Her Majesty the Queen - v. -, 2011 SKPC 67

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 067 Date: April 21, 2011 Information: 24342976 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Wayne Hingtgen Appearing: Mr. Rob Parker For the Crown Mr. Pat Zawislak For the Accused DECISION M.T.

GORDON , J [ 1 ] Wayne Hingtgen is charged as follows: that on or about the 3 rd day of February, A.D. 1998, and the 6 th day of September, A.D. 2006, inclusive, at Ogema District in the Province of Saskatchewan, did steal money, the property of Audrey Weber, Calvin Roberts, George Fish, Kerrie Ann Johnson, Fred Mead, George Murray, Jerry Tondevold, Bette Tondevold, Randy McPhail, Harry Sheppard, Raymond Yung, Joe Hompoth, Mardel Hompoth and David Hartley, Dennis Petit, of a value exceeding five thousand dollars, contrary to

section 334 (

a) of the Criminal Code . [ 2 ] The Crown proceeded by indictment. On December 8, 2010, Mr. Hingtgen elected Provincial Court and entered a guilty plea. A pre-sentence report including electronic monitoring assessment was ordered. Sentencing submissions were heard on February 17, 2011 and my decision was reserved.

[ 3 ] Counsel were made aware that the Court had some difficulty with the joint submission. Counsel were invited to make further submissions at the time or file written material with the Court. [ 4 ] Sentencing was adjourned to April 21, 2011. [ 5 ] On or about March 23, 2011, the Court received a brief of fact and law from Defence counsel with respect to this matter. The Crown responded in letter form on April 15, 2011. The Crown [ 6 ] Mr. Parker appeared for the Crown. He advised that this was essentially a joint sentencing submission. He referred to the Queen Bench decision of Madam Justice Gunn in R. v.

Moulton , 2001 SKQB 82 , upheld on appeal and reported at 2001 SKCA 121 , as guiding the Crown on its position. [ 7 ] According to the Crown, in October 2006, the Bengough and Radville RCMP received complaints of theft and loss of cattle. The victims stated they had purchased cattle from Mr. Hingtgen. There were various agreements with the victims, but in general terms, the accused kept possession of the cattle and was responsible for looking after the cattle. The accused marketed and sold all calves and split the money with the owners in accordance with the terms of the individual contracts.

At all times the cows and their offspring were the property of others, namely the victims. [ 8 ] In 2006, the accused was in severe financial difficulty and had defaulted on certain farm loans. As a result, the creditors and bailiffs were at his farm seizing assets. It was apparent at that time that the number of cattle was significantly less than should have been there. [ 9 ] In the early stages, when these agreements were made, the victims received their money.

At the end of the day the assets (being the cattle that belonged to the victims) were no longer present and the cattle had been disposed of by the accused without paying the victims in full, or allowing the victims to exercise their first right of refusal as provided in the various contracts. [ 10 ] The total amount of loss being put forward and filed with the Court is $541,480.00 spread among thirteen different individuals. [ 11 ] The Crown emphasised that the facts as related to the Court at the joint sentencing submissions made February 17, 2011, are the ones to be relied upon by the Court. [ 12 ] The Crown reiterated its position that the loss claimed by the victims, is the money paid to Mr.

Hingtgen for the initial acquisition of cows. These cows or “assets” were not available to the owner/victims when Mr. Hingtgen’s farming business collapsed. [ 13 ] The Crown filed two victim impact statements. Both victim impact statements indicated that the loss to these two victims was devastating. The one victim is approximately twelve years from retirement and the other victim is sixty-eight years of age. Both say the money they lost was money that they were planning on saving for their retirement.

Both individuals who wrote the victim impact statements hope that the Court will see that they get their money back. Both statements also refer to the transaction as an investment gone bad. [ 14 ] The Crown noted that the accused was not getting rich off these people. He was living a very modest lifestyle and hoping that things would turn around and payments could be made to the victims. The Crown stated that the guilty plea to this theft charge involving thirteen individuals resulted in substantial savings. There were no lengthy court proceedings; that is a preliminary inquiry and then a

lengthy trial. This accused has no criminal record and the pre-sentence report is generally favourable indicating that Mr. Hingtgen is a suitable candidate for a conditional sentence order. Therefore, the Crown suggested a conditional sentence order of two years less a day with conditions, as well as performing 200 hours of community service work. In addition, for the first six months Mr. Hingtgen would be subject to electronic monitoring, or twenty-four hour house arrest. The Crown also requested stand alone restitution orders in favour of the thirteen individual victims identified by the Crown.

