R. v. Snow (R.R.), (2015) 364 Nfld. & P.E.I.R. 101 (NLPC)

• Judge: Gorman, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: February 26, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 364 Nfld. & P.E.I.R. 101 (NLPC);2015 NLPC 1313

R. v. Snow (R.R.) (2015), 364 Nfld. & P.E.I.R. 101 (NLPC);

    1136 A.P.R. 101

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. MR.021

Her Majesty the Queen v. Richard Raymond Snow

(2015 NLPC 1313A00442)

Indexed As: R. v. Snow (R.R.)

Newfoundland and Labrador Provincial Court

Gorman, P.C.J.

March 5, 2015.

Summary:

The accused defrauded his employer, stole his friend's credit card, breached his release conditions and failed to pay compensation to an earlier theft victim, thereby committing offences contrary to ss. 145(3) (two counts), 145(5), 342(1)(f), 380(1)(b), and 733.1(1) (two counts) of the Criminal Code. The Crown proceeded by way of summary conviction on all charges.

The Newfoundland and Labrador Provincial Court imposed a 12 month conditional imprisonment followed by 12 months' probation.

Criminal Law - Topic 5627

Punishments (sentence) - Fines, penalties and compensation orders - Victim fine surcharge - Between December 20, 2011 and January 6, 2012, the accused defrauded his former employer by creating false refunds and crediting them to his account (13 transactions totaling $1,615.74) - The accused was released on an undertaking to appear in court on April 23, 2013, but failed to appear - On May 24, 2013, he stole his friend's credit card and withdrew $630 from her bank account - At the time he was bound by an undertaking which required him to keep the peace and be of good behaviour - Between May 27 and June 17, 2013, the accused failed to report to the police on several occasions, breaching an undertaking - On January 20, 2011, he had been placed on probation for a prior theft from an employer (fine and conditional sentence imposed as well as probation) - That probation order required that he pay $1,780 compensation and keep the peace and be of good behaviour - The accused breached both conditions by not paying the compensation - The Newfoundland and Labrador Provincial Court imposed a 12 month conditional imprisonment followed by 12 months' probation - The conditional sentence order included: pay compensation of $1,780 within four months and make a charitable contribution of $500 to a food bank chosen by the accused's supervisor at rate of $100/month - The court held that because of the compensation and charitable contribution conditions in the conditional sentence order, victim surcharges would constitute an undue hardship and were waived - See paragraphs 61 and 62.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - Between December 20, 2011 and January 6, 2012, the accused defrauded his former employer by creating false refunds and crediting them to his account (13 transactions totaling $1,615.74) - The accused was released on an undertaking to appear in court on April 23, 2013, but failed to appear - On May 24, 2013, he stole his friend's credit card and withdrew $630 from her bank account - At the time he was bound by an undertaking which required him to keep the peace and be of good behaviour - Between May 27 and June 17, 2013, the accused failed to report to the police on several occasions, breaching an undertaking - On January 20, 2011, he had been placed on probation for a prior theft from an employer (fine and conditional sentence also imposed for that theft) - That probation order required that he pay $1,780 compensation and keep the peace and be of good behaviour - The accused breached both conditions by not paying the compensation - Twenty-eight years old - Employed full-time at a restaurant for the last two years - Stable family background - Pleaded guilty - The Newfoundland and Labrador Provincial Court imposed the following sentences: six months for fraud; three months for theft; two months for the breach of probation re failing to pay restitution; one month for the breach of probation re failing to keep the peace and be of good behaviour; one month for failing to appear in court; one month each for two breaches of undertakings, all consecutive, for a total of 15 months - After applying the totality principle, the court held that 15 months' imprisonment was unduly long and 12 months' imprisonment would properly reflect the accused's overall culpability - This was achieved by ordering that the theft sentence be concurrent - The court held that a conditional sentence was appropriate - It would both deter and promote rehabilitation.

Criminal Law - Topic 5720.5

Punishments (sentence) - Conditional sentence - Conditions of - [See Criminal Law - Topic 5627 ].

Criminal Law - Topic 5800

Sentencing - General - The Newfoundland and Labrador Provincial Court reviewed the principles of sentencing - See paragraphs 12 to 19.

