R. v. Deveau, 2020 BCPC 44

Citation: R. v. Deveau 2020 BCPC 44 Date: 20200207 File No: 177278-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TARA MARIE DEVEAU ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: R. Fowler Counsel for the Defendant: A. Tait Place of Hearing: Victoria , B.C. Date of Hearing: February 7, 2020 Date of Judgment: February 7, 2020 [ 1 ] THE COURT: Ms. Deveau, you are here today for sentencing on the charge that from June 5, 2015 to February 9, 2019, inclusive, here in Victoria, British Columbia, you did by deceit, falsehood, or other fraudulent means defraud Phil Ballam Plumbing and

Heating Company Limited of money having a value in excess of $5,000. The Crown has proceeded in this case by way of indictment underscoring, if it need be said, that this is a serious offence. [ 2 ] For the purposes of my sentencing reasons, I am going to set out, in brief, the nature of the offence. I will set out what I know about you from your presentence report, as well as what has been discussed here today by Mr. Tait on your behalf. In addition, I will refer to your letter that is going to be filed with the court.

I am also going to refer to the victim impact statements both in the presentence report as well as the victim impact statement that was provided to me by the Crown in court today. I will set out for the record the relevant sentencing objectives that have to be applied in this particular case. I will speak of the aggravating and mitigating factors which inform the length of sentence, as I must; and I will then have you stand and proceed to sentencing, Ms. Deveau. It is not going to be a surprise at the end of the day. You know you are going into custody for this.

So that is how I will proceed. [ 3 ] I will preface my remarks by noting that these are joint submissions and that has significance in law. The joint submission in this case for this offence is that I sentence you to a custodial sentence of 12 months in length to be followed by a period of probation of some 18 to 24 months with the conditions that have been suggested by the presentence report writer. In addition, the Crown submits that a standalone restitution order under the Criminal Code is appropriate and I understand through Mr. Tait that you take no issue with that.

So I will speak to the restitution order, as well, at the end of my sentencing reasons. [ 4 ] The joint submission is one that I must, in law, pay close attention to and not depart from unless I consider it to be wholly inconsistent with the proper administration of justice. That, of course, requires the court to bear in mind, as you have heard in the submissions here today, matters such as the purpose of sentencing, the proper sentencing objectives and, frankly, the range of sentencing in these particular cases.

The joint submission is, I think, at the low end of the range but at the end of the day, it is not so low that I feel obligated to refuse to accede to it and so I am going to and I will set out my reasons for that. [ 5 ] I have told you I am going to speak briefly about the nature of the offence and it is important in this particular case. As the Crown has outlined, you were a bookkeeper for the victim in this case, the victim being a small, family-run, plumbing business here in town.

As the person in charge of the company’s books, you had access to the funds that the company brought in, the bills that were invoiced and paid, and its bank accounts. All of this was available to you. [ 6 ] As I understand it, even prior to 2016, Mr. Wade Sr., I will call him, suspected that something was askew. You were confronted with this, and so you knew that the company understood at least in some regard that you may have been taking money that was not yours. I think that occurred on two occasions. Both times you had an accounting of your conduct and, in both instances, it looks as if Mr.

Wade Sr., at least, excused that behaviour and you carried on. [ 7 ] What is important to point out for the purposes of this sentencing is that you did carry on with the fraudulent activity and, in 2016, after engaging in a significant bookkeeping review exercise, the company learned that you defrauded it in the amount of $28,546.13. It ultimately learned that in 2017, you defrauded the company in the amount of $74,187.79, and in 2018, in the amount of $101,620.18, for a total of $204,354.27. That is a significant amount of money for anyone.

I note also that these were not after tax dollars; this is money that you just took and spent from this small company. [ 8 ] This offending behavior carried on over a lengthy period of time. It was not particularly sophisticated. However, matters were exacerbated when after your fraud was discovered, and your employment terminated, you then cashed three more cheques. That is astonishing. It is not just amoral and dishonest, it is brazen. I will explain the effect that it had on the company, but it is egregious conduct by any standard on your part, Ms.

Deveau. [ 9 ] As in every sentence, I must take into account the nature of the offender, or the individual circumstances of the offender. I will say that in this case the presentence report, as that has been supplemented by Mr. Tait, does set out certain, I suppose, underlying factors that might explain this behaviour. In no way does it justify it. I know you say that it does not justify it, but it might explain your penchant for dishonesty.

As the writer of the presentence report records, you say that for most of your life you have struggled with lying and stealing in order to enhance other people's perception of you. It seems to have bled into this kind of offending behaviour at this company, and related not just to yourself, but to your son. It seems as if in order to enhance other people's perceptions of your son, you took the money so that he could enjoy the things that other people have by virtue of, presumably, earning the money that was not available to you with the wage that you made.

