R. v. Rondeau Date:, 2017 BCPC 120

Citation: R. v. Rondeau Date: 20170413 2017 BCPC 120 File No: 169297-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NATHAN GUY RONDEAU REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. P. MacCARTHY Counsel for the Crown: L. Wheeler Counsel for the Defendant: M. Mulligan Place of Hearing: Victoria , B.C. Date of Hearing: April 13, 2017 Date of Judgment: April 13, 2017

INTRODUCTION [ 1 ] THE COURT: Nathan Guy Rondeau is before the court with respect to Information 169297 1. Crown has proceeded by way of indictment. The information contains eight counts. Mr. Rondeau, hereinafter referred to as the “Offender”, has entered pleas of guilty to amended Count 1 and to amended Count 3. [ 2 ] Amended Count 1 provides that the Offender, from the 28th of March, 2014, to the 14th day of August, 2015, inclusive, did, by deceit, falsehood, or other fraudulent means, defraud Island Savings Credit Union, a division of First West Credit Union, of monies of a value in excess of $5,000, contrary to s. 380(1) (

a) of the Criminal Code . [ 3 ] Amended Count 3 provides that the Offender, from the 28th day of March, 2014, to the 14th day of August, 2015, inclusive, did, by deceit or other fraudulent means, defraud TD Canada Trust and/or CUETS MasterCard of monies, of a value in excess of $5,000, again contrary to s. 380(1) (

a) of the Criminal Code . [ 4 ] Having entered pleas of guilty to those two offences, the matter has come before this court for the purposes of determining what is a fit and proper sentence for these two offences. CIRCUMSTANCES SURROUNDING THE OFFENCES [ 5 ] Crown has outlined the circumstances in connection with each of these two offences.

No issue is taken with respect to those circumstances, hence, I accept the Crown's recitation as to the facts which form the basis of, and I accept, the guilty pleas on those factual circumstances. [ 6 ] For the purposes of this sentencing, it is important to have a brief synopsis of the circumstances. [ 7 ] The Offender was an employee with Island Savings Credit Union. His position was that of an account manager. He had been in that position of trust with Island Savings Credit Union for a considerable period of time.

It was a job that he sought as a vocation and he, apparently, very much enjoyed that particular position. He then found himself in a difficult personal financial position which started or precipitated a series of criminal actions on his part which have given rise to these charges. [ 8 ] The Crown has indicated that by way of those series of transactions, the Offender fraudulently applied for, through various means, five credit cards and four lines of credit. Some were converted over, as I understand it, when he fraudulently obtained two personal loans and then one additional personal loan.

At the end of the day, he was fraudulently advanced and failed to repay the amount of $101,279.99. [ 9 ] It is relevant that the method of proceeding to acquire this money necessitated the Offender to use a combination of fictitious individuals and identities of actual clients of Island Savings Credit Union and information received from other sources.

It was an organized plan by which the Offender was able to make application for various credit cards, incur expenses on those credit cards, make nominal payments on the credit cards, obtain lines of credit based on the existence of credit cards or fraudulent bank accounts, and then draw on the lines of credit to make partial payments on the various credit cards. [ 10 ] The events took place starting on approximately March 28, 2014. The initial amount was acquired through a MasterCard and on that particular MasterCard the Offender incurred expenses up to $11,115.

That was on a credit card in the name of a person who appears to have been a combination of individuals known to the Offender, as well as fictitious information about that individual. Of the amount of $11,115, he was able to pay back approximately $1,619. [ 11 ] On May 23, 2014, again a new application was made; this time the Offender used a fictitious individual. He was able to secure an advance of funds, as I understand it, by way of a line of credit. Essentially, what he used from it or what he was able to obtain was something in the range of $17,714.

Part of that money advanced was paid back in the amount of $8,271. [ 12 ] On July 2, 2014, he was able to again fraudulently acquire advances by way of lines of credit and credit cards. The amount he was eventually able to obtain, through that series of transactions, was about $17,714 of which about $1,737 was paid back. [ 13 ] In October 2014, he used an actual Island Savings Credit Union client’s identity.

He opened up an unauthorized account for that individual and then he was able to secure a fraudulent loan for that named individual, but for the Offender’s use, in the amount of some $14,763, of which $5,000 was repaid on that amount either by way of other fraudulent loans, lines of credit or credit cards. [ 14 ] Essentially, what the Offender was doing was using or creating either false credit card applications or opening up unauthorized accounts or obtaining unauthorized lines of credit or personal loans, and then rotating the amounts that he fraudulently received, using the new monies obtained in order to partly pay off past fraudulently incurred indebtedness. [ 15 ] That particular type of a series of transactions continued on March 4, 2015, with the use of a fraudulently obtained line of credit, and payments subsequently made on it came from a fraudulently obtained personal loan in another person’s name.

