R. v. Nguefang, 2011 ABQB 615

Court of Queen ’ s Bench of Alberta Citation: R. v. Nguefang, 2011 ABQB 615 Date: 20111007 Docket: 101509347S1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Christian Eddy Yankam Nguefang Appellant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I. Introduction [ 1 ] On July 12, 2011, the Appellant pled guilty to one count of theft under $5,000 contrary to s. 334 (

b) of the Criminal Code , and was sentenced to pay a fine of $300. He appeals his sentence on the grounds that the sentencing judge failed to impose a fit and

proper sentence by refusing to grant a conditional discharge to the Appellant. II. Background Facts [ 2 ] The Appellant is a 25 year old man who immigrated to Canada from Cameroon at age 11. On November 18, 2010, the Appellant committed a theft under $5,000 by taking three Sony Playstation games worth a total of $199.49 from the Walmart store where he was employed. He concealed them in the pocket of a jacket contained in his personal locker. [ 3 ] At the time of the offence, the Appellant ’ s mother was hospitalized in Cameroon and gravely ill.

The Appellant faced pressure to provide money to the hospital for her care and explained that the games were taken in order to get money to send for her care. [ 4 ] The Appellant had no criminal record and a good prior employment record. He was involved in volunteer activities within the community and was generally of prior good character. He expressed his remorse to the Court prior to sentencing. At the time of sentencing, the Appellant was again fully employed and had informed his new employer that he was before the Court. His Pre-Sentence Report was favourable and in the Evaluative

Summary, the probation officer stated: ...In the writer ’ s view, he is very remorseful for his involvement in this theft offence and is willing to make amends and face the consequences of his actions. He was very cooperative in regards to the preparation of this Pre-Sentence Report. The subject made no attempt to minimize or irrationalize his involvement with this offence. He is employed on a full time basis and appears to have set attainable goals for his future due to his current educational level combined with his plan to upgrade his education over the next few years.

This subject has strong family support from his partner as well as good support from his church and the circle of friends he associates with. There are no issues related to substance abuse, anger management or mental heath. Although the subject certainly presents as a suitable candidate for a period of community supervision, it is respectfully recommended that he does not appear to require this level of supervision. A number of Community Service Work hours may be appropriate in this case. [ 5 ] Two letters of support were entered as sentencing exhibits in support of the Appellant.

One was from a senior pastor of the congregation in which the Appellant is a member who states, in part: I strongly testify that [the Appellant] is a good man of good character and worthy to be trusted. The theft at the store was a true devastating mistake he has ever made due to a hardship time he was having at that period. Once it happened, he came by himself for counselling and advice to our offices. He was extremely sorry and ashamed for that. We have gone through serious teachings and follow up.

Since then, a personal mentorship has been settled in order to bring him out of this situation and make him understand not only the sin in the eyes of God and the church but also the danger of having a criminal record to compromise any further carrier in his entire life. A special programme was established for him in terms of volunteering in the church and in the community. He was trained through the Revenue Canada as an income tax volunteer... . He helped many low income families, elders and new immigrants to file their income tax free of charge. ...

I thus recommend that [the Appellant] may be given a second chance to prove his loyalty toward the law of Alberta and Canada in general...

[ 6 ] Crown did not oppose a conditional discharge. However, the sentencing judge refused the Appellant ’ s request for a conditional discharge and imposed a fine of $300. III. The Sentencing Judge ’ s Reasons [ 7 ] The sentencing judge identified the aggravating factors as: 1. The offence was committed in relation to a position of employment and a breach of trust; 2. The number of games taken was more than one; 3. The Appellant planned to sell the stolen games for money. [ 8 ] The sentencing judge also identified the following mitigating factors: 1. The Appellant pled guilty; 2.

The personal circumstances of the Appellant included the recent death of his father and health concerns of his mother; 3. The money from the theft was to help his sick mother. [ 9 ] The sentencing judge found there was an element of personal gain. She identified general deterrence as the primary sentencing consideration and the concern of future employers to be apprised of the offence.

In concluding, the sentencing judge acknowledged that it was in the Appellant ’ s best interest to receive a discharge but regarding the public interest stated, “ given that it is a theft from an employer and having regard to all of the circumstances, it would not be appropriate to grant a discharge. ” She imposed a fine of $300 in the theft under $5,000 category. IV. Grounds of Appeal [ 10 ] The Appellant says that the trial judge erred in principle by failing to impose a fit and proper sentence upon the Appellant.