So, in order to supplement your son's lifestyle, you took this money from these people and that seems to be the explanation. [ 10 ] Although there does not seem to be any causal connection, except for perhaps poor decision making, I acknowledge that you do struggle with mental health issues and you have done so for some time. Some of that is reported to relate to postpartum depression, around the birth of your son, 17 years ago. You speak about that to the presentence report writer. As you describe it, your condition seems to have evolved into an inability to sleep properly, and an inability to cope.

I expect that that has not been diminished by this experience here. I do not doubt that this is very stressful for you, but the time has come to accept the consequences for this behaviour. [ 11 ] Turning to the victims in this case, I note that two people are here today from Phil Ballam Plumbing. They are here, I suspect, to try to understand, if they can, a little bit about what happened, and why it happened, and what the consequences for you will be. I acknowledge that you stood up and apologized to them today as best you could and I know that you have written this letter, Ms.

Deveau, which is going to be entered as an exhibit in this sentencing. In it you express your remorse for this offence. [ 12 ] I do not doubt at this point in time you are sorry for what you did. I appreciate you acknowledge that this was a selfish act on your part and you acknowledge that it was an abuse of the faith and trust that this small company put in you.

You acknowledge that you betrayed that trust, as you put it, in the worst way, and so there is no question that you are remorseful for those actions, although, of course, you would have had an opportunity over the years to have those same feelings and perhaps stop the fraudulent activity, but you did not. [ 13 ] In terms of the impact on the company of your offending behaviour, it is out well over $200,000 from its business account. This is a significant sum for this small business. Unsurprisingly, both Mr. Wade Jr. and Mr. Wade Sr. write about the impact. Mr.

Wade Sr. talks about starting that company over 50 years ago. It has been his life. He has employees that have been with him for decades. Those

people he considers to be extended family members, and all of that has been torn asunder, essentially, by your conduct. [ 14 ] Both Mr. Wade Sr. and his son acknowledge that they have not been physically harmed, but at the same time, and it is not surprising, both describe being sick with anxiety and stress over this. Countless sleepless nights have been spent, no doubt, lying awake wondering what is going to happen to the business, "How are we going to make that money up," "How are we ever going to trust people again." Mr.

Wade Sr. writes of his worry over how the business will be affected, and how customers' attitudes toward the business might affect the operation. He worries that his employees will be affected by changes in his approach to business and possibly to them, as well. The trust that existed between the owners of this business and their employees, has been eroded as a result of your offending behavior. [ 15 ] So these financial crimes are not victimless.

They have devastating consequences for people and when they occur in a context such as this when there is a breach of trust, there is no question that that offence has to be met with a significant message of deterrence. As everyone acknowledges in this joint sentencing submission, a custodial sentence must be imposed in this case. [ 16 ] I have spoken about the purposes and principles of sentencing. Those are set out in s. 718 and 718.2 of the Criminal Code and those principles are something the court has to bear in mind every time it engages in the sentencing of a defendant or an accused.

It provides, particularly s. 718 , that: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society … That is done by imposing just sanctions that have a number of objectives. Those objectives are tailored to the nature of the offence and the nature of the offender. [ 17 ] As is set out in the many cases the Crown has provided in support of its sentencing position, particularly, R. v. Palmer , [2019] B.C.J.

No. 372 , the sentencing objectives that have to be applied in this particular case are, firstly, objectives that denounce the unlawful conduct and the harm done to the victim or to the community that is caused by that unlawful conduct; and secondly, the objective of deterrence, that is, to deter offenders and other persons from committing offences. So specific and general deterrence are the sentencing objectives as well as denunciation that take priority in this sentencing. [ 18 ] At the same time, the court cannot lose sight of the rehabilitative function of the criminal justice system.

I understand that you are hoping to use your time in custody to explore options for mental health treatment, to try to understand why it is that you engaged in this conduct, and hopefully to prevent that conduct from occurring again. [ 19 ] The length of a sentence is informed by aggravating and mitigating factors. Here, the Crown relies on s. 380.1 of the Criminal Code . In that section, Parliament has set out certain aggravating factors that sentencing courts must take into account when sentencing a person for this offence. What are described as aggravating or non-mitigating factors are set out in s. 380.1(1)(

a) through (f). [ 20 ] Not all of them apply in every case, but certainly some of the aggravating factors that the court has to take into account include the magnitude, complexity, duration, or degree of planning of the fraud, and whether or not that was significant. I would say in this case that it was not insignificant in the sense that the duration of the fraud here was committed over years. It would have taken you quite some time in each of those years to cash enough cheques, for example, in 2018 to get $101,620.18 out of that company, without somebody noticing. [ 21 ] That shows a lot of determination.

