R. v. Reynolds Date:, 2016 BCPC 69

Citation: R. v. Reynolds Date: 20160311 2016 BCPC 0069 File No: 161499 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LAURIE LOUISE REYNOLDS CORRIGENDUM REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. CUTLER Counsel for the Crown: C. Jennings Counsel for the Defendant: R. Drury Place of Hearing: Victoria , B.C.

Dates of Hearing: September 25, and December 18, 2015 Date of Judgment: March 11, 2016 A corrigendum was released by the Court on March 15, 2016. The corrections have been made to the text, and the Corrigendum is appended to this document. [ 1 ] The accused, who is 63 years of age, is before the court to be sentenced after pleading guilty to one count of theft of monies belonging to Sheila Reynolds, the accused’s mother.

The court heard extensive evidence over several days with respect to the nature of the fraud, the relationship of the accused and her mother, and the accused’s circumstances. [ 2 ] The accused’s criminal scheme was not particularly sophisticated. All she needed was a vulnerable elderly person who was wealthy, relied on the accused and, most importantly, explicitly trusted the accused. The complainant’s mother presented as such an individual and the accused took full advantage of the opportunity.

After surreptitiously arranging access to her mother’s bank account the accused removed in excess of $300,000 over a four year period from October 2009 through August 2013. [ 3 ] The victim authorized the accused to pay specific bills incurred by the victim. The accused took over the banking arrangements for the victim and acquired access to the victim’s account. The accused then arranged to have the bank cease sending account statements to the victim so the victim was completely unaware of the status of her finances. The victim had no idea the accused was accessing her funds.

The victim had complete trust in the accused. [ 4 ] At the outset, after obtaining access to her mother’s account, the accused would transfer small amounts, rarely over $200 in any single transaction, totaling approximately $1,000 in a month. This gradually increased to transfers of approximately $500 totaling several thousand dollars a month. By the time the accused’s scheme had been discovered and she had been arrested the accused was regularly transferring $2,000 in a single transaction with the transfers totaling well in excess of $10,000 in a month.

As most of the monies transferred to the accused’s account were withdrawn as cash by the accused there is little in the way of a paper trail indicating where or how the accused was spending the money. [ 5 ] Since her arrest the accused has given, and in some cases retracted, various explanations for the expenditures including helping her daughters with their debts, lavish trips to exotic places, cocaine addiction, addiction to painkillers, and shopping. The accused acknowledges that whenever she needed money she would simply transfer money from her mother’s account.

She felt no need to place any restrictions on her spending as she testified she did not look at the bank balance when she withdrew the monies. [ 6 ] It is difficult to determine where the $300,000 stolen by the accused was spent. The accused adopts the position that while she took in excess of $300,000 from her mother’s account without her mother’s knowledge or consent, much of the money was spent for her mother’s care and benefit. The accused maintains that as much as 60% of the funds were spent on caring for her mother and that 40% was for her own needs.

However the evidence does not support the accused’s assertion. [ 7 ] The accused testified that she paid for numerous items for her mother’s care and these were reflected in her bank account statements. However in cross examination when asked to itemize each of the expenditures for her mother in the bank account statements, the entries for monies spent to assist her mother amounted to less than $37,000. No doubt some of the money stolen was expended to care for the victim.

However, there is little evidence supporting the accused’s assertion that 60% of the monies went to care for the victim. [ 8 ] Undermining the accused’s assertion is that the accused provided contradictory evidence with respect to her efforts to assist her mother. She indicated that just prior to her father passing away, her father, who had looked after the victim to that point, and the accused had agreed that she would step in to care for her mother.

Yet the accused also stated that it was her sister who was to care for her mother upon her father’s passing and that only when her sister failed to do so did the accused step in to assist her mother. [ 9 ] Similarly, the accused testified that her father had set up a bank account for the accused and placed $2,000 in the account in order that the accused could buy things for her mother when her father had passed away. In cross examination however it became clear that at the time her mother passed away there was only seven dollars in that account as the accused had used the money for her own bankruptcy proceedings.

The accused’s depleting this account of monies earmarked for the victim for her own personal needs was a harbinger of events to come. [ 10 ] Further undermining the accused’s assertion is that the monies withdrawn from the victim’s account over the four year period increased dramatically over time. As indicated earlier in these reasons, at the outset the accused was withdrawing approximately $1,000 a month from the account. Several years later the amounts of the withdrawals were well in excess of $10,000 a month.

There is little evidence before the court to support the contention that the cost of caring for the victim increased from approximately $1,000 a month to well over $10,000 a month in the four-year period in which the criminal conduct occurred. Receipts submitted by the accused for expenditures to benefit the victim were entirely inadequate to explain or justify the accused’s exorbitant spending. [ 11 ] Finally, the accused testified that she believes she may have spent $1,000 a month on her mother’s needs.

