to a lengthier term in a federal penitentiary. But I have to keep in mind the circumstances.

I take at face value what Mr. Avery said about his desire to finally come to grips with his problems, his desire for rehabilitation, and any sentence I impose must be one that does not crush those desires. But, at the same time, I have to impose a sentence that I think is a meaningful one, one that will at least deter others from this type of behaviour, one that will encourage Mr. Avery to reform his behaviour.

Stand up, Mr. Avery. I take into account the fact that you were cooperative and readily confessed when you were apprehended. I take into account the fact that you have entered guilty pleas. And I take into

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account what you told me just a few minutes ago. I think it shows at least a certain degree of self-awareness and a willingness to take responsibility, and I hope what it also shows is a willingness to take control of your life for the future.

At first blush, as I said before, I was inclined to think that even three years was too lenient, but I took into account everything that your lawyer said on your behalf. And while I think that three years may be an appropriate global sentence, I will deduct from that the credit for the time you have already spent in custody. By my count, you have spent approximately seven and a half months in custody. So I will credit you with the equivalent of 15 months, and that will reduce your sentence to one of 21 months' imprisonment.

Now, I am sure you are aware that you will probably be released prior to those 21 months being over. But whenever you are released, it is going to be up to you to really take control of your life, and in order to, perhaps, assist in your rehabilitation I am going to impose a further condition.

The sentence is 21 months' imprisonment. That will be followed by a year of probation. The terms of that probation order will be as follows: First, you are to keep the peace and be of good behaviour.

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Second, you are to report to this Court if and when required to do so. Third, you are to report to and be under the supervision of a probation officer. Fourth, you are to participate in any counselling and rehabilitation programs as may be directed by your probation officer.

You are to abstain absolutely from the consumption of alcohol and non-prescription drugs, and by that I mean drugs prescribed by your doctor for you. You are prohibited absolutely from being in any bar, tavern, restaurant or other commercial establishment where alcohol is sold. You are prohibited absolutely from having any contact directly or indirectly with Loreen Lambert or from being within one 100 yards of her residence located at 5014 - 53rd Street in the City of Yellowknife.

The only exception I will make to that non-contact order is that if you do write a letter of apology to her, and I encourage you to do so, not for her sake, but for your sake, but if you do, then you can mail that letter to her or through your lawyer have it delivered to her or through your probation officer or the authorities at the correctional centre have it sent to her, and that will not be regarded as a violation of this condition.

You are to also perform 100 hours of community service work under the supervision of your probation

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officer.

Do you understand those terms, Mr. Avery?

THE ACCUSED:  Yes, I do.

THE COURT:   I sincerely wish you luck in coming to grips and taking control of your life. You are a young man. It would be utterly foolish to waste it behind bars, and that is all that is going to happen if you don't change. Take it from me, this is your last chance. You may have a seat.

In addition, there will be an order directing that the offender provide a sample for analysis for DNA purposes and lodging the results in the DNA data bank. The appropriate order can be prepared, Ms. Colton.

MS. COLTON:   Yes, sir.

THE COURT:   Under the circumstances, there will be no victim of crime fine surcharge. Is there anything I have neglected, Ms. Colton?

MS. COLTON:   No, sir. Thank you.

THE COURT:   Mr. Boyd?

MR. BOYD:   Nothing further, sir.

THE COURT:   All right. Thank you, counsel.

(AT WHICH TIME THE ORAL REASONS FOR SENTENCE CONCLUDED)

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

Jill MacDonald, CSR(A), RPR
Court Reporter

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