On April 7, 2015, by again fraudulently obtaining a line of credit and then a personal loan in the name of an actual credit union customer, the Offender used funds received to pay off previous amounts or portions of such amounts that had been advanced to him. [ 16 ] The final series of transactions appear to have taken place starting on May 27, 2015, and on June 22, 2015. Again, the amounts in those situations involved substantial sums of money.

The May 27, 2015, transaction amounts were up to $12,913 of which $1,274 was repaid. [ 17 ] The transactions continued on through June 22, 2015, when a new personal loan was fraudulently obtained on the basis of previous fraudulent applications for lines of credit. That amount was in the range of some $10,000. The amounts advanced on it were

used to pay off previous lines of credit for the individual whose identity had been used for that purpose. [ 18 ] Then on August 14, 2015, another fraudulent personal loan was obtained in the amount of $12,000 for an individual who appears to have been partially fictitious but based on actual personal information details.

That amount of money was then used to pay off or partially pay off previous lines of credit fraudulently taken out in the name of that individual. [ 19 ] Obviously, it was clear to the Offender that this arrangement of lapping funds from account to account, credit card to credit card, and loan to loan could not continue.

Ultimately, the Offender left his job at the Island Savings Credit Union and sought and obtained a job at another competing credit union; I understand that was with increased responsibility and with increased remuneration. [ 20 ] It was after his departure that at least one of the transactions became apparent when an actual client of Island Savings Credit Union sought to pay off a credit card balance and learned, I would expect to the chagrin of that client, that there was an unauthorized account that had been opened in her name. [ 21 ] Investigations were made by Island Savings Credit Union.

An employee of Island Savings Credit Union contacted the Offender and sought an explanation. The Offender provided an inaccurate excuse as to what had taken place. [ 22 ] Then shortly thereafter, he phoned back and spoke to the person who had contacted him from Island Savings Credit Union, and fessed up to having committed some offences, and then requested that his former colleague keep it quiet. That particular request was rejected.

The matter was reported by the employee of Island Savings Credit Union to the authorities in what is referred to as corporate security; that resulted in the Offender then meeting up with officials from Island Savings Credit Union. [ 23 ] At that point, he made a full clean breast of what had happened and provided all the relevant documentation. That resulted in a police investigation, followed by the arrest of the Offender in June of 2016.

The arrest and his release on an Undertaking given to a Peace Officer or an Officer in Charge appears to have occurred on or about the 15th of June, 2016. [ 24 ] The other part of the relevant circumstances here is that the Offender had approached his employer, prior to getting involved in this particular series of fraudulent schemes, with a request for a consolidation loan, that being for the purposes of dealing with indebtedness that had been incurred by the Offender on various credit cards and with respect to a car loan.

Unfortunately for the Offender, he was turned down by his employer for that particular loan. [ 25 ] The indication is that when confronted with his financial difficulties, he began to suffer some emotional distress, some issues of anxiety and with depression. That then led him to a habit of using illicit drugs. That drug habit soon took over the Offender's life and, according to the information that he has provided to the court by way of a comprehensive four page letter, the use of drugs became a constant part of his life.

His addiction rose such that within a short period of time he was consuming cocaine on a daily basis, with the effect that he was incurring expenses to support that habit of something in the range of between $200 and $400 per day. [ 26 ] What started off as a scheme in order to deal with his own financial problems soon accelerated, such that he was utilizing substantially all of the funds he was able to obtain from the series of fake applications for credit cards and for lines of credit and loans in order to support his drug habit. [ 27 ] The plan, as often is the case for many people who start with this type of behaviour, is an unrealistic expectation that they will be able to pay back the funds that they have fraudulently obtained. [ 28 ] The Offender's plan was to take the better paying and more lucrative position with the competing credit union and then to repay back the amounts that had been obtained from Island Savings Credit Union through his fraudulent scheme.

That was an unlikely and unrealistic expectation on his part given the fact that the amounts that he had fraudulently obtained were well in excess of $100,000. [ 29 ] I am informed by Crown, and I take it that there is no dispute on this, that at the end of the day, it is only Island Savings Credit Union who has suffered a loss and none of the real clients of Island Savings Credit Union nor any of the fictitious individuals created through use of real client information or other personal information, are deemed to be responsible for the amounts that were derived through the fraudulent schemes perpetrated by the Offender.

THE OFFENDER’S CIRCUMSTANCES AFTER DISCOVERY OF THE OFFENCES [ 30 ] When it became known to the competing credit union about his fraudulent schemes, it resulted in his job termination. His former employer, Island Savings Credit Union, called his truck loan. He was left in very difficult and challenging financial circumstances. It is apparent from the information before the court that all this continued to create additional stress issues and depression issues for him, which continued to be addressed through self-medication of illicit drugs. [ 31 ] The Offender, however, started to take some rehabilitative steps.

