PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Flemming, 2013 NSPC 110
Date: 20131003
Docket: 2410097
Registry: Sydney
Between:
Her Majesty the Queen
v.
Mary Arlene Flemming
Judge: The Honourable Judge Jean M Whalen
Heard: September 24, 2013 and October 3, 2013,
in Sydney, Nova Scotia
Written decision: November 22, 2013
Charge: Section 334(a) Criminal Code of Canada
Counsel: Shane Russell, for the Crown
Darlene MacRury, for the Defence
By the Court:
FACTS:
[1] Ms. Flemming was employed as a bookkeeper with the United Farmers Co-op Limited for two years. In December 2011 the police responded to a complaint of theft.
[2] A manager reported that the business had been missing some deposits for several months and an internal investigation was begun. During that investigation they discovered that deposits as early as May 2011 were not made following a proper time line.
[3] Between the dates of June 1, 2011 and December 21, 2011 some deposits were not made; some were larger than others. It was estimated the amount was $37,000.00.
[4] Internal interviews were conducted with employees, including Ms. Flemming. She stated that at the time she was going through a bitter divorce and was bankrupt. She was in a new relationship and she took the money. She thought it was about $25,000.00. The police took a statement from the defendant and she admitted to taking the money from deposit(s). She said she used it for renovations on her home and to pay her “lawyer bills” in her divorce case. She turned over thirteen (13) deposit bags she had at home containing cash, coins and cheques. Ms. Flemming said it “spiralled out of control and she tried to pay it back but she couldn’t keep up”.
[5] Mrs. Flemming told the police it was her responsibility to count the deposit and take it to the bank. The amount taken depended on what she needed for the house. When the store was busy she was able to keep up with deposits but when it wasn’t busy she had to take money out of her pay cheque to cover what she was taking without consent. Money was taken approximately two or three times a week; the most taken at any time was $2,000.00.
[6] Ms. Flemming was fired as a result of the commission of this offence.
VICTIM IMPACT STATEMENT
[7] Mr. Andrew Lewis filed a victim impact statement on behalf of the board of directors of United Farmers Co-op Limited. Ms. Flemming’s actions have had a significant impact on the organization. Mr. Lewis wrote:
i) Relationships, trust, morale and reputations impacted the hardest. Morale was low for a long time. Relationships were strained.
ii) There was a decrease in new memberships. Current members questioned whether to withdraw their dividends.
iii) The Board spent countless hours away from work and families to deal with this matter.
iv) The manager of the store resigned.
v) There has been an increase in their insurance premium.
vi) Staff were shaken and upset at having a co-worker arrested, the uncertainty of the investigation, and hearing negative comments.
[8] The United Farmer’s Co-op Limited received payment for their loss from their insurance company in the amount of $43,383.62.
[9] The Co-operators General Insurance Company is seeking restitution in the amount of $45,892.22 for costs associated with the claim.
PRE-SENTENCE REPORT
[10] Ms. Flemming is currently 34 years old. It appears she had a stable upbringing with no significant issues during the formative years. She denies any violence or form of abuse in the family home. There was never an issue with alcohol or drugs.
[11] Ms. Flemming grew up in Millville and left the family home at the age of 18 to go to work in Halifax. At 23 she met her husband, they subsequently separated in 2009. Ms. Flemming indicated Mr. Bachmenn did not know about the charge before the court. Ms. Flemming stated “I’m worried about him fighting for custody”.
[12] Ms. Flemming’s father reported the defendant “suffered abuse” during her marriage. The defendant did not report this. There is a “three way joint custody” arrangement concerning the defendant’s ten year old daughter.
[13] For the past five years the defendant has been in a common-law relationship with Mr. Jeremy Fraser. There are no children. Mr. Fraser is employed as a welder. Both he, the defendant’s sister, father and “father-in-law” were all of the impression that the charges had been “dropped”.
[14] Ms. Flemming graduated from Memorial High School in 1997. She also completed a one year computer course and a “web design” course at Cape Breton Business College.
[15] Ms. Flemming is currently employed in her second season at the Inverary Inn in Baddeck. Her manager spoke positively about the defendant. The defendant has a history of gainful employment prior to being employed with the United Farmers Co-op Limited.
