R v Roopchand, 2016 MBCA 105

Citation: R v Roopchand, 2016 MBCA 105 Date: 20161025 Docket: AR16-30-08552 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Mr. Justice Michel A. Monnin Madam Justice Janice L. leMaistre BETWEEN : HER MAJESTY THE QUEEN ) J. C. Prober and ) B. T. King Respondent ) for the Appellant ) - and - ) N. M. Cutler ) for the Respondent RACHAEL RENATA ROOPCHAND ) ) Appeal heard and (Accused) Appellant ) Decision pronounced: ) October 25, 2016 CHARTIER CJM (for the Court): [ 1 ] After hearing submissions, we granted leave to appeal, but dismissed the sentence appeal, with reasons to follow.

These are those reasons. [ 2 ] The two main issues on this sentence appeal were whether the sentencing judge erred by taking into account the accused’s pending charge for an untried offence when imposing sentence, and whether the 12-month sentence of imprisonment followed by 3 years of supervised probation and restitution was harsh and excessive. [ 3 ] The accused pleaded guilty to one count of theft over $5,000. The thefts from her employer occurred over a period of approximately three and one-half years and totalled almost $54,000.

The accused’s prior criminal record included a 2009 related offence involving a breach of trust. She received a nine-month conditional sentence for that offence. While awaiting sentence for this offence, the accused was also pending on the untried offence relating to another charge of theft from a different employer. [ 4 ] The Crown asked for a sentence of imprisonment in the range of two years, plus three years of supervised probation, along with a restitution order.

Since imprisonment of less than two years was within the range it was suggesting, the Crown acknowledged that a conditional sentence order was certainly an option that was available to the sentencing judge. Defence counsel submitted that a two-year less a day conditional sentence with probation and a restitution order was appropriate in the circumstances. [ 5 ] The critical issue before the sentencing judge was whether the sentence of imprisonment ought to be served conditionally. In his reasons, he balanced the aggravating factors with the mitigating factors.

The aggravating factors included: 1) it was a breach of trust situation involving an employer; 2) the money stolen was not a small amount; 3) the offence was carried out in a purposeful way in that the accused had to manipulate the business records to conceal the theft; 4) the theft occurred repeatedly over a period of approximately three and one-half years; and, 5) the accused had a recent prior related criminal record.

The mitigating factors included that the accused: 1) took responsibility by pleading guilty; 2) showed remorse; and, 3) made serious efforts to pay back the stolen money. [ 6 ] The sentencing judge also considered the sentencing principles and concluded that deterrence, both general and specific, required “particular emphasis.” He then concluded that, while a custodial sentence of less than two years was appropriate, he was not prepared to impose a conditional sentence in the circumstances.

After noting that the accused had benefitted from the Court’s trust when she received the 9-month conditional sentence for the 2009 prior related offence, the sentencing judge imposed the 12-month period of imprisonment followed by 3 years of supervised probation and restitution. [ 7 ] The first ground is whether the sentencing judge erred by taking into account the accused’s pending charge for an untried offence when imposing sentence. The use to be made of evidence will be informed by the purpose for which it is to be admitted.

With respect to what use can be made of evidence of untried offences at a sentencing hearing, the case law is clear: while such evidence

cannot be used for the purpose of punishing the accused, it is admissible when its purpose is limited to shedding light upon some aspectof the accused’s character and background which is relevant to the objectives of sentencing being considered by the judge (see R vEdwards (S) (2001), (ON CA), 147 OAC 363 at para 63; R v Roberts (EW), 2006 ABCA 113 at para 21, 384 AR263; R v Angelillo, 2006 SCC 55 at para 17, [2006] 2 SCR 728; R v Kunicki (JJ), 2014 MBCA 22 at para 52, 303 ManR (2d) 278; andClayton C Ruby, Gerald J Chan & Nader R Hasan, Sentencing, 8th ed (Markham: LexisNexis, 2012) at paras 3.94, 3.165, 3.179). [8] Evidence of the untried related offence is a relevant factor in a sentencing judge’s conditional sentence analysisbecause such an analysis requires an assessment relating to the safety of the community and whether there is a real risk of an accusedreoffending.

As authority, we point to Angelillo, which involved a conditional sentence, and where Charron J explained (at para 36): The fact that Mr. Angelillo had been charged with two new counts of fraud, both of which were allegedly committed while he waswaiting to be sentenced, was obviously relevant to the assessment of the danger his release would represent for the community.

HadJudge Corte considered it necessary to do so, she could have postponed the sentencing hearing to a date after the interim release hearingregarding the new charges in order to be better informed of the risk resulting from the subsequent acts. [9] Was evidence of the new and untried charge of theft from another employer a relevant consideration in this case? Inour view, it most certainly was. The accused was seeking a conditional sentence order. The sentencing judge had to decide whether thatwas appropriate in the circumstances.

One of the factors he had to consider in his conditional sentence analysis was the accused’s risk toreoffend. [10] The sentencing judge’s principal concern was that the accused’s new pending charge raised a red flag regarding herability to not reoffend. Clearly, the untried related charge did shed light upon the accused’s character and background in that itdemonstrated a noticeable lack of understanding into the harm done by her actions and why it should not be repeated.

This lack ofinsight, evidenced by her prior related misconduct, as well as her inability to remain otherwise free of charges while pending on thischarge, gave the sentencing judge no confidence that she would abide by any of the conditions he might impose. He rejected theaccused’s request for a conditional sentence because he concluded that there was a real risk that she would reoffend. We are notprepared to interfere with his conclusion. [11] Did the sentencing judge improperly use the evidence of the untried related offence to impose a greater punishment? Inour view, he did not.

While the sentencing judge did repeatedly refer to the existence of the pending charge, he also mentioned in hisreasons that he could not use “that offence for the purposes of formulating a quantum of sentence today”. A fair reading of his reasons,read as a whole, reveal that he used that evidence to remove the conditional sentence as a viable sentencing option. He did not use theexistence of that untried charge to punish the accused. [12] Three reasons underlie our conclusion.

Firstly, the sentencing judge correctly stated three times in his reasons that hewould not be using that evidence for that purpose; secondly, when he listed the aggravating factors there was no mention of the untriedoffence; and, thirdly, the fact that he only imposed a 12-month period of imprisonment, when the accused had received a 9-monthconditional sentence for a prior but less serious related offence, belies her contention that he used that evidence to impose a greaterpunishment for the offence before the Court. [13] The accused’s last ground was that the 12-month sentence of imprisonment was harsh and excessive, and that aconditional sentence should have been imposed.

We disagree. The sentencing judge’s finding that there was a real risk of the accusedreoffending effectively removed the conditional sentence as a viable sentencing option (see R v Proulx, 2000 SCC 5 at para 69, [2000] 1SCR 61).

In our view, and on this record, it was certainly a finding that was open to the sentencing judge. [14] More importantly, it certainly cannot be said that the 12-month sentence is demonstrably unfit given that before andduring the time the accused was serving her 9-month conditional sentence for the 2009 prior related offence, she had become re-involvedin this offence, which involved another breach-of-trust theft of nearly $54,000, and which was carried out repeatedly in a purposeful wayover a period of approximately three and one-half years.

There is no merit to the accused’s contention that the 12-month sentence wasoutside the appropriate range of sentences. If anything, it was at the lower end of the range. [15] In the result, while leave to appeal sentence was granted, the appeal was dismissed. CJM JA JA