Criminal Law - Topic 5802

Sentencing - General - Concurrent sentences - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5803

Sentencing - General - Consecutive sentences - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5833

Sentencing - Considerations on imposing sentence - Deterrence - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5854

Sentence - Theft - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5859

Sentence - Fraud - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5892

Sentence - Breach of restraining order, recognizance or undertaking - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5898

Sentence - Breach of probation - [See Criminal Law - Topic 5720.4 ].

Cases Noticed:

R. v. Lundrigan (D.A.) (2012), 324 Nfld. & P.E.I.R. 270; 1007 A.P.R. 270; 2012 NLCA 43, refd to. [para. 8].

R. v. Knott (D.W.) (2012), 433 N.R. 38; 324 B.C.A.C. 1; 551 W.A.C. 1; 2012 SCC 42, refd to. [para. 12].

R. v. Berner (C.-A.) (2013), 337 B.C.A.C. 146; 576 W.A.C. 146; 2013 BCCA 188, refd to. [para. 13].

R. v. Cluney (N.) (2013), 338 Nfld. & P.E.I.R. 57; 1049 A.P.R. 57; 2013 NLCA 46, refd to. [para. 16].

R. v. Briand (R.) et al. (2010), 302 Nfld. & P.E.I.R. 67; 938 A.P.R. 67; 2010 NLCA 67, refd to. [para. 17].

R. v. Ferrie (C.M.) (2014), 355 Nfld. & P.E.I.R. 120; 1106 A.P.R. 120; 2014 NLTD(G) 112, refd to. [para. 26].

R. v. Murphy (D.) (2011), 304 Nfld. & P.E.I.R. 266; 944 A.P.R. 266; 2011 NLCA 16, refd to. [para. 28].

R. v. Hutchings (R.) (2012), 316 Nfld. & P.E.I.R. 211; 982 A.P.R. 211; 2012 NLCA 2, refd to. [para. 29].

R. v. Cullihall (P.A.) (2015), 361 Nfld. & P.E.I.R. 179; 1122 A.P.R. 179, refd to. [para. 30].

R. v. McCarthy (Y.M.) (2015), 362 Nfld. & P.E.I.R. 83; 1125 A.P.R. 83; 2015 NLTD(G) 24, refd to. [para. 30].

R. v. Sullivan (R.J.), [1997] Nfld. & P.E.I.R. Uned. 53 (Nfld. T.D.), refd to. [para. 31].

R. v. Hope (R.) (1999), 173 Nfld. & P.E.I.R. 121; 530 A.P.R. 121 (Nfld. T.D.), refd to. [para. 32].

R. v. Rowe (D.) (2008), 273 Nfld. & P.E.I.R. 38; 833 A.P.R. 38; 2008 NLCA 3, refd to. [para. 36].

R. v. E.W. (2002), 216 Nfld. & P.E.I.R. 89; 647 A.P.R. 89 (N.L.C.A.), refd to. [para. 36].

R. v. Crocker (B.J.) (1991), 93 Nfld. & P.E.I.R. 222; 292 A.P.R. 222 (Nfld. C.A.), refd to. [para. 40].

R. v. Lewis (D.E.) (2012), 318 Nfld. & P.E.I.R. 64; 989 A.P.R. 64; 2012 NLCA 11, refd to. [para. 41].

R. v. Khawaja (M.M.) (2012), 437 N.R. 42; 301 O.A.C. 200; 2012 SCC 69, refd to. [para. 43].

R. v. Knoblauch (W.L.), [2000] 2 S.C.R. 780; 262 N.R. 1; 271 A.R. 1; 234 W.A.C. 1, refd to. [para. 53].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161, refd to. [para. 55].

R. v. C.G.O. (2012), 318 B.C.A.C. 273; 541 W.A.C. 273 (C.A.), refd to. [para. 55].

R. v. Viscomi (S.) (2012), 524 A.R. 241; 545 W.A.C. 241; 2012 ABCA 135, refd to. [para. 56].

R. v. House (S.) (2012), 324 Nfld. & P.E.I.R. 278; 1007 A.P.R. 278; 2012 NLCA 41, refd to. [para. 57].

Counsel:

A. Dwyer, for Her Majesty the Queen;

P. Chaffey, for Mr. Snow.

This case was heard at Corner Brook, N.L., on February 26, 2015, by Gorman, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following decision on March 5, 2015.