Supreme Court
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Decision information:
Abstract: Transcript of the reasons for sentence
Decision Content
R. v. Harbin, 2006 NWTSC 28 S-1-CR-2005-000028
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
KRISTA HARBIN
__________________________________________________________
Transcript of the Reasons for Sentence delivered by The
Honourable Justice J.Z. Vertes, sitting in Yellowknife, in
the Northwest Territories, on the 23rd day of May,
A.D. 2006.
__________________________________________________________
APPEARANCES:
Ms. S. Tkatch: Counsel for the Crown
Mr. J. Brydon: Counsel for the Accused
(Charge under s. 380(1)(a) of the Criminal Code of Canada)
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1 THE COURT: Krista Harbin was convicted by
2 me of one count of fraud, contrary to Section
3 380(1)(a) of the Criminal Code.
4 The evidence at trial revealed to my
5 satisfaction that the offender had engaged in a
6 series of thefts from her employer, facilitated
7 by the fact that as part of her job she had
8 access to blank cheques which she was supposed to
9 use to make purchases for her employer. She
10 falsified several purchases and then cashed the
11 cheques for her own benefit. She was employed
12 from June 2003 to May 2004. The total amount
13 fraudulently obtained was $12,836.98, of which a
14 significant sum was recovered through deductions
15 from the offender's pay. The amount still owing
16 to her employer totals $7,208.27.
17 Ms. Harbin's counsel tells me now that she
18 acknowledges owing that amount of money, but she
19 still has the opinion that she obtained the money
20 legitimately. The word "opinion" was counsel's
21 word, not mine. Let me be clear. This is more
22 than a mere difference of opinion. Ms. Harbin
23 testified at trial and gave various explanations
24 for the fraudulent cheques. I rejected those
25 explanations as unbelievable. I concluded that
26 the facts prove that she was guilty of criminal
27 conduct. That is why she is here to be
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1 sentenced.
2 The offender is 30 years old. She is a
3 single mother of two young children. Since being
4 charged with this offence, she has been unable to
5 obtain work, so she is completing a management
6 studies program at Aurora College. She has no
7 prior criminal record. The pre-sentence report
8 reveals that she has the strong support of
9 friends and family.
10 The issue on this sentencing is whether to
11 impose a conditional sentence, thus allowing
12 Ms. Harbin to serve her sentence in the
13 community. Both counsel acknowledge that this
14 offence involves a breach of trust. Thefts from
15 employers are regarded very seriously, and the
16 principle to be emphasized is deterrence.
17 Counsel have provided me with cases from
18 this and other jurisdictions where actual jail
19 time was imposed for similar crimes, and cases
20 were conditional sentences were imposed. The
21 point is that each case must be determined in the
22 context of its own particular facts.
23 The Criminal Code stipulates that a
24 conditional sentence may be imposed if the
25 sentence is less than two years and serving the
26 sentence in the community would not endanger the
27 community and would be consistent with the
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1 fundamental purposes and principles of
2 sentencing. Those fundamental purposes include
3 denunciation of unlawful conduct, the deterrence
4 of the offender and others, the rehabilitation of
5 the offender, and to provide reparations for harm
6 done. The fundamental principle of sentencing is
7 that the punishment must fit the crime. By that,
8 I mean that any sentence must be proportionate to
9 the gravity of the offence and the circumstances
10 of the offender.
11 Another fundamental principle is that all
12 available sanctions, short of imprisonment, that
13 are reasonable in the circumstances should be
14 considered. No crimes are precluded from the
15 conditional sentencing regime, even ones where
16 deterrence is to be emphasized.
17 In this case, Crown counsel has submitted
18 that an appropriate sentence would be one of six
19 to nine months of actual imprisonment. She
20 argued that the failure of the accused to take
21 responsibility should militate against
22 consideration of a conditional sentence because
23 it reveals that the community would still be at
24 risk from her. Also, the consideration of
25 endangerment to the community carries with it a
26 risk not just from the offender but from others
27 due to the dilution of the principle of general
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1 deterrence if a conditional sentence is imposed
2 in an inappropriate case.
3 It seems to me, with respect, that the point
4 about the offender failing to accept
5 responsibility is really asking me to penalize
6 the offender for a lack of remorse. As counsel
7 acknowledged, a lack of remorse cannot be treated
8 as an aggravating feature any more than a not
9 guilty plea can. The absence of remorse simply
10 means that the offender does not gain the benefit
11 of having that taken into account as a mitigating
12 effect.
13 In this case, I am satisfied that there is
14 no need to separate Ms. Harbin from society. She
15 poses no danger to the community and the objects
16 of punishment and general deterrence can be met
17 by strict conditions. Further, she is a
18 first-offender, so the need for restraint is
19 heightened.
20 I recognize that for Ms. Harbin's former
21 employer, this was a significant loss. It is a
22 small, family-owned company that relies, I am
23 sure, on the personal honesty of its employees.
24 Ms. Harbin has offered to and must make
25 restitution. But in the greater scheme of
26 things, this crime is on a lesser scale than most
27 fraud cases that come before the Court both in
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1 terms of amount and the period of time in which
2 it was carried out.
