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Abstract: Transcript of the Reasons for Sentence
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R. v. Matthews 2013 NWTSC 66 S-1-CR-2012-00071 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - CECIL SYLVESTER MATTHEWS Transcript of the Reasons for Sentence delivered by The Honourable Justice S. H. Smallwood, in Yellowknife, in the Northwest Territories, on the 16th day of August, 2013. APPEARANCES: Mr. K. Onyskevitch: Counsel on behalf of the Crown Mr. P. Falvo: Agent for Counsel C. Wawzonek on behalf of the Accused ------------------------------------- Charges under ss. 334(a) C.C. 1 THE COURT: Sylvester Matthews has entered 2 a guilty plea on two counts on an Indictment of 3 theft over $5,000, contrary to section 334(a) of 4 the Criminal Code. The victims are the Gwichya 5 Gwich'in Band and the Charter Community of 6 Tsiigehtchic. 7 The facts are as detailed in the agreed 8 statement of facts, Exhibit S1, which were filed 9 yesterday. I will just briefly summarize them. 10 Mr. Matthews was employed as a finance 11 manager for both the Charter Community of 12 Tsiigehtchic and the Gwichya Gwich'in Band. He 13 was employed for both organizations between July 14 15th, 2007, and February 5th, 2010, when he was 15 terminated for cause. 16 As part of his employment, Mr. Matthews was 17 provided with credit cards for both the community 18 and band. The credit cards were intended to be 19 used to make reservations for hotels and to pay 20 for goods and services ordered by the community 21 or band. 22 As a result of irregularities being noticed 23 starting in December 2009, accountants were hired 24 to assess the expenses which had been charged to 25 the credit cards. The assessment revealed that 26 Mr. Matthews had used the credit cards many times 27 for personal expenses mainly while on vacation. Official Court Reporters 1 1 There were cash advances as well as charges at 2 hotels, dental offices, restaurants, bars, liquor 3 stores, clothing, music and grocery stores. 4 These charges came from locations in the 5 Northwest Territories, Alberta, and Ontario. The 6 total which was charged to the Charter Community 7 of Tsiigehtchic credit card was $10,930.71; the 8 total which had been charged to the Gwichya 9 Gwich'in Band credit card was $29,752.02. The 10 total loss to both the community and the band is 11 $40,682.73. 12 In January 2010, Ms. Lennie, who was the 13 senior administrative officer for the community, 14 confronted Mr. Matthews and he admitted incurring 15 the expenses and wrote two cheques to cover some 16 of the expenses. Neither cheque cleared as Mr. 17 Matthew's account did not have sufficient funds 18 to cover either cheque, and this had occurred 19 because Mr. Matthews had been terminated from his 20 employment and apparently no longer had an income 21 which could cover the cheques. 22 In terms of Mr. Matthews' personal 23 circumstances. He is 66 years old. He is 24 originally from Guyana but has lived in Canada 25 since 1969. He has lived in communities 26 throughout the north, both in the Northwest 27 Territories and Nunavut, since 1990. He has Official Court Reporters 2 1 worked in several communities often in a 2 financial position. He is an accountant by 3 training but has not completed the final steps to 4 become a certified general accountant. 5 He is now single but was married; his wife 6 passed away in 2010. The death of his wife 7 occurred around the time that these offences were 8 occurring, but counsel for Mr. Matthews says that 9 that is not the reason that these offences 10 occurred. 11 Mr. Matthews currently lives in Tulita and 12 works casually for several companies there. He 13 is apparently well-regarded by his employers and 14 in the community as evidenced by the three 15 letters of support which were written for him and 16 filed on these proceedings. 17 Mr. Matthews' explanation for why these 18 offences occurred, offered through his counsel, 19 really does not provide an explanation other than 20 Mr. Matthews saw an opportunity and took it. 21 While Mr. Matthews has had some difficulties with 22 alcohol, counsel advises that they are not 23 offered as an excuse for his actions. 24 It seems, based on what his counsel advised 25 me, that Mr. Matthews used the credit card 26 initially for some personal travel on the 27 mistaken belief that this was permissible and Official Court Reporters 3 1 then he later realized that it was not. However, 2 this conflicts with appendices A and B of the 3 agreed statement of facts where the initial 4 personal expenses charged to the credit card 5 seems to be for dental expenses, which is then 6 followed by restaurant, liquor, and food charges. 