R. v. Monsalvo Date:, 2013 BCPC 74

Citation: R. v. Monsalvo Date: 20130204 2013 BCPC 0074 File No: 219271-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JULIA VERONICA MONSALVO EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE F. HOWARD Counsel for the Crown: L. Gauld Counsel for the Defendant: L.J. Helps Place of Hearing: Vancouver , B.C. Date of Hearing: February 4, 2013 Date of Judgment: February 4, 2013

[ 1 ] THE COURT: The accused has pled guilty to the following offences: defrauding Real Car Cash Inc. of money in excess of $5,000 between October 6th, 2009 and March 25th, 2010 (Count 1); defrauding New Finance Services Inc. of money in excess of $5,000 on April 24th, 2010 (Count 3); and defrauding Pit Stop Loans of money in excess of $5,000 between May 28th, 2010 and August 21st, 2010 (Count 5). THE OFFENCES [ 2 ] The accused was employed by New Finance Services, an organization that had two associated companies, Pit Stop Loans and Real Car Cash Inc.

These companies were in the business of granting loans, including loans to purchase vehicles. The accused quickly rose to a position of trust which allowed her to write up loans for all three companies and issue cheques to the borrowers. [ 3 ] During the course of her employment for these companies, the accused created six fictitious loans using the names of pre- existing clients and fictitious vehicle information. She then wrote cheques to herself for the loan proceeds and deposited these cheques into one of three bank accounts over which she had control.

Those accounts included one in her own name at the Bank of Montreal, a second in her mother's name, Garcia, at the Royal Bank and a third joint account in her name and that of her mother at the Vancouver City Credit Union. Details of the fraudulent transactions are as follows. [ 4 ] Count 1 . This count covers two fictitious loans purportedly issued by the lender Real Car Cash Inc. The first loan was created on October 6th, 2009. Using this loan as a cover, she wrote a cheque to herself for the loan proceeds in the amount of $3,800.

She deposited this cheque into the bank account bearing her mother's name. [ 5 ] The second fictitious loan was created on March 25th, 2010, again naming Real Car Cash as the lender. This time the accused issued a company cheque to herself in the amount of $3,500 which she deposited into the bank account in her own name and then later, by way of transfer, into the account in her mother's name. [ 6 ] Count 3. This fictitious loan was created on April 24th, 2010. This time the accused picked New Finance Services as her target. She issued a cheque on the company account to herself for $8,500.

She deposited this cheque to the joint account described above. [ 7 ] Count 5. This count covers three fictitious loans, all purportedly issued by Pit Stop Loans Inc. The first loan was created on March 28th, 2010. Using this loan as a cover, the accused wrote a cheque for $5,000 to a Julie Pilato [phonetic] which the accused managed to deposit into the account that bore her mother's name. On August 21st, 2010, she created a fictitious loan pursuant to which she issued two cheques totalling $7,000, each one for $3,500. She deposited one cheque into her own account and one into the account in her mother's name.

Then on August 26th, 2010, she created the final fictitious loan pursuant to which she issued a cheque to herself in the amount of $3,500, which she subsequently deposited into the account in her own name. [ 8 ] The total amount of cash obtained through this fraudulent scheme was $31,300. [ 9 ] When the fraud was discovered by her employer, Mr. Torpy, the accused struck a deal with him. She would pay him back on a monthly basis and he would not call the police. She began making bi-monthly payments of $500 in October 2010.

As of February 21st, 2011, the accused had repaid the sum of $5,000, leaving a balance owing of $26,300. [ 10 ] In February 2011, her employer went to the police and she was arrested, she stopped making her bi-monthly payments at this time. THE ACCUSED [ 11 ] The accused is a 35 year old woman. She is the youngest of five children, all of whom were born in Guatemala. Her father died just days after her birth. In 1991, when she was 13, she and her mother moved to Canada. She has other siblings who now reside in Canada.

Her home life was uneventful, although she found high school difficult as she tried to assimilate into a new school, with no friends and limited English skills. She is one subject short of a Grade 12 diploma. [ 12 ] In 1998 she became a certified travel agent. She worked for a number of years as a travel agent. [ 13 ] She married at age 21. The parties separated after six years. They had no children. She remains good friends with her ex- husband who now lives in Mexico.