The Defence [ 15 ] The Defence spoke to sentence and subsequently filed a brief of fact and law for the Court’s consideration. The Defence took no issue with the pre-sentence report and contents. Mr. Zawislak, on behalf of his client, indicated that, in about 1996, Mr. Hingtgen had purchased four quarters of land, and subsequently purchased a further two quarters from his father and three quarters from his neighbour. Most of the land was pasture land. The accused started with ten cows and a bull and over the years built up a fair sized herd.

He stated that various individuals came to him to purchase cattle or invest and obtain a receipt for the purchase price of the cattle for income tax purposes. Therefore, various contracts were signed and Mr. Hingtgen declared all the money he received as income and provided receipts for taxable purposes to the various individuals, who are now the victims in this matter. The Defence says that some of the victims are farmers, but most of the individuals that invested their money with the accused were not farmers.

In general terms, twenty to forty percent of the value of the expected calf crop every year from the cows was paid out to each “investor”, now victim. The calves were sold in the spring, and subsequently the investors were paid their “profit share”. The Defence emphasised that the accused paid his investors first before any of his expenses. The accused took all the risks as he cared for the cattle, and suffered the loss of any deaths due to disease or other complications. [ 16 ] Defence counsel emphasised that the victims had contacted Mr. Hingtgen.

They wanted tax receipts and most were viewing this as an investment. Most knew that they were not necessarily buying physical cattle. He did admit that there were some that actually had their cattle leased to the accused, and the cattle were branded and pastured and cared for by the accused. [ 17 ] From 1998 to 2003 this arrangement worked well. He had close to five hundred cows at one time. Then BSE hit and everything went bad. Despite Mr. Hingtgen working “twenty-four seven” paying for all the feed and care for these cattle, he suffered substantial loss.

He was hoping the cattle industry would turn around and he would be able to get things back on track and pay the victims the money owed. [ 18 ] Defence counsel emphasises at great lengths that this was a “business venture that went bad”. Counsel compared this situation to people who purchase stocks in a public company. If the company does well, the stock prices increase and the investors have higher dividends. Counsel submitted that the “investors” now victims knew the risks associated with the cattle business. Market conditions were beyond his control and everyone in the cattle business lost money.

In 2006 the situation came to a head when Farm Credit Canada seized and subsequently sold the cattle. The return on the cattle did not cover the secured debt and Mr. Hingtgen could no longer operate. The investors were unsecured. [ 19 ] The Defence suggested the victims received a huge benefit as they received income tax receipts and the amount paid would be totally deductible by them. Therefore, they obviously were in such a tax bracket that the receipt for income tax purposes was very advantageous for them.

In addition, counsel suggested that if the income tax savings were really considered, and a full audit was done of each of the victims, the loss of their principal investment may well be illusory. [ 20 ] On further questioning by the Court, counsel did admit that the accused wanted to increase the size of his operation. However, Defence counsel also emphasised that the accused walked away from his farm with only his personal possessions. Counsel submits that Mr. Hingtgen is the one who suffered the greatest loss.

The investors lost some money, but the situation can only be characterized as a “business venture that went bad”. [ 21 ] The accused cooperated with the investigators without consulting counsel. He was subject to and participated in an eight hour long interview which detailed the basis of this operation. Mr. Hingtgen is 50 years of age. He is a mild-mannered, kind and considerate person who puts others ahead of himself. He went bankrupt in 2006. He has no savings and no assets. He did not live a lavish lifestyle during his years on the farm.

Now he lives in British Columbia with his current partner who is supporting him. His education is a hairdressing certificate from Richard’s School of Beauty. Mr. Hingtgen currently earns $600.00 a month working for a newspaper. Due to the economy in British Columbia, he has not been able to secure any other employment. He does have a job prospect with a company called Magic Cuts to get some employment if the economy does turn around. Defence counsel also suggested that Mr. Hingtgen was an

ideal candidate for a conditional sentence order. He is remorseful and he entered these contracts with full intention of honouring them,and it was only as a result of the economy (a factor beyond his control), and specifically BSE, that has landed him in the situation he is intoday. In his brief, Defence filed a chart showing the actual amount, according to Mr. Hingtgen, that was lost by each person. This doesnot take into account the income tax savings of each person in the year the “cows” were “purchased” or the investment made.

