R. v. Bruney, 2018 BCPC 182

Citation: R. v. Bruney 2018 BCPC 182 Date: 20180522 File No: 17057-1 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ST. MARK BRUNEY ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE F. HOWARD Counsel for the Crown: S. Salmond Counsel for the Accused: G. Simair Place of Hearing: Colwood , B.C. Date of Hearing: February 22, 2018 Date of Sentence: May 22, 2018 [ 1 ] THE COURT: St. Mark Bruney has pled guilty to fraud committed between the 1st day of September, 2011, and the 30th day of July, 2012. The Crown is proceeding indictably. The information was sworn on February 6, 2013. The Offence

[ 2 ] In September 2011, the accused was hired by Mr. Brownsey to do some carpentry work, including the building of an exterior fire escape stairway. Mr. Brownsey opened an account with Rona Hardware. He attached his American Express card to that account. He allowed the accused to use that credit card to buy the materials that were needed to perform the work. He advised Rona that the only other person allowed to use the credit card was the accused. He put a $1,500 ceiling on the account, which Rona apparently forgot to pay attention to. The stairway project was eventually completed and Mr.

Brownsey did not authorize any other work. [ 3 ] In the months that followed completion of the construction project, Mr. Brownsey discovered that an additional unauthorized $16,826 had been charged to his Amex account. It eventually became clear that Mr. Bruney had misused the card on numerous occasions. Mr. Brownsey did not notice the unauthorized transactions until the summer of 2012. He cancelled his card and he went to the police in September of 2012. [ 4 ] A review of the credit card account revealed 45 separate unauthorized transactions between September 2011 and July 2012.

The amount of the transactions ranged from a low of $11.66 to a high of $1,516.24. [ 5 ] It is important to note that the accused stopped misusing the Amex card in July 2012 on his own initiative. This was before Mr. Brownsey's September visit to the police. [ 6 ] Amex has reimbursed Mr. Brownsey to the tune of $7,719.23. He is still out of pocket $9,106.77. [ 7 ] In October 2012, the accused met with the police and acknowledged that he had been the only one to use the card and the items that he had purchased without authorization had not been used in the project at the Brownsey house.

Victim Impact Statement [ 8 ] There is a victim impact statement filed by Mr. Brownsey. He is candid about the fact that the financial impact of the loss is not a serious problem for him, but he fairly noted that others might not be as lucky as him, see paragraph 2 of his statement: Most obviously we suffered a direct financial loss of $9,206.77. (Fortunately, American Express reversed $7,719.23 or the loss would have totalled $16,826). Whilst the out-of-pocket impact of this fraud did not materially alter our lifestyle, it is nevertheless a significant amount of money that could have been put to other purposes.

I do worry that such practices might reoccur and be inflicted on others who are less able to absorb this kind of financial impact. [ 9 ] In fact, Mr. Brownsey was far more upset at the fact that he had been betrayed by the accused after considering him to be a trustworthy professional and a new “friend”. See paragraph 3: The most significant impacts were emotional. I believed that I had a respectful, professional, and personal relationship with Mr. Bruney. And paragraph 4: More important, however, are the impacts of the breach of what I thought was an emerging friendship with Mr. Bruney.

On several occasions, he sat in our living room and shared tea and conversation with us. We spoke of goals and dreams and how to achieve them in a healthy and productive way. Twice he brought his girlfriend to our house. She was an aspiring musician and I lent her microphone and amplifier so that she could better perform in public. To me, and my wife, these interactions were the foundations of a friendship.

To think that someone whom we thought to be a friend would subsequently and systematically defile this relationship by many acts of fraud was very upsetting. [ 10 ] I will pause here to note that the accused began his fraudulent use of the credit card, for his own purposes, in September 2011; this was the very same month that he was first employed by Mr. Brownsey. He continued his fraudulent abuse of the credit card for some 10 months thereafter until July 2012. Criminal Record [ 11 ] The accused has a serious and related criminal record.

To summarize, on April 20, 2007, the accused pled guilty or was found guilty of seven offences committed between December 2002 and June 2005. These offences included: use of a forged document, fraud, breach of probation times two, and three counts of failing to appear in court. The fraud and forgery charges netted him a 90-day jail sentence and three separate restitution orders for $1,440, $866, and $1,500. [ 12 ] Two months later on June 14, 2007, the accused was sentenced for eight separate offences committed between April 2006 and January 2007.

These offences included one count of theft under $5,000, four counts of fraud under $5,000, two separate counts of robbery, and one charge of flight from a peace officer. He was sentenced to four months in jail for the theft and the four fraud charges, one year in jail for one robbery, 30 months in jail for the second robbery, and six months in jail for the offence of flight from a peace officer.