7 The appendices also demonstrate a steady 8 stream of spending for personal items. It seems 9 likely that Mr. Matthews made an initial charge 10 or charges to the credit card and then when this 11 conduct did not raise any questions or red flag, 12 he continued and began using the credit cards 13 more and more frequently. As counsel for Mr. 14 Matthews acknowledged, it really was an offence 15 of opportunity. 16 There appears to have been little to no 17 effort to conceal these transactions or to 18 deceive anyone about the charges he was making. 19 That is to Mr. Matthews' credit. However, given 20 his position as the finance manager for both the 21 community and the band, it may be that he simply 22 thought that these transactions would go 23 unnoticed. 24 On sentence, the Crown is seeking a sentence 25 of 15 to 18 months' imprisonment and orders of 26 restitution in favour of the community and the 27 band. The Crown is opposed to a conditional Official Court Reporters 4 1 sentence order on the basis that in the 2 circumstances, that the sentencing principles of 3 general deterrence and denunciation cannot be met 4 by a conditional sentence. 5 Counsel for Mr. Matthews is seeking a 6 conditional sentence on the basis that all of the 7 factors that are required for a conditional 8 sentence are present and that this case is 9 similar to many of the other cases that have come 10 before this court and have resulted in 11 conditional sentences being imposed. 12 I have read all the cases provided by both 13 Crown and defence and I do not intend to review 14 them in this decision but I thank counsel for 15 providing them. They were helpful to review the 16 principles that courts have considered in similar 17 cases and for showing examples of when a 18 conditional sentence has been imposed and when 19 imprisonment has been imposed. All cases of 20 course must be dealt with on their own facts in 21 dealing with the individual offender. 22 There are mitigating factors. Mr. Matthews 23 has entered a guilty plea. He waived his 24 preliminary inquiry and has taken efforts to 25 plead guilty in this court. It has taken some 26 time for this matter to come to today's point and 27 from a review of the record on file, it is not Official Court Reporters 5 1 clear why. In any event, a trial in this court 2 was not set, a trial date was not set, and so 3 this is not a situation where witnesses have been 4 inconvenienced or have had to testify. While 5 this was not an early guilty plea or one that was 6 entered at the earliest opportunity, Mr. Matthews 7 does deserve credit for his guilty plea. 8 Mr. Matthews has not paid back any of the 9 money. He had attempted to pay back some of the 10 money in January 2010 but the cheques that he 11 provided did not have sufficient funds to clear 12 the bank. Counsel for Mr. Matthews advises that 13 she has a cheque for $5,000 which has been 14 advanced by Mr. Matthews's employer M.Y.B. 15 Construction to go towards restitution. 16 Apparently this cheque is an advance for Mr. 17 Matthews for future income that he is expected to 18 earn with his employment with the company. While 19 this is a testament to how highly regarded Mr. 20 Matthews is by Bob McPherson, the president of 21 M.Y.B. Construction, this is not money that Mr. 22 Matthews has personally provided for restitution. 23 So while he has pledged his willingness to pay 24 back the money, his efforts to date have really 25 had little impact. 26 I acknowledge that Mr. Matthews did lose his 27 job as a result of these offences and he has been Official Court Reporters 6 1 surviving on his CPP pension and a variety of 2 part-time and casual jobs which counsel advises 3 me do not quite equal the income that he was 4 receiving with both the band and the community, 5 so I acknowledge that his ability to repay 6 restitution may have been limited in the 7 circumstances. 8 Mr. Matthews does have a prior criminal 9 record. He has ten convictions for forgery from 10 2002 as well as a fail to attend court. For the 11 forgery convictions, he received nine months 12 concurrent on each count and was ordered to pay 13 restitution of $25,546.71. He also has a 14 conviction for theft under $5,000 from 2005 where 15 he received $100 fine. There are two other 16 unrelated convictions on his criminal record. 17 Mr. Matthews' record is particularly of 18 concern in that he has 11 prior property 19 offences. The theft under conviction on its own 20 is of little concern. The convictions for ten 21 counts of forgery are of greater concern. 