R. v. Moore, 2010 ONCJ 579

Citation: R. v. Moore , 2010 ONCJ 579 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — RANDY MOORE Before Justice H. Borenstein Heard on October 19, 2010 and November 25, 2010 Reasons for Judgment released on November 26, 2010 Mr. P. Woods ............................................................................................................. for the Crown Mr. D. Kayfetz .................................................................................... for the accused Randy Moore BORENSTEIN J.: [ 1 ] This is the sentencing of 40 year old Randy Moore. Mr.

Moore plead guilty to two counts of fraud over $5,000.00 and two counts of attempted fraud over. The frauds were well planned and sophisticated. The parties are jointly recommending a conditional sentence followed by probation. The contentious issue is whether I should order that Mr. Moore pay restitution. Nature of the Frauds [ 2 ] The frauds and attempted frauds were all carried out in a similar manner. A male would call a large corporation seeking to a make a large purchase of their product.

In each case, the corporation, which was the victim of these frauds, advised the caller that he would have to deposit the funds into their bank by way of a wire transfer. Once the corporation received notice from the bank that the funds were deposited into their account, they would authorize the release of the purchased product. The purchaser could then arrange to have the product picked up. The caller agreed to that arrangement and thereby received the detailed banking information related to the victim corporations.

However, rather than wire transfer funds into these accounts, the fraudster arranged to have counterfeit certified cheques deposited into the accounts. The corporations were notified by the bank that the money had been deposited into its account and they released the product before the counterfeit nature of the certified cheque was discovered. [ 3 ] On December 11, 2008, a limousine driver named Mr. Sahai received a call to attend a hotel in Etobicoke to meet a customer named John. He attended and met the accused Randy Moore, who was using the alias John. Mr. Moore told Mr.

Sahai that he had an important meeting to attend and told Mr. Sahai that he would pay him $300.00 if Mr. Sahai would take the two certified cheques and deposit them into two separate bank accounts. Mr. Sahai was instructed to then return to the hotel to pick up Mr. Moore and drive him to the airport. Mr. Sahai agreed and was paid $300.00 by Mr. Moore. [ 4 ] Mr. Moore gave Mr. Sahai two counterfeit certified cheques with instructions to deposit them into two different bank accounts. One of the cheques was to be deposited at the TD corporate bank account of Toshiba of Canada Ltd, located at 55 King Street West.

That fraudulent certified cheque was in the amount of $236,250.00 and was allegedly issued by JW Sales Inc. The second cheque was also allegedly issued by JW Sales Inc. and was to be deposited into the corporate bank account of Woods Industries Canada at the Royal Bank located at 2 Bloor Street East. That cheque was in the amount of $282.222.25. [ 5 ] Mr. Sahai deposited the two cheques as instructed and returned to the hotel. He looked for John but John was nowhere to be found. [ 6 ] On December 16, 2008, another limousine driver, Mr.

Baljit Bajwa, was dispatched to the same Etobicoke hotel in order to meet a waiting customer named John. Again, it was Randy Moore he was meeting and the same scheme was in play. [ 7 ] Mr. Moore paid Mr. Bajwa $300.00 to take a certified cheque, which was counterfeit, and was instructed to deposit it into the corporate bank account of Toshiba. That cheque was in the amount of $262,500.00 and was allegedly issued by JW Sales. This cheque was to be deposited into a different bank branch of Toshiba Canada. [ 8 ] Mr. Bajwa was suspicious and recorded the cheque details before depositing it at the bank.

When he returned to the hotel to pick up “John”, John was nowhere to be found. He waited a while but eventually left. Given those circumstances, Mr. Bajwa went to a nearby branch of the TD and reported his suspicions. A police investigation was commenced and the police interviewed both Mr. Bajwai and Mr. Sahai.

