A chronic burglar once described as a “scourge on the community” of Yellowknife has never recovered from a serious brain injury in 2007, his defence lawyer said last week.
Judge Donovan Molloy had been preparing to sentence Thomas Avery on the basis he was stealing simply to feed a drug habit.
Avery stole from a Yellowknife hair salon in April, adding to 78 previous break-and-enters at local homes and businesses, plus some 40 other minor crimes.
However, defence lawyer Tu Pham stated those crimes are a result of serious brain damage inflicted in a 2007 fight.
On Friday in Territorial Court, Avery pleaded guilty to break-and-entering and the indictable offence of theft. Four other charges relating to the latest crime were withdrawn by the Crown, which proceeded by the less serious summary conviction route.
“A major reason [Avery] finds himself in the position he’s in … is drug addiction and a brain injury,” Pham told the court. “It’s more difficult for him to make connections and understand the logic of [his actions].
“There is nothing available [to treat] him in this jurisdiction. It is going to be difficult for him to stay out of trouble unless he gets some help.”
Pham said Avery, 37, is reluctant to leave the NWT for treatment as he wants to help care for his four-year-old daughter in Yellowknife. He also has a 14-year-old son, but he doesn’t see him very often.
The Crown asked for a five-month sentence; the defence countered with time served, equalling the remand credit Avery has behind bars of 111 days.
“I would be inclined to give this man a year or more in jail … and I would consider that a little low,” Molloy told court. “[He has] a spectacularly protracted record for break and entry.
“After some evidence there is a brain injury … he is going to get at least five months.”
Hearing this, Avery stood up and spoke directly to Molloy, with his lawyer trying to calm him down.
“I just want to care for my daughter,” Avery said through tears. “I’ll do what I have to do to stay sober … I have a plan.”
‘Traumatic brain injury’
On April 2, Avery had been drinking when he smashed the front window of Vixen Hair Den on Franklin Avenue downtown, Crown Prosecutor Jeannie Scott had told court.
On probation at the time – after being released from jail just a week earlier following his last crime spree in December – Avery was spotted by RCMP walking down the street carrying the salon’s cash register, containing $64.25.
“It is difficult to know what to do with Mr Avery,” said Scott, the prosecutor. “Somehow Mr Avery has to just realize this type of behaviour can’t be tolerated. He has to get control over his underlying issues.”
Pham had detailed Avery’s tough upbringing after being born in Yellowknife. There was alcohol and drug abuse in the home before his parents separated. In his teen years, Avery dropped out of high school before Grade 10 and turned to crack cocaine.
In 2007, he was in a fight outside a bar during which he suffered a cracked skull and damage to his brain. He was in a coma for while, before being treated at a brain centre in Alberta.
Pham obtained a file of papers on Avery from the North Slave Correctional Complex, including information from doctors who had examined Avery over the years since his 2007 injury.
Avery has been diagnosed with reduced comprehension, impaired intellectual functioning, and “reduced insight and judgement,” said Pham, reading from doctors’ letters.
“He has a traumatic brain injury and chronic addictions,” said Pham. “I really sense a desire for change and a cry for help from him. But there is no treatment centre in the NWT.
“This is somebody who wants help, but society is not offering any solutions.”
A turning point?
Molloy noted the Crown had limited his sentencing options by proceeding summarily, with the maximum sentence for theft being six months.
“At the end of the day, this has to be about moral blameworthiness,” said Molloy. “Putting people in prison only disappears the people … not the social problem.
“I view this matter differently than I did this morning.”
Molloy said Avery’s record for break-and-enters was as many as he’s seen in his career, but hoped the time he has served in jail since being arrested on April 2 will be “a turning point.”
He sentenced Avery to the credit time of 111 days he had built up. In addition, he will be on probation for one year, during which time he will take counselling as directed.
Molloy did not impose an alcohol or drug ban. He told Avery it was up to him to keep his promise made to court to change.
Molloy ordered Avery to return to see him in court in four months, “to see how things are going.”
In December, Avery also vowed to turn his life around when being sentenced for a spree of break-and-enters in September and October, mostly to businesses.
“I’m going to do it,” the CBC reported Avery as telling court. “I don’t want people to give up on me.”
Some of Avery’s targets have included the Super 8 motel, Adam Dental Clinic, Ruth Inch Memorial Pool, several downtown offices, and a school board. He stole money, electronics, and mobile devices.
In 2008, he pleaded guilty to using a credit card stolen from a judge’s wife.
In 2004 – three years before his brain injury – Avery was deemed a “a scourge on the community” by a Supreme Court justice who sentenced him to three years for guilty pleas to nine offences, including seven for break, enter, and theft.
Court records show Avery’s life of crime began in his youth, with six convictions in Youth Court in 1998.
Avery was committing crimes at the time to feed his drug habit.