Admit it. You've read about cases in the Free Press, you've heard about actual judicial decisions on radio or seen them on television news and you can't help but think "what was that judge thinking? If only I had been on the bench and held that gavel."
Today, the Free Press gives you that chance, albeit not in a courtroom, but wherever you are reading the newspaper.
We are featuring two actual cases dealt with inside Winnipeg courtrooms in recent months. This is not an episode of Law and Order or the much earlier Perry Mason. Here, the names have been changed to maintain the mystery, but everything else is true and was actually heard.
Just like a judge, you'll have a chance to learn the facts of the case. You'll hear from the Crown attorney and defence counsel as they put forward their arguments showing why the accused should spend a long time in jail or not. You'll be given some legal precedents directing how cases like this are dealt with. You'll see what the accused says at the end of the case. The only difference is names have been changed in the first case -- so regular court-goers don't have an advantage -- and in the second case because some of the people are youth.
In the end, it will be your decision, but it will be reserved for a week. Next week, once you have come to a sentencing decision, you will see how the actual judge sentenced the accused and you will compare notes.
Your results and the judge's might surprise you.
Until then, you better get your (bath) robes on and head to the courtroom because the clerk is telling everyone in the courtroom to stand.
Court is now in session.
Case #1: "The Lovelorn Teller" or "Love Withdrawal"
The facts:
John Doe, 25, was working as a part-time teller at a local bank for about three years while taking business classes at the University of Winnipeg. He was looking forward to working in the banking industry full-time after completing his business degree.
While taking courses, Doe began dating a Malaysian woman. They became engaged and booked a wedding date of October 2005. But in February 2004, immigration officials notified the bride-to-be she had overstayed her student visa and she voluntarily returned to her home country.
Later, during almost daily phone calls between the couple, the woman asked Doe for money to pay an immigration lawyer to get her back to Canada and to pay off her Malaysian student loan.
Making only $10 an hour and still going to university, Doe didn't have the money.
But an elderly woman who hadn't accessed her bank account in almost two years did.
Doe began making withdrawals out of the 86-year-old woman's account -- seven in total to the tune of $38,500. He sent all the money to his fiancée.
But it all came crashing down when the woman's elderly sister, who went to the bank to withdraw money for her in October 2005, found an unauthorized withdrawal of $10,000 had been made two weeks before.
Bank security questioned Doe and then called Winnipeg police. Pretty soon they found the other illegal withdrawals.
Doe pleaded guilty to theft over $5,000 in January 2008.
Crown attorney:
The Crown told the judge the prosecution agreed with the request by Doe's lawyer to ask for a sentence to be served at home. But instead of agreeing to the defence request of a nine-month term, the Crown said it would leave that issue entirely with the judge.
The Crown said the theft was a breach of trust against the employer because the bank had trusted Doe with handling money.
The Crown said it was a terrible crime because the woman, bedridden for two years, wasn't able to do her own banking. The Crown said although Doe wouldn't have known that, he would have known from information on the account how old the woman was.
The Crown said another aggravating factor was there was some planning by Doe because he looked for a dormant account he could access. The crime wasn't a one-time event but was repeated several times.
The Crown said after the complaint was made, bank security was able to verify Doe had committed the crime through a review of its internal videos.
But the Crown said in Doe's favour, when confronted with the theft he immediately admitted what he had done. As well, Doe was a young man with no criminal record and no previous contact with police.
The Crown also asked for an order by the judge for restitution for the bank, which had reimbursed the woman.
Defence counsel:
Defence told the judge that unlike most other accused facing breach of trust convictions, Doe didn't take the money because he suffered from an alcohol, drug or gambling addiction. He did it out of love. Unfortunately, when Doe stopped sending money, the woman stopped contacting him. He now believes the woman only wanted to get money from him.
The defence said Doe didn't seek out a vulnerable senior but just looked for and found a dormant account he could get money from.
The defence said the man's dream of a career in banking has now ended with his criminal conviction, and he was fired from the banking job.
The defence said that in Doe's favour, he immediately admitted to the crime when confronted and he pleaded guilty instead of having a trial.
The defence said, unlike other people charged with the crime, Doe didn't use the money to enhance his lifestyle or go on trips. He only used it to send to his fiancée.