3 Finally, I see no reason why the principles
4 of personal and general deterrence cannot be
5 emphasized by imposing a longer conditional
6 sentence than would be imposed if it were a
7 sentence of actual imprisonment. After all,
8 there is a big difference between actual jail and
9 house arrest.
10 Stand up, Ms. Harbin.
11 I impose a sentence of incarceration of 18
12 months but to be served in the community. What
13 that means is that this is a conditional
14 sentence. You will be on the following
15 conditions:
16 First, you must keep the peace and be of
17 good behaviour.
18 Second, you must appear before the Court
19 when and if required to do so.
20 Third, you must report to a conditional
21 sentence supervisor in Yellowknife within 48
22 hours and, thereafter, when and where required by
23 the supervisor and as directed by the supervisor.
24 Four, you will remain within the Northwest
25 Territories unless you receive prior written
26 permission from your supervisor to go outside the
27 Northwest Territories.
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1 Five, you will notify your supervisor of
2 your address and/or employment, and/or attendance
3 at school, the hours of any employment and the
4 hours of any school courses that you are
5 attending, and you will notify your supervisor of
6 any changes to those details.
7 Six, you will perform 100 hours of community
8 service at the direction of the supervisor within
9 the first 12 months of your conditional sentence.
10 Seven, for the first 12 months of your
11 conditional sentence, you will be under house
12 arrest. That is, you must remain indoors at your
13 place of residence 24 hours a day, except for the
14 following exceptions: To complete the 100 hours
15 of community service as already ordered; to
16 attend school or for work (and as previously
17 indicated, you must notify your supervisor of the
18 hours of such school or work); to obtain
19 emergency medical attention for yourself or your
20 children; for one period per week of not more
21 than three hours to obtain groceries and other
22 necessaries for yourself and your children; and
23 for one period per week of not more than three
24 hours for purposes of recreation with your
25 children; and to attend the appointments to see
26 your supervisor.
27 Eight, you are to cooperate fully with your
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1 supervisor or the police to verify your
2 compliance with this conditional sentence order,
3 whether that is by way of random checks by
4 telephone or in person at your residence.
5 Nine, you are to repay the amount of
6 $7,208.27 as follows: By payment of the sum of
7 $2,500 by no later than June 30th of 2006; by a
8 further payment of $2,500 by no later than
9 December 30th, 2006; and the balance by no later
10 than June 30th, 2007. All payments are to be
11 made by cash or certified cheque payable to the
12 Clerk of the Court, who will then disburse the
13 funds to the victim in this case, Ron's Auto
14 Service.
15 I have made deadlines for these payments,
16 but if you wish to pay them off in periodic
17 payments each month, that is up to you. The
18 condition requires that those amounts be paid by
19 no later than those dates. Yes?
20 MR. BRYDON: My difficulty is with the
21 December date. The court office is not open
22 between -- I believe, this year, it's the 22nd of
23 December and the 3rd or 4th -- or maybe it's the
24 2nd of January. I wonder if it might not be more
25 appropriate to make the date either a little
26 earlier or a little later.
27 THE COURT: Well, then I'll say the 20th
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1 of December, 2006.
2 I will also make a restitution order in
3 favour of Ron's Auto Service, and here,
4 Ms. Tkatch, perhaps you can consult with the
5 clerk and make sure you have the full and proper
6 name of the company. The restitution order will
7 be in the amount of $7,208.27. That restitution
8 order will be made pursuant to Section 738 of the
9 Criminal Code, but the execution and enforcement
10 of that order is stayed until the expiry of the
11 repayment conditions contained in this
12 conditional sentence order. So in other words,
13 if you do not make those payments, there are two
14 potential consequences. One, you can be sued by
15 Ron's Auto Service. But more significantly, that
16 would be considered a breach of the conditions of
17 this conditional sentence order. Any breach of
18 this conditional sentence order of any condition
19 could result in the conditional sentence order
20 being cancelled and you having to serve whatever
21 is left on that term in jail. Do you understand?
22 THE ACCUSED: Yes, I do.
23 THE COURT: You can have a seat.
24 I will direct that the clerk, with the
25 assistance of defence counsel, explain the terms
26 and conditions to you, Ms. Harbin. But generally
27 speaking, as I said before, the main thing you
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1 have to remember is this: If there is
2 non-compliance with any term of this order, the
3 result will very likely be that you will be in
4 jail and not at home, and I hope you understand
5 that.
6 THE ACCUSED: Hmm-hmm.
7 THE COURT: Are there any other details I
8 neglected, Counsel?
9 MS. TKATCH: No, Your Honour. Thank you.
10 MR. BRYDON: No, sir.
11 THE COURT: Mr. Brydon? Very well. Under
12 the circumstances, the victim of crime fine
13 surcharge will be waived. Good luck, Ms. Harbin.
14 Thank you, Counsel.
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18 Certified Pursuant to Rule 723
of the Rules of Court
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Jane Romanowich, CSR(A), RPR
22 Court Reporter
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You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.