R. v. Lee-Wen Date:, 2012 BCPC 208

Citation: R. v. Lee-Wen Date: 20120309 2012 BCPC 0208 File No: 171492-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVID CHARLES LEE-WEN ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K.W. BALL Counsel for the Crown: J. Lopes Counsel for the Defendant: J. Gindin Place of Hearing: Surrey , B.C. Date of Hearing: March 9, 2012 Date of Judgment: March 9, 2012

[ 1 ] THE COURT : David Charles Lee-Wen is before the Court today on a charge that between the 1st day of May 2006 and the 29th day of September of 2007 inclusive, at or near Delta, in the Province of British Columbia, did by deceit, falsehood or other fraudulent means, defraud Classic Impressions Inc. of money of a value in excess of $5,000, contrary to s. 380(1) (

a) of the Criminal Code . THE FACTS [ 2 ] In this case, the facts are that Mr. Lee-Wen was hired in January of 2005 as an employee, working as an accountant, with the company referred to in the Information. That company had a thriving printing and packaging business with about 20 employees. He worked there for approximately the next two years. His employment was marked with poor performance. On a number of occasions his employer contemplated the termination of his position. The female member of the ownership team defended Mr.

Lee-Wen and was of the view that if he was just given another chance he would improve his performance. He did not, and was fired. His employment was terminated on January 23rd, 2008. [ 3 ] A new accountant was hired and quickly discovered that there were problems with the accounting. In particular, David Lee- Wen had written a number of cheques to himself which were forgeries. He had not only written cheques to himself but to another employee. The owner of the company confronted him with these cheques. At that time it was thought there was about $20,000 taken fraudulently by this means.

He admitted that amount but did not mention other monies or in fact the other person involved. He did at that time ask that the police not be involved. [ 4 ] Crown counsel told the court that the accused actually wrote 49 false cheques payable to himself for a little over $181,500. He also wrote nine cheques payable to another person, another employee of the company, for $14,954.50. That person has repaid the entirety of that amount and has not been involved in these proceedings. [ 5 ] The discovery of the significant, that is the more than $181,000, loss to the company cannot be understated.

A very detailed victim impact statement was filed and read with considerable emotion by Terry Sikora. Her life was devastated as a result of the actions of the accused. She read her statement, as I said, with considerable emotion. The stress caused by this loss and its affect on the company caused her significant physical hardship.

She sought medical treatment, she took a series of medications, and she described the experience as "two years in hell." The affect on the company included requiring the company, because of its financial circumstances, to reduce the number of employees, in other words to lay off employees, and to reduce the hours of other employees. Persons who had families to support, were suddenly left with only part of their income. POSITIONS OF THE PARTIES [ 6 ] Crown counsel was very clear that based on the sentencing criteria set out in s. 718, 718.1 and 718.2 that a real jail sentence was being sought by the Crown.

A sentence in the range of 18 months to two years. [ 7 ] Mr. Gindin for the accused, in a very careful and professional submission, set out a submission that a conditional sentence order would be appropriate here. Crown counsel was very clear that a conditional sentence order was not appropriate in the view of the Crown. CIRCUMSTANCES OF THE ACCUSED [ 8 ] The circumstances of Mr. Lee-Wen are important and require review by the court. He is now 33 years old and has struggled with an addiction to crack cocaine since his early 20's.

He has maintained some periods of sobriety; by his own account he was sober for the period from February 23rd to September 25th, 2008. Unfortunately, that period of sobriety came to an end and he was using crack cocaine at the time of this offence and remained addicted, according to his reporting, until February of 2009. Drug tests were filed at tab 14 in the brief submitted by his counsel, that from November 23rd of 2009 to January 12, 2010, he remained drug free.

A letter from a representative of Alcoholics Anonymous dated September the 11th, 2011 was filed indicating the accused had been sober since August of 2011 and that he was involved in a 12-step program. A very extensive letter from Dr. Waldman was filed.