[ 9 ] On February 4, 2009, Mr. Sahai received another phone call from John asking him to meet him at a hotel in Etobicoke as he had another delivery for Mr. Sahai to make. Mr. Sahai contacted the lead investigator. The police attended the hotel. As Mr. Moore approached Mr. Sahai, the police arrested him. Mr. Moore was in possession of two counterfeit cheques, one in the amount of $427,680.00 the other in the amount of $176,400.00. [ 10 ] The police investigation revealed that, prior to the December deposits, a male telephoned Toshiba and identified himself as John Franco.

That male arranged the purchase of a large number of flat screen televisions. Toshiba provided this male with its banking information so that the male could forward funds to it by way of a wire transfer. [ 11 ] On December 12, 2009, Toshiba released one hundred and eight, 52 inch LCD flat screen televisions upon being advised by the bank that $236,250.00 had been deposited into its account. Those televisions were picked up and have not been seen since.

Similarly, on December 16, 2008, upon being advised of the $262,500.00 deposit, Toshiba released another two hundred, 52 inch flat screen televisions. [ 12 ] Those three hundred and eighty televisions were never recovered. The loss to Toshiba was in the amount $498,750.00 [ 13 ] With respect to the attempted frauds, in the days leading up to the February 4 th , a male calling himself Don Westcott contacted both Billy Bee Honey Products and The Cambridge Towel Corporation arranging large purchases in a similar manner.

That fraud never was completed as the police arrived at the hotel and arrested Randy Moore with those cheques. [ 14 ] The total amount of the frauds, both attempted and successful, was $1,385,052. [ 15 ] Mr. Moore plead guilty to these four charges. When the facts were read in, they were admitted but his counsel then added that his client denied being the one who made the phone calls or received the televisions. The Crown indicated that it was not in a position to establish who made the call or who picked up the televisions. [ 16 ] Mr.

Moore had no prior criminal record. [ 17 ] Both counsel submit that I should impose a conditional sentence of 18 months followed by probation. [ 18 ] The contentious issue is whether to order restitution. The Crown seeks a free standing restitution order in favour of Toshiba in the about of the fraud, that being $498,750.00 [ 19 ] The defence agrees with the imposition of a conditional sentence and probation but asks that no restitution be ordered. The defence submitted that, despite the loss, Mr. Moore did not profit personally from this fraud, other than very little. The defence further submits that Mr.

Moore is unable to pay the restitution. [ 20 ] A sentencing hearing was held with respect to the issue of restitution. Only one witness was called. The defence called Mr. Moore’s mother, Barbara Campbell. Notably, Mr. Moore did not testify. [ 21 ] Barbara Campbell testified that she had knowledge of her son’s life and his financial circumstances. He is married and has three children. [ 22 ] She testified that the accused ran a successful box spring business for ten years. Some of his clients went bankrupt and he went bankrupt as well.

His in-laws apparently mortgaged their house trying to save Randy Moore’s business but it failed and they lost their house. She testified that this was around the time of these offences. She testified that the accused, his wife, children, mother-in-law and grandmother all lived in hotel rooms for the past several years although now they all rent their own homes. [ 23 ] According to Barbara Campbell, her son is now working as a sales manager for a furniture company. [ 24 ] In cross-examination, Ms. Campbell agreed that her son knows more about his financial situation that she does.

She did not know when he went bankrupt nor whether his wife had gone bankrupt. She did not know the value of his assets when he went bankrupt. He owned a house at the time and she thought there was a small mortgage on that house. [ 25 ] Mrs. Campbell did not know what Mr. Moore’s wife’s assets were. As for his current circumstances, she testified that she thinks he gets a salary and commission. When asked what he earns, she replied that she had no idea but thought he made an average sales manager salary. She testified “I would think at least $100,000.00” and “no more than $150,000.00”. She testified that Mr.

