R. v. Matthews, 2013 ONCJ 163

Citation: R. v. Matthews , 2013 ONCJ 163 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN Ñ AND Ñ RICHARD MATTHEWS ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) For the Crown Mr. F. Bartley For the Defendant Ms. U. Kancharla Heard: March 1, 2013 REASONS for SENTENCE S.R. SHAMAI, J.: A. INTRODUCTION [ 1 ] Mr. Matthews is a 53 year old man with a criminal specialty, it appears, in diamond thievery.

He pleaded guilty to a count of theft of a 1.70 carat diamond, on May 10, 2012, and two counts of breaching a probation order. * The order was made June 25, 2010, and came into effect for a period of two years following the expiry of a twelve month (in addition to equivalent of 10 months time served) sentence. The order prohibited him from attending in jewellery stores. Admitting for the purpose of sentencing that the theft on May 10, 2012 was a breach of that order, Mr.

Matthews entered guilty pleas to breaching the same condition on January 18 and April 3, 2012. [ 2 ] He has 6 days pre-trial custody to his credit, although he has been in custody since June 28. A sentence imposed on February 15, 2013 took into account all but 6 days of the pre-sentence custody. Crown seeks a sentence of three to four years; on behalf of Matthews, counsel seeks a sentence of 18 months, taking into account the pre-sentence custody.

[ 3 ] The issue on sentencing is two-fold as I understand the submissions of counsel: what effect does the lengthy record of similar property offences have on a subsequent such admission of guilt; and how are the principles of sentence relating to persons of Aboriginal heritage reflected as more than just lip service, in this case? B. THE DIAMOND THIEF (

a) History of Offences [ 4 ] There are three significant aspects to the facts underlying the convictions here: one, that this is a modus operandi with some sophistication and pre-planning; two, that Mr. Matthews has used this modus operandi in the past; and that particularly in light of the breach of the condition of a probation order intended to keep him out of jewellery stores, Mr. Matthews has demonstrated a certain incorrigibility. [ 5 ] The admission underlying the theft conviction here involves Mr. Matthews attending the Precision Jewellers store in Windsor Ontario, on May 10, 2012. An employee heard Mr.

Matthews tell her co-worker that he had been in the store on another occasion when she showed him diamonds weighing 1.5 and 1.8 carats, and that he wished to see them again. Mr. Matthews was advised that those stones had likely been sold, but was offered one weighing 1.7 carats, quality described as L brilliance, and VSI quality. Upon taking it in his hand, the employee immediately noticed that Mr. Matthews switched it for another item, and that what was returned to her co-worker was not the authentic gem. She in turn gave it to her colleague with a note to call police. Mr.

Matthews was immediately confronted with the accusation that he had switched it. He protested that he returned what he had been shown, but then placed his hands in his pockets, and while employees locked the store doors awaiting police arrival, Mr. Matthews was observed to swallow something, then leave something in the wastebasket. Upon his arrest, Mr. Matthews was placed in a Òdry cellÓ, which was intended to facilitate investigation of the possibility he had swallowed the gem. In fact after several days, and the issue and execution of a search warrant, the diamond was recovered.

The wastebasket was found to contain a paper envelope with 3 cubic zirconiaÕs in it, similar to what the store employee was handed, in place of the diamond. [ 6 ] The facts underlying the guilty pleas on counts of fail to comply with probation disclose incipient substantive offences of a similar nature: Mr. Matthews was bound by the probation order imposed upon sentence by Justice P. Bourque of the Ontario Court of Justice at Newmarket, on June 25, 2010. That probationary term followed a period of incarceration for two counts of theft, similar to those before this court. One of its terms forbade Mr.

Matthews from attending at retail stores whose principal business was the sale of jewellery. Mr. Matthews admitted going to Richard Booth Fine Jewellery in Toronto on January 18, 2012, where the principal business was and is the sale of jewellery. An employee recognized Mr. Matthews from an alert issued to jewelers on a website called Jewellers Vigilance. He was refused service. Upon the report of the incident to police, a warrant was issued for MatthewsÕ arrest. A similar incident occurred on April 3, 2012, in the Yorkville area of Toronto, when Matthews was captured on video in the Diamond Design Studio.

Again, the employee who viewed Matthews believed him to be the person portrayed in Jewellers Vigilance website, and a warrant was issued for his arrest, when the incident was reported to police. I am advised that on at least the three previous theft convictions, in 2013, 2010 and 2007, the object of the theft was diamonds, and the modus operandi was the same as in this case. (

b) The Offender [ 7 ] Mr. Matthews is not a first offender. His lengthy criminal record notably includes several counts of theft over, relating to diamond thefts, by means of diamond switching. He has, as I understand the facts, committed substantial diamond thefts by the same means as in this case. In 2007, on two counts, a sentence of six months on each count, to be served concurrently, was imposed. In 2010, a sentence of 22 months on two counts was imposed, to be followed by three years probation.

