R. v. Slauenwhite, 2022 NSSC 92

SUPREME COURT OF Nova Scotia Citation: R. v. Slauenwhite , 2022 NSSC 92 Date: 20220330 Docket: Bridgewater , No. 500192 Registry: Halifax Between: Her Majesty the Queen Plaintiff v. Natasha Anne Slauenwhite Defendant Judge: The Honourable Justice Diane Rowe Heard: January 24, 2022, in Bridgewater, Nova Scotia Counsel: Bryson McDonald, for the Crown Jonathan Hughes, for the Defendant By the Court: [ 1 ] Counsel provided the Court with an Agreed Statement of Facts as follows: The following facts are agreed as proven without the necessity of calling further evidence: 1.

In March of 2017, Natasha Slauenwhite was hired as the manager of GCR Tire and Services location in Bridgewater. GCR Tire and Services is a tire sales and service location and is the retail division of Bridgestone Tire. 2. As manager, Ms. Slauenwhite was responsible for completing daily deposits. This included depositing money from all cash sales into the company’s account at the Royal Bank of Canada (RBC) branch in Bridgewater. 3. Shortly after Ms. Slauenwhite was hired, GCR accounting noticed that some bank deposits had not been made.

This was discovered after a comparison between the Point of Sales software and the actual bank deposits for the Bridgewater GCR location. 4. It was discovered that the deposits started to go missing in April of 2017, shortly after Ms. Slauenwhite[’s] tenure as manager began. 5. On May 23, 2017, Accounting Coordinator, Pankaj Thaker, notified Ms. Slauenwhite that deposits were missing. Ms. Slauenwhite undertook to remedy the situation. 6. The missing deposit issues persisted throughout 2017 with no resolutions. Ms.

Slauenwhite constantly advised it was a bank issue and that she was looking into it The company believed her, which is why they did not immediately report it or seek an audit. 7. An audit was finally ordered in early 2018 where the findings of the audit concluded that this was not a bank issue and that Ms. Slauenwhite had stolen the funds. Ms. Slauenwhite’s employment was then terminated. 8. In total, Ms. Slauenwhite failed to make 93 deposits between April 18, 2017 and March 9, 2018. These deposits consisted of cash and cheques.

None of the non-deposited cheques were ever cashed and neither GCR Tire, nor the issuer of the cheques, suffered financial loss. In total, Ms. Slauenwhite stole a total of $56,773 in cash which she did not deposit. The funds were never recovered and no restitution has been made to date. [ 2 ] As was noted by Justice Wright in the R. v. Pottie 2003 NSSC 263 decision at paras 9 -11 : [9] The principles of sentencing are set out in sections 718 , 718.1 and 718.2 of the Criminal Code . They are lengthy provisions and I am simply going to incorporate them by reference for purposes of my oral decision this morning.

Suffice it to say, in its briefest terms, that the stated objectives of denunciation, deterrence, separation of offenders from society where necessary, rehabilitation, and the promotion of a sense of responsibility in offenders and acknowledgment by them of the harm they caused, are ultimately designed to protect the public. In keeping with that is the fundamental principle that a sentence must be proportionate to the gravity of the offence

and the degree of responsibility of the offender. [10] The Criminal Code, as a result of the 1996 amendments, goes on to provide that where certain criteria are met, a judge may orderthat a sentence be served in the community.

Section 742.1 sets out the criteria which must be met if a judge is to consider a conditionalsentence. [11] The leading case on conditional sentences is R. v. Proulx 2000 SCC 5 , [2000] 1 S.C.R. 61.

In that case, Chief JusticeLamer writing for the court listed four criteria that a court must consider before deciding upon a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the safety of the community would not be endangered by the offender serving the sentence in the community; (3) the court must impose a term of imprisonment of less than 2 years; (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2. [3] Ms.

Slauenwhite was charged with 12 offences pursuant to s. 334(

a) of the Criminal Code, RSC 1985, c C-46. Each chargewas in relation to a theft under $5000, totalling 12 offences. These offences were committed in the course of her employment as amanager with GCR Tires, located in Bridgewater. The amounts taken total are in excess of $57,000. [4] On August 30, 2021, she pled guilty to all charges in the Nova Scotia Supreme Court. Ms.

Slauenwhite has been on anundertaking since her initial charge and appearance at the Provincial Court in 2018, which I note she has not breached. [5] I am informed by the Crown that GCR Tires, specifically any person who is an executive officer of that company, has chosennot to file a victim impact statement with the Court. [6] The Crown and defence have presented a joint recommendation to the Court for consideration. The recommendation is that theCourt consider a conditional sentence order of two years less a day, with conditions, rather than a custodial one, with or without a periodof probation.

