Court File and Parties

Ontario Court of Justice

Date: 11 May, 2017

Court File No.: 16-R2016; 16-A12621

Between:

Her Majesty the Queen

— and —

Matthew Clement

Before: Justice Robert Wadden

Heard on: March 1 & May 5, 2017

Reasons for Sentence released on: May 11, 2017

Counsel:

• Sabrina Goldfarb, counsel for the Crown
• Elena Davies, counsel for the defendant

WADDEN J.:

[1] The Offences

Matthew Clement pleaded guilty to the offences of Break and Enter, Take Motor Vehicle without Consent and Breach of Recognizance. On sentence, the Crown seeks 6 months jail followed by probation. Defence seeks a sentence of 90 days intermittent for the Break and Enter and a 6 months conditional sentence for the other offences.

[2] Facts of the Break and Enter

The facts relating to the Break and Enter involve taking over a family residence and causing substantial damage to it. On August 21, 2016 the family of Rene Niderhauser was away on vacation in Florida. Mr. Clement, who was involved in a relationship with Mr. Niderhauser's daughter, knew the family was away and knew how to access the home through the garage door code. He had absolutely no right to be in the home and had not been given permission to be at the residence. Mr. Clement acknowledged that he had no right to be on the property.

[3] The Three-Day Occupation

Mr. Clement went into the family home and over the course of three days he hosted parties and allowed others access to the home, resulting in significant damage to the property and thefts from the home. This included the theft of two motor vehicles by unidentified people over the three day period, one of which was involved in a fail to remain collision. Mr. Clement initially falsely told the police he had been given permission to use the vehicles. As it turned out, he knew the vehicles had been taken from the home and he made no efforts to report them stolen. On one occasion, Mr. Clement himself took Mr. Niderhauser's Acura to go to the Beer Store, without consent.

[4] Property Damage and Loss

Details of the property damage are found in Mr. Niderhauser's Victim Impact Statement, and are not disputed. Private and personal belongings from the bedrooms were strewn about the floor. Condoms were left in the bedrooms across the bed and floor. An urn with the ashes of Mr. Niderhauser's father was overturned and the ashes were spread across the floor. Numerous possessions, including his deceased father's watch, were stolen. The loss resulting from the theft and damage was over $130,000. In his Statement Mr. Niderhauser describes the suffering he endured as a result of Mr. Clement's actions.

[5] Breach of Recognizance

After his arrest on the Break and Enter Mr. Clement was released on an officers' undertaking, with conditions that included abstaining from the consumption of alcohol. He breached his conditions on September 21, 2016 when he was seen sitting in a car in a parking lot. The vehicle was unlocked, did not belong to Mr. Clement and he had no right to be in it. The owner came upon him and scared him off, chasing him across the parking lot. The police arrived and observed that Mr. Clement was intoxicated, and he admitted to drinking.

Background of Mr. Clement

[6] Personal and Employment History

Mr. Clement is a 20-year old with no criminal record. His background is detailed in the pre-sentence report prepared for the court. He is a high-school graduate and was involved in school activities. His employment history since graduation includes a series of short term labour positions, including sale assistant, waiter, stock boy and dishwasher. He recently obtained work at a local pub as a waiter and cook where he earns approximately $12/hour for a 30-40 hour week. He has expressed a desire to register at Algonquin College in the fall for a business marketing program. He does not have a history of use of hard drugs, although he acknowledged excessive drinking in the past. He went into detox after his arrest on the breach and has been free of substance use since then. He has a supportive family.

[7] Insight and Remorse

In relation to the facts of the offence, according to the pre-sentence report, Mr. Clement estimated that there were more than thirty people coming and going over the weekend. He could not explain why he allowed the destruction to go on around him. The writer of the pre-sentence report felt that Mr. Clement "presents as an immature young man who demonstrates minimal insight regarding his actions, other than he 'wanted to have some fun with friends'". In court Mr. Clement expressed remorse for his actions. He has written a letter of apology to Mr. Niderhauser and his family.

Sentencing Analysis

[8] Seriousness of the Offence

Mr. Clement is a young man with good prospects for the future. In spite of that, the seriousness of the offence calls for significant denunciation. A residential break and enter is a serious offence, punishable by indictment and with a maximum penalty of life. There was no one present in the Niderhauser home when Mr. Clement broke in, which would have been an aggravating fact. Nor was there any personal violence. Other than that, within the category of property crimes, this is one of the most serious incidents of break and enter. The occupation of the house was prolonged, lasting for days. Mr. Clement exposed the home and its contents to destruction and theft. The property damage was extensive. Personal items and living spaces were desecrated. The sense of personal violation is almost unimaginable. Mr. Clement knew the family was away and knew how to enter the home as a result of his relationship with the daughter. Taking advantage of that was a breach of trust.

[9] Rejection of Defence Proposal

It is suggested by defence that a 90-day intermittent sentence be imposed on the Break and Enter and a six months conditional sentence be imposed on the other offences. This recognizes that a conditional sentence is not available for a residential Break and Enter and it is an attempt to craft a creative sentence that would allow Mr. Clement to keep his job. It is, implicitly, an acknowledgement that a lengthy sentence is warranted for this crime.

[10] Why the Defence Proposal Cannot Be Accepted

I am not willing to structure the sentence as suggested by the defence. A conditional sentence is not available for a residential Break and Enter because Parliament regards it as such a serious offence. The defence proposal would impose a sentence on the Break and Enter that is too lenient for that offence while imposing a conditional sentence that is inappropriately long for the less serious offences of Taking a Motor Vehicle without Consent and Breach of Undertaking. It is essentially an attempt to impose, through other means, a conditional sentence for the Break and Enter. To craft the sentence in the manner suggested would be to thwart the intent of Parliament and understate the seriousness of the offence of Break and Enter.

[11] Mitigating Factors and Appropriate Range

Mr. Clement deserves credit for his plea of guilty and his admission of wrongdoing when he was first confronted by the police. His youth, lack of a criminal record, recent employment and good family support speak well of his prospects for the future. Were it not for these positive factors, Mr. Clement could be facing a much higher sentence. The senseless destruction of the contents of a family home, as well as the theft of vehicles and other property, must be denounced in strong terms. It could well warrant a sentence in the range of one year.

[12] Sentence Imposed

In my view, taking Mr. Clement's mitigating factors into account, the sentence that is appropriate on the Break and Enter is six months jail, followed by probation for two years. The other offences are closely related in facts and time. Considering the principle of totality, the sentences on the s. 335 and s. 145 offences will be one month, concurrent, on each.

[13] Terms of Probation and Additional Orders

The terms of probation will be to report to a probation officer as directed, to take assessment, counselling and treatment for alcohol abuse, to provide proof of attendance and releases to monitor the treatment, and to not have any contact with Mr. or Mrs. Niderhauser or attend within 500 metres of their residence. There will be a stand alone order for restitution, pursuant to s. 738 of the Criminal Code, in favour of Mr. Niderhauser for $30,000, the amount not covered by his insurance. There will be an order for a DNA databank sample and a firearms prohibition for 10 years pursuant to s. 109 of the Criminal Code.

Released: May 11, 2017

Justice Robert Wadden