It is at tab 15 of the booklet of materials and I have had a chance to review that letter, as I have all the other documents submitted, and it is indicated there that while there have been various diagnoses for this accused over a period of time, he is presently only being treated for depression with medication, although, as I have said, he is involved in the Alcoholics Anonymous 12-step program as well. [ 9 ] Mr. Lee-Wen was someone who had a strict upbringing focused on academic excellence and musical success. His drug dependency began when he left home around the age of 21 to attend the University of Winnipeg.

Due to his drug use he did not complete his Microbiology degree, which was his intended degree at university. He then went on to take a certified managerial accounting program at Langara College; however, he did not complete that program. It is unlikely, given the present conviction, that he will complete that program. [ 10 ] Since the date of these crimes, he has been employed in the accounting department of at least two companies.

Tab 13 contains a probationary report from one of those companies where he handled data entry, and since January 2011 he has been employed as an accounting analyst at a company that manufactures fish feed. According to the accused, he does not have access to cheques or money in that position, but at the same time that company is not aware of the conviction presently before the court. [ 11 ] He has a supportive family. Counsel advises me that his parents have been here on all prior occasions but, due to a death in the family, are otherwise engaged and they are not here today.

His parents and sister wrote letters of support which are found at tab 16 and 17 of the booklet of materials filed by counsel. I have reviewed all those documents. He has a three-year-old daughter with whom he currently does not have access. SUBMISSIONS OF COUNSEL

[ 12 ] Counsel for the accused provided in the same book of materials, a number of cases, including R. v. Hammond 2004 BCPC 320 , R. v. Corner 2005 Carswell Ontario 595 , R. v. Houde 2005 BCPC 632 , R. v. M.K.M. 2007 BCPC 58 , R. v. Keatley, 2009 BCPC 249 . All of those cases involved thefts by an employee in a position of trust. The thefts range from $100,000 to $500,000. While noting that the range for sentences in each of those cases involved jail time, all five cases sentenced the accused persons to two years less a day to be served on a conditional sentence.

It should be noted that in each of those cases there were strong mitigating factors; all included guilty pleas and all involved first-time offenders. Three of those cases involved full or partial restitution; that is, R. v. Hammond , R. v. Keatley and R. v. Houde . Two of the cases involved persons who voluntarily admitted to the frauds they had committed, that is R. v. Corner and R. v. Keatley . Three of those cases resulted in the loss of employment in a career that had been held for decades, R. v. Keatley , R. v. Houde , and R. v. Hammond .

Two of the cases included other strong reasons why a jail term would not be appropriate; in Corner the accused was a sole caregiver for her disabled husband, and, in R v. Houde , the accused was employed and working to support his family. [ 13 ] There are a number of cases which have dealt with issues relating to accused persons with addictions and the approach a sentencing court should take with respect to such cases.

I only mention these briefly because it is quite clear that the courts of this Province have certainly taken the view that while persons suffering from drug or alcohol addictions, or gambling addictions for that matter, are suffering from severe medical problems but the addiction itself is not a bar to a jail sentence. I will just briefly refer to these cases. There is R. v. N.C.D. 2003 BCSC 537 , R. v. Beggs 2003 BCCA 101 , R. v. Elliott 2010 BCPC 338 , as well as R. v. Zolnasr 2011 BCSC 1754 . Each of those cases involves a person with an addiction.

Clearly that is the person that is before this court. [ 14 ] Mr. Lee-Wen was convicted in 2005, as is set out in the pre-sentence report, with the offence of possession for the purpose of trafficking, received an 18-month conditional sentence. While he was on that conditional sentence, he committed the present offences. AGGRAVATING AND MITIGATING FACTORS [ 15 ] A review of the aggravating and mitigating factors in this case is also important. As I said, the victim impact statement was read by Ms.

Sikora and that indicates a significant level of the aggravating factors in this case and the affect they had on the victims. This was, after all, a breach of trust by an employee that affected the employer and other employees, not only the employee that was involved with the breach but other employees who lost employment or had their employment reduced. This was not a single event nor even a couple of events; it involved 58 fraudulent cheques written over a period of two years. The affects on Ms. Sikora have been noted by her. The offence was also, as I have said, committed while Mr.