[16] Ms. Flemming earns minimum wage at her current job. With her partner’s income they are “able to manage”. She has filed for bankruptcy in the past. Family members are not aware of any financial stress.
[17] Ms. Flemming suffers from “major anxiety” and has been prescribed “Paxil” for the past eight years. She states this was a result of having been robbed at gunpoint when working in the Halifax-Dartmouth area. (Her father and sister confirmed.) The defendant’s doctor first saw Ms. Flemming in 2006. She subsequently exhibited more symptoms of anxiety, depression and panic disorder and he referred her to mental health services in 2007.
[18] There are no issues with drugs, alcohol or gambling. She doesn’t associate with anyone outside of her job. She spends her free time gardening and watching television.
[19] Ms. Flemming was described as presenting as very guarded and evasive when she attended for her interview. She did admit to police that she told family the charges had been dropped. She stated “I tend to hide behind some things”. Her sister opined “she tends to keep things bottled in”.
[20] Her family described her as truthful, friendly, outgoing, happy, content, never cranky. Her father-in-law says she is a little unpredictable, not honest and he and his wife no longer trust her.
[21] Ms. Flemming initially accepted no responsibility for the offence but that position was subsequently changed after speaking with her current lawyer. She accepts full responsibility and when asked if she had anything to say before I passed sentence, she replied “I’m sorry”.
CROWN AND DEFENCE - POSITION ON SENTENCE
[22] This is a joint recommendation for an 18 month Conditional Sentence Order followed by 12 months Probation with conditions.
[23] The crown emphasized the fact that the defendant changed her plea, has no prior record, and can be rehabilitated as she was a productive citizen prior to this offence.
[24] The defence says Ms. Flemming very early on in the process admitted she stole the money. She was co-operative with police and took full responsibility. She was experiencing a “rough time and she fell short”. She intended to pay it back but “it got ahead of her”.
[25] The reason for her comments in the pre-sentence report where she does not accept responsibility is because of her extreme shame and embarrassment with the family. She tried to shelter them, especially her daughter because she felt her ex-husband might try to use that in the divorce.
[26] Since 2011 the defendant has not incurred any further problems and has been employed for the last two years. She has family support from her common law husband and immediate family. She lives a “very simple life” and is an excellent candidate for rehabilitation.
[27] Ms. Flemming agrees to pay restitution, $150.00 per month under a Conditional Sentence Order and Probation Order, with the remainder to be included in a stand alone order.
WHAT IS AN APPROPRIATE SENTENCE FOR THIS DEFENDANT?
[28] It is a basic theory of punishment that the sentence imposed bear a direct relationship to the offence committed. It must be a fit sentence proportionate to the seriousness of the offence. Only if this is so the public can be satisfied that the offender deserves the punishment received and feel confidence and fairness in the rationality of the system. To be just, the sentence imposed must also be commensurate with the moral blameworthiness of the offender. A sentence that is not just and appropriate produces only disrespect for the law. These common-law principles have been codified in sections 718, 718.1 and 718.2 of the Criminal Code.
[29] Parliament has codified a number of other important values to help sentencing judges give effect to the fundamental principles of proportionality. The articulated principles however, are general in form, and moreover they provide no mechanism for resolving the inevitable conflicts that arise between these various principles in individual cases. Sentencing judges are simply told to weigh and balance the competing principles and fashion an appropriate sentence.
[30] In crafting the appropriate sentence the Court must have regard to the factors set out in the Code as well as the nature of the offence committed and the personal circumstances of the offender. According to the Supreme Court of Canada, the appropriate sentence will also depend on the circumstances of the community in which the offence took place.
“It must be remembered that in many offences there are varying degrees of guilt and it remains the function of the sentencing process to adjust the punishment of each individual offender accordingly.
The appropriate sentence for the specific offender and offence is therefore determined, having regard to the compendium of aggravating and mitigating factors present in the case. It is the weight attached to the aggravating and mitigating factors which shape and determine the sentence imposed and this is an individual process. In each case the court must impose a fit sentence for this offence in this community.