She has a close relationship with her mother; however, she has no other close family ties or friends. [ 14 ] Since leaving her employment with New Finance Services Ltd., she has been self-employed cleaning homes. She currently earns approximately $1,600 a month. [ 15 ] The accused does have a criminal record that is of considerable significance on this sentencing hearing. [ 16 ] On June 6th, 2008, she was found guilty of 39 counts of theft. These offences were all part of a fraudulent scheme that she engaged in while working as a travel agent.

She issued false airline tickets to a variety of customers; hence the 39 counts. She kept the customers' payments for herself. For these offences she received a jail sentence of 20 months, to be served in the community, under the terms of a conditional sentence order. This CSO ended February 5th, 2010. [ 17 ] The June 2008 sentence also included a standalone restitution order for $83,000. Through counsel, the accused has asserted that the fraudulent activity against her new employer arose out of her fear that she would go to jail if she did not make payments on the previous restitution order.

Her salary from New Finance Services was just $642 every two weeks. She barely survived on this salary and there was no money left over to make payments on the restitution order. She has alleged that at least some of the money that she obtained through her fraudulent activities was used to make payments against this debt. She advises that she has paid almost $12,000 towards the 2008 restitution order which suggests that, even on her own story, less than half of the $31,300 obtained through the fraudulent activities before me was used to reduce this debt.

[18] In this case, I have the benefit of a pre-sentence report as well as a psychological assessment. It is interesting to note that in herdiscussions with the psychologist, Dr. Fusco and the probation officer, Ms. Huston, about the motives underlying her fraudulent activity,the accused made no reference to the pre-existing restitution order or her fear of going to jail if she did not pay it off. See page 2 of theassessment: Client's account. Ms. Monsalvo indicated that she "started writing loans" and taking the money believing that she would return this money.

She explainedthat she had a job, was "making okay money" and "thought she could pay it back". She said "wanted more things" and had been payingboth her bills and her mother's since she had left her mother's home in 2008. [19] Her explanation to the probation officer regarding her conduct was as follows (at page 4 of the pre-sentence report): Julia stated she knew what she was doing and wanted money to purchase things and participate in activities. She stated she did not thinkbefore she acted and did not believe anyone would find out. [20] It would appear from the content of her discussion with Dr.

Fusco during the psychological assessment that the accused is alonely and isolated individual who often "feels depressed". See also the Doctor’s comments about her test scores at page 5 of the report: Ms. Monsalvo's scores are similar to those of individuals who report thoughts of worthlessness, hopelessness and personal failure. Herpattern of scores also resembles that of others who report sadness, loss of interest in their daily activities and a loss of pleasure. [21] However, Dr.

Fusco also noted at page 4: Her reported symptoms did not appear to be sufficient to meet diagnostic threshold for any mood or anxiety disorder. In addition she noted: A mental status assessment revealed no signs or symptoms of any major psychiatric disorder. And at page 6: There appears to be no deficit of intellect, personality or mental health that has contributed to the offence. [22] The accused also completed a risk assessment test. Her scores on that test apparently indicated that the likelihood of herreturning to crime was low. The probation officer has noted that the accused was a compliant probationer.

She did participate in somecounselling while bound by the CSO, having seen the psychological counselling intern on seven occasions. [23] I am advised by counsel that the accused completed the house arrest segment of her CSO without incident and she completedthe community work hours by the due date. She has complied with all of her current bail terms, most of which have been in place sinceFebruary 2011. SENTENCING PRINCIPLES AND RANGE OF SENTENCE [24] The general principles of sentencing are set out in s. 718, 718.1 and 718.2 of the Criminal Code.