That probation order included the condition which was admittedly breached on the two * Òfail to complyÓ convictions in this case, and, although not the subject of conviction, is a circumstance pleaded on sentence in relation to the theft in this case. On February 15, 2013, after a trial, Mr. Matthews was again convicted on theft offences. The sentence totaled 53 months, although some of it reflected time served. The offences in that case were committed on September 30, 2011, only two days after he was fined in Windsor for the offence of possession of property obtained by crime. [ 8 ] Mr.

Matthews is a man of Aboriginal heritage. He tells the court that his great grandmother was a member of a First Nation. She married a black man who was very wealthy. Counsel advises that her clientÕs grandfather squandered the fortune on gambling and on women. His experiences were played out in front of his children. Mr. MatthewsÕ mother would not let him meet his grandparents, due to what she perceived as the poor influence the grandfather was likely to have on her own children. However, it was submitted by counsel and described by Mr.

Matthews himself that his mixed race heritage made him the subject of ridicule in school. He had no contact with any Aboriginal culture, growing up. In fact pleading his heritage on sentence is something he has only done in 2013, I am advised. [ 9 ] Mr. Matthews has two sons, one a chef, and the other living in England but with no contact with his father. He is divorced, but says he is on friendly terms with his ex-wife. He has worked in a scrapyard and has done renovations. He suffered a learning disability as a child, and a lisp, and as well has suffered a substance abuse problem and a gambling addiction.

The bail order on these charges, on which he was never released, required Mr. Matthews to pursue counseling for gambling addiction. He was obviously not able to fulfill

that condition as he was in custody, and he has never engaged in any gambling or substance abuse treatment in the past. He expresses religious commitment: ÒI have always had the LordÓ. C. SENTENCING PRINCIPLES: POSITIONS AND ANALYSIS [ 10 ] In asking the Court to apply

Section 718.2 (

e) of the Criminal Code , counsel asks the court to take into account the Aboriginal heritage of the offender in the terms most recently prescribed by Justice Lebel for the SCC in the case of R. v. Ipeelee . The Court is asked to apply that decision with the result that a sentence proportional to the gravity of the offence is imposed. This, in the submission on behalf of Mr.

Matthews, would avoid sentencing him for offences for which he has previously been sentenced. [ 11 ] Certainly the principle of proportionality is not a new principle of sentencing, and the Supreme Court reminds us of its centrality to the authority of the Courts to impose sentence, both in terms of the common-law, and the constitutional dimension of sentencing: it lends the quality of fundamental justice to the sentencing. A proportional sentence reflects not only the moral blameworthiness of the offender but as well reflects the gravity of the offence.

This effects proper denunciation, and as well, allows for the prospect of rehabilitation, when the balance is struck between the offence and the offender. The contextual analysis mandated by

Section 718.2 (

e) requires the Court to take into account the Aboriginal heritage of an offender, in an effort to consider all sentencing options short of incarceration, which are reasonable in the circumstances. The special emphasis on the circumstances of the Aboriginal offender, underlined in this subsection and the resulting jurisprudence, is intended to address remediation of the over-incarceration of Aboriginal offenders in Canada.

It is intended to give public appreciation to the conditions of aboriginals in Canada, who have in countless cases been forcibly separated from their culture, their language, their families, and their sense of justice by government action. In rallying the Courts to implement restorative justice, the Court in R. v. Gladue directed judges: In general terms, restorative justice may be described as an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to its occurrence, or at least which it is felt should exist.

Section 718 is, in part, a restatement of the basic sentencing aims, which are listed in paras. (

a) through (d). What are new, though, are paras. (

e) and (f), which along with para. (

d) focus upon the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. The concept of restorative justice which underpins paras. (d), (e), and (

f) is briefly discussed below, but as a general matter restorative justice involves some form of restitution and reintegration into the community. A significant problem experienced by aboriginal people who come into contact with the criminal justice system is that the traditional sentencing ideals of deterrence, separation, and denunciation are often far removed from the understanding of sentencing held by these offenders and their community. The aims of restorative justice as now expressed in paras. (d), (e), and (

f) of s. 718 of the Criminal Code apply to all offenders, and not only aboriginal offenders. However, most traditional aboriginal conceptions of sentencing place a primary emphasis upon the ideals of restorative justice. This tradition is extremely important to the analysis under s. 718.2 (e). In describing the effect of s. 718.2 (

e) in this way, we do not mean to suggest that, as a general practice, aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such as deterrence, denunciation, and separation. It is unreasonable to assume that aboriginal peoples themselves do not believe in the importance of these latter goals, and even if they do not, that such goals must not predominate in appropriate cases.