It is submitted that this is appropriate, in the circumstances of this individual offender, as it is the maximum term availablefor the imposition of a Conditional Sentence Order pursuant to

section 742.1. [7] The Crown submits that the aggravating factors before the Court include the following: (

a) A breach of trust occurred as Ms. Slauenwhite was placed in a position of trust as a manager for GCR Tires and breached that trustrepeatedly; (

b) Further, there was a lengthy period in which the repeated thefts took place; (

c) The thefts concern a significant amount - (over $56000) - without any recovery. [8] In the converse, counsel submit that there are mitigating factors to consider as well, specifically that: (

a) Ms. Slauenwhite has pled guilty, removing the need for a trial; (

b) The offender has no prior criminal record; (

c) The offender is a mature person, 45 years old, and had been pro-social until these series of offences; (

d) And, finally, that the offender has made an expression of remorse and responsibility, alluded to in the Pre-Sentence Report madeavailable to the Court. [9] Ms. Slauenwhite has also confirmed to the Court this afternoon that she takes responsibility for her actions, and expressed agenuine regret for committing the crime. [10] The Pre-Sentence Report, dated November 8, 2021, refers to Ms.

Slauenwhite having a supportive home and family situation.It indicates that she has the support of her common-law partner, and that it is a positive relationship. [11] Her partner referred to her adult son living with her presently, who had previously struggled with an addiction, although theCrown does indicate that there is limited detail in regard to this ongoing responsibility. [12] The Pre-Sentence Report indicates that she continued some form of employment for most of the intervening years, from thedate of the offences charged up until September 2021. [13] Her financial status is constrained, but she is meeting her obligations and does not have outstanding debts. [14] Ms.

Slauenwhite has taken positive steps to undertake counselling sessions since October of 2021, and expressed an intentionto continue counselling as she has perceived a benefit. [15] In regards to any habits or addictions, Ms. Slauenwhite does not have an addiction to gambling, or substance abuse. This wassupported by the comments of her friend who spoke with Probation Services in the preparation of the Pre-Sentence Report. It’s notedthat she is in generally good health.

[16] In sum, the Pre-Sentence Report indicates that Ms. Slauenwhite is, on the assessment of the writer, a suitable candidate forCommunity Supervision. [17] With this in mind, I considered the cases submitted by counsel in support of the joint submission on sentence. [18] In R. v. Cerasuolo (ON CA), [2001] OJ No 359, it was noted that it is a general principle that a judge maynot reject a joint submission unless the judge finds both that it is contrary to the public interest and that it would bring the administrationof justice into disrepute.

As Finlayson, J. wrote at para. 8: …This is a high threshold, and as such is intended to foster confidence in an accused, who has given up their right to a trial, that the jointsubmission obtained in return for a plea of guilty will be respected by the sentencing judge. [19] Counsel submitted a range of decisions in which the courts had considered appropriate sentences for the commission of a theftover $5000 by a person in a position of trust, with sentencing orders ranging from a sentence ordering a term of imprisonment to an orderof a term of conditional sentence, to be served as house arrest for a period of time, with such other terms and conditions appropriate tothe offence. [20] It was a general feature of each case submitted that the circumstances of committing theft while acting in a position of trust wasan aggravating factor. [21] Further, there were additional factors each Court considered in the context of this particular offence including, but are notlimited to: (

a) The truthfulness of the accused in connection with the offence or in regard to the legal proceedings; (

b) The overall value of the amounts taken; (

c) The likelihood of rehabilitation, in the offender’s particular circumstances; (

d) The impact on the victim or the community of the theft; and (

e) Remorse expressed. [22] The mitigating factors that Judge Derrick, as she then was, enumerated in R. v. Lee 2011 NSPC 81, in her canvassing ofanalogous cases in which conditional sentences were ordered, find some expression here as well. [23] Ms. Slauenwhite’s general good character, and that the theft was a largely out of character occurrence for her, is referenced inthe Pre-Sentence Report. This is not determinative. [24] Further, in the cases provided, as in the R. v. Flemming 2013 NSPC 110, R. v.

Decoff 2000 Carswell NS 479, Pottie and R. v.Sponagle 2017 NSPC 23, show an acceptance of responsibility was seen as an important first step toward rehabilitation and wereaccorded corresponding weight for the Court in ordering a conditional sentence with terms for restitution and other ancillaryrequirements. [25] The Court notes that Ms. Slauenwhite has taken steps to address underlying mental health issues, by undertaking counselling.This is a positive step forward and may mitigate against future conflict with the law. [26] Ms. Slauenwhite has expressed a willingness to reimburse the total amount stolen to GCR.