22 Counsel for Mr. Matthews argues that they are 23 dated and that they would have been related in 24 that they resulted in one nine-month sentence 25 which was concurrent on each count. They are 26 somewhat dated and they are likely related 27 because of the sentence that was imposed, but Official Court Reporters 7 1 they also demonstrate that the forgery that Mr. 2 Matthews participated in, much like the case 3 before me today, was not a one-time incident. 4 There were ten counts of forgery. The amount of 5 restitution that he was required to pay at that 6 time, over $25,000, also tells me that, like 7 today, the amounts that were involved were not 8 insignificant. 9 In this case the amount is over $40,000 and 10 this offence occurred over a period of time. 11 While there are two counts before the court that 12 Mr. Matthews has pled guilty to, in looking at 13 the agreed statement of facts it is apparent that 14 the credit cards were used by Mr. Matthews 15 multiple times over a lengthy period. 16 Offences where an individual steals from 17 their employer are referred to as breach of trust 18 offences because they involve an employee who has 19 been trusted by their employer to treat the money 20 and/or goods that they are responsible for in an 21 appropriate manner and not to take them or use 22 them for their own benefit. In small communities 23 like Tsiigehtchic, communities and bands rely on 24 persons like Mr. Matthews to look after their 25 finances, and the position that Mr. Matthews was 26 in, finance manager, tells me that he was the 27 person who should have been on the lookout for Official Court Reporters 8 1 theft and fraud. The band and community were 2 relying on him to ensure that this did not 3 happen, and instead he is the person who abuses 4 their trust and charges thousands of dollars in 5 personal expenses on their credit cards. 6 There has been a victim impact statement 7 which has been filed by Ms. Lennie, who is the 8 former senior administrative officer, and I do 9 want to quote from that because I think what she 10 says demonstrates the impact that it has had upon 11 the community and the band. She says: 12 As a small community of 200 people, 13 we sometimes rely on the expertise of people outside our community to 14 fill senior management positions. We trust all our employees to 15 represent our organization and community with the utmost respect 16 and honesty. 17 18 It is apparent from the victim impact 19 statement that the community relied upon, and 20 trusted, Mr. Matthews. As the victim impact 21 statement also details, these thefts have had an 22 impact on both organizations as they are located 23 in a small community and have a limited budget. 24 Resources that are scarce are intended for the 25 use of the community and they need to budget to 26 ensure that the needs of the community are met, 27 and the impact of Mr. Matthews' actions must have Official Court Reporters 9 1 affected their ability to do so. Violations of 2 that trust, the trust that is placed in 3 individuals like Mr. Matthews, are taken 4 seriously by the courts. 5 In sentencing individuals guilty of thefts 6 in these circumstances as the cases demonstrate, 7 deterrence is one of the primary considerations. 8 Rehabilitation is as well a focus that cannot be 9 lost sight of. Many of the individuals who come 10 before the court are first time offenders and are 11 otherwise of good character and the actions that 12 they have undertaken have been characterized 13 often as really out of character. 14 Deterrence means that other individuals, 15 when hearing of this, would be deterred from 16 committing this type of offence and that Mr. 17 Matthews himself is specifically deterred. 18 A focus as well has to be denunciation, to 19 express society's condemnation of this type of 20 conduct. 21 In looking at the requirements of section 22 742.1, which are the requirements for the 23 imposition of a conditional sentence, the 24 section, as it was prior to November 2012, had 25 four elements which the court must be satisfied 26 before imposing a conditional sentence: 27 The first is the person is convicted of an Official Court Reporters 10 1 offence prosecuted by way of indictment for which 2 there is a maximum term of imprisonment that is 3 ten years or more not punishable by a minimum 4 sentence. 5 Secondly, that the court will impose a 6 sentence of less than two years. 7 In the circumstances, I am satisfied that 8 these two conditions have been met. This is not 9 a situation where the court would seek or the 10 Crown is asking for a sentence of more than two 11 years. 12 A third prerequisite is that service of the 13 sentence in the community would not endanger the 14 safety of the community. 