Her Majesty the Queen - v. -, 2011 SKPC 181

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 181 Date: November 25, 2011 Information: 44302605 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Terence Richard Webb Appearing: Mr. R. Ritter For the Crown Mr. T. Hawryluk For the Accused SENTENCING DECISION R.D. JACKSON , J I BACKGROUND [ 1 ] The accused, Terence Richard Webb, was charged: (1) between the 3 rd day of February, A.D. 2009 and the 19 th day of February, A.D. 2010 at or near Saskatoon, Saskatchewan did steal money in the sum of $65,439.28, the property of George Swan, of a value exceeding five thousand dollars, contrary to

section 334 (

a) of the Criminal Code .

[ 2 ] On November 7, 2011, the accused entered a guilty plea to this offence. [ 3 ] Crown and Defence put forward a joint submission for a twelve month conditional sentence containing the statutory terms together with the following imposed terms: 1. That for the first two months the accused would be confined to his residence (30613 Keystone Avenue, Mission, BC), unless pursuing employment opportunities, attending to medical emergencies, or with the express permission of his conditional sentence supervisor; and 2.

That for the subsequent ten months, the accused would be confined to his residence between the hours of 11:00 p.m. or 7:00 a.m., unless pursuing employment opportunities, attending to medical emergencies, or with the express permission of his conditional sentence supervisor. [ 4 ] Crown counsel stressed that the most significant factor from their perspective was that the accused was prepared to pay back the entire amount of the misappropriated funds.

Additionally, the accused was entering an early guilty plea and the complainant now 86 years old, suffered from advanced dementia and was in Level 4 care. [ 5 ] Defence counsel in fact presented a cheque in court in the amount of $40,000.00 representing the balance of the entire amount stolen as per the Information, such that full restitution has now been made on the criminal charge. [ 6 ] Representations were then made by Crown and Defence which included a letter filed by the Public Trustee marked as exhibit P-1 in the Sentence Hearing.

No issue was taken by either counsel concerning the representations made and the material filed (which included a Brief of Law on behalf of the Defendant). [ 7 ] From the information provided the following salient facts emerged:

a) The accused, Terence Webb, is the nephew of the victim, George Swan, and the sole surviving beneficiary of his estate. He is currently 43 years of age and has no criminal record.

b) In February 2009, Mr. Webb obtained Power of Attorney over his uncle’s affairs.

c) In March 2009, Mr. Swan’s residence located at 827 Idylwyld Drive, Saskatoon where he had resided alone in “modest fashion” for many years was placed in joint tenancy with the accused. The home was valued at approximately $125,000.00 and as well at this time Mr. Swan also maintained a bank account of roughly $22,000.00.

d) A report dated May 7, 2009 from Dr. Earle De Coteau indicated Mr. Swan was suffering from a severe form of chronic dementia likely due to Alzheimer’s Disease.

e) Shortly thereafter, in May 2009, the accused placed Mr. Swan into a private nursing care home signing a contract as Power of Attorney at a monthly rate of $1,750.00.

f) The care home operator received only two payments from that time forward being $1,456.25 on July 1, 2009 and $1,750.00 on September 1, 2009. Ultimately the care home deficit would grow to in excess of $16,000.00 by the time matters ultimately came to a

head.

g) Shortly after arranging nursing care accommodation the accused promptly put his uncle’s former home (now in joint tenancy) up for sale and thereafter sold it realizing net proceeds of $125,000.00. As per his “lawful” entitlement the accused took one-half of the sale proceeds and then, by virtue of the Power of Attorney, took control for himself of the other half of the sale proceeds as well. He then relieved the bank accounts of all remaining funds and relocated to Mission, BC. The total amount of funds from the house sale and the bank accounts the Crown estimated to be $150,000.00.

h) In addition to taking all of these funds, the accused also received his uncle’s Old Age Pension (OAP) and Canada Pension (CPP) at his new address in British Columbia.

i) The accused thereafter had no contact with the nursing home, nor with his infirm uncle, not even by card or telephone inquiry, much less a personal visit. Not only had Mr. Swan’s entire financial security now been decimated but he was left to languish in a private care facility, alone and bereft of any vestige of familial support.

j) The accused, by comparison, became involved as a co-owner in a fast food “smoothie” business in British Columbia, no doubt enjoying his new found lifestyle which included periodic international travel.

k) Mr. Swan’s circumstances however deteriorated rapidly as his monthly care home tab mounted unabated. He also had no money for basic personal care not covered by his room and board including hair cuts, clothing, foot care, razors and incontinence supplies. These items were paid for personally by the home care owner out of her own largesse, notwithstanding incredibly, that she was receiving absolutely nothing for Mr. Swan’s basic care according to the contract.