He understood clearly from having committed these offences that he faced a very realistic prospect of a custodial sentence. He at least demonstrated to himself that he could find other employment, so rather than sitting back and waiting for his fate to be decided by the court, he took steps to obtain alternate employment. [ 32 ] In fact, until very recently, he has held two jobs at the same time, working six days a week. He has made disclosure to at least his primary employer of the difficulties that he has before the court. His other employer was not informed of those problems.

However, it is clear from the documentary evidence that has been submitted by defence, that he has impressed his employers, since his dismissal from the competing credit union, with his work ethic, his team support, and his enthusiasm for his employment. [ 33 ] Another significant change in the life of the Offender is that he has entered into what I understand to be a very stable relationship, the product of which has been the recent birth of a baby girl.

To a certain extent, that has created some additional stress on the Offender, who now faces a serious possibility of lengthy incarceration, and in the knowledge that he is the main financial support for his spouse and his child. All of this comes at a point in his life when he is working hard, not only to pay off the amounts that he has incurred through his own various personal loans and legitimate borrowings, but as well as facing the prospect of trying to repay the

fraudulently obtained amounts that he owes to Island Savings Credit Union. [ 34 ] In addition to finding additional and remunerative employment with employers who obviously appreciate his talents and in addition to taking on parental and family responsibilities, the Offender has also addressed many of the issues which he says have contributed to his poor and criminal choices. [ 35 ] He has undergone a period of counselling with Cascadia Counselling Clinic here in Victoria, and he has paid for those counselling sessions on his own.

He completed counselling, starting in October 2016, and that continued through to February 2017. The issues that are apparently being addressed include his addiction, grief, and stress. [ 36 ] In the four-page letter to the court prepared by the Offender, he reflects on what he refers to as his “past 500 days”. He describes that through the vast majority of that time, each day has been painful and he has been in a state of complete misery.

He says he has spent each of those days in a state of absolute remorse, regret, and sadness. [ 37 ] In his letter, he further indicates that he acknowledges that he will, in his words: . . . forever have a black stain attached to my name, and will have permanently lost the respect of many old colleagues, peers, family, friends and acquaintances that either already know about what I did or will soon know what I did.

Living with the remorse, regret, sadness, misery, depression of my current life has been at times unbearable. [ 38 ] He states and to a certain extent relies upon the fact that he started to use cocaine in order to numb the pain or cope with the depression. That pain and depression arose out of his financial woes. He continued to spiral downward as his fraudulent activities became apparent to his former employer.

He found that in the course of his scheme, each time that he got himself further into problems with drugs and financially, that he was then prompted to make an additional fraudulent transaction in order to obtain further funds. [ 39 ] He says that while he was committing these offences, he was under a significant influence of drugs. He describes it in the following fashion and I quote: The drugs really and truly blocked my mental ability to recognize the unlawfulness of my actions and I honestly barely felt like what I was doing was wrong, but rather that I would 'find a way to fix the situation'.

How I wasn't able to recognize that I would never be able to 'fix the situation' is beyond me. I am smarter than that, I am better than that, and I have always taken pride in being a man of integrity and being an honest, lawful good hearted citizen. I was in a vicious cycle of addiction, where I was experiencing high levels of anxiety, and the only way to curb the anxiety seemed to continue using drugs. [ 40 ] Essentially, he has had his addiction issues under control for close to some two years.

As I indicated before, apparently through counselling, he is dealing with the anxiety and depression and stress issues that marked his life. He speaks in terms of the change that the birth of his child has made to his life and the recognition of the responsibilities he has to his spouse and that child. In submissions, he and his counsel have indicated that a period of incarceration will have some very negative effects on his family if he is not able to care for and support them. [ 41 ] As I have previously indicated, he is working or has up until very recent time been working two jobs, six days a week.

Having lost his vehicle, he has had to make do with a $700 vehicle in order to ensure that he has a means to transport himself to his various jobs. [ 42 ] In his letter to the court, the overall theme is one of feelings of disgrace, remorse, insight, and a concern about the implications of having to rehabilitate his reputation and to obtain and maintain gainful employment in the years to come. CASE AUTHORITIES [ 43 ] Neither Crown nor defence has provided case authorities for consideration by the court.