The nature and gravity of the offence is properly the central factor in sentencing. It is and must be the first rule that prompts the court. The concern behind this consideration is that there should be a just proportion between the offence committed and the sentence imposed. Our basic notion of fairness demands that every sentence be primarily and essentially appropriate to the offence committed having regard to the nature of the crime and the particular circumstances in which it was committed.”
[31] Other common law principles of sentencing must also be appropriately applied. In the end, the punishment must be proportionate to the moral blameworthiness of the offender. The public must be satisfied that the offender deserved the punishment received and must feel a confidence and fairness and rationality of the sentence. This principle of proportionality is fundamentally connected to the general principle of criminal liability which holds that the criminal sanction may be imposed only on those who possess a moral culpable state of mind. The cardinal principle is that the punishment shall fit the crime.
[32] The first part of the test is whether or not jail is an appropriate sentence in the circumstances, and if so, should it be two years less a day, which would make Ms. Flemming eligible for a conditional sentence order. There is no minimum term requirement.
[33] The second part of the test requires the Court to be satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in the Code.
[34] The essence of a conditional sentence is that the offender who otherwise would serve up to two years in prison may instead remain in the community for the entire duration of the sentence, provided that he or she abides by the conditions of a conditional sentence order.
[35] The safety of the community is primary and only if the Court is satisfied that the safety of the community would not be endangered by a conditional sentence order are the other fundamental purposes and principles of sentencing to be considered.
[36] The issue of safety is confined to concerns that are specific to the offender and general deterrence must not be considered as a factor in determining safety.
[37] In order to determine whether the safety of the community will be placed at risk by a conditional sentence, the judge must consider both the risk that bound by conditions and given supervision, the offender will re-offend; and the amount of harm both physical or psychological and economic that is likely to occur if the risk accrues. If the judge determines there is a real risk of re-offending, then a conditional sentence cannot be imposed. Even when the risk of recidivism is minimal, a small risk of a very harmful offence will preclude a conditional sentence.
ASSESSING THE SERIOUSNESS OF DEFENDANT’S OFFENCE
[38] This theft was perpetrated over an extended period of time. This was not a spontaneous, single transaction. She was trusted, no one knew she was dishonest until an internal investigation was conducted. Counsel cite the defendant’s lack of a record as a mitigating factor, however, a person’s “good reputation” is most likely a necessary pre-condition to getting the job as bookkeeper and allows them to be trusted by their employers, R. v. Bowden, [2011] N.W.T.J. No. 28 para 7, and R. v. Lee, 2011 N.S.P.C. 81, para 40.
[39] Ms. Flemming’s theft was motivated by greed. She used the money to pay for renovations to her home and legal bills. Although Ms. Flemming said she intended to pay it back. She couldn’t, she got caught. She has not made any attempts to pay back the money up to the date of sentencing.
[40] Ms. Flemming’s actions affected the reputation of the United Farmer’s Co-operative Limited in the larger community and exacted a tole on all those associated with the organization.
[41] Ms. Flemming says she was under stress due to a divorce and bankruptcy. J. Ross, in R. v Wilson [2008] N.S.P.C. 68 @ para 20 commented on the issue of stress in the context of a sentencing for fraud:
“...Most crimes are committed under stress of one kind or another. If nobody ever felt any pressure or stress it would indeed be a peaceful and law abiding society, one requiring little by way of laws or law enforcement. It is precisely when we are stressed and tempted to do something harmful to others that we are required to exert self-control and to show moral strength...”
[42] However, that didn’t stop her from renovating her home, taking the money, going about her daily life.
