The Alberta Court of Appeal has stressed in numerous cases in recent years that substantial thefts committed in breach of a position of trust, usually employment, should be met with sentences of incarceration, even for first offenders: see, e.g. R v Fulcher, 2007 ABCA 381, R v McKinnon, 2005 ABCA 8, R v Bracegirdle, 2004 ABCA 252.
Many of the reported cases from our Court of Appeal in which these statements of principle have been stated most firmly deal with thefts in the hundreds of thousands of dollars. Fulcher involved thefts totalling almost $300,000; R v Zenari, 2012 ABCA 279 was a fraud resulting in losses of over $225,000. Bracegirdle was a theft of over $150,000. McKinnon involved a fraud of a smaller sum of about $61,000, but McKinnon was also a fourth-time offender. As a result, arguments in favour of conditional sentence orders for accused persons committing frauds in the tens of thousands are still frequently advanced by counsel before our courts.
In R v Steward, 2014 ABCA 125, the accused was found to have committed a theft of $3,200 in cash being held in a safe. The money had been collected by her employer to donate to a children’s camp program. After this was discovered, audits determined that the employee had also stolen $6,900 from her employer through a variety of methods, mostly by crediting refunds owed to the employer to her personal credit and debit cards. Ms. Steward did have one prior conviction for theft which pre-dated the new offences by about 20 years. In the Provincial Court, following a guilty plea, Ms. Steward was sentenced to a 12 month conditional sentence order. Relying on several of the cases cited above, the appellate panel noted that the principles for sentencing thefts and frauds committed on employers are well established. Dealing with the quantum of the theft, the panel writes:
As for the amount stolen here, it was over $10,000, and Parliament breaks the range of sentences (large and small) at $5000. … Where less than $20,000 is stolen, a number of cases impose significant jail sentences. The victim here was a small business, and $10,000 is not exceptionally small, and is no bar to a significant jail sentence.
The appropriate sentence was stated to be nine months in gaol.
In R v Douglas, 2014 ABCA 113, the accused stole about $34,000 from the victim. The money was rent which the accused was collecting as a property manager. The victim was elderly. A conditional sentence order of 18 months had been imposed in the Court of Queen’s Bench. That sentence was overturned on appeal. The appellate panel found that a sentence in the range from 6 to 12 months would be appropriate, fixing the sentence at nine months gaol before applying partial credit for the time served under the conditional sentence order.