ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-262

DATE: 20140902

BETWEEN:

Her Majesty The Queen

Peter Leger, for the Crown

• and -

Tye Pitman

Brian D. Barrie, for the Defendant

Defendant

HEARD: May 13, 14, 15, 16, 20 and 21, 2014, September 2, 2014

REASONS FOR SENTENCE

CONLAN, J.

INTRODUCTION

1A first-time offender, still relatively young, has been found guilty of serious criminal offences: public mischief [subsection 140(1)(b) CCC], attempted fraud over $5000.00 [subsection 380(1) CCC] and obstruct police [subsection 129(a) CCC].

2What is the appropriate sentence to be handed out to Mr. Pitman? That is the issue that confronts the Court.

3Tye Pitman was tried before a jury in Owen Sound in May 2014.

4The jury returned its verdicts on May 21, 2014, after one overnight. On the charges of dangerous driving [subsection 249(1)(a) CCC] and mischief to property over $5000.00 [subsection 430(4) CCC], Mr. Pitman was found not guilty.

5Guilty verdicts were rendered by the jury on the other three charges noted above.

6On consent, I enter a conditional stay on count 5 – obstruct police, pursuant to the Kienapple principle. Convictions are registered on counts 3 and 4.

7A presentence report was ordered. The sentencing was adjourned to September 2, 2014.

8Today, I received filings and heard submissions from counsel on sentence.

THE FACTS

9Having enlisted the assistance of two friends, Mr. Pitman concocted a plan to get money from his automobile insurer.

10Mr. Pitman drove his motor vehicle to a relatively remote location. His two friends went along in a separate car.

11Mr. Pitman then caused his motor vehicle to crash. With nobody inside of the jeep, it rolled down a hill, struck a bridge, flipped and came to a rest on the bridge.

12Mr. Pitman falsely reported to the police and to his insurer that his jeep had been stolen.

13The police investigated. The scam was uncovered. The insurance company did not pay any money to Mr. Pitman. Criminal charges were laid.

14I reject the submission by the Defence that I ought to sentence Mr. Pitman on the factual basis that it was the two other persons who, alone, were present at the bridge and caused the jeep to crash, but that Mr. Pitman was aware of the plan and, thus, guilty of counts 3 through 5.

15Given the evidence at trial and my final instructions to the jury, such a factual theory is, in my view, inconsistent with the jury’s verdicts of guilty on counts 3, 4 and 5.

16Clearly, in my view, the jury found Mr. Pitman not guilty on count 1 because it was not satisfied beyond a reasonable doubt that the offender operated the motor vehicle in a manner that was dangerous to the public.

17The jury found Mr. Pitman not guilty on count 2, regarding damage to the bridge, because it was not satisfied beyond a reasonable doubt that Mr. Pitman had the requisite mens rea.

THE OFFENDER

18Mr. Pitman is currently 21 years old.

19He has no prior criminal record.

20Mr. Pitman is in a common law relationship and plans to be married in September 2015.

21Having completed grade 12 in Panama, since 2010, the offender has been employed full-time with a business owned by his father.

22By all accounts, Tye Pitman is a reliable and competent worker with Ontario Protective Coatings.

23There are no substance abuse issues at play here.

24As per the presentence report, Mr. Pitman “appears to come from a close, supportive and stable family free from abuse”.

25The author of the presentence report notes that “[t]he subject has been described in positive terms by personal collateral sources for the purpose of this report”.

26The presentence report concludes with this comment: “[b]ased on interviews and collateral contacts, it is this writer’s opinion that the subject would comply with a period of community supervision as part or whole of a sentence”.

27At the sentencing hearing, the Defence filed numerous letters in support of Mr. Pitman. Those letters are authored by Mr. Pitman’s father, his mother, his neighbour and his fiancé. The letters describe the offender as a significant asset to the family business, a “responsible person”, a strong and mature young man, and a respectful, hard-working and compassionate citizen.

THE POSITIONS OF THE PARTIES

28The Crown requests the following sentence: 90 days’ imprisonment to be served intermittently; two years’ probation, and a secondary DNA Order on count 4.

29The Crown emphasizes the sentencing principle of general deterrence.