l) Eventually, this pitiful scenario came to the attention of the Public Trustee’s office who were certified as Mr. Swan’s property guardian on March 4, 2010. By this point, as indicated, the care home arrears (not counting the operator’s out of pocket expenses) exceeded $16,000.00. Also, Mr. Swan’s medications were in jeopardy of being cut off due to outstanding indebtedness with the local pharmacy. Mr. Swan’s bank account stood at roughly $30.00 at this time.

m) The Public Trustee then negotiated a lower rate for Mr. Swan’s home care from $1,750.00 to $1,000.00 per month which the care home provider graciously acceded to. Thereafter, a lawsuit was commenced by the Public Trustee against the accused for misappropriation of Mr. Swan’s funds in the amount of $150,000.00. This matter remains ongoing.

n) In June 2011 Mr. Swan was placed into Level 4 care in Saskatoon where he remains today.

o) Coincidental with the civil lawsuit, the accused was charged with theft from his uncle in the amount of $65,439.28, the amount the Crown could prove beyond a reasonable doubt was stolen.

p) After commencement of the lawsuit the trustee negotiated a payment back from the accused in the amount of $25,000.00 and as indicated, the accused had paid back the entire amount of the alleged theft according to the Information, by November 7, 2011.

q) All outstanding debts over and above the $65,000.00 have now also been paid and the accused has provided additional funds to his uncle’s care home in the amount of $490.87.

r) A Victim Impact Statement provided by the trust officer now in charge of Mr. Swan’s affairs stated in part “ . . . I have been an employee of the Public Guardian’s Office for thirty years and have been a trust officer with an active caseload for approximately seventeen years. George’s is one of the worst cases of elder abuse and neglect I have experienced.”

[8] At the conclusion of sentencing remarks the accused made a brief statement professing his love for his uncle. The Courtthen advised counsel and Mr. Webb that sentencing would not take place that date in order to consider whether the joint submissionwould be accepted. Matters were then adjourned to November 25, 2011 for sentence. Counsel were invited to file any additionalmaterial in the interim as they chose to do in the circumstances.

II JOINT SUBMISSION [9] Joint submissions are the product of negotiation between Crown and Defence which often balance the respective strengths and weaknesses of each to reach an acceptable accommodation. In R. v. G.W.C.[1], Berger, J.A. set out: The obligation of a trial judge to give serious consideration to a joint sentencing submission stems from an attempt to maintain a properbalance between respect for the plea bargain and the sentencing court’s role in the administration of justice.

The certainty that isrequired to induce accused persons to waive their rights to a trial can only be achieved in an atmosphere where the court’s do not lightlyinterfere with a negotiated disposition that falls within or is very close to the appropriate range for a given offence. “The bargainingprocess is undermined if the resulting compromise recommendation is too readily rejected by the sentencing judge” - R. v. Pashe (1995) (MB CA), 100 Man.

R. (2d) 61, at p. 11. [10] Our Saskatchewan Court of Appeal has made it abundantly clear in numerous decisions[2] that joint submissions are not to berejected unless the sentence recommended is unfit or otherwise contrary to the public interest and that cogent reasons should bearticulated for so doing. [11] In R. v.

Oxford[3] the Newfoundland Court of Appeal stated it thus at para. 63: The applicable test for determining whether a joint submission should be accepted therefore requires a sentencing judge to focus, not ongeneral sentencing questions such as fitness, proportionality and range of sentence, but on the much more discreet inquiries of whetherthe imposition of the recommended sentence will, in the circumstances of the case, bring the administration of justice into disrepute andwhether the sentence is contrary to the public interest. [12] After a careful review of the applicable case law authority and having due regard to the sentencing principles of s. 718, and inparticular s. 718.2(a)(iii) dealing with the breach of trust as an aggravating factor, the Court is of the view that joint submission must berejected.