If accepted that would explain an expenditure of approximately $50,000 benefitting the victim over the entire period of the theft in which the accused had access to the victim’s account. [ 12 ] Aside from the numerous contradictions in her testimony, some of which I have referred to, she was evasive, defensive, and argumentative when giving her evidence. Her evidence that the majority of the monies were spent to care for the victim was not credible, nor was it supported by the documentation.

[ 13 ] There was a significant body of evidence placed before the court establishing that the accused was spending the money to support her expensive drug habit and lavish lifestyle. She admits to having employed the funds to service an illicit drug addiction and spending approximately $500 every two or three days to support the addiction. The accused indicated to the police upon her initial interview that she had an expensive cocaine addiction during the four-year period.

Yet before the court she denied a cocaine addiction and testified that she had a prescription painkiller addiction that caused her to spend $500 a day. Some of the extravagant spending included numerous expensive trips to exotic locations where the accused stayed in five-star hotels. [ 14 ] The victim passed on shortly before these sentencing proceedings commenced. However as she had provided a video statement to the police shortly after the theft was discovered, the court had an opportunity to observe the victim and her demeanor with regards to the theft of her funds by her daughter.

During this interview the victim was shown her bank account statements and the extensive transactions and expenditures of the accused. The video shows the victim in complete dismay, and in her frail state she simply states “It’s unbelievable”.

Shortly after being informed of the theft the victim was admitted to the hospital for heart problems apparently attributed to stress. [ 15 ] Due to her passing the victim did not testify before the court so it is difficult to know if she was more crestfallen by the extensive loss of her savings or the betrayal of the trust she placed in her daughter. [ 16 ] Particularly poignant in the video was when the victim was reviewing the extent of the accused’s expenditures itemized in the bank statement she observed an expenditure in excess of $1,000 and indicated she believed that it was for lingerie for the accused.

When queried by the officer as to how someone could spend such an exorbitant amount on lingerie the victim simply stated of the accused “She got fancy”. [ 17 ] In conclusion, I do not accept the accused’s position that most of the monies were expended for her mother’s needs. Based on all the evidence before the court I am satisfied that of the approximate $300,000 that the accused stole from the victim’s account no more than $50,000 was spent to attend to the victim’s needs. [ 18 ] The court was provided with numerous sentencing cases for offences involving a breach of trust.

Appellate courts have repeatedly indicated that the primary principles of sentencing in these sorts of matters are denunciation and deterrence ( R. v. Dreger , 2014 BCCA 54 , R. v. Khan , 2002 BCCA 703 , and R. v. Reid , 2004 YKCA 4 ). [ 19 ] The courts have consistently said that general deterrence is of prime importance in crimes involving a breach of trust. The paramount objective is the deterrent effect that the sentence will have on others. The purpose of incarcerating such offenders is not necessarily to protect the community from any danger posed by the particular offender.

The primary consideration is to protect the community from the danger posed by those who may be inclined to engage in similar criminal activity when placed in a position of trust. [ 20 ] Offences involving a breach of trust have traditionally drawn a significant custodial term even for first time offenders. The best interest and safety of the community is advanced by the deterrence of others from committing such offenses.

It is important for persons placed in a position of trust to understand that there will be serious consequences if they breach a trust and misappropriate monies of individuals who have placed them in a position of trust.

Section 718.2 of the Criminal Code expressly sets out in the sentencing guidelines that the abuse of a position of trust in relation to a victim is an aggravating circumstance. [ 21 ] Before reviewing some of the sentencing cases which I found to be helpful in determining a fit sentence for the accused, I should address the issue of the nature of the trust relationship which is an important consideration in these cases. The vast majority of the cases provided to the court involve employees or professionals in a business relationship taking advantage of a position of trust with an employer or client.

These cases are instructive in setting out the general principles involved when sentencing offenders who have breached a relationship of trust in committing a criminal offence. While helpful in providing an understanding of the general nature of trust relationships, they are, I believe, distinct from cases involving betrayal of a vulnerable elderly family member. An employer employee relationship is professional in nature and is often of a short duration. Rarely does it entail a lifelong personal bond that an elderly parent and a child share.

Moreover the employer is usually able to monitor the employee’s actions as well as employ mechanisms to protect the employer from any breaches or at least alert the employer to same. [ 22 ] I view the relationship between a vulnerable elderly person and their family member, particularly a son or daughter, as much more fertile for abuse by an unscrupulous individual and often with far greater consequences to the victim, including both a fundamental sense of betrayal and placing in jeopardy the victim’s life savings, as occurred in this case.