However,the Defence does not object to a stand alone restitution order in the amounts suggested by the Crown. [22] When the Court questioned Defence counsel as to the criminal aspect of this as opposed to an investment gone bad, which is acivil matter, the Defence responded by saying that in the end there was not enough cows to match the number of cows paid for by thevictims left with him. The accused had converted to his own use the cows, sold them and as a result was not able to pay the victims theirshare, or return their original asset. Mr.

Hingtgen admits his responsibility and hence the guilty plea. [23] When further questioned by the Court, both Crown and Defence stressed that this was a theft, not a fraud charge. Thecircumstances did not involve a breach of trust. [24] Defence counsel also stressed this case was similar to R. v. Moulton, supra. He also mentioned the case of R. v. McNary,Court of Queen’s Bench, Yorkton, March 25, 2009, unreported, in which a conditional sentence order was granted under similarcircumstances.

Analysis [25] It is well-established that the trial judge is not bound by a joint submission, however the trial judge must give seriousconsideration and respect to any joint submission. In R. v. Cerasuolo, (ON CA), 151 C.C.C. (3d) 445, the OntarioCourt of Appeal, stated at paragraphs 8 and 9: The Court has repeatedly held that trial judges should not reject joint submissions unless the joint submission is contrary to the publicinterest and the sentence would bring the administration of justice into disrepute: eg. R. v. Dorothy (1999), (ON CA),123 O.A.C. 342 at 345.

This is a high threshold and is intended to foster confidence in an accused, who has given up his right to a trial,that the joint submission he obtained in return for a plea of guilty will be respected by the sentencing judge. The Crown and the Defence bar have cooperated in fostering an atmosphere where the parties are encouraged to discuss the issues in acriminal trial with a view to shortening the trial process. This includes bringing issues to a final resolution through plea bargaining.

Thislaudable initiative cannot succeed unless the accused has some assurance that the trial judge will, in most instances, honour agreementsentered into by the Crown. While we cannot over emphasise that these agreements are not to fetter the independent evaluation of thesentences proposed, there is no interference with the judicial independence of the sentencing judge in requiring him or her to explain inwhat way a particular joint submission is contrary to the public interest and would bring the administration of justice into disrepute. [26] In R. v. Webster, 2001 SKCA 72, Mr.

Justice Cameron for the Saskatchewan Court of Appeal quotes with approval R. v.G.W.C. (2000), 2000 ABCA 333 , 150 C.C.C. (3d) 513. Speaking for the Court in that case, Berger J.A. said this at paragraph17: The obligation of a trial judge to give serious consideration to a joint sentencing submission stems from an attempt to maintain a properbalance between respect for a plea bargain, and the sentencing court’s role in the administration of justice.

The certainty that is requiredto induce accused persons to waive their rights to a trial can only be achieved in an atmosphere where the courts do not lightly interferewith a negotiated disposition that falls within or is very close to the appropriate range for a given offence. “The bargaining process isundermined if the resulting compromise recommendation is too readily rejected by the sentencing judge” - R. v. Pashe (1995), (MB CA), 100 Man. R. (2d) 61 at paragraph 11. [27] In R. v.

MacKenzie, 2006 SKCA 13, the Court of Appeal stated that the trial judge erred in not accepting the jointrecommendation of two experienced counsel. There was no good reason to reject the joint submission. This is in contrast to the OntarioCourt of Appeal case of R. v. Dorsy (1999), O.P.J. No. 2957. The Appeal Court upheld the trial judge’s rejection of the joint sentencingsubmission. In Dorsy the trial judge gave sufficient weight to the joint submission but rejected it on proper grounds.

The trial judgefollowed the correct procedure in so doing by advising both counsel and the accused, prior to plea, that it was open to the trial judge toreject the joint submission.