He argues that the sentencing judge erred in failing to properly consider and apply the “ MacFarlane ” factors in considering a discharge and also erred in failing to consider whether exceptional circumstances existed to warrant a conditional discharge. V. Discussion A. Standard of Review [ 11 ] An appellate court is entitled to vary a sentence if it finds that the sentence imposed is demonstrably unfit or there has been an error in principle, a failure to consider a relevant factor, or an overemphasis on the appropriate factors in arriving at the sentence ( R. v. Law , 2007 ABCA at paras. 21 to 22; R. v.

Deck , 2006 ABCA 92 at paras. 13 and 24 ; R. v. Dingwall , 2005 ABCA 14 ). B. Did the Sentencing Judge Err?

[12] A conviction under s. 334(

b) of the Criminal Code for theft under $5,000 carries a maximum penalty of two yearsimprisonment. There is no minimum sentence prescribed. [13] Stripped of the wording inapplicable to this case, s. 730 of the Criminal Code provides that where an accused has pled guiltyto an offence, the court may, if it considers it to be in the best interests of the accused and not contrary to the public interest, direct thatthe accused be discharged on prescribed conditions instead of convicting the accused. [14] The Alberta Court of Appeal in R. v. MacFarlane (1976), 1976 ALTASCAD 6 , 55 A.R. 222, [1976] A.J.

No. 429(C.A.) acknowledged that in most cases, a discharge would be in the best interests of an accused. [15] In respect of the second condition, and whether a discharge would not be contrary to the public interest, the Court inMacFarlane set out some of the relevant factors to be considered: 1. the nature of the offence; 2. the prevalence of the particular offence; 3. whether the accused stood to make some personal gain at the expense of others; 4. the value of property destroyed or stolen; 5. whether the crime was committed as a matter of impulse; and 6. whether the offence should be a matter of public record. [16] The Alberta Court of Appeal has subsequently cited these factors on a number of occasions. [17] The six factors are not exhaustive.

In its discussion regarding the sixth factor, the Court in MacFarlane recognized that“even here there may be exceptional circumstances” which might allow for consideration of a discharge. The Court did not restrict itsconsideration of the existence of exceptional circumstances to the sixth factor. The Court went on to consider a more general applicationof exceptional circumstances as they may have existed in that case and found that there were none. [18] In R. v.

Nasogaluak, 2007 ABCA 339, 422 A.R. 222, aff’d 2010 SCC 6, [2010] 1 S.C.R., the Court of Appeal observed thatthe Court in MacFarlane did not attempt to set out all matters that must be considered, noting that it was impossible to lay down ruleswhich would cover the myriad of situations which may appear before a judge in any given case. [19] In R. v. Cabrera, [1994] A.J. No. 179 (C.A.), Crown conceded that the accused charged with theft under met all of thecriteria in MacFarlane.

The Court of Appeal held that the sentencing court erred in law and imposed too great a burden on the applicantby taking the position that a discharge cannot be imposed unless the circumstances clearly demand its imposition. [20] Crown did not oppose a conditional discharge before the sentencing judge. [21] In his submissions before the judge, counsel for the Appellant addressed the concern about having a public record availablefor future employers where an individual has been convicted of theft from an employer. He also identified “exceptional circumstances”

which he suggested should be considered in determining whether this case would be appropriate for a conditional discharge.

The Appellant argues that the sentencing judge failed to specifically address these two areas in her reasons and consequently, it is not possible for the Appellant or this Court to determine the basis upon which she decided to reject the submissions and refuse a conditional discharge to the Appellant. [ 22 ] There is no question that the principle objectives of denunciation and deterrence are of primary importance for a court in determining the appropriate sentence in a case of theft from an employer.

The Court of Appeal has routinely imposed periods of imprisonment in cases of employees stealing money from their employers ( R. v. Miles , 2011 ABCA 133 , R. v. Fulcher , 2007 ABCA 381 ). [ 23 ] However, it is important to note that the offence of theft, to which the Appellant pled guilty, is not one of the offences excluded from consideration of a discharge under s. 730 .