Moore’s wife works in an office and she believed she earned approximately $50,000 to $60,000 a year. [ 26 ] Mr. Moore was on a house arrest and then curfew while on bail on these charges. [ 27 ] That was the evidence called. As noted, Mr. Moore chose not to testify. [ 28 ] His decision not to testify in relation to the issue of restitution shielded him from any questions about who else, if anyone, may have profited from this scheme as well as what happened to the televisions or what he made from this scheme. His lawyer submitted that he received only $500.00. [ 29 ] The Crown submits that Mr.

Moore should be ordered to pay $498,750.00 in restitution, that being the amount of the fraud on Toshiba. The Crown submits that, while the Court may infer that others were involved, their identities or share of the fraud are not known because Mr. Moore has chosen not to testify while claiming that it would be unfair for him to pay the full amount of restitution since others may have profited. [ 30 ] The Crown submits that, on the evidence, it would be unreasonable to infer that Mr. Moore was the mastermind or a bit player. He was significantly involved in this fraud.

[ 31 ] As for Mr. Moore’s future ability to pay, the Crown submits that the evidence Mr. Moore called in relation to his alleged inability to pay restitution was uncertain and vague but, if it were accepted, he earns between $100,000.00 and $150,000.00 per year and may have a family income in the area of $200,000.00. Nothing was put forward regarding his expenses but obviously there are expenses. [ 32 ] The defence submits that restitution should not be ordered in this case if the Crown cannot prove the amount Mr. Moore profited from this scheme. Alternatively, restitution should not be ordered because Mr.

Moore has no ability to pay restitution. The defence characterizes Mr. Moore as a cog in the wheel. The defence submits that Mr. Moore’s lifestyle, as explained by his mother, suggests he did not profit from this fraud. I should order restitution only in the amount he profited. While there is no evidence as to the amount he profited, the defence submits I should order restitution in the amount of $500.00 being the amount defence asserted that Mr. Moore advised him that he profited. [ 33 ] After oral submissions in this matter, the Ontario Court of Appeal released its decision in R. v.

Castro , 2010 ONCA 718 (CanLII) , [2010] O.J. No. 4573, which discussed the principles involved in making restitution orders. I invited counsel to forward written submissions in relation to the applicability of the Castro decision if they so desired. Both counsel have made further submissions which I have considered. [ 34 ] In Castro , the accused, a paralegal, was found guilty after trial of defrauding numerous clients of their insurance settlement funds. At the time of sentencing, he was unable to work as a paralegal due to his bail conditions and was collecting $900.00 a month in government benefits.

The Crown sought a penitentiary sentence and full restitution. The defence sought a conditional sentence and did not oppose the restitution Order. In addition to sentencing Castro to 23 months in jail, and placing him on probation, the sentencing judge ordered full restitution in the amount of $141,752.00. In sentencing Castro , the sentencing judge stated: “Mr. Castro, you have committed some serious crimes and you will now be obliged to pay the price. However, you are still only 49 years old. You have many years of productive life ahead of you. Good luck to you”.

Implicitly, the sentencing judge recognized that Castro did not have any present ability to pay restitution but that he had many years of a productive work life ahead of him. [ 35 ] Castro appealed the restitution order to the Court of Appeal.

He argued that the sentencing judge erred in three ways in imposing restitution: first, he submitted that the judge erred by imposing restitution as a mechanical afterthought to incarceration as opposed to considering it as part of the overall sentence; second, he did not consider Castro’s ability to pay; and, third, he did not exercise caution and restraint in imposing restitution. [ 36 ] In dismissing Castro’s appeal, the Court of Appeal referred to earlier case law and summarized the principles, objectives and factors to consider when dealing with a request for restitution. 1.

An order for compensation should be made with restraint and caution. 2. The concept of compensation is essential to the sentencing process: (

i) it emphasizes the sanction imposed upon the offender; (ii) it makes the accused responsible for making restitution to the victim; (iii) it prevents the accused from profiting from crime; and (iv) it provides a convenient, rapid and inexpensive means of recovery for the victim. 3. A sentencing judge should consider: (

i) the purpose of the aggrieved person in invoking s. 725(1); (ii) whether civil proceedings have been initiated and are being pursued; and (iii) the means of the offender. 4. A compensation order should not be used as a substitute for civil proceedings. Parliament did not intend that compensation orders would displace the civil remedies necessary to ensure full compensation to victims. 5. A compensation order is not the appropriate mechanism to unravel involved commercial transactions. 6.