AGGRAVATING FACTORS:
(1) Breach of Trust
(2) Approximately $43,000
(3) Some planning over 6 months
(4) Motivation
- greed
- home renovations
- legal bills
MITIGATING FACTORS:
(1) Change of Plea
(2) No Record
(3) Productive Citizen prior to the offence
[43] In R. v. Lee, 2011 N.S.PC. 81, beginning at para 45, J. Derrick reviews the case law regarding conditional sentence orders:
[45] Where conditional sentences have been ordered for breach of trust thefts and frauds there have usually been significant extenuating circumstances. An example of such circumstances can be found in R. v. Alakija, [2007] A.J. No. 1027, (Alta. P.C.) Mr. Alakija turned himself in and the thefts, which were the result of a pathological gambling disorder, took place over a period of less than two months. The court noted that Mr. Alakija's gambling addiction could not be considered a mitigating factor but did operate to "reduce moral blameworthiness." (Alakija, paragraph 13) In R. v. Robinson, [2003] O.J. No. 4722 (Ont. Ct. Just.), a conditional sentence of twenty months was imposed on a first offender who stole $200,000 in her capacity as a manager of a small company. None of the money was recovered and Ms. Robinson, who denied responsibility and went to trial, expressed no remorse. However, Ms. Robinson's overall health and the precarious nature of her husband's mental health played an influential role in sentencing. At the time of the thefts, both Ms. Robinson and her husband were experiencing a severe depression. The judge noted that Ms. Robinson had an auto-immune disorder (Lupus) and asthma and observed that if Ms. Robinson was sent to jail, her nine year old son would be left in the care of a suicidal and depressed father. (Q.L. version, paragraph 26)
[46] The ordering of a conditional sentence in fraud cases where there are no exceptional circumstances identified is rare. R. v. Shaw, [2004] N.B.J. No. 322 (N.B.Q.B.) is one example. The Prince Edward Island Supreme Court, Appeal Division also has not viewed exceptional mitigating circumstances as a necessary prerequisite to imposing a conditional sentence. (R. v. Gauthier, [1998] P.E.I.J. No. 98, paragraph 18) I will note that the Appeal Court in Gauthier was aware of the trial judge's findings that Ms. Gauthier had acknowledged the harm she had done, and was "emotionally devastated by her dismissal from her job and the public humiliation of being found out and charged." She was found to have experienced "extreme anxiety, depression, guilt and remorse." (Gauthier, paragraph 38)
[47] In a more recent case, the Prince Edward Island Supreme Court, Appeal Division reiterated the view of the majority in Gauthier that the objectives of deterrence and denunciation "can be achieved in many instances through conditional imprisonment orders." (R. v. MacAdam, [2003] P.E.I.J. No. 20 (P.E.I.S.C., App. Div.)) MacAdam was not a case of breaching the trust of an employer. It involved fraud committed in the context of buying and selling used cars.
[48] Cases provided to me by the Crown where the thefts involved persons in positions of trust stealing from bank deposits have produced mixed results. In Shaw, as I just mentioned, an 8 month conditional sentence was ordered. Ms. Shaw was a manager at a Tim Horton's for four years until she was dismissed after $30,992.01, that should have been deposited into the business' bank account, was found to be missing . In R. v. Decoff, [2000] N.S.J. No. 224 (N.S.S.C.), money was taken by a manager from deposits being "under-prepared, or deposits that were prepared but not taken to the bank" over an eight month period. Approximately $44,000 was stolen. In imposing an 18 month conditional sentence, the judge took into account Ms. Decoff's personal circumstances of having a disabled spouse and the responsibility to care for a ten-month old baby. The judge referred to the Gauthier case and appeared persuaded that a conditional sentence should not only be available to offenders with exceptional circumstances. I do note that the judge in Decoff considered a sentencing case from the Newfoundland Supreme Court that involved offenders who each had significant responsibilities to their families: one woman was the primary care-giver to her ill father and supported two young children who lived with her and her co-accused had a grown daughter and new baby living with her and her seasonally-employed husband. (R. v. Smith, [1999] N.J. No. 6)
[49] In Smith, notice was taken of the fact that the offenders had experienced social stigma and publicity as a consequence of their convictions and this was seen as contributing to the sentencing objective of denunciation. (Smith, paragraph 20)