It is a lot of coming and going from the workplace, taking that money, knowing that money was not yours, facing those people every single day, and acting as if nothing was wrong and that you were simply doing your job and taking your pay for that job. So the length and degree of the fraudulent activity is an aggravating circumstance in this case. As well, pursuant to s. (c.1) this is an offence that has had, I find, a significant impact on the victims given their personal circumstances including, in the case of Mr. Wade Sr., his age, his health, and the financial situation of the company.

This fraud involved a lot of money. [ 22 ] Aside from these aggravating circumstances, there is the breach of trust in this case. All of the cases before me indicate this too is an aggravating circumstance on a sentence for this offence. [ 23 ] There are mitigating circumstances, including the guilty plea though Crown counsel maintains that there is no question in his mind, at least, that if you went to trial you would be found guilty. I make no comment on that.

I accept that a guilty plea is a mitigating factor, particularly in that whether or not a conviction would have been the ultimate and inevitable result of a trial, you do save court time and you do save the victims the agony, really, of coming and reliving all of this. So that is a mitigating factor, and I accept, as well, that you are remorseful.

I do accept that your expression of remorse for this offence, in these circumstances, with these people that you worked with so closely for those five years, is legitimate and is sincere, and so that in some regards mitigates the length of sentence that could otherwise be imposed. [ 24 ] With respect to the range of sentencing, I think you have heard my comment on that.

I have indicated, for example, that in the Palmer decision at para. 62, after reviewing almost a dozen cases, Justice Blok found that the broad range of sentencing for the type of offence for which I am sentencing you today is three to six years. [ 25 ] The Crown has, in support of its position on the joint submission here today, provided two cases, R. v. Zolnasr , [2011] B.C.J. No. 2452 , and R. v. Antoine , [2017] B.C.J. No. 2328 . Each show that in circumstances such as these, individuals have been sentenced to a 12 month sentence.

Certainly the principles of sentencing set out in the Criminal Code provide that offenders should receive similar sentences for similar offences committed in similar circumstances. Although there is a range of sentencing, the court is not bound by the range. These two sentencing decisions are well below the range as that was found by Justice Blok. [ 26 ] In each of those cases, there are factual similarities and differences. With respect to Mr. Zolnasr, this was an individual like yourself who came before the court without a criminal record. Mr.

Zolnasr did steal not much more than you have acknowledged taking in this case. Unlike yourself, Mr. Zolnasr was in a position to pay some of that money back before he was sentenced. That factor apparently led the court to reduce what it would otherwise have sentenced Mr. Zolnasr to, but in any event he was sentenced to 12

months in custody. [ 27 ] The R. v. Antoine case involved a woman, Mrs. Antoine, who, in fact, did have a criminal record but stole something slightly less than the amounts taken from the victim here. Ms. Antoine was sentenced to 12 months in jail. This case is a little unusual in that Ms. Antoine appears to have been credited in some regard with what are known in law as the Gladue factors. Even though Ms.

Antoine was not herself First Nations, having been married to an Indigenous person and living on the reserve for many years, the court gave her some credit for that and, in the result, sentenced her to 12 months in custody. [ 28 ] These two cases suggest that 12 months is at the very low end of the range and that the sentence in this case, but for the joint submissions, could well have been much higher.

However, having taken all of the factors into consideration and bearing in mind the joint submission, I am, as I have said, prepared to accede to that. [ 29 ] In that regard, I consider, as well, that one of the other orders that I am making today is a restitution order. The restitution order is not insignificant and it does factor into sentencing and it is part of sentencing. The restitution order in this case, as sought by the victim, and as provided in the statement of restitution on the victim impact statement, is in the amount of $204,002.52 which is the box that is checked off.

I acknowledge that is different than the number that the Crown gave. It is lower than the number that the Crown gave, but that is the number that is there and that is the number I am prepared to impose as a restitution order. [ 30 ] As a general matter, you do not make a lot of money. I do not know what you are going to be doing in the future by way of employment and, certainly, when the court is considering imposing a standalone restitution order, it is generally required to take into consideration the offender's ability to pay. The Crown says there are exceptions to this general rule and relies on R. v.

Dunkers , [2018] B.C.J. No. 3272 , where the Court of Appeal considered a restitution order that was made by the sentencing judge and, at para. 24, the writes that: Ms. Dunkers says the judge failed to consider her inability to pay the restitution order.

She has no assets, earns modest income at a hotel cleaning job, and has to forego basic enjoyments of life such as television. [ 31 ] In short, the submission was that the order was "meaningless and unduly harsh" in that it violated the totality principle, and at para. 25, the court writes: Despite the means of the offender being a relevant consideration in some circumstances, in cases involving offences of theft or breach of trust, a restitution order may be appropriate even if there appears to be no likelihood of repayment.