Theft from an employer, which is encompassed in s. 334 , is therefore not excluded from consideration for a discharge under s. 730 . [ 24 ] In refusing a discharge, the sentencing judge acknowledged that it would be in the Appellant ’ s best interest to receive a discharge, but held that in this situation she could not say that a discharge would not be contrary to the public interest. She concluded by stating: Certainly it is of concern for future employers if an individual has in the past taken advantage of a trusted position at work to commit this type of offence. ...

I am of the view that, given that it is a theft from an employer and having regard to all of the circumstances, it would not be appropriate to grant a discharge. [ 25 ] It is unclear as to which circumstances, in addition to it being a theft from an employer, the sentencing judge considered to militate against the granting of a discharge. [ 26 ] She earlier identified the other aggravating factors as the number of games taken (more than one) and the Appellant ’ s plans to sell the games for money. While the number of games totalled three, the value of the games totalled less than $200.

This amount is at the low end of the scale (though, as suggested by the sentencing judge, not at the “ very low end of the scale ” ). [ 27 ] Further, while the Appellant did plan to sell the stolen games for money, the sentencing judge accepted that this was to help in addressing the health costs of his ailing mother who was hospitalized in Cameroon. The Court in MacFarlane distinguished “ personal gain ” from motives based on something other than self-interest. The sentencing judge accepted that the Appellant ’ s motive was to help his ailing mother. No other personal gain was identified.

Having accepted this motive, she erred in finding there was an element of personal gain under MacFarlane . [ 28 ] The sentencing judge was primarily concerned about the conviction of the Appellant being a matter of public record. It appears that she believed that a discharge would not result in a public record and that such a record should exist to address concerns for future employers.

Her reasons do not reflect consideration of the Appellant ’ s submission that the imposition of a conditional discharge does result in a public record for a period of three years and may, indeed, satisfy the concern that future employers know that the Appellant committed this offence. Nor did she address the fact that an eventual pardon would also have the effect of removing at some point the offence from the Appellant ’ s record. [ 29 ] Counsel for the Appellant further argued that exceptional circumstances existed that warranted the granting of a conditional discharge to the Appellant.

It is unclear from the reasons of the sentencing judge whether she considered the circumstances identified by the Appellant ’ s counsel as exceptional and, if so, why she considered them insufficient to warrant the granting of a discharge.

[30] The sentencing judge found an element of personal gain under MacFarlane. She failed to address whether the existence of apublic record in the case of a conditional discharge would satisfy the court’s concerns with respect to future employers. Specifically, shefailed to address whether a public record of three years would fulfill the sentencing objectives in this case. She also failed to addresswhether exceptional circumstances existed in this case such as to warrant a conditional discharge.

In my view, these amount to reversibleerrors in the approach taken by the sentencing judge. [31] Finally, although the sentencing judge referred to the MacFarlane factors, in my view she essentially took the position that adischarge cannot be imposed in a case of employee theft, similar to the erroneous test applied in Cabrera. [32] Consequently, it is appropriate for me to consider sentencing afresh and impose one that is fit and proper in thecircumstances. C. The Appropriate Sentence [33] The sentencing of an individual convicted of an offence is a highly individualized process.

The MacFarlane Factors 1. the nature of the offence [34] The Appellant was convicted under s. 334 of the Code which covers a range of offences from simple theft to theft from anemployer. The Appellant stole from his employer. He committed a breach of trust.

This is the single most aggravating factor in this caseand must be considered an aggravating factor in every case of employee theft. [35] I would note, however, that the employee theft cases relied on by the Crown before this Court deal with embezzlements.They include the added factual element of access to bookkeeping systems and/or cheque signing authority involving a heightened degreeof trust on the part of the employer and often an ability by the employee to conceal ongoing fraud through falsification of documents.

Inmany cases, some or all of the stolen funds were long gone or impossible to trace by the time the theft was detected. While deterrence isan important factor in sentencing on any theft from any employer, courts understandably are exceedingly concerned with general andspecific deterrence in such cases in order to communicate the message that crime does not pay. [36] Under s. 334, where the value of the goods stolen is less than $5,000, no minimum punishment is prescribed.