[50] In R. v. Seguin, [1997] O.J. No. 5439 (Ont. Gen. Div.), the offender was convicted of having taken advantage of her position as the bookkeeper of a rural drug store to steal a portion of the daily deposits. Over 28 months, $76,000 was stolen. It was noted that Ms. Seguin was "keenly aware the business was having trouble meeting its financial commitments." (Seguin, paragraph 9) Ms. Seguin maintained her innocence and expressed no remorse. The judge rejected rehabilitation as a primary concern, finding that "effective rehabilitation is usually only possible where the person recognizes his or her wrongdoing." (paragraph 18) This focused the sentencing emphasis on general deterrence with the judge concluding that: "A message, clear and unambiguous, must reach the community that to commit serious and significant offences will attract similar punishment." (Seguin, paragraph 19) Ms. Seguin received a nine month sentence which the judge was not prepared to permit her to serve as a conditional sentence. A restitution order was made in the amount of $76,773.48. (paragraphs 20 and 21)
[51] In R. v. Mastromonaco, [2002] O.J. No. 4612 (Ont. S.C. Just.) -- a breach of trust although not a bank deposit case -- a lack of remorse was held to be fatally inconsistent with the sentencing objectives of promoting a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community. The court refused to permit the 21 month sentence to be served in the community as a conditional sentence. (Mastromonaco, paragraph 28)
[52] In the Bowden case I mentioned earlier in these reasons, Ms. Bowden pleaded guilty to forging cheques and manipulating the business' books over a 29 month period. She stole approximately $81,000 from her employer's small business. Rehabilitation was not seen as a central sentencing theme, the court viewing Ms. Bowden's offence as an "aberration" in an otherwise productive life. Ms. Bowden's claim to have a gambling addiction was rejected as there was no evidence of any gambling before the thefts started. Sentencing Ms. Bowden to 17 months in jail, the court held "... the crime is of such significance that anything other than a term of incarceration would be inappropriate." (Bowden, paragraph 42)
[53] The Defence provided to me, and I have reviewed, three decisions of the Nova Scotia Supreme Court where conditional sentences were imposed for breaches of trust. (R. v. Matheson, 2001] N.S.J. No. 195; R. v. Saunders, [2000] N.S.J. No. 397; and R. v. W.H.M.C., [2002] N.S.J. No. 412) Two of the cases involved lawyers stealing from clients, a very grave breach of trust. The third case, also very serious, was that of a doctor who breached the trust of several young patients by sexually assaulting them under the guise of conducting legitimate medical examinations.
[54] None of these cases add anything to the analysis required for Ms. Lee's case that is not found in the cases involving conditional sentences in theft breaches of trust. Mr. Matheson received a conditional sentence of two years less a day after consideration of his profound remorse, his mental health (a diagnosis of adult ADHD that was determined by the judge to have played a role in his commission of the thefts), and his professional ruination. Mr. Saunders' conditional sentence of twelve months was imposed in the context of the judge remarking that "a jail term is not necessarily the best solution" where the offender is 82 years old with a "probable future need for competent medical care." (Saunders, paragraph 11) And in the case of W.H.M.C. the judge, making the following statement -- "I now consider section 742 of the Code and state the offender is not a danger to the community and a conditional sentence is consistent with fundamental principles of sentencing" -- imposed a conditional sentence without any analysis of how it was consistent with the purpose and principles of sentencing. (W.H.M.C., paragraph 21)
[55] I will further note that in a decision I made last month -- R. v. Arlene Naugler, [2011] N.S.J. No. 519, I discussed breach of trust cases and the principles of sentencing, including some additional cases from the Nova Scotia courts. (Naugler, paragraphs 47-63) I observed, as did the Crown in this sentencing, that the "stern emphasis on denunciation and deterrence in breach of trust sentencing is found in many cases." (Naugler, paragraph 47)
It is clear the range of sentencing is quite varied but there is a common emphasis on denunciation and deterrence.