The defence said Doe has found a job and is working five days a week as a supervisor at a gas station. As well, Doe is living with his parents, and his family knows what he did and supports him.
Also in Doe's favour, when given a chance, he showed remorse and apologized to the judge for the crime.
Sentencing choices:
1 - A judge never has to go along with a joint recommendation. The judge could send Doe to jail. In fact, for a charge of theft over $5,000, the range of sentencing choices goes from giving an absolute discharge to a 10-year prison sentence.
2 - The judge can agree with the Crown and defence counsel recommendation of a jail term to be served in the man's home and agree with the defence that a term of nine months is appropriate. Federal politicians -- not judges -- decided that penalties for certain crimes, such as this one, can be served at home.
3 - The judge can agree with the Crown and defence counsel recommendation of a jail term to be served in the man's home but decide Doe should spend either less time or more time than the defence counsel recommendation of nine months.
Sentencing principles:
According to the Criminal Code of Canada, sentences are intended to keep "a just, peaceful and safe society" by imposing sanctions which should have as their goals: denouncing unlawful conduct; dissuading the offender and others from committing more crimes; removing the offender from society; helping rehabilitate the offender; compensating for the harm done to the victim and community; and having the offender admit what he did was wrong.
As well, a sentence must be proportionate to how bad the offence is and how responsible for it the offender was.
Other principles are:
1 - a sentence should be increased or decreased depending on aggravating and mitigating features.
2 - aggravating features include if the offence was sparked by hate based on race, sexual orientation or similar factors; that the offender abused their own spouse, a person under 18 or a person with whom they were in a position of trust or authority; the crime was committed to help, or was ordered by, a criminal organization; or it was a terrorism offence.
3 - sentence should be similar to similar offenders committing similar offences in similar circumstances.
4 - offenders should not go to jail if a lesser punishment is appropriate. In fact, all options other than jail should be considered first, especially for aboriginal offenders.
What sentence do you impose?
Case #2: "The Naked Victim" or "Never put on your own handcuffs".
The Facts:
Richard Roe pleaded guilty to charges of robbery and forcible confinement.
John Smith, 35, didn't know he would end up becoming a victim of a violent crime when he got together with Carol, a woman he met on a chat line, but that's what happened.
They went to his home where they spent several hours drinking together. The couple went out and picked up some cocaine and Carol's friend, Jane, who was 17. The three went back to Smith's house to drink more alcohol as well as use the cocaine. The three later went out and picked up Jack, a teenage boy and Jill, a girl aged about 16 or 17.
Later, Carol, Jane, and Jack went for a spin in Smith's car, leaving Smith and Jill behind where he plied her with alcohol and cocaine. When they returned, Jill confronted Smith in front of the others and accused him of trying to rape her. Smith immediately denied doing anything to her.
All of them got in Smith's vehicle, with Jane driving, and all of them were dropped off except for Smith and Jane. The two drove to pick up 19-year-old Roe, who was living with Jane's cousin. While driving back to Smith's place, Jane kept calling people on her cell phone accusing Smith of trying to "get with" Jill, but she was dealing with it.
When they arrived at Smith's home, Jane told Roe to stay in the living room for five minutes while she went with Smith into his bedroom.
Smith took off his clothes, and Jane performed a sexual act on him. Jane asked Smith if she could put his own handcuffs on him, to which he agreed. When Roe came into the bedroom and saw Smith naked and in handcuffs, he backed out of the room. Jane told Roe to look for valuables and anything else he wanted to keep. A few minutes later, after Jane had bound Smith's legs and slashed his legs with a knife on both of his shins and right hip area, she ordered Roe to come back into the room and hit Smith and knock him out. He picked up a golf club and hit Smith in the head and ribs. Roe later told police the blows to the man's head were with an "up and down" motion using one hand. Smith didn't fall unconscious, but he did suffer two cuts to his head which required 12 stitches, consistent with the way Roe said he hit him.
Sometime during this, a machete Roe carried for protection dropped out of his pants and Jane took it and threatened Smith with it.
Roe got ice for Smith's head when he asked for it.