A compensation order should not be granted when it would require the criminal court to interpret written documents to determine the amount of money sought through the order. The loss should be capable of ready calculation. 7. A compensation order should not be granted if the effect of provincial legislation would have to be considered in order to determine what order should be made. 8. Any serious contest on legal or factual issues should signal a denial of recourse to an order. 9. Double recovery can be prevented by the jurisdiction of the civil courts to require proper accounting of all sums recovered. 10.

A compensation order may be appropriate where a related civil judgment has been rendered unenforceable as a result of bankruptcy. [ 37 ] The Court of Appeal held that restitution is not intended to undermine the prospects for rehabilitation and discussed the importance of an offender’s ability to pay. [ 38 ] Restitution is part of sentencing. While compensatory, it is also penal in nature. Therefore, even if the amount of loss is readily ascertainable, it should not be imposed merely as a mechanical afterthought. An accused’s ability to pay is significant.

[ 39 ] With those principles in mind, let me turn to this case. [ 40 ] First, by way of mitigation, Mr. Moore is a first offender. Second, he has plead guilty. While he was arrested on the scene in possession of the counterfeit cheques, his plea of guilty is a sign of remorse, an acceptance of responsibility and saves the administration of justice and the victims the time and expense of a trial. All of that is entitled to significant consideration. [ 41 ] On the other hand, this was a large, well-planned, sophisticated fraud motivated by greed.

This fraud resulted in a large loss, albeit not to a vulnerable victim. There was a potential loss of a further $800,000 had Mr. Moore not been arrested and the fraud not prevented. Again, there is no suggestion that the victims were vulnerable. The loss was substantial and the potential loss was even greater. [ 42 ] The defence relies heavily on the submission that Mr. Moore played a minor role in this fraud and that others received the lion’s share of the crime. [ 43 ] Mr.

Moore’s conduct in soliciting the limousine drivers, possessing the counterfeit cheques and arranging to have them deposited into the banks was a large part of this scheme. On the facts agreed to, Mr. Moore was an integral part of this fraud. There is nothing that causes me to infer or have a doubt that he was just a bit player in this fraud. I do not accept that he was a lowly cog in the wheel as asserted by the defence in submissions. He was fully and actively involved in this scheme and his level of culpability is high. [ 44 ] As far as the defence submission that Mr.

Moore profited only $500.00 from this $500,000.00 fraud, there is no evidence to support that claim. The defence submits that Mr. Moore’s lifestyle, as explained by his mother, suggests he did not profit from this fraud. [ 45 ] I do not view Mr. Moore’s mother’s evidence as being reliable in any way with respec to the issue of where the money from this fraud went or that others took the lion’s share of the proceeds and Mr. Moore received a small amount. Further, even if Mr. Moore was living in hotels for a period of years, that does not assist me in knowing what happened to the proceeds of the fraud.

People may use fraudulent proceeds in any number of ways. That evidence is not persuasive and does not raise a doubt in my mind. [ 46 ] While a serious factual dispute should result in a refusal to order restitution, there is no serious factual issue dispute in this case. There is no dispute as to the amount of the fraud and there is no evidence that Mr. Moore was a minor player in this fraud or only profited $500.00 from this fraud which resulted in a half a million dollar loss. The bald assertion in submissions that others received the bulk of the fraud and Mr.

Moore received a minimal amount, without evidence, is no different than an accused baldly asserting he cannot pay restitution and does not know the whereabouts of the stolen property. [ 47 ] The defence submits that I should order restitution only in the amount Mr. Moore profited. While removing the profit is a goal of restitution, it is not the only goal. Moreover, as indicated, there is no evidence as to what Mr. Moore received or that he only profited in a minimal way.