Section 718 defines thefundamental purpose of sentencing, that being to impose a just sanction that has as its objectives: denunciation, specific and generaldeterrence; protection of society; rehabilitation; reparations for harm done; and promotion of a sense of responsibility in the offender. [25]

Section 718.1 sets out the requirement that a sentence be proportionate to the seriousness of the offence and the moralculpability of the offender. [26] Additional sentencing principles are set out in s. 718.2. This

section addresses issues such as the need for parity in thesentencing process; the role of aggravating and mitigating circumstances; and the requirement that the sentencing judge consider allavailable sanctions, other than imprisonment, that are reasonable in the circumstances. [27]

Section 718.2(a) (iii) is of special importance in the present case. Pursuant to this section, evidence that an offender, incommitting the offence, abused a position of trust in relation to the victim is deemed to be an aggravating circumstance. This sectionapplies to the case before me. [28] The conditional sentence regime is set out in s. 742.1 of the Criminal Code. In certain circumstances the court may order thatan offender serve a sentence that is less than two years in length in the community, subject to the terms of the conditional sentenceorder.

Before imposing such a sentence, commonly referred to as a CSO, the court must be satisfied that, (1) serving the sentence in thecommunity they would not endanger the safety of the community; and (2), such a sentence will be consistent with the fundamentalpurpose and principles of sentencing as set out in ss. 718 to 718.2. [29] The legal authorities are clear and consistent in their approach to sentencing for a fraud offence involving a breach of trust. Specific deterrence and rehabilitation of the accused are often given less weight in these cases.

General deterrence and publicdenunciation are of paramount importance. The gravity of this type of offence is such that imprisonment is generally considered the onlyform of sentence that will adequately address these objectives even when dealing with a first time offender, which the accused is not SeeR. v. Bogart, (ON CA), [2002] O.J. No. 3039 at para.31 (Ont. C. A.) citing from R. v. Gray, (1995), (ON CA), 76 O.A.C. 387 at pp. 398-99, (Ont. C. A.): There are few crimes where the aspect of deterrence is more significant.

It is not a crime of impulse and is of a type that is normallycommitted by a person who is knowledgeable and should be aware of the consequences. That awareness comes from sentences given toothers.

[30] The fraud before me involves the total sum of $31,300. In my view, this is not a low end fraud. On the other hand, it is not alarge scale fraud either. [31] Some of the cases provided by counsel are helpful in assessing the appropriate range for a breach of trust fraud of this size. Seefor example: R. v. Paul, 2003 MBCA 153 (Man. C.A.) An employee of First Nations band office forged cheques totalling $112,300: One year in jail, given that he was in a position of trust. R. v. Zenovitch, [2001] YJ No 105, Yukon Terr. Sup. Ct.

A bookkeeper was found guilty of 25 counts of fraud that netted her $37,000: 20 month CSO. R. v. Quinlan, [1999] N.J. No. 73 (Newfld C.A.) Fraud, theft upon two employers in the amount of $12,000: The Court of Appeal set aside a six month term of imprisonment andimposed a six month CSO. R. v. Cassettari, 2010 BCPC 139 Theft by employee of a doctor totalling in excess of $100,000: CSO for two years less a day. R. v.

Inglis, 2002 BCPC 242 , 2002 BCPC 0242 Bank employee defrauded her employer of approximately $78,700: 18 months CSO. [32] I recently had occasion to review a number of decisions involving first time offenders engaging in welfare frauds in the range of19,000 to $57,000. Welfare fraud is generally thought to involve a breach of trust. The seriousness with which the sentencing courtsviewed these crimes is also reflected in the sentences imposed. A term of imprisonment, be it in a jail or in the community under a CSOwas common: R. v. Keuris, 2008 BCSC 480 ($25,000 fraud: 6 month CSO) R. v.

Smith, [2007] BCCA 468 ($42,422.53 fraud: 12 month CSO for the wife, 14 months jail for the husband) R. v. Bjorn, 2004 BCPC 127 , 2004 BCPC 0127 ($19,365.27 fraud: 6 months CSO) R. v. Dewitt and Forsyth, Unrep., February, 1st, 2002, B.C.S.C. ($57,000 fraud: 6 month CSO for the wife, 9 months jail for thehusband) R. v.

Parker, Feb. 23, 2000, Vanc Reg. #C28487-01-D ($42,713.50 fraud: 6 months jail) [33] After reviewing the authorities, I am satisfied that an offence involving a $31,300 fraud, a first time offender and a breach oftrust would generally net a term of imprisonment in the range of six months to be served either in a jail or pursuant to a CSO. There are,of course, cases wherein the sentence imposed may be above the usual range for the offence under consideration due to the personalcircumstances of the offender.