[28] In R. v. N. (J.C.) (2005), 197 C.C.C. (3d) (Sask. C.A.), Mr. Justice Richards, at paragraph 13 and 14 (partial) summarises thelaw with respect to rejecting a joint submission as follows: It is obvious that courts have chosen different sets of words to express the test for rejecting a joint submission. However, it is likely fairto say that those differences are largely a matter of form rather than of substance.

Each formulation of the tests reflects the basicrationale for respecting joint submissions and the fundamental proposition that a sentencing judge should not depart from such asubmission unless there are cogent reasons for so doing. See: R. v. Sinclair (2003), 2004 MBCA 48 , 185 C.C.C. (3d) 569(Man. C.A.) at paras. 42-43 and 51. We observe, as well, that when a judge rejects a joint recommendation, he or she must do so for reasons that accord with the overallpurposes and principles of the sentencing regime in question.

In other words, a determination that a proposed sentence is unfit, contraryto the public interest or otherwise unacceptable must be based on considerations consistent with applicable sentencing rules andprinciples. [29] The sentence put forward jointly by Crown and Defence, in the within case, is a term of imprisonment of two years less a dayto be served in the community pursuant to

section 742 of the Criminal Code. The first six months Mr. Hingtgen would be subject toelectronic monitoring conditions, and for the balance of the sentence there would be a curfew and restrictions on the movement of theaccused. In addition, under

section 738 of the Code there would be a stand alone restitution order for the full amount owing, being$541,480.00 to the 13 named individuals in the Information. Both counsel properly identified the mitigating and aggravating factors. [30] In addition, the pre-sentence report provided additional personal details. Mr. Hingtgen is 50 years of age. He has no criminalrecord. He was a well-respected member of the community, and until the onset of BSE and his subsequent financial troubles, he was anhonest individual.

He did not live an extravagant lifestyle, but put all of his money back into the cattle operation, first to expand hisoperation, and then when he suffered financial troubles, to save his operation and be in a position to pay his “investors”. The aggravatingfactors are, of course, the fact that a large sum of money was stolen from 13 individuals over a period of eight years. The two victimimpact statements clearly indicate that these victims continue to suffer from this loss. [31] Restitution does not seem likely given that Mr.

Hingtgen has been through bankruptcy, has no assets, his income is minimal,and he is being supported by his partner. However, he does not object to a stand alone restitution order. [32] I also note Mr.

Hingtgen’s explanation for his actions contained in page 4 of the pre- sentence report, and I quote “heindicates he did not understand the legal ramifications of his business dealings with the victims and did not seek professional businessadvice before entering into contracts with the victims”. [33] From the Crown’s perspective, the guilty plea acknowledging the theft in these circumstances means a substantial saving inCourt time and resources.

As a result a lengthy preliminary inquiry and trial which would involve many witnesses piecing togethertransactions over a course of many years to establish sufficient evidence to prove the theft charges beyond a reasonable doubt was notrequired. [34] Mr. Hingtgen, with the advice of experienced counsel, entered a guilty plea to one charge of theft from thirteen individualsover an eight year period. [35] Therefore it is clear I must articulate and have good reason to reject the joint submission. [36] It is not sufficient for me to say I find Mr. Hingtgen’s actions troubling.

I do not accept the explanation provided by Mr.Hingtgen and detailed in the pre-sentence report. It is true he would have been well advised to seek professional advice however to saythat he did not know that what he was doing was stealing from people over a number of years does boggle the mind. However that is notthe end of the matter.

[37] A joint submission must be given some deference especially when accompanied by a guilty plea at a reasonably early stage. The Information was sworn November 10, 2009, Mr. Hingtgen’s first Court appearance was May 12, 2010. The Defence waived anyCharter delay throughout. The Crown did not indicate its election to proceed by indictment until December 8, 2010. The same day Mr.Hingtgen, through his counsel, entered a guilty plea to Count 1 of theft. [38] In R. v.

Oxford (2010), 2010 NLCA 45 , 257 C.C.C. (3d) 484, 77 C.R. 364, the Newfoundland Court of Appeal statedat paragraph 63: The applicable test for determining whether a joint submission should be accepted therefore requires a sentencing judge to focus, not ongeneral sentencing questions such as fitness, proportionality and range of sentence, but on the much more discreet inquiries of whetherthe imposition of the recommended sentence will, in the circumstances of the case, bring the administration of justice into disrepute, andwhether the sentence is contrary to the public interest. [39] This is different from simply considering whether the sentence is “fit” or falls within the range of sentences for offences ofthe type in question.