However, reference has been made to some recent decisions of my judicial colleagues involving some similar, fairly high profile cases reported in the local media. I have been able to find some of those as reported decisions and I have also had a chance to consider some recent proclamations and guidance provided by our British Columbia Court of Appeal when dealing with matters of this nature. [ 44 ] The cases which I have had the opportunity of looking at are as follows: R. v. Offman , 2017 BCPC 70 , [2017] B.C.J. No. 485, that is a decision of the Honourable Judge Quantz rendered on March 15, 2017.

In addition to that, I have the decision of R. v. Houde , 2005 BCPC 632 , [2005] B.C.J. No. 2905. The third decision which I have had the opportunity of examining is the Court of Appeal case of R. v. Voong , 2015 BCCA 285 . [ 45 ] The decisions that are useful insofar as they deal with fact patterns not dissimilar to the one that is before me, are the Offman and Houde decisions.

They also involve very significant breaches of trust and defalcation of funds while in positions of trust. [ 46 ] The decision in Voong is useful because it provides context for various sentencing options, including the nature and the use of suspended sentences and the deterrent effect of periods of probation. POSITION OF CROWN ON SENTENCING [ 47 ] Crown's submission is that, given the circumstances of this case, the primary considerations, especially in view of the significant breach of trust, should be denunciation and deterrence.

Accordingly, Crown seeks a Provincial jail sentence of real custody of two years less a day. Crown is also seeking a standalone restitution order and a DNA order. As I understand it, the Crown is not necessarily seeking a probation order to go along with the custodial sentence. [ 48 ] Crown's position is shaped, in part, by the nature of this particular offence, but also mindful that the Offender is before the court without any prior involvement or criminal record being alleged.

SENTENCING POSITION OF DEFENCE [49] As indicated by defence counsel, the approach to sentencing by defence is sharply different from that being proposed by theCrown for a number of reasons. Specifically, it is submitted that the steps taken by the Offender since committing these series ofoffences are such to confirm that this once productive member of society, with significant responsibilities, who has fallen to the lowestpoint in his life, are significantly remedial in nature.

These remedial steps are not only focused on supporting himself in a gainful fashionand in a constructive way, but also focused on properly assuming and meeting his new responsibilities for a family.

The Offender hasalso taken positive and serious steps on his own behalf and at his own expense to seek counselling in order to deal with the addictionissues that have plagued him, and which have been a serious aspect of his offending. [50] Based on that, and also the wealth of support that the Offender has among family members, colleagues and employers, theposition advanced by defence is that the necessary requirement of there being general and, in fact, specific deterrence can be satisfied byway of a suspended sentence with a lengthy period of probation. [51] The defence submits, and there is no issue taken by Crown, that a conditional sentence order, otherwise known as a CSO, is notavailable as a sentencing alternative for this particular offence, owing to the amendments to the Criminal Code which were introducedunder the Safe Streets and Communities Act, S.C. 2012, c. 1, s. 34.

Thus, that amendment to the Criminal Code prohibits the court fromutilizing a conditional sentence order in this case. [52] Therefore, the option defence is relying upon in the absence of the availability of a conditional sentence order, is to craft a fitsentence using the provisions of the Criminal Code for suspended sentences. It is on that basis that I am being urged to not imposeactual custodial time as the sentencing option, but rather to look to other, more creative alternatives.

PURPOSE, OBJECTIVE AND PRINCIPLES OF SENTENCING [53] The principles of sentencing are codified in ss. 718, 718.1, and 718.2 of the Criminal Code. The fundamental purpose ofsentencing is to contribute to respect for the law and a just, safe society by imposing the stated objectives.

The stated objectives includedenunciation, deterrence, separating offenders from society, rehabilitation, repairing harm, and promoting a sense of responsibility in theoffender, and acknowledging the harm to victims and to the community. [54] When in the sentencing process, the court must take into consideration the mitigating circumstances and the aggravatingcircumstances (and specifically in this type of case, the statutory aggravating circumstances set out in

section 380.1), the concept thatsentences should be imposed on similar offenders for similar offences, and the notion that an offender should not be deprived of liberty ifless restrictive sanctions may be appropriate. [55] In addition, all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with theharm done to the victims or to the community must be considered. [56] A sentence must, very importantly, be proportionate to the gravity of the offence and the offender's level of responsibility for it.

The Nature of Suspended Sentences [57] In the recent decision of our Court of Appeal in R. v. Voong, the court canvassed the nature and the appropriateness and thecharacteristics of a suspended sentence. Particularly at paragraphs 19 and 20, the court makes the following observations, and I quote: [19] Where no minimum sentence is required, the Criminal Code permits a court to suspend the passing of a sentence, rather thanimpose a sentence (s. 731(1)(a)), and to place a person on probation for a maximum of three years (s. 732.2(2)(b)).

