HER MAJESTY THE QUEEN — v. —, 2018 ONCJ 133

ONTARIO COURT OF JUSTICE CITATION: R. v. Kothary, 2018 ONCJ 133 DATE: March 1, 2018 Scarborough - Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — KUMAR KOTHARY ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) For the Crown D. Steinberg For the Defendant J. Erickson Heard: December 19, 2017, January 25, 2018 REASONS for SENTENCE RUSSELL SILVERSTEIN, J.: A. INTRODUCTION [ 1 ] Kumar Kothary pleaded guilty before me to three counts of fraud over $5,000. The victims of his frauds were

(1) The Ministry of Community and Social Services and,

(2) Camp Quality. [ 2 ] Mr. Kothary was charged in 2015 with the fraud on the ministry and initially chose to contest those allegations. A preliminary hearing was begun on January 5, 2017 before Crewe J. Mr. Kothary’s daughter, Jessica, testified for the Crown. Shortly after her testimony in chief, Mr. Kothary changed his plea to guilty and the matter was adjourned for sentencing. While that proceeding was ongoing, the fraud on Camp Quality came to light and Mr. Kothary was charged with that fraud in November, 2017. [ 3 ] Due to Justice Crewe’s unavailability, Mr.

Kothary’s plea was struck and he then pleaded guilty before me in December, 2017. [ 4 ] The total loss to the Ministry was approximately $467,000.00. The total value of the services defrauded from Camp Quality was just over $80,000.

[ 5 ] For approximately six years, Mr. Kothary lied to the Ministry about his daughter’s medical condition and received almost ½ million dollars from the Ontario Disability Support Program (ODSP) and the Passport Program that neither she nor he were entitled to. [ 6 ] For 13 years he told the director of Camp Quality that both his daughter and son suffered from cancer so that they could, at no expense, attend the camp, which was created to help children with cancer.

Neither of his children has ever suffered from cancer. [ 7 ] As of the date of these reasons the accused has made restitution in the amount of $233,000. B. THE CIRCUMSTANCES OF THE OFFENCE [ 8 ] The accused’s daughter, Jessica Kothary was born April 2, 1993 with a form of severe anemia known as beta thalassemia. Patients with this disorder can sometimes suffer serious complications but many do not. Initially, Jessica required treatments several times a month, but she did relatively well, developing into an active teenager with no hearing or visual impairment.

She attended Ryerson University after graduating from high school. [ 9 ] In October, 2010, Jessica’s father, the accused, applied to the Ministry of Community and Social Services on his daughter’s behalf for disability payments. During the application process Mr. Kothary lied to the ministry about his daughter’s condition. He held her out as diabetic, legally blind, and developmentally disabled such as to have the mental capacity of an infant. None of this was true. His application package included letters and reports from doctors, some of them forged, some written by doctors on the strength of Mr.

Kothary’s lies. [ 10 ] In 2011 Mr. Kothary supplemented his fraudulent claim to the ministry with further letters and false invoices that fraudulently claimed that his daughter required costly treatments at Columbia Medical Centre in New York City three times per month as well as a heart transplant operation. In 2014 he claimed that Jessica required even more frequent visits to New York City for treatment. This pattern of fraudulent claims continued into 2015. The total fraud on the ODSP program amounted to $380,000. [ 11 ] Not only did Mr.

Kothary defraud the ODSP program as Jessica’s trustee, he also made similar fraudulent expense claims to the ministry’s Passport program which provides financial assistance to the parents of disabled children. This fraud, perpetrated over approximately four years, amounted to $86,581. [ 12 ] When the ministry began to investigate, the accused co-opted his son, Jason, into calling an official at the ministry and impersonating someone with a view to perpetuating the fraud. [ 13 ] Beginning in 2004, Mr. Kothary enrolled both his children in Camp Quality, a charity camp for children with cancer.

The camp is free of charge for children between the age of 4 and 18 years of age with cancer, either in therapy or remission, and is fully funded by donations and volunteers. [ 14 ] Mr. Kothary falsely told the camp that both his children suffered from leukemia. He either lied to his children, making them think they qualified for the camp, or co-opted them in his fraud on the camp. [ 15 ] Mr. Kothary defrauded Camp Quality of $80,000 worth of services. C. THE CIRCUMSTANCES OF THE OFFENDER [ 16 ] Mr. Kothary is 57 years old. He is married with two children.