[44] Then at para 87 in R. v. Naugler, (supra) J. Derrick went on to discuss the respect for the law and consistency with the purpose and principles of sentencing:
[87] Promoting respect for the law is a fundamental purpose of sentencing. Conditional sentencing has struggled to satisfy this objective although its effectiveness in this regard has been, in my opinion, undermined by a general misunderstanding on the part of the public and also a deliberate misrepresentating of its role as a legitimate, punitive sentencing option. Conditional sentencing was intended to reflect a new emphasis on the goals of restorative justice (Proulx, paragraph 19) Parliament had "mandated that expanded use be made of restorative principles in sentencing as a result of the general failure of incarceration to rehabilitate offenders and reintegrate them into society." (Proulx, paragraph 20) A conditional sentence is a hybrid:
...[it] incorporates some elements of non‑custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and the promotion of a sense of responsibility in the offender. However it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence…(Proulx, paragraph 22)
[88] The Supreme Court of Canada discussing conditional sentencing in Proulx recognized that "Inadequate sanctions undermine respect for the law" and fail to provide sufficient denunciation and deterrence. The Court understood that if a conditional sentence is not distinguished from probation, it will not be accepted by the public as a legitimate sanction. (Proulx, paragraph 30)
[89] The punitive effect of a conditional sentence is to be achieved through the use of punitive conditions, such as strict house arrest, to constrain the offender's liberty. (Proulx, paragraph 36) Another feature of conditional sentencing is its ready conversion to a sentence in a jail cell. As noted by the Supreme Court of Canada in Proulx: "…where an offender breaches a condition without reasonable excuse, there should be a presumption that the offender will serve the remainder of his or her sentence in jail." (Proulx, paragraph 39)
[90] However, punitive objectives are still seen as most appropriately achieved through incarceration. This point was made in Proulx:
Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases where there are aggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence… (Proulx, paragraph 114)
and at para 92:
[92] Ross, P.C.J. in Wilson gave an eloquent articulation of the role that sentencing plays in denouncing serious crimes:
…Sentences have an [exemplary] aspect. They serve in part to fix the seriousness of the crime in the mind of the public. They serve as public pronouncement of just how wrong certain behaviours are. Law makers intend that a court should in passing sentence give voice to the thinking of reasonable and upright people to reflect to some degree how they would view the conduct in question. The public look to criminal sentences for authoritative pronouncements on what is right and what is wrong. Certainly they have many other sources for their values but the justice system is an important source. By doing so a sentence may properly brand certain conduct as reprehensible and in doing so reinforce the morally correct behaviour of the vast majority of citizens…(paragraph 16)
[93] Although I do not subscribe to the uncompromising approach to fraud sentencing apparently taken by the Alberta courts, at least according to their reported decisions, the words of the Alberta Court of Appeal in R. v. Fletcher, [2007] A.J. No. 1323 express what sentencing in fraud cases will sometimes need to reflect:
In crimes of embezzlement, the sentencing goals of denunciation and deterrence take on a particular importance. If this conditional sentence were left standing, anyone else working in a similar capacity of trust for a similar employer could readily see an obvious blueprint for quick wealth. It shows how to get hundreds of thousands of dollars almost effortlessly with only the potential burden of a conditional sentence of house arrest to fear. (Fletcher, paragraph 44)
[45] Given all of the circumstances, especially the breach of trust, a period of custody of less than two years is appropriate? Should the defendant be permitted to serve it in the community under a conditional sentence order?
[46] Ms. Flemming has been on conditions since being charged. There have been no issues or breaches since that time. She is gainfully employed in a seasonal position. She is supported by her common law husband and family who say this is out of character. She now accepts responsibility for her actions. She was a very productive member of society until this offence.
[47] In 1996 Parliament promoted “criminal justice objectives” that emphasized a restorative justice model that focussed less on relying upon jail sentences as a punitive measure to achieve accountability.
[48] In R. v. Davies [1997] P.E.I. J. No. 107 C.J. Carruthers stated at para 5:
“In my view the objectives of deterrence and denunciation as emphasized by this Court for breach of trust cases...are not inconsistent with and in many instances can be achieved through conditional imprisonment orders. These orders can place many restrictions on liberty of an offender and it is wrong to consider conditional imprisonment and sentences under s. 742.1 as intrinsically lenient and reserved only for cases with excepted circumstances.”
[49] Ms. Flemming’s case is one where I’m satisfied that a conditional sentence order is appropriate. She did not embezzle hundreds of thousands of dollars as in Lee or Naugler. It was an unsophisticated theft that was exposed by a manager reviewing deposits (similar to R. v Pottie or R. v Decoff).
[50] A conditional sentence order of 18 months with very strict conditions including house arrest, would be a sentence proportionate to the gravity of the crime. Ms. Flemming accepts responsibility and is willing to make restitution. A 12 month probation order and restitution order will also hold Ms. Flemming accountable for the people she has harmed.
Dated at Sydney, Nova Scotia, this 22nd day of November, 2013.
____________________ Jean M. Whalen, J.P.C.