If an Offender whois on probation is convicted of an offence, the suspension of the sentence may be revoked and the Offender may be brought back beforethe court for sentencing. At that point, the judge may impose any sentence that could have been imposed at the time the sentence wassuspended (s. 732.2(5)(d)). [20] If probation is ordered, the judge must impose certain mandatory conditions found in s. 732.1(2) and may also impose optionalconditions (s. 732.1(3)(a)-(g.2)).

Under s. 732.1(3)(h), the Court may also impose any other "reasonable condition . . . for protectingsociety and for facilitating the offender’s successful reintegration into the community". [58] In Clayton Ruby, Sentencing, 8th Edition ("Ruby"), at pages 434 to 436, the use of a suspended sentence and accompanyingprobation is canvassed in fuller detail. [59] Ruby states that a suspended sentence and probation are especially useful in cases that do not require a period of incarcerationfor deterrence or denunciation.

The learned author further notes that imposition of a suspended sentence is not confined to offences thatdo not require deterrence. [60] The suggestion is made that where a suspended sentence and probation are imposed, general deterrence by way of a period ofimprisonment remains a possibility if the offender chooses to avoid the controls selected by the court for his rehabilitation. Thus, anoffender who "chooses to avoid the controls" by breaching, may very well end up in prison (see Ruby, pages 434 and 435, paragraph10.5). [61] Parenthetically, I note that Kelly J.A. in R. v.

Hudson, (ON CA), [1968] 2 C.C.C. 43 (Ont. C.A.) at paragraph11, opined that a suspended sentence can conceivably be more onerous than a sentence involving immediate imprisonment. Such mightbe the case if an offender were to breach in the last month of the probationary period and thus be exposed to serving the full termappropriate for the offence of which he was convicted, notwithstanding that he had virtually completed the term of his probationsatisfactorily. [62] Ruby further notes that a suspended sentence and the imposition of probation are unlikely to be appropriate where an offender

has many previous criminal convictions, there is a sophisticated criminality, or there are very serious charges. Notwithstanding theexistence of such factors, they do not militate absolutely against the use of suspended sentences and the imposition of probation (seeRuby, page 435 at paragraph 10.5). Deterrent Effect of Probation [63] The Voong decision canvasses the deterrent effect of probation, and specifically, at paragraphs 37 through 43.

Commencing atparagraph 37, our Court of Appeal has said as follows: [37] A probation order has primarily a rehabilitative objective, however, as the statutory terms refer to the purposes of "protectingsociety" and "reintegration into the community", it is not limited to this objective. [38] What is required for the imposition of an optional condition in a probation order is a "nexus between the offender, the protectionof the community and his reintegration into the community" (R. v. Shoker, 2006 SCC 44 at para. 13). [39] A suspended sentence has been found to have a deterrent effect in some cases.

Because a breach of the probation order can resultin a revocation and sentencing on the original offence, it has been referred to as the "Sword of Damocles" hanging over the Offender'shead. For example, in R. v. Saunders, [1993] B.C.J. No. 2887 (C.A.) at para. 11, Southin J.A. said: Deterrence is an important part of the public interest but there are other ways of deterring some sorts of crime than putting someone inprison who has no criminal record as this appellant did not.

The learned trial judge did not turn her mind to whether the deterrencewhich is important might be effected by certain terms of a discharge or a suspended sentence such as a lengthy period of communityservice. [40] This Court, in Oates, recently confirmed that Saunders stands for the proposition that deterrence might be effected with asuspended sentence (Oates at para. 16). [Emphasis in original] [41] In Shoker, at para. 15, the Court concluded that supervised probation is a restraint on the probationer's freedom. [42] Other Courts have confirmed the deterrent effect of a suspended sentence and a probation order in certain circumstances.

See,for example, R. v. George (1992), (NS CA), 112 N.S.R. (2d) 183 (C.A.) at 187 (and a number of cases following,including R. v. Martin, 1996 NSCA 207 , 154 N.S.R. (2d) 268 (C.A.); R. v. R.T.M., 1996 NSCA 156 , 151 N.S.R. (2d)235 (C.A.)) and R. c. Savenco (1988), 26 Q.A.C. 291 (C.A.). [43] The statutory phrase "protection of the public" now found in the Criminal Code gives a broad discretion to sentencing judges toimpose conditions (see Shoker at para. 3). The public is protected when a former criminal is rehabilitated and deterred from committingmore crimes (see R. v.

Grady (1971), (NS CA), 5 N.S.R. (2d) 264 at 266). It is also protected when other offendersare deterred by the sentence imposed. Thus, imposing conditions for the protection of the community may have a deterrent anddenunciatory effect in addition to a rehabilitative effect. Put another way, a condition need not be punitive in nature in order to achievedeterrence or denunciation. In D.E.S.M. (and affirmed in R. v. Sidhu (1998), (BC CA), 129 C.C.C. (3d) 26(B.C.C.A.)), this Court concluded that "home confinement" was an appropriate term of a probation order for the purpose of themaintenance of rehabilitation.