The defence submits that others were involved and therefore I should order restitution in the amount of $500.00, which is what defence counsel submitted that his client told him that he profited. I reject that submission. [ 48 ] In Castro , the Court of Appeal held: In cases of theft, robbery, fraud, breach of trust or the like, I see no reason why the court should accept an offender’s bald assertion that he or she has no ability to make restitution because the money “is gone” when no evidence is proffered in support of this assertion.

When the victims can clearly establish that “the replacement value of the property” under s. 738(1)(

a) is the amount of money taken, surely it is the offender asserting that he or she has no ability to make restitution who is in the best position to provide transparency concerning what has happened to that money. A bald assertion that the money is gone should be given no weight. Similarly, when the location of the money illegally obtained by the offender is unknown, the sentencing judge is entitled to take that fact into account with respect to ability to pay in making a restitution order: see e.g. R. v. William s (2007) , 2007 CanLII 13949 (Ont. S.C.), per Hill J. at para. 41. [ 49 ] Mr.

Moore’s decision not to testify had the effect of shielding him from questions about who, if anyone else, may have profited from this scheme and what his share of the take was, but, in my view, it does not shield him from his responsibility for this crime or his responsibility to pay back the victims of this well-planned fraud. If there were others involved, Mr. Moore can seek compensation from them, whether directly, or, indirectly should their identities become known and restitution orders ultimately made against them. [ 50 ] Mr. Moore was integrally involved in this fraud. He played a significant role.

There may have been others although their role or their share is speculative because Mr. Moore has chosen to not provide that information. To the extent that this was a joint venture resulting in a large and foreseeable loss, there is no unfairness in ordering Mr. Moore to pay restitution to the victim. As Mr. Kayfetz correctly conceded, should Toshiba decide to sue Mr. Moore for the loss, he would be fully liable for the loss. If the identity of the others were known and they too were sued, each would be jointly and severally liable for the full amount of the fraud.

The following comments at paragraphs 28 and 29 by the Ontario Court of Appeal in R. v. Perciballi (2001), 2001 CanLII 13394 (ON CA) , 154 CCC (3d) 481 are instructive: It is also argued that the order is simply “crushing”. In my view, the “crushing” amount of the order is merely a reflection of the gravity of the offence and, in the circumstances of this case, where a loss of this magnitude was both foreseen and planned, the order creates no unfairness. Counsel for each appellant concedes that, following the conviction, a civil judgment in the same amount could have been obtained by Loomis without difficulty.

There is no principled basis to force the victim into bringing a civil action where liability is clear and the amount readily ascertainable. Finally, the assignment of the full value of the loss to both appellants jointly and severally creates no unfairness, as contended. It is entirely appropriate where the loss results from a joint venture. See R. v. Gaudet 1998 CanLII 5017 (ON C.A.) , (1998), 125 C.C.C. (3d) 17 (Ont. C.A.) and R. v. Gagnon , a decision of this court released September 15, 2000. The case relied on by the appellant, R v. Biegus

1999 CanLII 3815 (ON C.A.) , (1999), 141 C.C.C. (3d) 245 (Ont. C. A.) presented unusual features and can be distinguished from the present case. In Biegus the orders were made in separate proceedings against several co-perpetrators. The appellant had not participated in all of the thefts that were the basis of the compensation orders, and there was evidence regarding the division of the money and what had become of the appellants’ share of the money. The court was of the view that the effect of the orders in Biegus created a potential unfairness to the accused and an unclear legal situation.

As stated earlier, there is no unfairness in this case, and no confusion as to the legal effect of the order. The only source of confusion in this case is the manner in which the appellants distributed the proceeds of their crime. It is of no concern to the court in making the order [ 51 ] Toshiba is certainly not in a position to seek to recover from anyone else who may have been involved with Mr. Moore as Mr. Moore has not provided the names of anyone else, if they existed. [ 52 ] Mr. Moore’s ability to pay this now or in the future is a significant factor that must be considered.