Clearly there are some serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevantÉ Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non- aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. (excerpted from paraÕs 71-79) [ 12 ] The task of restorative justice is not always an easy one to describe. In the case of Mr. Matthews, he claims his heritage, as rightly he should.

His great-grandmother is the person whom he identifies as the source of his heritage, even though others in his family have ÒIndian cardsÓ as he said. She married a non-Aboriginal man, of apparently considerable wealth. Although Mr. Matthews says that the inter-race marriage of his forebears made him the victim of racial slurs, his history has not visited upon him the family separation or destitution which many First Nations members have suffered.

Indeed, his own mother tried to keep him from his grandfather, not because of any racialised shame, apparently, but because of the profligate ways in which his grandfatherÕs inherited fortune was lost. The bad example was not, as I understand it, related to either side of the racial equation, nor to government or state- imposed policy. [ 13 ] However, it is utterly clear and understandable, that the application of

Section 718.2 (

e) does not depend on a causal link between the criminal activity of the offender and the Aboriginal heritage. Justice Lebel clearly sets out the ambit of proper consideration of

Aboriginal heritage and circumstance, on a case-by-case basis, at paragraphs 73 and 74 of Ipeelee: First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level ofmoral blameworthinessÉ Failing to take these circumstances into account would violate the fundamental principle of sentencing that thesentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The second set of circumstances Ð the type of sanctions which may be appropriate Ð bears not on the degree of culpability of theoffender, but on the effectiveness of the sentence itself. As Cory and Iacobucci JJ. point out, at para. 73 of Gladue: ÒWhat is importantto recognize is that, for many if not most aboriginal offenders, the current concepts of sentencing are inappropriate because they havefrequently not responded to the needs, experiences, and perspectives of aboriginal people or aboriginal communitiesÓ.

As the RCAPindicates, at p.309, the Òcrushing failureÓ of the Canadian criminal justice system vis a vis Aboriginal peoples is due to theÒfundamentally different world views of Aboriginal and non-Aboriginal people with respect to such elemental issues as the substantivecontent of justice and the process of achieving justice.Ó The Gladue principles direct sentencing judges to abandon the presumption thatall offenders and all communities share the same values when it comes to sentencing and to recognize that, given these fundamentallydifferent world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particularcommunity. [14] How do these expressions of principle apply to Mr.

MatthewsÕ situation? I must, quite simply, consider what I am told aboutMr. MatthewsÕ Aboriginal heritage, and craft a fit and proper sentence in this case. No doubt, Mr. MatthewsÕ case illustrates that thefirst step in enabling the Court to take this significant aspect of circumstance into account is to place the facts of the heritage before theCourt. Apparently this has not been done before, although the amendment to the Criminal Code enacting

Section 718.2(

e) has been inforce for 16 years, and the Gladue decision was in 1999: Courts mandated to enable individuals to place this information before theCourt in order to assist the court in fashioning a fit sentence in view of the Aboriginal community have been operating in Toronto since2001. During that time, Mr. Matthews has been before the Courts for sentencing many times. Nonetheless, Mr. Matthews did not, forreasons not shared with the Court, set out his circumstances until this year. His circumstances show mixed race heritage, and abackground of squandered fortune.

There is no suggestion of a role played by government to destroy his family, nor of any othercriminal histories in his family. Although it appeared his grandfather abused alcohol, that was linked to excess privilege, notdisadvantage, and the offenderÕs mother took steps to prevent that influence from affecting her son, Richard Matthews. Certainly theappearance of material advantage does not eliminate the presence of deleterious historical or personal trends, but I have no information tothat effect in this case.

In addition, I have no information about connection to the Aboriginal or any other community, and so the task ofrestorative justice becomes considerably more difficult to define in this case. [15] My colleague Justice Clements considers the issue of sentencing repeat offenders: BuschÕs lengthy record is at first blush an aggravating factor in my sentence analysis. In that context, I am aware that it is the practice topunish repeat or persistent offenders more severely than those who have not previously offended. In R. v. McArthur (ON CA), [2004] O.J.

No. 721, the Ontario Court of Appeal noted that a lengthy record was usually indicative of a person who was adanger to the public, which usually results in a heavier sentence. That said, the length of the record, however, is not everything and theCourt has to assess the seriousness of the record by the length of sentences imposed in the past and in particular, the length of sentenceimposed for similar offences committed in the past.

A pattern of similar offences committed in the past can be indicative of an offenderdedicated to a life of crime and therefore more of a danger because previous attempts to deal with the individual have failed. (para. 64) [16] Counsel urges that sentencing on this offence not reflect the history of convictions for similar offences. She urges the Court not tosentence on the basis of past offences, but to craft a sentence based on the circumstances of these present convictions alone.