Since his two arrests he has sold much of his family’s property and has made restitution of $233,000. He has no prior criminal convictions. He now suffers from some sort of depression. D. THE AGGRAVATING AND MITIGATING CIRCUMSTANCES [ 17 ] Most notable among the many aggravating circumstances of these offences is their protracted nature. These frauds were committed over several years. The accused became more and more greedy. The frauds required immense planning and sophistication, extending to forgery and the co-opting of his son in his deceit. [ 18 ] I am unable to decide whether Mr.

Kothary duped his children into believing they were terminally ill or co-opted them in his false statements to Camp Quality in this regard. Either way, he let his greed trump his parenting responsibilities. He showed complete disrespect for his own children. [ 19 ] The camp operated at full capacity. Many children who applied were not accepted given the limited capacity of the camp. His children’s attendance at the camp deprived other deserving and needy children of an opportunity to attend. [ 20 ] Even after being caught defrauding the ministry, Mr. Kothary continued his fraud on Camp Quality. Mr.

Erickson tells me that he did so for fear of being apprehended if he withdrew his children from the camp. This explanation does little to mitigate this aggravating factor. [ 21 ] There are some circumstances that I find mitigate the length of sentence to be imposed, but they are not particularly significant. Mr. Kothary pleaded guilty, but not at an early stage. Unlike most guilty pleas, this particular guilty plea is not a demonstration of very much remorse seeing as Mr.

Kothary continued his fraud on Camp Quality even after pleading guilty to the fraud on the ministry. [ 22 ] He has made significant restitution, but it must be clear to him that the sentencing process would include an order that these

funds be returned. As set out above, he has no prior criminal record. E. THE POSITIONS OF THE PARTIES [23] Mr. Steinberg, for the Crown seeks a three to four year sentence. Mr. Erickson seeks a two year sentence with probation. F. APPLICATION OF THE PRINCIPLES OF SENTENCING [24] The principles of sentencing are set out in

Part XXIII of the Criminal Code. The sentence I impose must address denunciation,specific and general deterrence, protection of the public and rehabilitation. [25] As concerns specific deterrence, as Mr. Erickson concedes, there can be no doubt that a penitentiary term is required. Beingarrested and charged seems to be of no moment to Mr.

Kothary, as evidenced by his continuing fraud even after his first arrest. [26] As concerns general deterrence, a significant term of incarceration is needed to protect the public from other would befraudsters who might consider a brief reformatory stint a reasonable price to pay for a fraud of this magnitude. [27] As concerns Mr. Kothary’s prospects for rehabilitation, I have heard that Mr. Kothary enjoys some family support. He intendsto look for legitimate work again upon his eventual release from prison. G.

THE CASELAW [28] It is a well settled principle of criminal law that like offenders who commit similar offences should receive similar punishment. [29] Mr. Erickson provided the following cases in support of his position: R. v. Pierce, (ON CA), [1997] O.J.No. 715 (C.A.); R. v. Wilson, (ON CA), [2003] O.J. No. 1047 (C.A.); R. v. Dwyer, 2013 ONCA 34 , [2013]O.J. No. 277 (C.A.); R. v. Silva, [2015] O.J. No. 2242 (C.A.); R. v. Bandiera, [2012] O.J. No. 5381 (Sup. Ct. J.); R. v. Dhaliwal, [2011]O.J.

No. 5015 (O.C.J.). [30] The above cases deal mostly with offenders defrauding their employers or banks of amounts in the vicinity of the fraud in thiscase. The longest sentence found in these cases is 3 ½ years after trial in Dwyer, where the offender, who had a prior conviction fordishonesty, was a tax preparer and mortgage broker who defrauded a bank of over $600,000, $400,000 of which was recovered. Theother cases provided by Mr. Erickson are examples of guilty pleas for first offenders with sentences in the provincial reformatory range. [31] If it weren’t for the need to address Mr.

Kothary’s future rehabilitation I would feel inclined to sentence him to something inthe order of 2 ½ years in the penitentiary. But, I also feel that a long term of probation is required to address his rehabilitation. H.

CONCLUSION [32] Since I cannot impose a term of probation where the prison portion of the sentence exceeds two years, I will impose a two yearprison term on count #1 and two year terms on the remaining counts to be served concurrent to each other and concurrent to the sentenceon count #1, along with three years of probation to follow, with terms to be addressed by counsel today. [33] The parties agree that a fine in lieu of forfeiture must be imposed. Even though there are two separate victims of the frauds inthis case, I will impose only one order for the full amount of the outstanding loss.

The order will specify the amounts outstanding to eachvictim. I will also impose the minimum length of sentence to be served in default of payment of the fine. [34] There will also be a free-standing restitution order for the outstanding amount of the frauds. Released on March 1, 2018 Justice Russell Silverstein