Having a recent criminal record for the same type of offence, like the accused before me, is just such acircumstance. [34] There are also cases wherein the sentence imposed may be below the usual range due to unique factors relating to the nature ofthe offence or the personal circumstances of the offender. For example, general deterrence tends to be of much less importance when thecourt is sentencing an accused who was suffering from a mental illness at the time that he or she was committing the fraud before thecourt See R. v. Tulloch, [2002] O.J. No. 5446 (Ont. Sup. Ct.), R. v. Barker, [1995] M.J.

No. 154 (upheld by the Man. C. A. at [1995]M.J. No. 577 and R. v. Dickson, [2007] BCCA 561. After reviewing these authorities and the psychological assessment and pre-sentencereports that are before me, I am satisfied that this particular accused is not such a person. There is no evidence to support the suggestionthat she may have been suffering from an ongoing mental illness or disorder at the time she was committing these offences. ANALYSIS [35] The offences before me are clearly serious ones. Moreover, the moral culpability of the accused is at the highest end of thescale.

These offences were deliberate and premeditated. The accused created six fraudulent loans over a period of 10.5 months. Thereis no indication that she would have ceased her criminal activities had she not been caught. [36] The aggravating circumstances in this case include the fact that the accused, in committing these frauds, breached the trust ofher employers. The accused's rather nonchalant attitude toward what she was doing is also of concern. She "thought she could pay itback". She "wanted more things".

She "knew what she was doing and wanted money to purchase things and participate in activities." Finally, she "did not think before she acted and did not believe anyone would find out." [37] Notwithstanding her stated concerns about paying off the earlier restitution order, I am satisfied that the primary motive behindthe fraudulent loans was the accused's personal greed. [38] As for the psychological test suggesting that this accused is at a low risk for reoffending, this is not a conclusion that I canaccept.

She is a proven recidivist who appears to have little insight into the nature of her criminal activity, notwithstanding thecounselling that she received during while serving her earlier CSO sentence.

[ 39 ] In the present case, this accused has asserted to the probation officer that she committed the frauds, in part, because she did not think she would get caught. Given this attitude, I can only conclude that there is a substantial risk that she will reoffend and, in this sense, she represents a continuing danger to the community. [ 40 ] The final and most egregious aggravating circumstance is the accused's very recent criminal record for fraudulent activity involving an even larger sum of money, $83,000.

For this particular matter, the accused, as a first time offender, received a 20 month jail sentence, albeit a CSO, in June 2008. The CSO ended February 5th, 2010. Thus, the accused was still bound by the terms of the CSO at the time that she created the first fictitious car loan on October 6th, 2009. Then, within six weeks of completing the CSO, she immediately embarked upon a fairly steady path of fraudulent activity (see the loans of March 25th, April 24th, May 28th and then August 21st and 24th, 2010). [ 41 ] The mitigating circumstances in this case are minimal.

The accused's guilty plea is, of course, a factor that can be considered in mitigation. Moreover, it is clear that she quickly accepted responsibility for her criminal actions as evidenced by the bi-monthly restitution payments that began in October 2010. She has been on bail for some two years without incident. Moreover, she has kept herself employed during this period of time. In my view, the above mitigating circumstances are not such as to justify a sentence below what might otherwise be appropriate for a repeat offender who has committed a $31,300 fraud involving a breach of trust.

CONCLUSION [ 42 ] In the end, I am satisfied that a term of imprisonment is required in this case and that the length of that prison term must reflect the fact that the accused is a repeat offender not a first offender. I am also satisfied that a CSO on this occasion would be inconsistent with the fundamental purpose and principles of sentencing.

Indeed, quite apart from concerns over the need for general deterrence and denunciation in the sentencing process, I am satisfied that there is a pressing need in this case to protect the public from further criminal activities by this accused and an equally pressing need to specifically deter her from engaging in such criminal activities. A CSO would not adequately address these concerns. [ 43 ] In the end, I have concluded that the appropriate sentence in this case is nine months imprisonment on each of the three counts to be served concurrently, one with the other.

There will be no CSO. [ 44 ] There will be a two year probation order to follow the jail sentence which will hopefully address the rehabilitative prospects of the accused.

