R. v. Molloy Date:, 2013 BCPC 46

Citation: R. v. Molloy Date: 20130123 2013 BCPC 0046 File No: 194450-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SEAN NICHOLAS MOLLOY REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. R. GARDNER Counsel for the Crown: J. Neal Counsel for the Defendant: L. Rudovica Place of Hearing: Surrey , B.C. Date of Hearing: January 23, 2013 Date of Judgment: January 23, 2013

[ 1 ] THE COURT : The accused has pled guilty to a number of fraud-related offences, including uttering forged documents. The scheme was fairly straightforward but there is an aggravated set of circumstances here.

In essence, they would approach people who had received money from Social Assistance, somewhat small amounts, and alter the documents to reflect a much greater amount and then negotiate funds, from the TD Bank primarily. [ 2 ] For instance, on October 14th of 2011, Timothy Leblanc had been granted a cheque from the government in the amount of $20 to cover medications and the altered amount says $760, which was received by the accused. In another instance, December 14th of 2011, Angelica Matei received a replacement cheque in the amount of $30 from Social Assistance. The altered amount was $930.

This continued for a period of time and there were 43 cheques negotiated and the total amount of the fraudulent enterprise was $35,818. [ 3 ] The Crown has asked the court to consider a sentence of two years less a day less the time that he has already spent in custody. The defence has argued for a conditional sentence.

I should note for the record that although bail was set at $500 cash on October the 11th of last year, he has been unable to perfect his bail. [ 4 ] The defence has submitted that there should be judicial comity on the part of the court and has relied on a case of Her Honour Judge Gordon dated July 5th of 2012, where Mr. Jaillet was being sentenced for a very similar offence, although, as Crown pointed out, was half the number of transactions and roughly half the amount of money that was fraudulently obtained.

In the Jaillet case, in paragraph 4, Her Honour Judge Gordon said: In those circumstances I think that I can conclude that so long as he is not using drugs he is not a danger to the community.

Everyone benefits when somebody rehabilitates themselves, not only the individual, but also society as a whole. [ 5 ] Now, it has been suggested here that the accused is earnest in his desire to deal with his problem with narcotics and the community as a whole would benefit from him being allowed to receive treatment at a recovery centre which, of course, would mean he would have to receive a conditional sentence. [ 6 ] As the Crown has properly pointed out, there is a conflicting Provincial Court case in the case of R. v. Harrison , a decision before His Honour Judge Miller on January the 26th of last year.

Judge Miller could not find a mitigating circumstance for a similar enterprise and I note that Mr. Harrison had lived a criminal lifestyle for 35 years and Judge Miller concluded from the accused's record: ...that there would be further offences committed by you in relation to innocent people. Property offences, no doubt, but offences nonetheless. So a conditional sentence order is not appropriate here.

You have had them in the past and they have not curbed your behaviour at all. [ 7 ] In instances like this when the court is being referred to somewhat conflicting decisions of our Provincial Court, it is helpful to look for some guidance from the B.C. Court of Appeal. A similar set of circumstances was dealt with in R. v. Turcotte , a 1995 decision of our Court of Appeal that has been cited by the Crown. In that case, the appellant was sentenced on a number of counts of fraud- related offences to a total of 15 months imprisonment plus eight months probation on one of the counts.

He was 28 years of age and had a narcotics habit. He had a female friend who was also an addict and they struck upon a scheme to steal cheques, forge them and present them for payment. They were quite successful in this operation. The modus operandi in that case was Mr. Turcotte would go into premises in Vernon. While Ms. Cullum distracted the clerk, he stole a booklet of 13 cheques and then proceeded to forge the cheques and present them for payment. They also broke into an apartment and stole a cheque and negotiated it as well upon a forged endorsement.

Altogether, they defrauded the Bank of Montreal of just over $5,000. In that case, the court concluded that a 15-month sentence was not excessive in the circumstances, as it was a premeditated scheme. They left persons who accepted the cheques from them in good faith in a difficult position. In the court's opinion, part of the function of the court is to see that business people are not subjected to this kind of treatment by people intent on defrauding them. [ 8 ] I am also assisted by the decision of Her Honour Judge Howard in the case of R. v. Parker , a decision dated February 23rd, 2000.