As Ms. Slauenwhite hasdemonstrated that she is in good health and has been employed somewhat recently, she can take steps toward restoring her victim’s lossand demonstrate that she is moving toward recovering her good character, and will integrate once more into the community in a positivemanner. [27] I do find on the review of the Pre-Sentence Report, and considering the cases, that a conditional sentence order of two yearsless a day as proposed by counsel may be effective in this matter.

On a review of the cases, the sentence meets the principles of parity,has the opportunity to foster a restorative measure and will be rehabilitative, in the circumstances of the case. [28] Ms. Slauenwhite, it is proposed would be on full house arrest for a full twelve months, with some exceptions in light ofemployment or medical care. That period of severe limitation is intended to be a deterrent and act as a denunciation of the crime.

Thenext 12 months less a day, is subject to 9 pm to 6 am curfew. [29] In regard to ancillary orders, the submission seeks that the Court consider, in keeping with the principles set out in R. v.Blumenthal 2019 NSSC 35, and Sponagle, that two Orders, combined, is appropriate for the purposes of achieving restitution. [30] A structured approach, it was submitted, over a period of ten years to pay back the $56,773 to GCR Tires is likely to succeed asMs. Slauenwhite’s payment of the restitution order will be accounted as against a concurrent forfeiture fine.

As the restitution is made,the fine amount is intended to be lessened in like amount. Crown counsel has assured the Court that this will be accounted for accuratelyin the Provincial JEIN system, and in the event that Ms. Slauenwhite does not maintain payment the default is noted. [31] While I have some concern that no restitution has been made to GCR Tires to date, despite a statement of intent to do so, I alsosee in the Pre-Sentence Report that Ms. Slauenwhite is essentially at a subsistence level economically at this time of either lesser orunemployment. MS.

SLAUENWHITE TAKES THE STAND [32] For the reasons that I have just set out, the sentence of the Court is as follows:

[ 33 ] I accept the submission of counsel for Crown and defence in this matter and impose a Conditional Sentence pursuant to

section 742.1 upon the following terms and conditions. [ 34 ]

Section 742.3(1) of the Code requires that the offender:

a) keep the peace and be of good behaviour;

b) appear before the court when required to do so by the court;

c) report to a supervisor (

i) within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and (ii) thereafter, when required by the supervisor and in the manner directed by the supervisor;

d) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and

e) notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation. [ 35 ] With greater particularity, I am sentencing you to a term of two (2) years less a day in duration, in total with: (

a) The first 12 months to be served on complete house arrest; (

b) The following 12 months less a day, Ms. Slauenwhite is to be bound by a 9 pm to 6 am curfew. [36] Conditions to the above are as follows: (

a) Proof of compliance with house arrest and curfew; (

b) Subject to electronic monitoring; (

c) In addition, the following conditions are imposed under s.742.3(2): (1) perform 80 hours of community service in the next 12 months as directed by your supervisor. The intent of this length of term is to facilitate the offender’s participation in employment, for the purposes of providing restitution to the victim. (2) comply with any counselling programs as recommended by your supervisor; (3) remain confined to your residence at all times for the first full year of your conditional sentence except for the following permitted absences:

i) to perform community service work as directed; ii) to attend any recommended counselling programs; iii) to attend appointments with your supervisor; iv) to attend medical appointments;

v) for medical emergencies for yourself or a member of your household; vi) to leave the home for periods (not to exceed 2 hours each) for purposes of purchasing groceries and other household and personal needs (a

schedule for which shall be worked out with your supervisor); or vii) if written permission is first obtained from your supervisor for some other purpose. [37] Ms. Slauenwhite is to report to CSO Supervisor on January 24, 2022 and thereafter as directed. [38] No alcohol or non-prescribed drugs to be consumed, in recognition of the limitations that would be typically encountered in a custodial setting. [39] Ms.

Slauenwhite is ordered not to attend at GCR Tire in Bridgewater or communicate with any current employee of the business. [40] She is not to seek, obtain or continue any employment, or become a volunteer in any capacity that involves having responsibility or authority to administer over real property, money or any other valuable security possessed by another person. [41] Ms.

Slauenwhite is to attend assessment and counselling as it relates to mental health, and to attend any assessment and counselling as may be directed by your CSO Supervisor. [42] In conclusion, I am going to make an order for restitution of the amount of $56773, paired with a Fine in Lieu of Forfeiture Order, and to waive the victim surcharge accordingly. The offender will make restitution over time and is in a measure of financial hardship.

[43] That concludes the decision on sentence in this matter. Rowe, J.