Jane then ordered Roe to help her get Smith into the basement so they untied his legs, brought him downstairs and left him under the stairs naked. Roe gave Smith a blanket after he complained he was cold.
Jane and Roe filled up Smith's car with stolen goods, putting his 52-inch TV into his garage to pick it up later only because it wouldn't fit in the car.
The pair dropped off the stolen goods at a couple of places and were heading back to Smith's place when police, tipped off by Smith, who by then had been able to break free of his bonds and press a panic alarm, arrested them.
Crown attorney:
Recommends a federal prison term between five and seven years. The Crown said there's no way a sentence of two years, which would allow the possibility of Roe serving the sentence at home, should be given because of the violent nature of the crime. As well, the Crown said Roe had to go to prison because Jane had already been slapped with a four-year prison sentence.
"He grabs a golf club and tees off on his head -- how much more callous can you get?" the Crown said.
The Crown said Roe should have rejected joining in the robbery with Jane.
He also criticized Roe for saying in a pre-sentence report that Smith deserved some blame because he had taken strangers into his home.
"I shudder to think what would have happened if (Smith) didn't press his panic alarm or...free himself."
The Crown said even though Roe told a probation officer he is ashamed of being aboriginal, the judge shouldn't pay too much attention to the Gladue report written about Roe because of the violent nature of the offence. Gladue is a federal law that requires judges to look closely at sentencing an aboriginal to a restorative justice process instead of jail.
The Crown said Roe has to be sentenced to at least four years because that's what Jane, his co-accused, received. "That's the floor here. (Roe's) sentence cannot be lower than that because the principle of parity is something you have to consider."
The Crown said while Roe wasn't part of any planning for the crime, it was one strike against Roe that he didn't immediately leave at the beginning of the caper and another strike that he used a weapon which caused injuries.
But while the Crown recommended a sentence of between five to seven years, he admitted the sentence should be on the lower end because of Roe's youth and because he was a first-time offender.
"A conditional sentence for a case like this isn't even on the table," the Crown said.
Defence counsel:
Recommends a two-year conditional sentence to be served at home.
The defense said Roe's shame at being aboriginal is exactly the situation Parliament had in mind when it passed Gladue.
The defence said while Smith was a victim, his actions before the crime shouldn't be forgotten because while the others were away he was plying Jill, who was years younger than him, with cocaine and alcohol.
"(The victim) was out looking for sex with young girls...when the handcuffs came out, he thought he was going to get sex."
The defence reminded the judge that before Roe used the golf club, Jane had already slashed Smith's legs with a steak knife. Jane also threatened Smith with death if he went to the police.
The defence said until Roe walked into the bedroom, he thought he was along simply to help Jane move her own furniture to his girlfriend's home.
The defence said Roe couldn't just leave the house when he first saw a crime being committed because it was a cold day in March and he wore only a hoodie on instead of a jacket.
The defence said Jane was physically larger than Roe.
The defence said in Roe's favour he had been out on bail for nearly two years before the sentencing and had not breached any of the conditions. He also had a plan to serve his house arrest at his new girlfriend's home where she lived with her mother who would make sure he followed any curfew restrictions.
The defence said in the wake of his arrest, Roe had attempted to hang himself, but the rope broke.
The defence said Jane was given a four-year adult sentence because it was her fourth robbery, her eighth conviction for violence and she was on probation at the time of the offence.
"Society can be protected without his incarceration."
Roe's comment to the judge:
"I am sorry for what I did, and I wish it had never happened so I wouldn't be here."
Sentencing choices:
There is no joint sentencing recommendation so the judge can choose the Crown's or the defence's recommendation or impose a lighter or harsher sentence than those. The penalty for both crimes -- robbery and forcible confinement -- range from an absolute discharge to 10 years for forcible confinement and life in prison for robbery.
Sentencing principles:
The principles are the same as in Case No. 1 except for the aboriginal aspect, the Gladue law. Judges have been told by Parliament and the Supreme Court to look at healing the offender in the community, not in jail, because aboriginals are vastly overrepresented in the prison system.
But judges are also told Gladue goes out the window if the crime is serious and violent because the need to protect the public and deter both the offender and others can outweigh keeping the offender out of jail.
What sentence do you impose?
kevin.rollason@freepress.mb.ca
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