Elderly persons rarely have the ability, nor should they have the need, to establish mechanisms to protect themselves from deceitful children. Vulnerable elderly persons in our community need to be protected from such malevolent conduct. They are entitled in their last days to feel comfortable that they and their assets are secure, particularly from those who they trust. The breach of trust of a vulnerable elderly person by a family member is both sinister and abhorrent, and engages a high degree of moral blameworthiness.

The court must be vigilant in providing a clear message that vulnerable elderly persons in our community are not to be abused by family members whom they trust and love. [ 23 ] There are numerous cases where a breach of trust resulting in the theft of several hundred thousand dollars resulted in sentences of significant periods of incarceration. [ 24 ] In a recent case, R. v. Dreger , supra , our Court of Appeal sentenced a 45 year old woman who had defrauded her employer of an amount in excess of $245,000 over a number of years to a jail term of 4 years.

Similar to the accused, the offender in that case had no prior criminal record, was suffering from health issues, had made no attempt at restitution and lacked any genuine remorse. The impact on the victim in that case was severe, perhaps more so than the case at bar; recognizing that assessing and comparing the extent of the impact on different victims is a very difficult exercise. The court emphasized that the offender stole a substantial amount of money, the victim trusted the offender implicitly, and the offender’s moral blameworthiness was high. [ 25 ] In another case R. v.

Reid , supra , which presents somewhat similar circumstances to the matter at bar, Hall J.A. writing for the Court indicated that a sentence in the range of two to three years would be appropriate. Similar to the case before the court, the criminal conduct in that case involved a scheme that persisted over the course of three years and only terminated when the conduct was discovered. There were hundreds of withdrawals from the victim’s account over the three year period totaling approximately $212,000.

The pattern of the thefts increased dramatically over the time period covered by the indictment. No restitution had been made to the victim. There was little hope given the accused’s current situation that any restitution would be made to the victim.

The court concluded where the sum of monies stolen is significant, the time in which the criminal activity endured was lengthy involving hundreds of illegal transactions, there is little hope of restitution, and there is found to be an absence of remorse on the part of the accused, such circumstances militate in favour of a substantial period of incarceration. [ 26 ] In R. v. Beggs [2003] B.C.J.

No. 443 , a case involving misuse of taxpayer information and fraud in the amount of $221,000, our Court of Appeal sentenced an offender to 4 years in jail. [ 27 ] In the context of breach of trust of a family member there are a number of cases which, while involving significantly less monies being misappropriated, resulted in jail sentences. In R. v. Ramsey [2003] O.J. No. 3889 (Ont.S.C.) , a case involving an individual who defrauded his mother of $54,000 over a period of 2 ½ years, the court imposed a jail term of one year. In R. v.

Bullock , 2013 ABCA 44 , the court, acknowledging a joint submission, imposed a nine-month sentence against an offender who had defrauded his mother of approximately $12,000 over 10 months. [ 28 ] While each of these cases is helpful, the court must be mindful that sentencing is an individualized exercise and the court must carefully consider and assess all the relevant factors in the particular case before the court. [ 29 ] What emerges from the jurisprudence addressing sentencing for breach of trust is that additional factors to be considered include the nature of the relationship between the accused and the victim, the duration in which the accused’s criminal activity endured, and the consequent impact on the victim. [ 30 ] The aggravating factors in this case include an abuse of trust, the significant adverse impact on the victim and the significant amount of money that was stolen from the victim. [ 31 ] The accused’s conduct represents a significant breach of trust.

The breach of trust is significant in that not only did the accused take advantage of a vulnerable victim, the impact on the victim was severe.

The accused betrayed her mother who had placed a great deal of trust in her and in so doing the accused depleted the victim’s retirement funds in excess of $300,000. [ 32 ] A further aggravating factor in this matter is the prolonged period of the criminal conduct and the continuous deception and breach of trust. [ 33 ] Another aggravating factor in this case, and not uncommon to cases involving victimization of elderly family members, is the accused’s efforts to isolate the mother in order to facilitate the criminal activity.

The victim’s other children were intentionally kept at a distance from the victim by the accused, undermining the victim’s relationship with other family members during her final years. [ 34 ] The mitigating factors in this case include the accused’s age, the absence of a criminal record, a guilty plea being entered, albeit on the eve of the preliminary hearing at which the victim was scheduled to testify, and the accused was assisting her mother while committing the offense.

As well, the accused is not in good health and incarceration is likely to be more difficult for her than most. [ 35 ] Counsel for the accused submits that a mitigating factor is the accused’s remorse. In this case I am unable to accept remorse as a mitigating factor. While the accused indicated some degree of remorse I find it was not genuine and was provided begrudgingly. The accused has shown little insight into her offending.