Withrespect, the consideration of the offenderÕs history bears both good and bad news in most cases; and in the case of previous sentences, itis instructive to the court as to the effectiveness of certain sanctions. I refer again to paragraph 74 in Ipeelee, above. Mr. Matthews hasnot shown himself to be a member of a part of the community which does not share the world views of the broader community, in such away as to view differently Òsuch elemental issues as the substantive content of justice and the process of achieving justiceÓ.

Althoughhe appears to be reasonably sophisticated in his manner of committing diamond thefts, he has not shone that same light on the gamblingproblem which he complains is his motivation to commit these offences. He says the only time counseling for gambling became aconsideration was when it was directed as a term of judicial interim release, a release he never achieved. I fear that Mr. Matthews mayfind convenient times to show himself in differing lights, as a result no doubt of his lifeÕs experience.

He has expressed great appetitefor counseling when he describes the bail hearing last June and as he reflects before the Court on the link between gambling and hishistory of theft; yet he has taken no step at any time to address the issue. Perhaps gambling addiction is an aspect of the First Nationslegacy he bears. That would only be speculation on my part, however, and I am certainly not prepared to accept on the basis ofinformation before me either the linkage between gambling and criminality, or criminality and Aboriginal heritage.

That said, Inonetheless view the systemic factors affecting First Nations people in Canada as including Mr. Matthews in the net. However, in theabsence of anything but the faint hope that counseling for a self-declared gambling addiction might change the lengthy history of similarserious offences in this case, and in the absence of any evidence of a community to which Mr.

Matthews might fruitfully be restored, thisis a case where the analysis is affected by application of principle relating to Aboriginal persons, but the result is not. [17] I do take into account the failure of lengthy periods of incarceration in the past to deter continued criminal conduct. Even aprobation order, specifically tailored to address the repetitive nature of these diamond thefts, was not effective: Mr. Matthews breachedthe order three times in the admitted facts forming the foundation of the sentencing today alone. He breached the same order and wassentenced for it on February 15, 2013.

He has a past history of breaching probation orders, though I am not aware of the particulars. He

was however so notorious as a diamond thief that the Jewellers Vigilance organization had widely publicized his photograph.

Thus thevigilance or self-help of the target group of jewellery stores made them alert to him, and enabled them to protect themselves from him,where it appears, the courtsÕ sentences did little to change his behaviour. [18] Where rehabilitation has failed, and deterrence through jail sentences is ineffective, and where the prospect of rehabilitationthrough counseling for a gambling problem is so remote and theoretical as to be not much more than a desideratum or a pipe dream, andwhere the connection to Aboriginal heritage offers no clear alternatives which might fulfill the ends of sentencing, be they in restorativeterms or otherwise, the Court has little option, given the circumstances of the offences, but to impose a significant period ofincarceration.

That period should be at least equivalent to the time in jail imposed on the last conviction. That was a term of forty monthsjail, taking into consideration seven months time served, on the theft, an identical offence, and four months jail on a fail to comply withthe same term of probation as in this case, taking into consideration two months time served. A total sentence equivalent to fifty threemonths was imposed in that case. [19] In these circumstances, I view the fit sentence for the theft as being a sentence of four years. That is barely more than thesentence imposed on February 15.

I view the fit sentence on the repeated commission of the breach probation as eighteen months. I arriveat these sentences, taking into account the mitigating features, particularly the guilty pleas, as well as the aggravating features, notablythe vexing repetition of the offences notwithstanding court orders intended to keep Mr. Matthews away from temptation. I have, as theforegoing demonstrates, come to these conclusions by application of an analysis reflecting the principles related to aboriginal persons. Inote that the sentence imposed in February has a remainder to run for 43 months and a week.

That is just short of four years. To runconcurrently, Mr. Matthews would serve approximately 23 months more than what he is currently serving. To run consecutively, wherethe new sentence fully reflects the fit sentence on these offences, would impose an overwhelming, disproportionate sentence, in my view. It would deprive this man, in his early 50Õs, of the opportunity to show the community that he might at last be deterred from furthercriminal conduct.

In the result I impose a sentence of 4 years on the theft, 18 months on the breach probation, consecutive to the theftbut concurrent to each other and concurrent to time serving. Released: March 7, 2013 Signed: ÒJustice S.R. ShamaiÓ *It was brought to my attention that I have referred to guilty pleas on two counts of fail to comply probation. In fact, guiltypleas were entered on three such counts: one on May 10, 2012, and the other two as indicated. The net effect is that the eighteenmonth sentence is concurrent on three counts. Cases referred to: R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 R. v.

Ipeelee, 2012 SCC 13 , [2012] 1 S.C.R. 433 R. v. Busch, [2012] O.J. No. 3318 (OCJ)