R. v. Varga, 2021 BCPC 286

Citation: R. v. Varga 2021 BCPC 286 Date: 20211129 File No: 104456-2-C Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHELLEY LYNN VARGA REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.T. CAMPBELL Counsel for the Crown: Lauren Berman Counsel for the Defendant: Jack Thorhaug Place of Hearing: Port Coquitlam , B.C. Date of Hearing: October 27, 2021 Date of Judgment: November 29, 2021 INTRODUCTION [ 1 ] Between June 1, 2018 and November 15, 2019, Shelley Varga used her position as a caregiver to withdraw funds from the bank accounts of her client. Ms. Varga has entered a guilty plea to fraud over $5000, contrary to section 380(1) (

a) of the Criminal Code . [ 2 ] The Crown submits that the circumstances of the offence require a 12 month jail sentence. The defence submits that the appropriate sentence is a conditional sentence order. Circumstances of the Offence

[ 3 ] Ms. Varga worked for 25 years as a caregiver for the Ridge Meadows Association for Community Living. Ms. Varga was an in- home caregiver for Theresa Tetu from 2015 to 2019. Ms. Tetu is a 51-year-old Indigenous person with special needs. She lives with fetal alcohol syndrome and has the mental functioning of an 8 to 10 year-old. [ 4 ] Ms. Varga’s position involved living with Ms. Tetu and supporting her daily needs. Ms. Varga also assisted Ms. Tetu with financial matters, including her banking and household purchases. She had access to or control of Ms. Tetu’s bank card. [ 5 ] Ms. Varga took $12,516 from Ms.

Tetu’s bank account between June 2019 and November 2019 for her own personal use. These funds consisted of Ms. Tetu’s income from disability benefits and $10,000 that Ms. Tetu had received as a settlement for her experience at the Woodlands School. [ 6 ] The Crown submits that Ms. Varga also took funds from an older bank account belonging to Ms. Tetu. The amount taken from this account is uncertain. Ms. Varga withdrew funds from this account on a number of occasions and later repaid some but not all of the funds to the account.

The bank closed this account in June 2019 as it was in overdraft. [ 7 ] The theft was discovered when Ms. Tetu visited her bank in the company of another Community Living staff member. She learned that her account had been depleted. She was alarmed and confused. [ 8 ] The Ridge Meadows Association for Community Living arranged for a financial review of Ms. Tetu’s account. The night before the scheduled review, Ms. Varga contacted her employer and confessed to taking Ms. Tetu’s money. [ 9 ] The bank statements revealed that there were multiple transfers from Ms. Tetu’s account to Ms. Varga.

There were also a number of cash withdrawals and purchases which the Crown submits were done by Ms. Varga for her own benefit. There were a number of purchases in the Lower Mainland during a time period when Ms. Tetu was visiting family in another province. [ 10 ] Ms. Varga was dismissed from her employment. She has not paid any restitution to Ms. Tetu. Victim Impact Statement [ 11 ] Ms. Tetu provided a victim impact statement with the assistance of caregiver staff. Ms. Tetu described the feelings of anger and anxiety from the betrayal of trust that she placed in Ms. Varga and the loss of her savings. Ms.

Tetu had lived with Ms. Varga for four years and they had become close. The discovery of the theft led to Ms. Tetu having to move out of her home, as she had resided with Ms. Varga. Circumstances of the Accused [ 12 ] Ms. Varga is 51 years old. She has no prior criminal record. She was employed as a caregiver for 25 years. Since losing her employment when the theft was discovered, she has been working as a driver. [ 13 ] Ms. Varga reports that her mental health took a significant decline in the time period when the offence was committed. She reports that she was experiencing stress and depression.

She also reports that she had been diagnosed with post-traumatic stress disorder as a result of being physically assaulted by another client. [ 14 ] Ms. Varga expressed remorse for her conduct. She explains that she used the money to fund a gambling habit as well as for shopping and other expenses. [ 15 ] She said it became a habit for her to use Ms. Tetu’s money for her own personal use. She wishes to make restitution, but has not been able to afford any restitution payments to date.

Principles of Sentencing [ 16 ] The purpose of sentencing, set out in s. 718 of the Criminal Code , is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 17 ] The fundamental principle of sentencing, as set out in

section 718.1 of the Code , is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 18 ] The gravity of the offence refers to harm to the victim as well as harm to society and its values. The degree of responsibility of the offender focuses on moral culpability, which may include the offender’s motive, mental capacity or state of mind related to the offence: R. v.

Lacasse , 2015 SCC 64 at para. 130 . [ 19 ] A proportionate sentence is determined both on an individual basis and by comparing the case before the court with similar cases, while taking into account the sentencing objectives set out in the Criminal Code : Lacasse at paras. 53-54 .