She had a similar set of circumstances before her and, as Her Honour Judge Howard stated: This is actually a really terrible offence. I often have difficulty finding the words to describe it because you are not just cheating the government, you are ripping off all of us and we are paying for your lifestyle. Your neighbours, your friends are having to cough up more in their tax dollars in order to support you and that is just really, really unfair. She goes on to say: The other problem is that you and others like you endanger the entire Social Security safety net system that we have.

The more fraud that occurs on that system, the more disabled the system becomes, the more expensive it becomes, the more the public says, 'Well, what are we doing? Why are you taking my tax money?' There are people out there that truly desperately need this money. It wasn't you. You had a job. You were so much better off than the characters that needed it.

She was satisfied in that case just, I take it, because the accused had a minimal criminal record that he would not do it again and she did find that a conditional sentence was appropriate. [ 9 ] In deciding whether a conditional sentence is appropriate here, I have to direct my mind to the gravity of the offence, the amounts involved, the premeditation that went into these crimes and I also have to take into account the accused's criminal record which dates back to 1996. In 1997, he was convicted in Medicine Hat, Alberta, for robbery and received four years and six months.

He has since then been convicted of numerous theft-related offences and, somewhat importantly for our purposes, he has been convicted of four breach of probation offences, notably, three of them occurring since April of 2010. [ 10 ] If I am going to place somebody on a conditional sentence, I have to have confidence in that person's ability to abide by court orders. I do not have that confidence here but notwithstanding that I think that the principles of sentencing cannot be properly addressed

by the imposition of a conditional sentence. I think I have to be concerned with your rehabilitation, sir, but I also have to be concerned with specific and general deterrence and I should also impose a sentence that reflects society's denunciation to this type of behaviour. [ 11 ] In all of the circumstances, I have concluded an appropriate sentence would normally be 18 months but you have already spent three-and-a-half months in custody which you have achieved no parole eligibility during that time. I am sentencing you to an additional 14 months in prison.

I am also going to make a stand-alone order that you make restitution to -- hang on a second. [ 12 ] MR. NEAL: Tab 2, Your Honour. The document there has set out -- [ 13 ] THE COURT: Oh, yes, thank you. [ 14 ] MR. NEAL: -- at the second page. [ 15 ] THE COURT: What page? [ 16 ] MR. NEAL: The last page of the document at tab 2. [ 17 ] THE COURT: Oh, yes.

The Ministry of Social Development, in the amount of $1,665, to the TD Canada Trust $27,421.40, to the Royal Bank of Canada $4,245.50, to Coast Capital Credit Union $1,537, and to Money Tree Canada Inc. in the amount of $950. [ 18 ] Because this is a provincial sentence, I am also going to place you on probation for a period of three years. You are to report forthwith upon your release to a probation officer here in Surrey and thereafter as and when directed. You are to provide a residential address to your probation officer and not change that address without the prior written approval of your probation officer.

You shall not possess any documents, including credit cards and bank cards, in a name other than your own. I will waive the victim fine surcharge. [ 19 ] MS. RUDOVICA: Thank you, Your Honour. [ 20 ] THE COURT: Anything further from the Crown? [ 21 ] MR. NEAL: No, Your Honour. Except for I just want to clarify one thing. At the outset, Your Honour referred to guilty pleas to various counts. I just want to be clear it was a plea to a global count of fraud. That was the last count on the Information. [ 22 ] THE COURT: Oh, I'm sorry. Yes, I should have made that clear on the record. But the amount stands. [ 23 ] MR.

NEAL: Yes. [ 24 ] THE COURT: Yes. [ 25 ] MR. NEAL: And to that end, I direct a stay of proceedings with respect to all outstanding counts. [ 26 ] THE COURT: All right. Thank you for that. [ 27 ] THE CLERK: Just so I'm clear, did you want a weapon or DNA order on this? [ 28 ] MR. NEAL: Oh, yes, I did ask for a DNA order and -- [ 29 ] THE COURT: There will be a DNA order on this. [ 30 ] MR. NEAL: Thank you. [ 31 ] THE CLERK: Primary or secondary? [ 32 ] MR. NEAL: It's secondary. [ 33 ] THE CLERK: Thank you. (REASONS FOR SENTENCE CONCLUDED)