These sentences were all concurrent with one another, but consecutive to the four month sentence imposed two months earlier. [ 13 ] The history of the accused's appearances before the court on this charge that I am now dealing with is of some relevance. The information was sworn February 6, 2013. Between April and September, the accused made seven court appearances and, on September 26, 2013, he failed to appear and a warrant issued for his arrest. That warrant was eventually dealt with and he was released on bail.

Thereafter, he made three more court appearances in October and November 2013. [ 14 ] On November 27, 2013, the matter was finally set down for a trial that was set to proceed on May 27, 2014. On May 27, 2014, the Crown was prepared to proceed with the trial, but the accused failed to appear. A warrant was issued for his arrest. Five to six weeks later on July 3, 2014, the accused voluntarily appeared before the court. He pled guilty on that date and the warrant was vacated. The matter was adjourned to September 25, 2014, for sentencing.

The hearing was put over to September 29, at which time the accused again failed to appear. The warrant was released on October 2, 2014.

[ 15 ] No one heard from the accused for the next three years. He surfaced in the lower mainland in October 2017 and was arrested at that time. The police released him on a promise to appear without consulting the Crown about whether that was an appropriate step in this case. [ 16 ] Still, the accused made it back before the court in Colwood, with new counsel at his side. After several adjournments, the sentencing hearing finally began on February 22, 2018. It was adjourned for continuation to April 18, 2018. The day before this scheduled appearance, the hearing was adjourned.

The accused had notified his counsel that he was having car problems and he would not be able to make it to court in Colwood from Nelson, BC. The matter was adjourned to May 15, 2018. Again, the accused did not appear. He emailed his counsel that he was again having truck trouble and that he had missed the ferry. A warrant was issued for his arrest. On Thursday, May 17, the accused turned himself in; he was arrested and has been in custody ever since. The sentencing hearing was then set down for today's date, May 22, 2018. The Personal Circumstances of the Accused [ 17 ] The accused is 48 years old.

He is from Calgary, Alberta. He had a difficult home life and suffered from living with a physically abusive father. At age 15, he left school. From the age of 16 to 19, he lived in Edmonton where he was introduced to drugs including crack cocaine. He also acquired some dangerous friends. [ 18 ] At 19, he came back to Calgary. He obtained his GED as well as a couple of trade diplomas (Architectural Technology and Building Development and Design). He found work; he married; he has 2 grown children from that marriage.

He built up a long history of steady employment. [ 19 ] When he was 30 years old, his life began to crumble. His marriage broke down; he went back to drugs, and managed to amass a $50,000 drug debt. He was unable to hold a steady job. He turned to crime to help him buy his drugs and deal with the drug debt. [ 20 ] He moved to BC, found some work as a construction worker, and worked on his drug issues. Eventually, his old charges for 2003 to 2007 caught up with him and he ended up in jail serving the various sentences described above, including the 30-month jail sentence for robbery.

He went into a federal institution where he became very involved in a number of addiction classes and programs. He was released in 2008 to a halfway house. He did renovation work to support himself. Then, in the fall of 2011, his life started to unravel yet again. His addiction issues got the better of him yet again.

He embarked upon the fraudulent credit card transactions that are the subject of this hearing. [ 21 ] Defence counsel has pointed out that during the three-year period following his September 2014 failure to appear in court for the original sentence hearing, the accused put some effort into improving his life. He became involved with NA as a support system as he struggled with his addiction issues. I have been provided seven Certificates of Completion from various programs in which the accused has participated while he was AWOL from the court.

These Certificates are all issued by the Alberta Construction Safety Association. They date from April 2014 through 2015 and up to January 2016. It is apparent that the accused must have returned to Alberta for a lengthy period of time after walking away from the original 2014 sentencing hearing here in Colwood, BC. [ 22 ] Since his reappearance before the court in October 2017, the accused appears to have had some success in finding employment. He has filed a number of Record of Employment slips covering the years 2014 to 2017.

I am advised that he has just recently contracted to do construction work on a music festival; this work is scheduled for July and August of 2018. [ 23 ] As to his current situation, defence counsel has advised that the accused has been clean of drugs for 18 months now. He has a new partner. They live in a rented residence in Nelson, B.C. The accused has filed two reference letters from more recent employers. One is from Todd and Koreen Williamson. The second is from Reese Williamson. The accused appears to have worked on construction projects for these people in December 2017 and January 2018.

It is apparent from these letters that these employers were extremely pleased with the work done by the accused. Reese Williamson summed up his opinion with the following comment: I've never met such an honest, clean, and hard-working tradesman. I will hire him again in a heartbeat for any other projects. I pause to note that I do not know if these parties are aware of the accused's current problems in the criminal court. [ 24 ] Crown counsel has fairly noted that many of the past court adjournments were agreed to by the Crown based on the accused's many promises to make restitution if he was given some time.