Restraint on the use of Imprisonment [ 20 ] The principles of sentencing also include restraint in the use of imprisonment. Pursuant to

section 718.2, an offender should not be deprived of liberty if less restrictive sanctions may be appropriate. Aggravating and Mitigating Factors [ 21 ]

Section 718.2 (

a) of the Criminal Code provides that a sentence should reflect any relevant aggravating or mitigating circumstances relating to the offence or the offender. [ 22 ] There are a number of aggravating factors in this offence. [ 23 ] Pursuant to

section 718.2 (a)(iii) of the Criminal Code , the abuse of a position of trust in committing an offence is an aggravating factor. Ms. Varga was an in-home caregiver for a disabled client. The theft of funds from a vulnerable person by the person responsible for her care is an egregious violation of trust. Appellate courts have repeatedly held the paramount sentencing objectives for breaching a position of trust are denunciation and deterrence. [ 24 ] Pursuant to s. 718.2 (a)(iii.1), evidence that the offence had a significant impact on the victim, considering their personal circumstances, including their health and financial situation, is an aggravating factor. [ 25 ]

Section 718.04 requires that when a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances, including because the person is Indigenous, the court shall give primary consideration to the objectives of denunciation and deterrence. [ 26 ] Ms. Tetu is a person with disabilities. She was in a highly vulnerable position. The money that was taken consisted of her limited income from disability benefits and compensation that she had received for her experience at the Woodlands school.

This caused her stress and anxiety and required her to move out of her own home, as she had shared her home with Ms. Varga. [ 27 ] Although the amount of the fraud is not enormous relative to other cases involving large-scale fraud, the loss was devastating to Ms. Tetu as it represented almost all of her savings. [ 28 ] It is also aggravating that the fraud continued over a lengthy period of time. [ 29 ] In mitigation, Ms. Varga has entered a guilty plea and accepted responsibility. She has expressed remorse. She was cooperative with the police investigation.

She has no prior criminal history. [ 30 ] The defence states that Ms. Varga was experiencing depression at the time of the offence, and that at least part of the fraud was related to a gambling problem. [ 31 ] A medically-recognized gambling addiction may in some circumstances constitute a mitigating factor. As set out in R. v. Penttila , 2020 BCCA 63 , this generally requires evidence that an accused has a medically recognized disorder and that the disorder contributed to the commission of the offence.

As noted by Justice Fitch in Penttila at paragraph 69 , a medically-recognized disorder that is shown to have caused or contributed to the offence may be regarded as a mitigating factor justifying a reduction in sentence on the grounds that the offender’s moral culpability is diminished. [ 32 ] I accept that Ms. Varga had a gambling problem which played a role in her conduct. However, in the absence of evidence that Ms. Varga had a diagnosed disorder that played a contributing role in the offence, I am unable to conclude that this factor supports a significant reduction of sentence.

Further, I note that there were a number of transactions at retailers, such as a lingerie store, that were unrelated to a gambling problem. [ 33 ] Ms. Varga has not made any restitution in the two years since the theft was discovered. While the failure to make restitution in cases of fraud or theft is not an aggravating factor, re-payment of the financial loss can be a significant mitigating factor. The loss of trust caused by the abuse of a position of trust may not be easily repaired, but efforts to make restitution may go a long way to repair the harm caused by the offence.

Compensating victims for their financial loss prior to the sentencing may be a significant mitigating factor. [ 34 ] While I accept that Ms. Varga wishes to make restitution to Ms. Tetu, there has been no restitution since the theft was discovered that could be viewed as a mitigating factor. Range of Sentence [ 35 ] The Crown has relied on the following cases with respect to the range of sentence. [ 36 ] In R. v. Dizon, [2018] B.C.J. No. 6900 , the accused entered a guilty plea to fraud over $5000. The accused provided home care assistance to the victims, who were an elderly couple.

The accused had access to the victims’ bank account and withdrew approximately $260,000 over 16 months. A conditional sentence was not available at the time of the sentencing hearing. The Court imposed a sentence of 12 months imprisonment. [ 37 ] In R. v. MacNaughten, [2001] B.C.J. No. 3114 , the accused was convicted after a trial of two counts of fraud and three counts of theft over $5000. The accused held out that he could arrange loans for the victims in exchange for a deposit. The three victims paid him deposits totalling $64,000.