An offenceunder s. 334 is not excluded from consideration for a conditional discharge under s. 730, nor does a more stringent test apply. 2. the prevalence of the particular offence [37] While there has been no empirical data placed before the Court, there are many cases which come before the Courtsinvolving a breach of trust in the context of an employer/employee relationship. [38] The theft in this case was akin to an unsophisticated shoplifting, although the Appellant was in a staff area when he put theitems in question in his jacket pocket prior to being stopped by a store security guard.

The Court of Appeal has held that because of theprevalence of the crime of shoplifting, most unusual circumstances will be required before a conditional discharge should be granted: R.v. Parisien (1985), 1985 ABCA 50 , 58 A.R. 330, [1985] A.J. No. 835. [39] The principal sentencing objectives in such cases are denunciation and deterrence.

[ 40 ] The Appellant gained nothing from the theft and lost his job.

In this case, I am satisfied from the Pre-Sentence Report, the guilty plea and the comments of the Appellant to the sentencing judge that he has been deterred from ever committing this type of offence again. [ 41 ] While these facts alone are insufficient to address general deterrence, in my view specific deterrence has been achieved through the consequences of the crime, including the charge and proceedings to date. 3. personal gain [ 42 ] While there is no question that the Appellant intended to sell the games for money, this must be considered in light of the reasons why he was doing so.

The Court in MacFarlane framed the question as being whether an accused stood to make some personal gain at the expense of others, as distinct from an activity in respect of which his motives were other than self-interest. [ 43 ] In my view, the fact that he was trying to obtain funds to send to a hospital in Cameroon to ensure proper care for his mother is not indicative of personal gain as that term was contemplated in MacFarlane . He was not planning to keep the money for himself.

This fact distinguishes the present case from all of the case law relied on by the Crown. 4. the value of the property stolen [ 44 ] The three stolen Sony Playstation games had a total value of approximately $200. In my view, this is at the lower end of the scale in the theft under $5,000 category. 5. a matter of impulse [ 45 ] The trial judge accepted that the Appellant was motivated by an immediate need to obtain funds to help his mother. I have no basis upon which to find otherwise. Further, there is nothing on the record to indicate that the theft was anything other than an impulsive act.

Crown at sentencing described it as an uncomplicated scheme which was immediately apparent to store security. 6. whether the offence should be a matter of public record [ 46 ] As indicated above, a conditional discharge remains a matter of public record for a period of three years. In my view, this is an adequate length of time to address any concerns for the notification of future employers. Further, the Appellant is employed again and did advise his new employer of his having committed this offence.

It should be noted that a pardon would also have the effect of removing the offence from the Appellant ’ s record though not for an additional couple of years. The fact that this Appellant will have a public record for a period of three years serves to denounce the offence and act as a deterrent to the Appellant and others from committing this type of offence. Is this case one of exceptional circumstances warranting a discharge? [ 47 ] The Appellant has an extremely favourable Pre-Sentence Report.

The recent death of his father and the immediate need to provide financial assistance for his mother, hospitalized in a foreign country, are significant considerations. All of the stolen goods were promptly recovered. The Appellant appears to be an outstanding individual who, it is suggested, is not even in need of any rehabilitation given his attitude and the rehabilitation he has already undergone. His actions have been described as completely out of character. His background reveals a person who has worked hard to overcome odds and to make meaningful contributions to society.

All of the factors in this case combine to result in exceptional circumstances. This is a unique case. In all of the circumstances, the granting of a conditional discharge to this Appellant is in his best interests and it is not contrary to the interests of the public.

[ 48 ] In my view, the principle of general deterrence is better served in this case by a conditional discharge with a period of community service hours, rather than by a small fine. A conditional discharge with terms constitutes a fit and proper sentence. VI. Conclusion [ 49 ] The granting of a discharge in a case of employee theft is a very rare and exceptional sentence.

In the unique circumstances presented here, I allow the Appeal and substitute a conditional discharge in place of the $300 fine imposed by the sentencing judge. [ 50 ] I will allow counsel to discuss appropriate conditions to include in the discharge and direct that they attend before me within 30 days to set the conditions. Heard on the 22 nd day of September 2011. Dated at the City of Edmonton, Alberta this 7 th day of October 2011. Eric F. Macklin J.C.Q.B.A. Appearances: Julie Snowdon for the Respondent Shawn Beaver Beaver Leebody Frank & Simic for the Appellant