That restitution never materialized. However, new counsel for the accused, Mr. Simair, has advised that in more recent months the accused has sent in small amounts of money to defence counsel's trust fund to be held for the purpose of paying off the restitution order that is likely to be made at this hearing. There is now $1,780 in the account leaving $7,220.77 yet to be collected from this accused. Sentencing Positions [ 25 ] There is no dispute over the proposition that a term of imprisonment is required in this case.

The issue is whether this should be a sentence served in a jail or a jail sentence served in the community under the terms of a conditional sentence order. The Crown is seeking a one-year jail term following a probation order and a restitution order. Counsel for the accused is seeking a conditional sentence order for two years less a day followed by a three-year probation order. The Law [ 26 ] The general principles of sentencing are set out in s. 718 , 718.1 , and 718.2 of the Criminal Code .

Section 718 defines the fundamental purpose of sentencing, that being to impose a “just sanction” that has as its objectives: denunciation, specific and general deterrence, the protection of society, rehabilitation, reparations for harm done, and promotion of a sense of responsibility in the offender. [ 27 ]

Section 718.1 provides that a sentence be proportionate to the seriousness of the offence and the moral culpability of the offender.

[ 28 ]

Section 718.2(

a) requires the court to consider both aggravating and mitigating factors when determining an appropriate sentence for the particular offence and offender before the court.

Section 718.2(

b) requires that a sentence be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. See also ss. 718.2 (

d) and (e). [ 29 ] The conditional sentence regime is set out in s. 742.1 of the Criminal Code . Under this section, the court may direct that an accused who is sentenced to a term of imprisonment serve that sentence in the community subject to conditions imposed under s. 742.3 of the Code .

There are four conditions that must be present before a conditional sentence can be imposed: 1. the offence must not be punishable by a minimum term of imprisonment; 2. the sentence of imprisonment imposed must be less than two years; 3. the court must satisfied that serving the sentence in the community would not endanger the safety of the community; and 4. the court must be satisfied that serving the sentence in the community would be consistent with the fundamental purpose and principles of sentencing. Analysis [ 30 ]

Section 718.1 of the Code requires that the sentence that I impose be proportionate to the gravity of the offence and the degree of responsibility of the offender. The offence before me is indeed a serious one. The accused defrauded his employer of some $16,000. He did so over a lengthy period of time from September 2011 through to July 2012. [ 31 ] This was not a spur-of-the-moment fraud. However, it was relatively unsophisticated. The accused used his own name. It was inevitable that he would be caught if and when Mr. Brownsey discovered the unauthorized transactions on his Amex account.

To his credit, the accused did cease his criminal activities on his own volition before it became apparent to him that Mr. Brownsey had discovered how he had misused the Amex credit card. [ 32 ] Insofar as the moral culpability of the accused is concerned, I can discern no significant circumstances in this case that would mitigate or lessen his responsibility for the offence in any significant way. He willingly engaged in a deliberate, premeditated, and long- term fraud against an employer.

He may have been going through a difficult time with his substance abuse issues when he engaged in the fraudulent transactions. However, those issues were not so severe as to interfere with his ability to convince Mr. Brownsey that he was a professional and trustworthy individual; they were not so severe as to hamper his ability to perform excellent carpentry work for Mr.

Brownsey; they were not so severe as to interfere with his ability to quietly engage in some 45 separate fraudulent transactions over a 10-month period without being detected. [ 33 ] In support of his request for a jail sentence, the Crown relies on the obvious aggravating factors in this case, including the prior jail sentences imposed for frauds committed during two separate time periods (2003 and 2006) and the fact that this particular fraud was committed against the accused's employer, an employer who had trusted who had trusted the accused to use the Amex credit card only as authorized.

The Crown also stresses the fact that this is a $16,826 fraud, notwithstanding the fact that the restitution that is being sought at this point is just $9,106.77. [ 34 ] In support of his request that I consider a conditional sentence order, defence counsel proposes that reparations to the community can be made through a community work service order in the range of 100 to 150 hours. [ 35 ] When it comes to the principles of denunciation and deterrence, I am mindful of the observation of the court in R. v.

Proulx , [2000] 1 S.C.R. 61 , 2000 SCC 5 , to the effect that “in some circumstances”, the objectives of general deterrence and denunciation can be achieved through the imposition of a conditional sentence containing strict terms governing the conduct of the offender in the community (paras. 102 and 107).

Defence counsel is, of course, relying upon this proposition. [ 36 ] As to the issue of restitution, the defence has argued that if the accused is serving his sentence in the community, he will be able to work and pay down the restitution order. [ 37 ] As for rehabilitation, the defence points to a number of mitigating factors, including the fact that, at the time of the offence back in September 2011, the accused was in the throes of an active drug habit and he has successfully come to grips with it. He has been clean and sober for 18 months.

He has been able to find regular employment for the last several years. Indeed, he appears to be a talented tradesman who should have no trouble obtaining positive reference letters to help him obtain employment in the future.