She takes the view that she was entitled to these funds and she blames others including both the victim and other family members for putting her in the position she now finds herself. [ 36 ] She suggests that the money she did take was some form of remuneration for her efforts to care for her mother. I reject this assertion. The money she stole far exceeded any reasonable remuneration the accused would have been entitled to.

Moreover this position of entitlement is belied by the fact she knew she had no legitimate claim to these funds as she operated in complete secrecy, never disclosing to the victim or her siblings that she was accessing the victim’s savings for her own purposes and pleasures. [ 37 ] Upon hearing the accused testify and reviewing the material filed with the court, including the pre-sentence report, I do not believe that the accused feels any remorse for her conduct except for the fact that she was caught.

I should state clearly however, that this lack of remorse, although disturbing and illustrative of the accused’s self-absorption, cannot be viewed as an aggravating factor. [ 38 ] There has been no attempt at restitution. The accused currently is not employed and is receiving a monthly pension of approximately $1,000. She has made a rather hollow offer to pay $50 a month to the estate of the victim.

Yet at the same time the accused has filed a civil suit challenging the victim’s last will and testament. [ 39 ] Given the nature and duration of the accused’s conduct, the significant breach of trust of a vulnerable elderly family member and the resulting harm, the court might be inclined to impose a sentence in excess of the upper range suggested by the Crown of 30 months. There can be no doubt that the accused’s moral blameworthiness is high and general deterrence is a significant sentencing factor. The sentence must be denunciatory and must be exemplary to convey the appropriate message to the community.

The court and the community must protect vulnerable elders from unscrupulous and sinister individuals such as the accused. However, after considering the various mitigating factors, including the accused’s guilty plea, her age, and her current mental and physical health issues, I believe a fit sentence in this matter is one of 30 months.

Such a sentence should be sufficient to both reflect the court’s and the community’s disdain for the accused’s conduct and provide clear notice to others of the potential consequences of similar breaches of trust. [ 40 ] As the chances of any restitution being made to the victim are negligible, I do not consider there is any utility in the court making an order for restitution. [ 41 ] The 30 month period of incarceration precludes a probation order. In any event, I do not see a need to impose probation in this case, nor does the Crown seek such an order.

[ 42 ] Given the 30 month period of incarceration ordered a conditional sentence order is not available. However as the central focus of the submissions made on behalf of the accused advocated for a community-based sentence, I believe a few brief comments on that issue would be appropriate. [ 43 ] Even had I concluded a jail sentence of less than two years was a fit sentence in this case, I am not satisfied a community-based sentence would have been appropriate.

Such a sentence in this case would be contrary to the principles of denunciation and deterrence and the important principle of general deterrence engaged when sentencing a person who has breached a position of trust. A very helpful review of the principles, considerations, and jurisprudence is provided in R. v. Reid , supra .

In brief, a community-based sentence in this case would not provide sufficient general deterrence for those who might contemplate taking advantage of a position of trust and commit a criminal offence, and moreover would likely undermine the general respect for the law. [ 44 ] The accused suggests that a period of incarceration will cause her to lose her current subsidized housing where she has resided for approximately seven years now. She also indicates she needs her support in the community.

Yet she advised the probation officer who prepared the pre-sentence report filed in this matter that she is considering moving to the Lower Mainland once these court proceedings conclude. [ 45 ] I am also mindful of the evidence placed before the court of the accused’s physical and mental health. In this regard I have taken into account in the sentence imposed that her period in custody will likely be more difficult than other offenders. [ 46 ] The accused indicates she has various mental health issues as a result of a very difficult childhood. This is not confirmed by her siblings.

As well, she self-reports suicidal ideation some years ago as well as more recently. She indicated during an assessment conducted over a year ago that she may be inclined to take her own life if sentenced to a period of incarceration. Given the accused’s litany of misleading and self-absorbed comments throughout this process it is difficult to know how much weight can be placed on her statements.

Moreover, the court, while being understanding and compassionate for an offender’s well-being, must ensure after considering all the circumstances, including the offender’s health concerns, that a proper and fit sentence is ordered.

Lastly, it is important to note that her health issues will not be neglected as penal institutions provide inmates ready access to medical attention. [ 47 ] My view is that had the court determined that a fit sentence would have been a period of incarceration which allowed the accused to be eligible for a community-based sentence, it would not have been appropriate in the circumstances to permit the accused to serve the sentence in the community. R.

Cutler Provincial Court Judge CORRIGENDUM – Released March 15, 2016 In the Reasons for Sentence dated March 11, 2016, the following change has been made. [1] On the cover page, the Dates of Hearing is incorrect. The correct year is 2015. The Dates of Hearing should now read as follows: Dates of Hearing: September 25, and December 18, 2015