The court concluded, at p. 381: It should not be thought that home confinement, if we may call it that, should readily be substituted for regular imprisonment. Such adisposition is suitable, in our judgment, only where very special circumstances are present such as where the accused demonstrates thathe has rehabilitated himself prior to arrest, where he is not a danger to anyone, where others are dependent upon him, and where there areno factors that make it necessary in the public interest that punishment should be by conventional imprisonment.

THE AGGRAVATING AND MITIGATING CIRCUMSTANCES The Aggravating Factors [64] The aggravating factors in the matter before me include:

a) as recognized by Parliament in s. 718.2, that the Offender "in committing the offence abused a position of trust";

b) and as further recognized by s. 380.1, the large sum of money stolen by the Offender, which, exclusive of the cost of investigation,totaled $101,297.99;

c) the large number of transactions over an extended period of time, during which the Offender had ample opportunity to reflect on hisbehaviour and to discontinue his criminal activity;

d) the initial response of the Offender to attempt to have a former colleague ignore or to keep quiet about the offence in which theOffender was involved;

e) the planning that went into this particular offence, including the use of existing clients of Island Savings Credit Union's informationin order to perpetrate the offences. The Mitigating Factors [65] The mitigating factors in this matter before me include:

a) the Offender's lack of a prior criminal record;

b) the expression of what I take to be genuine remorse for the offences;

c) his acceptance of responsibility and the entering of guilty pleas at an early opportunity, thereby avoiding the cost of an expensiveprosecution;

d) the profile and what I take to be significant amount of forthcoming publicity surrounding the Offender's criminal conduct, and thesubstantial public embarrassment and humiliation that he has and will suffer in circumstances where he has had to deal with theadditional anxiety of others finding out, including actual and prospective employers;

e) the concrete steps taken in order to deal with the drug addiction issue, which has been an ongoing feature of the criminal behaviourundertaken by the Offender, and his commitment to gaining significant ways of dealing with the issues that were plaguing him while hewas in the control of his cocaine addiction;

f) the fact that this Offender is essentially, at this point, the main financial support for his spouse and young newborn child;

g) the present support experienced by the Offender that is evident by friends, family, and colleagues, as recorded in the variousdocuments that have been provided to me by defence counsel and personal attendances today in court.

ANALYSIS [66] The Crown and defence agree that the range of sentencing for this particular offence is between 12 and 24 months of actualcustodial time. [67] I am of the view that, given all of the mitigating and aggravating factors, but specifically the fact that this matter involved avery significant and serious breach of trust, that the actual range would be something between 18 and 24 months. [68] In that regard, I have reviewed carefully the decision of the Honourable Judge Quantz, of this court, in Offman, and specificallyat paragraphs 39 through 44, where various decisions are reviewed which would support a sentence in that range.

Those cases include: R. v. Reid, 2004 YKCA 4 , [2004] Y.J. No. 3, a decision of the Court of Appeal of British Columbia sitting as the YukonTerritory Court of Appeal and R. v. Burkart, 2006 BCCA 446. [69] Also, although a somewhat older case, the decision of the Honourable Judge Quantz in R. v. Houde provides guidance about thesentencing range I have set out above (see paragraph 43).

Houde also reviews a series of cases in coming to a decision about what anappropriate range of a sentence should be in matters of this nature, in the context of a conditional sentence order. [70] As I indicated above, both the Houde decision and the Offman decision involve persons in specific positions of trust. InOffman, the offender in that particular case was a long time Constituency Assistant in a Member of the Legislative Assembly'sconstituency office; she committed a series of offences over an extended period of time.

In Houde, the offender in that particular casewas a senior, general manager of a mid- island credit union who engaged in a series of offences and breaches of trust against his employerover a significant period of time. [71] Having determined that the appropriate range of a custodial sentence in this case lies likely between 18 and 24 months, I mustthen address the issue as to whether or not a means of sentencing the Offender to meet the purposes and the fundamental and otherprinciples of sentencing and the objectives can be accomplished, other than by way of an imposition of a custodial sentence in aProvincial jail. [72] In defence submissions, I am being asked to deal with the sentence in this matter from the perspective of and as a person or amember of the community who is well informed about the circumstances, who would then consider it and determine whether or not sucha reasonably informed person would think that the sentence that I impose, especially a suspended sentence, would offer and meet thenecessary requirements for general deterrence. [73] As I said when I spoke directly to the Offender in this case, many individuals who read our media are struck by what they maythink is an inappropriate sentence based on a very brief, although often accurate, recital of the circumstances.