The underlying rationale is an accused should be deprived of “the fruits of his crime" … The court there cites Nanos at para. 17, R. v. Dreger , 2014 BCCA 54 , at para. 59 , and also R. v. Castro , 2010 ONCA 718 at para. 28 . [ 32 ] So there is authority in the case law in British Columbia that is binding on me for the proposition that even though it seems unlikely you will be able to make good on that entire restitution order, it would be appropriate nonetheless to make that order. [ 33 ] So, having set out my reasons for sentence, I will ask you to stand now. [ 34 ] Ms.

Deveau, for the offence of defrauding Phil Ballam Plumbing and Heating Company Limited of money having a value in excess of $5,000,contrary to s. 380(1) (

a) of the Criminal Code , I am sentencing you to a custodial sentence in the amount of 12 months. [ 35 ] When you are released from custody, you are going to be placed on a probation order for a period of 18 months. I am going to set out the conditions of that probation order. They are fairly lengthy and I can tell you that you do not have to memorize the conditions of that order. That order is going to be provided to you. There will also be a reporting condition in the order and so you will be reporting to a probation office upon your release from custody and that order will be read out to you again.

Nonetheless, you are bound by all the conditions of the probation order that I am going to set out now. [ 36 ] I am going to refer to some numbers, Ms. Deveau, as well, and that is so that Mr. Clerk can draft that order. [ 37 ] First of all, the mandatory conditions of the probation order are as follows: You must keep the peace and be of good behaviour. Attend at court when required to do so by the court. Advise the court or a probation officer in advance of any change of name or address and promptly of any change of employment or occupation. [ 38 ] There is a no-contact order, 2002, Mr.

Clerk, and that provides that you will have no contact or communication directly or indirectly with Phillip Wade and Gordon Wade. [ 39 ] There is the no-go, as well, Mr. Clerk, and that is at 2005-1. That provides, Ms. Deveau, that you will not go to or be within 25 metres of any place where Phillip Wade and Gordon Wade work, attend school, worship, or happen to be. If you see them, you must leave their presence immediately without any words or gestures. [ 40 ] Specifically, the no-go, Mr. Clerk.

You must not go to Phil Ballam Plumbing and Heating Company Limited which has an address of 1920 Oak Bay Avenue in Victoria, British Columbia. [ 41 ] The reporting requirement, Mr. Clerk, will be that -- it is a 2104, and that provides this, you must report in person to a probation officer at 836 Courtney Street in Victoria, British Columbia, within two business days after your release from custody unless you have obtained, before your release from custody, written permission from the probation officer to report elsewhere or within a different timeframe.

After that, you must report as directed by your probation officer, all right, and that is because you will be released in Vancouver. You can make arrangements to report there if you plan to stay there. If you are coming back here, you have got the time to get back here. [ 42 ] When you report to the probation office - the residence requirement, Mr. Clerk, the 2202, you will advise the probation office of

your residential address and not change that during the period of probation without notifying the probation officer. [ 43 ] A 2105, Mr. Clerk. If at any time prior to the expiration of this order you are arrested, detained, or have served a sentence for another offence, you must report to the probation officer within two business days of your release from custody. [ 44 ] The counselling provision is as following, it is a 2501, Mr. Clerk, and that provides that you must attend at, participate in, and complete any intake, assessment, counselling, or program as may be directed by your probation officer.

I will leave that to you and the probation officer at that time to decide what might work best for you. [ 45 ] There is a 2619, as well, Mr. Clerk, that provides that 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 are in your own name. [ 46 ] There is a 2620, Mr.

Clerk, you must not possess any account information, credit or debit card data, or any electronic storage medium, including any credit or identification card with a data strip or security chip, that contains personal information, with the exception of your own account information or data. [ 47 ] Then there is a 2621, Mr. Clerk, before seeking, obtaining, or continuing any employment or becoming a volunteer in any capacity that involves having authority over the real property, money, or valuable security of another person or corporation, you must inform the employer or the organization about this conviction.

That is in the probation order. [ 48 ] That is it for the probation order and that leaves the restitution order. That is a standalone restitution order in the Criminal Code and it provides that you will pay restitution to Phil Ballam Plumbing and Heating Company Ltd in the amount of $204,002.54. [EXHIBITS BEING MARKED] [ 49 ] MR. TAIT: Thank you, Your Honour. I thank my friend. [ 50 ] THE COURT: -- and to the extent there is a victim impact surcharge, I am going to waive that. [ 51 ] MR. TAIT: Thank you, Your Honour. [ 52 ] MR. FOWLER: Thank you, Your Honour.

I will direct a stay of proceedings on the outstanding counts. [ 53 ] THE COURT: Okay, all right, thank you. (REASONS FOR SENTENCE CONCLUDED)