Oxford notes that this is reiterated in R. v. Oake, 2010 NLCA 19, which stated that a joint submission may beaccepted even if it is more “lenient than the lower end of the normal sentencing range”. [40] The Court in Oxford refers to R. v. Berner, 2003 BCCA 134, and quotes at paragraph 77, paragraph 74 of the five personpanel of the British Columbia Court of Appeal as follows: This system of establishing ranges is imperfect ... they are guidelines, not rules. They are not, nor could they be, mandatory andmaximum sentences which demand compliance by trial judges. [41] Again, in the case of R. v.

G.W.C., 2000 ABCA 333 , 150 C.C.C. (3d) 513, the Alberta Court of Appeal had this tosay with respect to the meaning of “serious consideration”, at paragraph 20 the Court stated: But “serious consideration cannot occur in a factual vacuum”. In my opinion no “thorough appreciation of the relevant facts” can occurin the absence of a careful and diligent inquiry of counsel as to the circumstances underlying a joint sentencing submission.

Given thehigh level of deference afforded to sentencing judges, in the exercise of their discretion to reject joint submissions, the need for athorough inquiry takes on greater significance. [42] In the within case, Crown counsel did not provide extensive details of the thefts but gave a more general

summary of theentire transaction. The Crown clearly stated it was not alleging a breach of trust. The Crown further makes it clear that one of the mainbasis of the joint submission was the entering of a guilty plea prior to a preliminary hearing and trial which would have certainly beenlengthy. In addition, any court proceedings would have involved many witnesses and a significant amount of time. These cases arecertainly complicated, and the outcome is not certain. [43] The Crown also referred, as did Defence counsel, to the case of R. v.

Kevin Moulton which was a fraud case involving a cattlecooperative, the total amount owing to the 36 farmers or victims was $273,255.66. It should be noted that the Moulton case was not ajoint submission other than both Crown and Defence agreed that a custodial sentence was appropriate. The Defence argued that aconditional sentence would be in order. Madam Justice Gunn, in her decision, gives a detailed account of the operation of the cattlecooperative and the circumstances of the fraud which she had before her in order to consider an appropriate sentence.

She also providesa very thorough analysis of the conditional sentencing provisions under

section 742 of the Code, with particular reference to the SupremeCourt of Canada case of R. v. Proulx, [2001] 1 S.C.R. 61. She reviews, in some detail, the requirements that must be met for the Court toconsider a conditional sentence. She then goes on to consider sentencing principles as set out in sections 718 - 718.2 of the CriminalCode, as well as reviewing a number of similar cases for fraud or thefts involving a significant amount of money. She reviewed theaggravating and mitigating circumstances, many of which are the same as in this case involving Mr. Hingtgen. [44] At paragraph 48, Madam Justice Gunn states:

Sentencing is always difficult and determining the appropriate sentence in these circumstances is particularly difficult. In my view denunciation and deterrence are the most important criteria to be satisfied. Kevin Moulton, although not in a position of trust in the strict sense of the word, did abuse the trust of his neighbours and friends, who were vulnerable victims. The program was one from which many members of the community could benefit. That benefit is no longer available to them.

Participation in the cooperative, it is clear from some of the victims was a decision made by many on the basis that they would be participating with people they knew and trusted. Many victims lost money as a result of this trust. Mr. Moulton explains his actions on the basis of a depressed market in an effort to keep his operation going.

Surely, it can come as no surprise to him that his actions placed huge stresses on other members of the cooperative who were facing the same market forces and who had to dispose of their cattle at a loss, not to mention the loss of their deposits to the assurance fund. [ 45 ] At paragraph 49, she goes on to say: I must bear in mind, as well, that this fraud occurred over a significant period of time, and involved many different actions on the part of the accused.