30The Defence, having now acknowledged that a conditional sentence order is unavailable because of subsection 742.1(c) CCC and the fact that count 4 attracts a maximum punishment of 14 years in prison, requests 12 months’ probation with community service or, in the alternative, a short intermittent jail

31The Defence emphasizes that Mr. Pitman has no prior criminal history.

ANALYSIS

32Having considered the factors outlined in subsection 487.051(3) CCC, although the Defence is opposed to the secondary DNA Order, I think that it is appropriate

33These are serious offences of dishonesty that were committed by Mr. Pitman. The circumstances surrounding their commission included some degree of planning and deliberation on the part of Mr. Pitman and his two friends. There is nothing before me regarding the impact of a DNA Order on the offender’s privacy and security of his person.

34I am not persuaded that probation alone is an adequate sentence in these circumstances. Causing one’s motor vehicle to be wrecked and then making false reports to the police and the insurer, and sending the authorities down the path of a needless and wasteful investigation (even if relatively brief in duration), all with a view to scamming the insurance company, is serious criminal conduct.

35A jail sentence is required, in my opinion. But because of the mitigating factors at play including Mr. Pitman’s clean prior criminal record, his relative youth, the positive presentence report and the glowing character letters filed today by the Defence, a short, sharp sentence will suffice.

36The appropriate length of imprisonment I fix at thirty (30) days. Probation for 12 months will follow.

37In my view, the primary principles of sentencing at play in this case are general deterrence and rehabilitation. The sentence imposed will achieve the former without abandoning the latter.

38I will accede to the request of the Defence and allow the jail sentence to be served at the Central North Correctional Centre on an intermittent basis. The sentence shall commence at 9:00 a.m. on Saturday, September 6, 2014.

39Mr. Pitman shall report to the jail at that time, in a sober condition. He shall be released from the jail at 4:00 p.m. on Sunday, September 7, 2014. That shall count as two days’ served. That schedule shall continue each and every consecutive weekend until the sentence has been fully served.

40While serving the intermittent jail sentence, Mr. Pitman shall be bound by a probation Order. All of the statutory terms apply. In addition, (i) Mr. Pitman shall have no contact, directly or indirectly, by any means with Julien Boettcher and Jessica Lacombe, except through legal counsel; (ii) he shall not attend at any residence, place of employment or place of education of either of those named persons; (iii) he shall reside where directed by the probation officer and not change that residence without the prior written approval of the officer; (iv) he shall report to the jail on time and in a sober condition; and (v) he shall drive or be driven directly to and from the jail.

41I decline to impose the counselling term sought by the Crown as I conclude that it is unnecessary for this offender.

42Without counselling, a reporting term is also unnecessary.

43Upon completion of the intermittent jail sentence, Mr. Pitman shall be bound by a probation Order for twelve months. All of the statutory terms apply. In addition, all of the above optional terms apply except for items (iv) and (v). Further, the twelve-month probation Order shall include a term that Mr. Pitman pay, within thirty days of the commencement of the said Order, restitution to the insurer in the amount of $841.85.

44I do not agree with the Defence submission that restitution ought to be left to the civil Court process. The monies paid by the insurer were caused by Mr. Pitman’s criminal conduct. The offender is employed full-time.

CONCLUSION

45The sentence of the Court is as follows.

46First, a secondary DNA Order is issued on count 4.

47Second, Mr. Pitman is sentenced to 30 days’ imprisonment, concurrent on counts 3 and 4. That shall be served intermittently on weekends as per the above directions. Mr. Pitman is on probation during the currency of the intermittent jail sentence.

48The intermittent jail sentence shall be followed by probation for twelve months.

49The probation Orders apply to both convictions.

50I should warn Mr. Pitman that any violation of the first probation Order will almost certainly result in a further criminal charge and the serious risk that the weekend jail sentence will be collapsed and served straight time. Any violation of the twelve-month probation Order will almost certainly result in a further criminal charge and another jail sentence, if found guilty.

51I thank counsel for their helpful submissions on sentence.

September 2, 2014 The Honourable Mr. Justice C.J. Conlan

Conlan J.