Finally, he now has the support of his partner; they have been together for some 18 months. [ 38 ] After considering the circumstances of the offence before me and the circumstances of this offender, the general principles of sentencing and the aggravating and mitigating factors in this case, I have come to the conclusion that a conditional sentence would not be an appropriate sentence in this case. [ 39 ] A conditional sentence would not be consistent with the fundamental purpose and principles of sentencing.

In particular, such a sentence would not adequately address the need for a strong denunciatory and deterrent message, specific and general, when it comes to offenders who support themselves and their drug habits by repeatedly defrauding other members of the community, be they friends, employers, or strangers.

This particular accused already has a serious criminal record for similar fraudulent activities: one count of fraud and one count of using a forged document in 2003 for which he received a 90-day jail sentence; there are four further frauds three years later in 2006 that netted him a four-month jail sentence.

I am mindful of the fact that the offence before me was committed five years after the last four fraud offences, but it is also worth noting that this September 2011 fraud began just two years after the expiry date of the warrant of committal on the previous fraud offences. [ 40 ] In my view, the circumstances in this case would typically result in a ‘real jail’ sentence in the range of nine to 18 months. There is nothing in the circumstances of this offender or the offence before me that would suggest that a sentence below the usual range

would be appropriate. I am satisfied that, at this time, the need to specifically deter this accused (and others) from resorting to this type of criminal activity yet again and the need to provide the general public with some degree of protection from this type of fraudulent activity by this accused all take priority. [ 41 ] I will make one further observation.

An individual who is granted a conditional jail sentence must serve the sentence in the community “subject to conditions proposed under s. 742.3 from the Code." As for whether this accused could reasonably be expected to successfully abide by the terms of a conditional sentence order, the answer must be “No”. One need only look at his history of non- compliance with court orders. There are two breaches of probation and three counts of failing to appear in court on his criminal record. In September 2013, he also failed to appear in court on the charge before me and a bench warrant was issued for his arrest.

Then in May 2014, he absconded from his sentencing hearing and went missing for three years. He did not turn himself and had to be arrested. More recently, he did not make his court date either on April 18 or May 15, 2018. Another warrant issued for his arrest. The accused's own conduct suggests that he is simply not a good candidate for a community based sentence; he seems to lack any kind of real commitment to abiding by the terms of a court order governing his conduct in the community. [ 42 ] In my view, a fit and just sentence in this case is a jail sentence of 10 months.

This sentence is at the low end of what I consider to be an appropriate range. As such, it gives the accused credit for his rehabilitative accomplishments to date and for the money that he has deposited to his lawyer’s trust account for the purpose of paying down the restitution that is called for in this case. [DISCUSSION RE PRETRIAL CUSTODY CREDIT] [ 43 ] The sentence will be time served plus nine months and 22 days in jail. The record will reflect ‘actual time served, five days’ and “time credited, eight days”.

This is an effective sentence of 10 months in jail. [ 44 ] There will also be a one year probation order to follow.

The terms of the probation order will be as follows. [ 45 ] You must keep the peace and be of good behaviour. [ 46 ] You must appear before the court when required to do so by the court. [ 47 ] You must notify the court or your probation officer five days 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. [ 48 ] You must report in person to a probation officer either at the correctional facility where you are placed or at a Corrections office in Castlegar, British Columbia, within two business days after your release from custody, unless you have obtained, prior to your release, written permission from the probation officer to report elsewhere or at a different time.

After that, you must report as directed by the probation officer. [ 49 ] When first reporting to the probation officer, you must inform him or her of your residential address and phone number, and you must not change your residence or phone number without prior written permission from your probation officer. [ 50 ] You must attend, participate in, and successfully complete any intake, assessment, counselling, or program as directed by the probation officer relating to alcohol or drug abuse. [ 51 ] You must not possess any identification documents, including credit cards, debit cards, cheques, negotiable instruments, driver's licences, birth certificates, social insurance cards, mail, invoices, or bills other than ones that have been lawfully issued to you in your own lawful name. [ 52 ] Before seeking, obtaining, or continuing any employment or becoming a volunteer in any capacity that involves having authority over money or the credit cards of another person or corporation, you must inform the employer or the organization about this conviction. [ 53 ] THE COURT: The restitution order.

I note both Crown and defence have talked about a restitution order being put into the probation order. I am not going to do that. It tends to make it almost unenforceable, if at the end of the one-year probation, he comes in and says, "I never had any employment. I could not afford to make restitution". This would be a defence to a charge of breach of probation. [ 54 ] So there will be a stand-alone restitution order under

section 738 of the Criminal Code to the credit of Kenneth Brownsey in the amount of $9,106.77 to be paid through the clerk of the court at the criminal registry in Colwood, British Columbia. (REASONS FOR SENTENCE CONCLUDED)