While ability to pay has less of a role to play in breach of trust cases, this is not a breach of trust. It is a large, sophisticated fraud. What are Mr. Moore’s prospects for paying an order of restitution? The evidence called at this hearing is not illuminating with respect to his future ability to pay. He is relatively young. The evidence of his income is uncertain and vague but he asks the Court to find that he earns somewhere between $100,000 and $150,000 per year and that his wife works. They have three children. There is no credible evidence that will not be able pay restitution.

Yes it will be hard and will take a long time. That is the unfortunate result of his crime. Mr. Moore is certainly worse off financially than Mr. Castro was when he was ordered to pay restitution. Further, the conditional sentence of imprisonment will allow Mr. Moore to keep working. [ 53 ] In sum, I find that Mr. Moore played a significant role in this sophisticated fraud. I have no evidence, I do not infer and I do not have a doubt that he only received a minimal amount from this fraud. The amount of the loss is readily known. The offence was motivated by greed.

While such offences often attract actual jail, I am satisfied that the joint submission for a conditional sentence is reasonable and gives significant effect to his guilty plea. As for his ability to pay an order of restitution, I am satisfied he will be in a position to repay it over time although it will be onerous. If others were involved and profited from this fraud, he can seek redress from them. If they are ultimately convicted and ordered to pay restitution, that may reduce the amount Mr. Moore will have to pay. [ 54 ] Bearing the principles of sentencing in mind, I sentence Mr.

Moore as follows: [ 55 ] He will be sentenced to 18 months’ incarceration to be served in the community. The terms are as follows: You will be subject to the mandatory terms of a conditional sentence. For the first nine months of the conditional sentence, you shall remain confined to your home residence except for the purpose of approved employment obligations, medical appointments, religious services and legal obligations regarding compliance with this Conditional Sentence. You shall provide your conditional sentence supervisor with a current

schedule of work hours, medical appointments and religious services. Your supervisor, in his or her discretion, may incorporate these into a written letter of permission to be out of your residence and such a letter shall at all times be carried on your person while out of your residence and you are obliged upon demand by a peace officer to produce the said letter. You may obtain from your supervisor written permission to be absent from your residence for any reason deemed appropriate by the supervisor.

Such written permission shall be carried on your person at all times while out of the residence and shall be produced on demand to a peace officer. You shall Reside where directed by your conditional sentence supervisor and not change your address without prior permission of your supervisor You are not to possess any identification, bank or credit cards or other negotiable instruments not in your own name except as necessary in the course of your employment. You shall seek and maintain employment. You shall remain in Ontario except for scheduled trips related to your employment.

You shall provide your conditional sentence supervisor with a detailed itinerary prior to any such departure. For the remaining nine months of your conditional sentence, you will be subject to all of the same conditions except, rather than house arrest, you will be subject to a curfew requiring you to be confined in your residence each and every day from 11 pm to 6 am with all all of the same exceptions. Following your conditional sentence, you will be placed on probation for one year.

You will be bound by all of the same conditions with the exception of the curfew. [ 56 ] Finally, with respect to restitution, bearing in mind the principles of sentencing and the comments above, I order that Mr. Moore make restitution to Toshiba Canada in the amount of $250,000.00. This will be a free-standing restitution order.

[ 57 ] The difference between $250,000 and $498,000 is significant. It is less than the full amount of the fraud. However, while I am inclined to order restitution for the full amount of the loss given my earlier comments, I will lower the amount by $248,000 in order to act with some caution and restraint recognizing that a restitution Order is part of the overall sentence. The lesser amount is imposed out of a concern that a half million dollar restitution order, while warranted, could impact on Mr. Moore’s prospects for rehabilitation. [ 58 ] Released: November 26, 2010 Signed: “Justice H. Borenstein”