The Court finds that notwithstanding the mitigating factors, the term and conditions proposed do not constitute a fit and propersentence in this particular case and to accept it would be contrary to the public interest. The reasons therefor are as follows:

a) The accused held Power of Attorney and as such was in a position of trust vis à vis the victim;

b) The victim was in a completely vulnerable state being mentally incapable of attending to his own needs;

c) The victim was left totally destitute by the accused without any means of support including even his OAP and CPP benefits;

d) The theft was calculated and ruthless and displayed an extremely callous disregard for the certain dire consequences that wouldfollow for his hapless uncle;

e) The sole motivation for the theft was pure greed and avarice. There was absolutely no other mitigating factor such as financial destitution, gambling or drug addiction or the like so often heard involving breach of trust thefts. Rather, it appeared that the money was used solely to enhance the accused’s lifestyle. Clearly this was a crime of opportunity whereby the accused would have instant access to his uncle’s funds rather than leaving this to chance as sole beneficiary of his estate;

f) But for the intervention of the Public Trustee to pursue the accused by way of civil lawsuit and criminal investigation, the victim would undoubtedly not have seen a dime of his stolen money;

g) Youth and elderly victims are the most vulnerable in our society and are deserving of our greatest vigilance and protection;

h) Cases of this ilk generally draw a period of actual jail [4] , with a conditional sentence being the exception.

This is not to say that conditional sentences cannot and should not be imposed in appropriate circumstances where truly exceptional circumstances warrant, provided all other prerequisites have been met. [5] However when considering the particular facts of this case, the proposed term of twelve months does not adequately address the primary goal of general deterrence for these type of cases. [6] Nor would the two non- statutory conditions proposed have any significant consequence or effect with respect to this accused since he could virtually come and go at will “while pursuing employment opportunities”.

This provision provides far too much latitude and opportunity to manipulate this exception to his advantage in the guise of doing employment related duties. III SENTENCE [ 13 ] The Court recognizes the very significant achievement of the Crown (no doubt strongly advocated by Defence counsel) to secure repayment of the $65,000.00 to the victim. In most of these cases, restitution is but a chimera. Suffice to say that without it, on these facts, the accused would have had little to argue against actual incarceration.

The accused now also appears to a degree to have recognized his familial obligation to his uncle which hopefully will not expire with the passing of sentence. His early guilty plea obviating the necessity of a complicated trial with an uncertain outcome is duly noted as well as the fact that prior to this incident he had no criminal record. [ 14 ] In all the circumstances, the Court is of the view that the appropriate disposition is a conditional sentence of eighteen months on the statutory terms of keep the peace and be of good behaviour and report to the Court if and when required to do so.

In addition, the following terms on the conditional sentence shall apply: 1. The accused shall report by 4:00 p.m. today, November 25, 2011, to his Conditional Sentence worker and thereafter as directed; 2. The accused shall forthwith upon his return to British Columbia provide a copy of the Conditional Sentence Order together with his address and telephone number to the nearest detachment of the RCMP for purposes of checking compliance with these conditions and shall advise his Conditional Sentence worker, or designate, of the locale and telephone number of the RCMP detachment; 3.

The accused shall be confined to his residence (30613 Keystone Avenue, Mission, BC) for the first three months commencing December 1, 2011 with the exception only of attending to medical emergencies or with the dated written permission of his Conditional Sentence worker or designate. Further, he shall personally present himself to the door of his residence for any peace officer, Conditional Sentence worker or designate, checking on compliance with this condition; 4.

That for the subsequent fifteen months the accused shall be subject to a curfew of 11:00 p.m. to 7:00 a.m. daily with the exception only of attendance to medical emergencies or with dated written permission of his Conditional Sentence worker or designate. He shall

further personally present himself to the door for any peace officer, Conditional Sentence worker or designate, checking on compliancewith this condition; 5. The accused shall perform 100 hours of community service at the direction of his Conditional Sentence worker, to be completed on orbefore November 30, 2012. Emphasis shall be given, where at all possible, to working with the elderly in any capacity that does notinvolve the handling or access to money. [15] All surcharges are waived. The accused is ordered to stay and sign the Conditional Sentence Order. __________________________________ R.D.

Jackson, J [1] (2000), 2000 ABCA 333 , 277 A.R. 20, 242 W.A.C. 20, (Alta. C.A.) [2] R. v. Omoth [2011] S.J. No. 214, [2011] 6 W.W.R. 589; R. v. Kasakan [2006] S.J. No. 48, [2001] 8 W.W.R. 23; R. v. Webster, 2001SKCA 72, Sask. R. 257. [3] (2010), 257 C.C.C. (N.L.C.A.). [4] R. v. Gopher 2006 SKCA 86, 39 C.R. (6th) 372 (Sask. C.A.); R. v. Harding 2006 SKCA 118, 285 Sask. R. 273 (Sask. C.A.); R. v.Castro 2010 ONCA 718, 102 O.R. (3d) 609 Ont. C.A. [5] R. v. Proulx 2000 SCC 5 , [2000] 1 S.C.R. 61, 140 C.C.C. (2d) 449 (S.C.C.) [6] R. v. Castro (supra)