It was not one desperate act but rather a series of calculated manoeuvres leading to significant loss. [ 46 ] In the end, Madam Justice Gunn stated at paragraph 50: I do not disagree with the range of sentence suggested by the Crown, however I feel that this Court may express the need for denunciation and deterrence through the terms of a conditional sentence order. [ 47 ] The Crown appealed the conditional sentence and asked the Court of Appeal to consider whether it was consistent with the principles of sentencing set out in

section 718.2 of the Criminal Code . [ 48 ] The Court of Appeal noted it should not intervene unless the sentencing judge has “erred in principle, failed to consider a relevant factor, overemphasised an appropriate factor, or imposed a sentence that is demonstrably unfit”. The Court of Appeal recognizes that a wider disparity of sentences may result. [ 49 ] The Court of Appeal goes on to say that the sentence in Moulton could justifiably have been an actual custodial sentence.

The Court concludes, at paragraph 33, by stating “while I may not have imposed a conditional sentence on the Respondent in this case, I am not able to find that the trial judge committed any error in imposing the sentence she did”. [ 50 ] The mitigating circumstances in the Hingtgen case are again similar to the Moulton case. These include the guilty plea; the theft was not motivated by greed or the desire to support a lavish lifestyle, but was committed in a vain attempt to salvage his business, thereby also salvaging the victims’ investments.

The accused has no criminal record, is remorseful and it is extremely unlikely he will be a repeat offender. From the pre-sentence report it does not appear Mr. Hingtgen has any substance abuse issues. He is emotionally stable. [ 51 ] In this particular case, there is a joint submission by counsel. I heard some circumstances at the oral submissions. The Defence brief of fact and law filed subsequently, puts somewhat of a different spin on their circumstances. Defence counsel glosses over the theft aspect and attempts to paint a picture of an investment gone bad, through no fault of Mr. Hingtgen.

Defence counsel seems to suggest that Mr. Hingtgen was providing a favour to their investors, many who likely, if a complete analysis was undertaken, did not lose any money. The Defence seems to suggest that because many people got together and approached Mr. Hingtgen with his plan that it was somehow alright that the risk they took did not turn out well for them. [ 52 ] The problem with this suggestion is that the initial investment, the cattle purchased, were sold by Mr. Hingtgen, without consent. Mr.

Hingtgen kept the money and it does not matter whether he received a high or low price; the cattle were not his to sell. The crux of the matter is, as the Crown states in its April 15, 2011 letter, “The result, however was that Mr. Hingtgen took in a considerable amount of money from the investors who believed they were acquiring assets which, when Mr. Hingtgen’s business finally failed, no longer existed.”

[ 53 ] At the time of sentencing, the Court questioned Defence counsel as to what specifically the accused was acknowledging by way of his guilty plea. I am satisfied that the essential elements of the theft as related to the Court were acknowledged by Mr. Hingtgen. I accept the facts as stated at the sentencing hearing. [ 54 ] While I acknowledged then that the sentencing judge will not know as much about all the circumstances of the case as Crown and Defence, there needs to be sufficient information given in order that the judge can understand the crime which has been acknowledged.

In Moulton , Madam Justice Gunn was able to outline in some detail the way a cattle cooperative is set up and functioned . It is only then, the judge can exercise her/his discretion and determine an appropriate sentence, which includes a consideration of a joint submission. I interpret that is what the Manitoba Court of Appeal was meaning in R. v. Sherlock, supra. In this case, while not provided with detailed information, I have sufficient circumstances to proceed. [ 55 ] Mr. Hingtgen meets the initial requirements for a conditional sentence as stated in R. v. Poulx, supra .

The sentencing principles, as referred to in

section 718.2 of the Code can be satisfied by way of serving this custodial sentence in the community. [ 56 ] At paragraph 105 of Poulx, supra , the Court comments on the aspect of denunciation as follows: The stigma of a conditional sentence, with house arrest, should not be underestimated. Living in the community under strict conditions where fellow residents are well aware of the offender’s criminal misconduct can provide ample denunciation in many cases.

In certain circumstances, the shame of encountering members of the community will make it even more difficult for the offender to serve his or her sentence in the community than in prison. [ 57 ] The Court goes on to say that judges should be careful in placing too much weight on deterrence when choosing between a conditional sentence and incarceration.

Obviously a conditional sentence is more suited to achieving the aspects of restorative justice such as rehabilitation, reparations and promoting responsibility of the offender. [ 58 ] I had previously referred to the mitigating and aggravating circumstances which again I accept and have considered in determining whether the joint submission is one that I am prepared to follow. [ 59 ] Sentencing is a difficult task, often one of the most difficult tasks facing a trial judge.