But it falls to the court tomake informed decisions about what are the appropriate circumstances to consider when crafting sentences in matters of this nature, butalso being sensitive to the expectation of the community to ensure that this type of criminal behaviour is dealt with in both a serious, aswell as an effective manner. [74] Having given full regard to both the underlying circumstances that have given rise to these particular offences, and given dueregard to what I will regard as very special circumstances of this particular Offender, including his significant contrition and remorse, thefact that he has dealt with his addiction issue in a positive manner, and he has taken very appropriate and, I would say, laudable steps inorder to regain a measure of financial respectability, I am of the view that actual custodial time is not necessary in order to come up witha fit and proper sentence. [75] In coming to that conclusion, I am guided by our Court of Appeal of British Columbia in R. v.

Voong. Therefore, I am of theview that the use of a suspended sentence in this particular case is appropriate, as long as I give effect to the types of conditions that ourCourt of Appeal has mentioned in order to ensure that there is a deterrent effect, coupled with a rehabilitative effect promoted by thoseconditions. CONCLUSION AND DISPOSITION [76] I will ask Mr. Rondeau to stand, please. Mr.

Rondeau, you have heard my description, based upon reference to the decision ofour Court of Appeal about how a suspended sentence operates and what the potential risks to you are if you do not abide by the termsand conditions that are attached to that suspended sentence. [77] You have been in court today, and you have heard me say to other individuals who have appeared before me, court orders areserious matters. Persons bound by court orders must treat them as very important obligations and responsibilities. Treatment of them as

something in the nature of an inconvenient suggestion may trigger some rather adverse consequences, especially if Crown were to come back before the court and ask that the suspended sentence be replaced with an actual sentence. [ 78 ] The terms and conditions will attach to the suspended sentence; those terms and conditions will run for a period of three years, that is 36 months. Those conditions will be as follows, and they will be provided to you in writing. [ 79 ] I will make reference to our Vancouver Island judicial “pick list”, starting with number 200 - You shall keep the peace and be of good behaviour.

You shall appear before the court when required to do so by the court. You shall notify the court or your 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. [ 80 ] Number 201 - You shall report in person to the probation office at 836 Courtney Street, Victoria, British Columbia. [ 81 ] MR. MULLIGAN: Might I suggest that be on Tuesday of next week? [ 82 ] THE COURT: That is exactly what I intend on doing. I am simply getting the correct date.

So that will be Tuesday, April 18, 2017, and that will be before 12 noon, and after that you shall report as directed. [ 83 ] Number 205 - When first reporting to the probation officer, you shall inform him or her of your residential address and telephone number. [ 84 ] Number 206 - You shall not change your address or telephone number without first obtaining the written consent of the probation officer. [ 85 ] Number 209 - You shall remain in the Province of British Columbia unless you have received the written consent of the probation officer to go elsewhere. [ 86 ] I am going to impose a curfew condition on you.

During the first 60 days of your probation order, you shall obey a curfew by being inside your residence between the hours of 10:00 p.m. and 6:00 a.m. each day, except as follows:

a) with the written consent of the probation officer, but such consent is to be given only for compelling personal, family, or employment reasons, provided that such employment has been approved of in advance by your probation officer;

b) when travelling directly to or returning directly from your place of employment or while in the course of your employment. You shall provide the probation officer with written details of your employment, including hours of work, name of your employer, contact particulars for your employer if requested to do so; or

c) while travelling directly to or returning directly from an educational institution in which you are enrolled or while in the course of classes or extracurricular activities approved of in advance by the probation officer. [ 87 ] Number 215 - You shall present yourself at the door to your residence when any peace officer or probation officer attends there for the purposes of determining your compliance with the curfew condition of this order. [ 88 ] Number 227 - You shall not possess or consume any alcohol or any controlled substance as defined in s. 2 of the Controlled Drugs and Substances Act, except as prescribed for you by a physician. [ 89 ] Number 231 - You shall not enter any liquor store, beer and wine store, bar, pub, lounge, or night club. [ 90 ] Number 251 - You shall attend, participate in, and successfully complete any assessment, counselling, or program as directed by the probation officer. [ 91 ] Number 253 - Under the direction and supervision of the probation officer, you shall successfully complete 40 hours of community work service which shall be completed within the first 24 months of your probation order. [ 92 ] Number 254 - You shall pay restitution amounts by way of scheduled payments of $500 per month to the clerk of the court for the benefit of First West Credit Union.

I am going to pause for a moment. I take it that the second offence, on Count 3, that -- are there any monies owed to TD? I took it from your submissions that there were none. [ 93 ] MS. WHEELER: No, Your Honour, I am told that it is First West Credit Union that is entitled to the full amount. [ 94 ] THE COURT: All right, …and such instalment amounts will be paid on the 15th day of each month. [ 95 ] MR.