Lee-Wen was under community supervision. [ 16 ] The mitigating factors: he has shown great remorse; he has taken significant steps towards rehabilitation but time will tell if those steps have the desired effect. He has entered a guilty plea, although not at the first opportunity. As I indicated earlier when I was talking about the facts of this case, it was not a guilty plea that openly admitted the entirety of the guilt of this accused, and he rather was initially prepared to let $20,000 stand in place of $181,000. [ 17 ] There has to date been no payment of restitution.

Counsel has indicated that the accused has a sum of $5,000 which he is prepared to start restitution with, but nothing has been paid prior to today. ANALYSIS [ 18 ] In the case before the court, Mr. Lee-Wen was serving a conditional sentence order. That order, among other things, is designed to protect the community from, a person serving such an order, committing further offences. In other words, it is supposed to have a protective effect. Because of the difficulties that Mr. Lee-Wen had, that order did not fulfil its function of protecting the community.

A further serious offence, the offence before me, was committed. [ 19 ] While I appreciate that the range of sentence that has been put forward by Crown counsel, that is, 18 months to two years less a day, is a range of sentence which requires the court to give consideration to the requirements of s. 742.1(b), and the other principles and objectives of sentencing, I must be satisfied that Mr. Lee-Wen would not endanger the community if he were to serve his sentence in the community.

Given that the conditional sentence order that he was previously on did not fulfil that function, I cannot be satisfied that his remaining in the community would protect the community sufficiently. In fact, the community is open to further offences and the danger that they create, including danger of financial loss, which is what is before the court today. [ 20 ] I am also obliged to consider whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing as set out in the sections to which I have just referred.

I am satisfied in these circumstances, the circumstances of this offender and this offence, that a conditional sentence order would not be consistent with the fundamental purposes and principles of sentencing. CONCLUSION [ 21 ] Therefore, given the submissions that have been made by counsel and the cases cited therein, I sentence Mr. Lee-Wen to a 20- month jail sentence, followed by a two-year probation order. [ 22 ] The terms of the probation order are as follows: He will keep the peace and be of good behaviour.

He will report forthwith, and in any event within 48 hours of his release from custody to the probation office located at 1311 Commercial Drive, that is the Vancouver East Community Corrections Office, Vancouver, B.C., and thereafter as directed by the probation officer.

He will reside in a residence approved of by his probation officer and not change that residence without the prior approval of the probation office. [ 23 ] He must attend, participate in, and complete individual and/or group therapy or counselling programs as directed by and to the satisfaction of the probation officer. [ 24 ] He must abstain absolutely from the consumption and possession of alcohol or any non-prescribed drugs or substances referred to in the Controlled Drugs and Substances Act , save as authorized by law.

[ 25 ] He must not possess any drug paraphernalia on his person. [ 26 ] He will complete 20 hours of community work service under the direction of and to the satisfaction of the community work service co-ordinator and the probation officer within the first six months of the probation period. [ 27 ] He will not possess any weapons as defined by the Criminal Code of Canada including any firearms. [ 28 ] He will provide a sample of his DNA pursuant to the provisions of the Criminal Code forthwith in custody. [ 29 ] There will be a stand alone restitution order in the amount of $181,586.60 to the credit of Classic Impressions Inc., and any sums paid in to court pursuant to that order will be forwarded to Classic Impressions Inc. by the Clerk of the Court. [ 30 ] Is there anything I have left out of the order that ought to be included? [ 31 ] MS.

LOPES: No, Your Honour. The victim fine surcharge in the circumstances - [ 32 ] THE COURT: I am going to waive it in the circumstances. [ 33 ] MR. GINDIN: Thank you, Your Honour. [ 34 ] THE COURT: Thank you, Mr. Gindin. I appreciate the completeness of your submissions. [ 35 ] MR. GINDIN: Thank you. [ 36 ] MS. LOPES: The Crown directs a stay of proceedings on the remaining counts. And Madam Clerk, do you need the exact DNA section, 487.052? [ 37 ] THE CLERK: No. This is secondary? [ 38 ] MS. LOPES: Secondary, yes. [ 39 ] THE CLERK: Thank you. (REASONS FOR SENTENCE CONCLUDED)