The sentence was a global sentence of 30 months imprisonment, which consisted of two consecutive 15- month sentences. [ 38 ] In R. v. Woodward, [2009] B.C.J. No. 1671 , the accused was convicted after a trial of theft and fraud with respect to $185,000 taken from two victims. The accused was a financial advisor and the two victims were his long-term clients. The accused took money on the basis that it would be invested in a company, but deposited those funds into his personal bank account. The sentence was 12 months

imprisonment. [ 39 ] In R. v. Taverner, [2017] O.J. No. 3658 , the accused worked as a caregiver to disabled persons living in the community. Over a five-year period, the accused defrauded one of her disabled clients of a total of $47,000 over the course of approximately 870 transactions. The accused had pled guilty and made full restitution to the victim in advance of the sentencing hearing. This was cited as a mitigating factor by the court. The sentence was 12 months imprisonment. [ 40 ] In R. v. Ellazar, [2016] O.J.

No. 5152 , the accused was an employee of a long-term care facility who withdrew $25,000 from the victim’s account. The 29-year-old accused pled guilty. The sentence was seven months imprisonment. Positions of the Parties The Crown submits that a 12-month jail sentence and probation is required. The defence asks the Court to consider a conditional sentence order. Should the Sentence be a Conditional Sentence Order? [ 41 ] The offence of fraud over $5000 is an Indictable offence carrying a maximum term of imprisonment of 14 years.

Section 742.1 (

c) of the Criminal Code precludes conditional sentences for offences prosecuted by Indictment with maximum sentences of 14 years or life imprisonment. However, in R. v. Chen , 2021 BCSC 698 , the Court struck down Criminal Code provisions that limit the availability of conditional sentences, including s. 742.1 (c). Accordingly, a conditional sentence is an available sentence in this case. [ 42 ] Pursuant to

section 742.1(

a) of the Code , the court must be satisfied that serving the sentence in the community as a conditional sentence would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing. [ 43 ] A conditional sentence can reflect the principles of denunciation and deterrence, particularly where onerous conditions such as restrictions on liberty are imposed. There is no presumption that conditional sentences are inappropriate for specific offences.

However, the gravity of the offence is clearly relevant to determining whether a conditional sentence is appropriate. [ 44 ] Given the duty of trust placed in Ms. Varga as a caregiver and the vulnerability of the victim, I conclude that the aggravating features of this case require a custodial sentence and that a conditional sentence order would not adequately address the need for denunciation and deterrence. Decision [ 45 ] The sentence is 9 months imprisonment. This will be followed by a probation order for two years on the following terms: 1. Keep the peace and be of good behaviour. 2.

You must appear before the court when required to do so by the court. 3. You must advise the court or supervisor of any change of name or address, and promptly notify the court or the supervisor of any change of employment. 4. You must have no contact directly or indirectly with Theresa Tetu. 5. You must report in person to a bail supervisor at Tri-City Community Corrections within two business days of your release from custody, and thereafter you must report as directed. 6. You must attend, participate in and complete any intake, counselling or education program as directed by your probation officer.

Restitution [ 46 ] The Crown submits that restitution should be ordered in the amount of $14,916.36. This consists of $12,516.36 taken from Ms. Tetu’s account between June 1, 2019 and November 12, 2019, and $2400 from an old bank account, which was active prior to June 2019. [ 47 ] Section 738(1) of the Criminal Code provides for restitution orders in the case of loss of property where the amount is readily ascertainable. The amount of the restitution order is not to exceed the loss suffered by the victim. [ 48 ] It is difficult to be precise about the loss in the time period prior to June 2019.

The banking records for the older account do not clearly set out the source of the transactions. Further, Ms. Tetu reportedly had difficulties with her spending habits. It is not clear which of the withdrawals were related to Ms. Tetu and which were fraudulently taken by Ms. Varga. However, Ms. Varga does not dispute that she took money from this account. Some of these funds were repaid but the account was eventually depleted. The victim has provided an estimate of her legitimate expenses for this time period. The Crown submits that the accused must have taken the remaining funds.

The Crown submits that a conservative estimate of the amount taken by Ms. Varga and not re-paid is $2400. Given the uncertainty of the quantum, however, I will order restitution payable in the amount of $14,000. [ 49 ] The Crown submits that the restitution should be made part of the probation order. However, it is not clear when Ms. Varga will be re-employed or how much she will earn as income. I am concerned that making the restitution payments a term of the probation may not be appropriate given the uncertainty about her future employment and income.

In my view, the restitution should be a stand-alone restitution order. [ 50 ] Pursuant to s. 738 of the Criminal Code , you must pay restitution in the amount of $14,000 to the clerk of the court for the benefit of Theresa Tetu.

[ 51 ] Pursuant to s. 380.2 of the Criminal Code , you are prohibited for a period of 5 years from seeking, obtaining or continuing any employment, or becoming a volunteer in any capacity that involves having authority over the property, money or valuable security of another person. _____________________________ The Honourable Judge J. Campbell Provincial Court of British Columbia