A woman sentenced Thursday for stealing nearly $725,000 may not have received as big a break in her punishment as many might think.
Crown prosecution had been seeking a sentence of three-and-a-half to four years in a federal penitentiary for Theresa Margaret McCook, 51, but provincial court judge Michael Brecknell decided on a conditional sentence of two years less a day followed by three years probation.
Although considered jail terms, conditional sentences are served at home, thus allowing the accused to continue working, but with conditions such as strict limits on when the person can be off the property.
McCook had pleaded guilty to diverting to herself $724,570.40 of federal government money meant for a variety of services and programs at the Kwadacha Nation Indian Band, where she had been the executive director.
In arguing for a term behind bars, Crown provided several examples where people who had defrauded organizations or employers of similar amounts received prison time in the range it was seeking for McCook.
However, in accordance with a landmark 1999 Supreme Court decision known as Gladue, Brecknell took into consideration McCook's aboriginal background.
"In Gladue, the Supreme Court of Canada said unequivocally that the Canadian criminal justice system has failed the aboriginal people of Canada and that a disproportionate number of crimes committed by aboriginal people across Canada is tied to the legacy of colonialism," Brecknell said during the nearly two hours it took to read out a 58-page decision.
"On sentencing an aboriginal offender, a judge must pay particular attention to the background factors of that person before the court and must take additional notice of the systemic factors which have played a part in bring the offender before the court as well as their unique background circumstances."
He also noted that none of the examples Crown provided involved aboriginal people whereas the cases submitted by defence counsel, Prince George lawyer Fred Fatt who argued for a conditional sentence of two years less a day, were centred on aboriginal offenders.
Although conditional sentences are considered more lenient than time behind bars, it's not so clear cut.
Had McCook been sentenced to four years in a federal institution, she could have been eligible for full parole by as soon 16 months, or one-third of the term and for day parole, where the person must return to the institution at night, six months before that time, or at 10 months.
After two-thirds, or 32 months, McCook would have received statutory release but would have remained under sentence for the remaining 16 months, "so if you breach any of your conditions, you can be returned to prison," National Parole Board spokesman Patrick Storey said.
Moreover, while McCook would have been free of any obligations after four years if she was sent to prison, the term issued Thursday will hang over her head for five years, albeit with progressively less stringent conditions as time goes by.
For the first nine months, McCook can be outside her home for just three hours each day, from 4 p.m. to 7 p.m., except when working or in the case of a medical emergency. For the remaining 15 months of the conditional sentence, she is subject to a 10 p.m. to 6 p.m. curfew.
She must also carry out 100 hours of community work at a rate of no less than five hours per month, for the first 20 months and complete a further 150 hours, also at a rate of at least five hours per month, by the time the entire sentence has been completed.
She was also ordered to pay $3,000 restitution during her conditional sentence and $5,400 restitution during her probation. And starting in April 2020, the Kwadacha Nation will have the option to seek any or all of the remaining $716,170.40 although it appears unlikely that will be acted on.
McCook, who had used the money to pay off gambling debts, was also ordered to take counselling for gambling and other forms of addiction as directed and she must refrain from gambling online, buying lottery tickets and frequenting casinos and bingo halls for the five-year duration.
If she breaks a condition, McCook will find herself back in court.
In reaching his decision, Brecknell concluded the objectives of denunciation and deterrence can be achieved through a conditional sentence and probation and saw no need to separate McCook from society through a prison term.