It is especially so in cases such as this where an accused has no criminal record, has been a productive member of society, and all of sudden for a period of time acts totally out of character. [ 60 ] On the one hand, the losses in this case are significant and a period of actual incarceration could be justified. [ 61 ] On the other hand, if Mr. Hingtgen had obtained and followed good legal advice, and set up the proper legal structure he would not be before the Court today.

This is what Defence counsel must mean when he uses the phrase “investment gone bad”. [ 62 ] There may have been many reasons for the way Mr. Hingtgen proceeded. Defence counsel suggested Mr. Hingtgen was inexperienced in such matters. I note there is additional time and cost in setting up the proper legal structure and some farmers or investors may not have been so eager to invest in shares. [ 63 ] However, Mr. Hingtgen must be sentenced on the facts admitted in Court. Mr. Hingtgen made a huge mistake.

He justified his actions by hoping that he could straighten everything out and pay back the victims in short order. Of course this did not happen and Mr. Hingtgen got caught up in the cycle of deception until he was confronted by authorities. [ 64 ] It is acknowledged that the onset of BSE and resulting low cattle prices for the next several years are outside Mr. Hingtgen’s control. However, it appears that to keep his own operation going, including payments to other creditors, he stole from the investors or victims in this case.

[ 65 ] Again it is acknowledged, as Defence counsel stated, that the victims were able to claim, and as a result had their income tax bill decreased in the years that they purchased cattle or “paper purchased” cows. However, Mr. Hingtgen received money and was able to use the money for his own farming purposes over those number of years. [ 66 ] Part of the joint submission was a stand alone restitution order. Defence counsel noted Mr. Hingtgen’s limited financial situation. However, I find a restitution order is appropriate in view of the principles of denunciation and deterrence.

His current inability to pay is of little significance. [ 67 ] Defence counsel mentioned the case of R. v. McNary , in which he was counsel for Mr. McNary, which I found as an unreported case from Yorkton Court of Queen’s Bench. Mr. Justice Chicoine, in fairly similar circumstances, followed the joint submission of a conditional sentence with house arrest, and a stand alone restitution order. [ 68 ] Therefore, considering all of the circumstances of the offence and offender, and applying the analysis in R. v.

Proulx, supra , I am convinced that it is proper to accept the joint submission by counsel. [ 69 ] Wayne Hingtgen is sentenced pursuant to

section 742.1 of the Criminal Code to a term of imprisonment of two years less a day to be served in the community. The first six months you will be subject to electronic monitoring and confined to your residence. The term of this conditional sentence order shall included the compulsory conditions set out in

section 742.3(1) of the Code, and in addition: · Refrain from the consumption of alcohol or illegal non-prescription drugs, and submit to breath, blood or urine testing on demand of a peace officer/supervisor. · Refrain from entering any premise where the primary function is the sale of alcohol. · Perform 200 hours of community work service to be completed by April 30, 2012 under the direction, supervision and to the satisfaction of the supervisor. The above conditions are in effect for the entire length of this order.

For the first six months of this order: · You shall participate in the electronic monitoring program and will abide by the rules and regulations of that program. · You must reside at 15389 - 20 th Ave., Surrey, British Columbia unless granted prior approval in writing by the supervisor. · You shall be confined to your residence for 24 hours a day unless you receive prior written permission from the supervisor to be absent from your residence. · You must personally present yourself to any peace officer/supervisor monitoring the provisions of this order.

At the conclusion of the six months of electronic monitoring: · Maintain a daily curfew by being in your approved place of residence by midnight and remaining there until 7:00 a.m. the following morning, except with the prior written permission of the supervisor. · Present yourself in person to any peace officer/supervisor checking any provision of this order including a curfew. [ 70 ] In addition there will be a stand alone restitution order pursuant to

section 738 of the Criminal Code providing restitution to the 13 named individuals in the amounts filed by counsel totalling $541,480.00.

[ 71 ] The surcharge in the amount of $100.00 is ordered to be paid by June 30, 2011. Dated at Moose Jaw, Saskatchewan, this 21 st day of April, 2011. ____________________________________ M.T. Gordon, J