SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
BRETT POSTHUMUS
REASONS FOR SENTENCE
BEFORE THE HONOURABLE JUSTICE C.J. CONLAN
On Monday, November 7, 2016, at Owen Sound, Ontario
APPEARANCES:
Ms. M. Martin
Counsel for the Provincial Crown
Mr. Hedley Thompson
Counsel for Brett Posthumus
HMQ v. Posthumus, 2016 ONSC 7401
WEDNESDAY, SEPTEMBER 14TH, 2016:
CONLAN, J. – Orally:
THE COURT: In the decision of Regina v. Dorsey [1999] 3759 (ON C.A.), para 11, the Court had this to say:
“It is well established that a trial judge is not bound by a joint submission. The trial judge must of course give serious consideration and respect to a joint submission. The submission should be departed from only where the trial judge considers the joint submission to be contrary to the public interest and a submission which, if accepted, would bring the administration of justice into disrepute.”
In my opinion, this joint submission ought to be accepted and I will do so. I find that it is within the range and is an appropriate response to the circumstances of the offender and the circumstances of the offence.
In terms of Mr. Posthumus’ personal characteristics, in my view the presentence report is a fairly positive one. It indicates that the offender is currently 22 years old. He has no prior criminal history. Not long before the offence date Mr. Posthumus went through a very traumatic family situation that resulted in his father passing away from an illness at the end of January of 2014. I have no doubt that that had a significant impact on Mr. Posthumus and his family.
The presentence report indicates that Mr. Posthumus has solid family support, some of whom are present today. He lives with his mother in Tara. He has had a fairly lengthy relationship with his current girlfriend. He has a good work history. He has completed grade 12 in school. In the opinion of the author of the presentence report, he expressed genuine remorse for what happened and repeated that here today.
I agree with counsel that substance abuse appears to have played a significant role in what occurred on the offence date. The presentence report confirms that for many months leading up to the robbery Mr. Posthumus was abusing alcohol and other illicit substances. He has since quit which is to his credit.
So I have taken into consideration all of the factors raised in Exhibit Number 1, the presentence report. I agree with Ms. Martin for the Crown that the primary sentencing objectives in this case are denunciation, deterrence – particularly general deterrence – and rehabilitation.
I also agree that mitigating factors include Mr. Posthumus’ cooperation with the authorities; his guilty plea; and his confession to the police.
I suppose the chief aggravating factor is the circumstances of the offence itself. I am sure I do not need to remind Mr. Posthumus that the consequences of what happened that date could have been very severe for you as well. I can foresee a situation where the clerk might have been very frightened and there could have been a fight of some sort, or somebody may have ended up seriously injured or even killed. We sometimes hear about circumstances where convenience store employees are confronted with this type of situation and are actually armed to combat it. And sometimes we fall into the trap of thinking that that would only happen in a big city, but I am not so sure about that.
Although the clerk at first suspected that this was perhaps a ruse or a joke, I think it would have been quite frightening for the employee once that person suspected that you in fact did have a weapon.
So balancing the aggravating and mitigating factors, I am satisfied that the joint submission is quite a reasonable one and I accept it without any reservation.
There will be a victim fine surcharge imposed. The victim fine surcharge is in the amount of $200 and Mr. Posthumus will be granted 90 days to pay that from the date of release from the correctional institution. So, once Mr. Posthumus is released from custody he has 90 days then to pay the victim fine surcharge.
There is a primary compulsory DNA Order issued.
There is a section 109 Criminal Code firearms and weapons prohibition Order for ten years and life, respectively, according to the two subsections.
Mr. Posthumus is sentenced to a period of incarceration of 15 months.
Upon his release from custody, Mr. Posthumus will be the subject of a probation Order for a period of 12 months.
The following are the compulsory conditions of the probation Order:
Mr. Posthumus shall keep the peace and be of good behaviour; appear before the Court when required to do so by the Court; notify the Court or the probation officer in advance of any change of name or address, and promptly notify the Court or the probation officer of any change of employment or occupation; and Mr. Posthumus shall abstain from communicating directly or indirectly with – what is the name of the victim?
MS MARTIN: It’s B-R-Y-A-N D’A-M-B-R-U-M-E-N-I-L.
THE COURT: Thank you.
In addition to the compulsory conditions of the probation Order that will be for 12 months and take effect upon Mr. Posthumus’ release from custody, the following optional conditions will also apply.
Mr. Posthumus shall report as directed to a probation officer. Mr. Posthumus shall reside where approved by the probation officer. Mr. Posthumus shall abstain from the purchase, possession and consumption of alcohol and non-medically prescribed drugs. Mr. Posthumus shall not attend at any place that is primarily licenced to sell alcohol. Mr. Posthumus shall attend for any counselling or treatment as recommended by the probation officer and not leave that program without the prior permission of the probation officer. In order to monitor compliance with the counselling or treatment provision, Mr. Posthumus shall sign any releases of information demanded of him by the probation officer.
I think that covers everything. Is there anything else?
MS. MARTIN: No.
THE COURT: Mr. Thompson?
MR. THOMPSON: No, thank you.
THE COURT: Okay, thank you. Just one moment.
Count number two, is that to be marked withdrawn?
MS. MARTIN: Yes please, Your Honour.
THE COURT: I have endorsed the matter that Mr. Posthumus re-elected his mode of trial today by judge-alone in the Superior Court. He entered a guilty plea to count one – the robbery allegation.
A finding of guilt is entered and a conviction registered.
The joint submission on sentence is accepted.
There is a victim fine surcharge in the amount of $200 with 90 days to pay upon release from custody.
There is a primary compulsory DNA Order issued.
A section 109 Criminal Code firearms and weapons prohibition Order for ten years and life according to the two subsections.
A period of incarceration is imposed of fifteen (15) months to be followed by a period of probation for twelve (12) months on terms.
Count two is withdrawn at the request of the Crown.
Mr. Posthumus, I need to ask you just a few questions.
The victim fine surcharge - you understand that you will have to pay the $200 within 90 days of being released from custody. Do you understand that?
BRETT POSTHUMUS: Yes.
THE COURT: You must pay it or get an extension or else you could be charged with another offence of failing to comply with a Court Order. Do you understand?
BRETT POSTHUMUS: Yes.
THE COURT: The DNA Order is a blood sample that you have to give to the police. Do you understand that?
BRETT POSTHUMUS: Yes.
THE COURT: You must cooperate with them in giving the sample. The firearms and weapons ban – you must comply with that Order. You must not be found to be in possession of any of those items or else you could be charged with another offence and you could go to jail if found guilty. Do you understand?
BRETT POSTHUMUS: Yes.
THE COURT: The 12 months of probation – you heard me outline the terms and conditions. Do you understand those conditions?
BRETT POSTHUMUS: Yes.
THE COURT: If you want to have any change made you should speak to your probation officer. You can apply to the Court for an amendment if you wish, but you must comply with the probation Order or you could be charged with breaching probation which is a criminal offence, and if you are found guilty of that you could be sentenced to jail. Do you understand?
BRETT POSTHUMUS: Yes.
THE COURT: Okay. I think that your remorse for what happened is very sincere and I wish you the best going forward. Thank you.
MATTER IS CONCLUDED
Form 2
CERTIFICATE OF TRANSCRIPT
Evidence Act (subsection 5(2))
I, Linda J. Thompson, certify that this document is a true and accurate transcript of the recording; Her Majesty the Queen v. Brett Posthumus, in the Superior Court of Justice, held 611 9th Avenue East, Owen Sound, Ontario taken from Recording (1011_crtrm#201_20161107_084014__30_CONLANC.dcr) which has been certified in Form 1.