The terms of this order are as follows: [ 45 ] She is to keep the peace and be of good behaviour. [ 46 ] She is to appear before the court when required to do so. [ 47 ] She is to report to a probation officer, in person, within 72 hours of her release from custody at 275 East Cordova Street, Vancouver, B.C., and thereafter as, when and where directed by the probation officer. [ 48 ] She is to advise the probation officer of her residential address and she is not to change that address without prior written notice to the probation officer. [ 49 ] At the direction of the probation officer, she is to undertake such counselling as may be considered appropriate by the probation officer. [ 50 ] She is to have no contact with any employees of New Finance Inc., Pit Stop Loans Inc., or Real Car Cash Inc.

She is to have no contact direct or indirect with Spencer Torpy, Helen Yang, Aaron Kuo, Chona Adato or Paul Rosang, save and except for such contact that may arise in the context of civil proceedings involving the matter before me. [ 51 ] She is not to attend at 7666 Kingsway, Burnaby, B.C. [ 52 ] She is not to possess any cheques that are not lawfully made out in her own name, either as the payor or the payee. [ 53 ] She is not to seek employment or be employed by any business that engages in loans, or facilitates the borrowing or lending of money, or financing of any kind. [ 54 ] She is not to engage in activity that includes borrowing or lending of money or financing of any kind, except for such activity that is exclusively related to her own personal loans with a major financial institution, chartered bank or credit union. [ 55 ] She is not to handle any cash in the course of her employment except for receiving cash for specific services rendered by her. [ 56 ] She is not to handle any cheques in the course of her employment except those made out to her in payment for specific services rendered by her. [ 57 ] She is not to possess identification or credit card information in any name other than her own. [ 58 ] She is not to open or maintain a bank account in a name other than Julia Veronica Monsalvo. [ 59 ] There are two terms at the end.

I am just following the bail order which was suggested during the sentencing submissions but there are two terms at the end that seem to me to have to do with her prior activities. Not to work for any travel agents or travel clients, not to issue any tickets, vouchers or fares for travel. I am not sure why I would put them in this one. [ 60 ] MS. HELPS: That was due to the first set of offences that issued out of Surrey and those were on the bail order. I think it

would be very difficult for Ms. Monsalvo to seek employment in the travel industry at this time but I'm in Your Honour's hands. [ 61 ] THE COURT: I am not going to include those at this point in time. [ 62 ] MS. HELPS: It was simply because of the previous matter. The other thing I just want to seek the court's direction on, Ms. Monsalvo has always maintained a joint bank account with her mother, Julia Garcia. I'm wondering if that could be one of the exceptions. While it was one of the accounts that money was put into, it's not an account that she uses in Ms. Garcia's name.

It's a joint account maintained by both of them. [ 63 ] MS. GAULD: Your Honour, I don't know much about the offence but just listening to the facts as you put them out, it seems to me that the mother's account was directly used to do that so I would oppose that. [ 64 ] THE COURT: Yes. I am not going to make that exception -- [ 65 ] MS. HELPS: Okay. Thank you. [ 66 ] THE COURT: -- given that that was an account that -- [ 67 ] MS. HELPS: Yes. Thank you. [ 68 ] THE COURT: -- where funds were hidden. [ 69 ] MS. HELPS: Yes. Thank you. [ 70 ] THE COURT: I am not finished. [ 71 ] MS.

HELPS: I'm sorry. [ 72 ] THE COURT: There will be an exemption on the surcharge. Obviously, she is going to have no immediate ability to pay such a surcharge. [ 73 ] As I indicated before, with respect to s. 738 of the Code and a standalone restitution order, I am going to decline to make one in the circumstances of this case at this point, given the crushing debt that she is already under. She should understand that that does not mean that she does not owe the $26,300 that is still outstanding.

The company or companies are entitled to go to the Small Claims Court and get a judgment against her for that sum and then work out through that court what the payment

schedule will be. But in keeping with the R. v. Dunn decision provided to me by defence counsel, on this occasion and perhaps this occasion only, I am going to decline to make a restitution order. [ 74 ] There will, however, be a DNA order. I think that is a secondary offence matter here and I am making an order that she provide a sample of her DNA for entry into the DNA databank. (REASONS FOR SENTENCE CONCLUDED)