15 And the fourth is that it has to be 16 consistent with the fundamental purposes and 17 principles of sentencing set out in the Criminal 18 Code. 19 In considering these last two factors, and 20 particularly the fourth factor, there are several 21 areas of concern and one is Mr. Matthews' prior 22 criminal record. He has committed several 23 offences of forging documents which resulted in 24 the loss to the victim of $25,000, and that is of 25 concern. The offences before the court today 26 began in June 2008, so he has participated in the 27 same type of criminal activity a little over six Official Court Reporters 11 1 years later. That is also of concern. The 2 forgery convictions were also Mr. Matthews' first 3 convictions and he received nine months' 4 incarceration. Presumably a conditional sentence 5 was available to him then and he did not receive 6 it. 7 In any event, in the end what I think 8 significant about that prior conviction is that 9 the previous sentence of imprisonment has not 10 served to deter Mr. Matthews. From 2008 to 2010, 11 he took over $40,000 from his employers. He did 12 not get the message the court was sending him in 13 2002 and that is of great concern. 14 A conditional sentence has to be consistent 15 with the fundamental purpose and principles of 16 sentencing. Breach of trust thefts, as the cases 17 show, require the sentencing principles of 18 deterrence and denunciation to be paramount, and 19 conditional sentences can still be imposed, can 20 still meet the sentencing objectives which have 21 been established in many cases where deterrence 22 is one of the primary objectives. 23 Given Mr. Matthews' position as a finance 24 manager, he would have been in a position to deal 25 with funds. While he took no steps to conceal 26 his activities, because of his position, the band 27 and the community were vulnerable to his actions. Official Court Reporters 12 1 As I stated earlier, they trusted him to 2 safe-keep the finances, not abuse them. 3 These offences also occurred persistently 4 and repeatedly over a fairly lengthy period of 5 time. This was not a one time occurrence, and 6 tens of thousands of dollars were taken. I am 7 not certain that the band or community will ever 8 fully recover the funds taken by Mr. Matthews, 9 and it appears that Mr. Matthews only stopped 10 because he was caught and terminated from his 11 position. Overall, I am not satisfied that the 12 circumstances of this case are such that 13 deterrence can be met with a conditional sentence 14 order. 15 As stated in the case of R. v. Harding, 2006 16 SKCA 118, the Saskatchewan Court of Appeal stated 17 at paragraph 25: 18 There may be circumstances, as noted 19 in R. v. Proulx, where the need for deterrence and denunciation is so 20 pressing that a period of incarceration is necessary to the 21 ends of deterring similar conduct in the future and of expressing 22 society's condemnation of the offender's conduct. 23 24 I agree with that comment and view the 25 circumstances in this case as calling out for 26 denunciation and deterrence. I cannot see that a 27 conditional sentence would meet those objectives Official Court Reporters 13 1 in this case. In the circumstances, I am 2 satisfied that the sentencing principles require 3 that a sentence of imprisonment be imposed. 4 Mr. Matthews, can you stand up, please. 5 For the charge of theft over, Count 1 on the 6 Indictment, theft from the Gwichya Gwich'in Band, 7 I impose a sentence of 12 months' imprisonment. 8 For the charge of theft over from the 9 Charter Community of Tsiigehtchic, Count 2 on the 10 Indictment, I impose a sentence of imprisonment 11 for 12 months which will be served concurrently. 12 There will be a restitution order for the 13 benefit of the Charter Community of Tsiigehtchic 14 in the amount of $10,930.71 and a separate 15 restitution order to the benefit of the Gwichya 16 Gwich'in Band for the amount of $29,752.02. 17 The victims of crime surcharge will be 18 waived as a result of hardship. 19 You may sit down, Mr. Matthews. 20 Counsel, is there anything else that we need 21 to address on this file? 22 MR. ONYSKEVITCH: Nothing from the Crown, Your 23 Honour. Thank you. 24 THE COURT: Mr. Falvo. 25 MR. FALVO: No, Your Honour. Thank you. 26 THE COURT: Then we will close court. 27 .............................. Official Court Reporters 14 1 2 Certified to be a true and accurate transcript pursuant 3 to Rule 723 and 724 of the Supreme Court Rules of Court. 4 5 ______________________________ 6 Annette Wright, RPR, CSR(A) Court Reporter 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 15
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