MULLIGAN: Or perhaps before the 15th day of each month, perhaps commencing next month, yes. [ 96 ] THE COURT: Yes, all right, so on or before the 15th day of each month, commencing May 15, 2017, and continuing thereafter throughout the duration of the probation order. [ 97 ] Are there any other conditions the Crown would be seeking? [ 98 ] MS. WHEELER: The only other one that may be appropriate, Your Honour, is Condition 250 with respect to identification documents, bank cards, et cetera, given that -- [ 99 ] THE COURT: Yes, I think -- [ 100 ] MS. WHEELER: Thank you.

[ 101 ] THE COURT: I think that that is an appropriate -- [ 102 ] MR. MULLIGAN: Unless perhaps there be some exception, within the course of employment as approved of by his employer. I just don't want a circumstance where he's back working in a store and somebody's paying by credit card or something, he's immediately in breach by accepting payment. [ 103 ] THE COURT: Well, I guess the only concern Crown might have is that the offences occurred while in the course of his employment in the first instance. [ 104 ] MR. MULLIGAN: Certainly.

Perhaps except as -- except as permitted by an employer who is advised of the probation order, something of that sort? [ 105 ] THE COURT: All right, I think that that is an appropriate -- [ 106 ] MS. WHEELER: I am content with that. [ 107 ] MR.

MULLIGAN: Yes. [ 108 ] THE COURT: So I will make it 249 -- or sorry, Number 250 - You shall not possess any credit card, bank card, cheque, or identification document bearing anyone's name other than your own, except you may do so in the course of your employment, provided that your employer has been provided with a copy of your probation order. [ 109 ] Then the next condition or rather the next order that I am being requested to make is a restitution order, a standalone restitution order.

I will make that standalone restitution order in favour of the same entity, First West Credit Union, and such amounts to be paid under the restitution order to the credit of that entity through the clerk of the court. [ 110 ] The next provision, I was being invited to make the order, the prohibition order and I believe that was under -- [ 111 ] MS. WHEELER:

Section 380.2, Your Honour. [ 112 ] THE COURT: Thank you very much. [ 113 ] MR. MULLIGAN: Might Your Honour consider, given that the term of probation which was imposed about the no bank cards and so forth, perhaps that is sufficient so as to avoid interfering with his ability to work and the terms of other -- [ 114 ] THE COURT: Well, in fact, that was what I was going to do. [ 115 ] MR.

MULLIGAN: Oh, very good, yes. [ 116 ] THE COURT: All right, so I am going to decline to make the prohibition order under that particular section, and reliance will be placed upon the term of the probation order which has essentially the same effect, although the prohibition order, I acknowledge, is broader, but I think the terms of the prohibition may be overly restrictive, in terms of Mr. Rondeau obtaining and maintaining employment in order that he can deal with his restitution. [ 117 ] That leaves the question of the DNA order.

In all of the circumstances, I think it is appropriate that a DNA order be made; I am going to require him to -- I guess to report to the Victoria Police Station. I am going to say that that must be -- he must report there within -- or I am going to make it prior to April 30, 2017. [ 118 ] THE SHERIFF: Your Honour, Victoria Police does DNA Tuesdays and Thursdays from 8:30 to 9:30 in the morning. [ 119 ] THE COURT: All right. So he has ample opportunity during that period of time, but he is to report there and provide a DNA sample no later than April 30, 2017. [ 120 ] MS.

WHEELER: Your Honour, I don't think you specified the total amount of restitution. [ 121 ] THE COURT: Oh, I thought I had. It is the $101,297.99, the same amount -- [ 122 ] MS. WHEELER: Thank you, yes. [ 123 ] THE COURT: -- that I think I had previously mentioned in my reasons, so that will be the full amount of the restitution order, the standalone restitution order. [ 124 ] I am going to give him two months to pay the victim fine surcharge on each of the two offences, and so it is clear that the period of the suspended sentence applies to both offences to which pleas of guilty have been entered. [ 125 ] MS.

WHEELER: Crown directs stays of proceedings on all remaining counts on the information. [ 126 ] THE COURT: All right. [ 127 ] MR. MULLIGAN: Thank you. [ 128 ] THE COURT: Thank you, anything further? [ 129 ] MR. MULLIGAN: No, Your Honour.

[ 130 ] THE COURT: All right. Mr. Rondeau, I wish you well in terms of your rehabilitation and taking steps to earn back the trust and the respect of your friends and family who are here in large numbers to support you. [ 131 ] Thank you. (REASONS FOR SENTENCE CONCLUDED)