2016 MBPC 30, 2016 MBPC 30

Cite: 2016 MBPC 30 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Colin Soul, ) for the Crown - and – ) ) Sheila Bell, ) Tony Kavanagh, Accused ) ) for the Accused ) Judgment delivered: May 27, 2016 ) R.L. POLLACK P.J. [ 1 ] Sheila Bell is to be sentenced for a series of fifty-three false pretense transactions in which she dishonestly obtained $2,641.05 by removing items on display in a retail store and presenting them for a refund as if she had previously purchased them.

She is also to be sentenced for a month-long series of fraudulent insurance benefit claims in which she dishonestly obtained $20,660.00, committed while she was on interim release for the aforesaid false pretences. Relevant events: [ 2 ] The victim of the false pretence refunds is a chain of five stores; that the offender was able to perpetrate this fifty-three times is astounding but that business’ policy was to provide such refunds, either by way of a credit or cash. Those transactions took place between November 12, 2011 and May 9, 2012.

That latter date is important because it puts her criminal record into perspective. Two transactions in the same store occurred on that date. The offender’s criminal record consists of yet another false pretense offence that very day (hereinafter “the prior offence”) which, I am told, was similar to the acts complained of here. [ 3 ] Eventually this offender was conditionally discharged for the prior offence but not before being arrested for the aforesaid fifty- three false pretenses. Upon being arrested on October 10, 2012, she was released by police on her promise to appear in court. One week later Ms.

Bell appeared in this Court and entered a plea of guilty to the prior offence as well as one count of theft to a value under $5,000.00 committed on April 25, 2012, in the midst of the fifty-three false pretenses. The disposition was a conditional discharge for a period of one year, terms of which included supervision by a probation officer, counselling and attendance at a mood disorder clinic. [ 4 ] Although she was arrested in October, the offender’s first appearance on the fifty-three counts was not until December 11, 2012.

Between March 13, 2013 and April 24, 2013, while on interim release and bound by the conditions of her discharge, she perpetrated a series of frauds on her insured benefits provider. Using the convenience of an internet portal, she was able to make over two hundred fifty claims for a series of benefits that included physiotherapy, massage therapy, chiropractic, acupuncture, psychologist, naturopath, podiatrist, social worker, osteopath, athletic therapy, prescription drugs and vision care services. Ms.

Bell’s provider deposited funds electronically into her bank account and more than half of these transactions were found to be fraudulent when the provider audited her claims. [ 5 ] On March 13, 2014, one year after the frauds began, police made arrangements with Ms. Bell for her to surrender the next day and, presumably, to be released with dispatch. She failed to keep her appointment and, on April 9, 2014, a warrant was issued. The following day she was arrested and remanded in custody; she was released on April 14, 2014.

Positions of the parties: [ 6 ] The Safe Streets and Communities Act , S.C. 2012, c.1 disqualified this offender from the conditional sentence regime by excluding offenders who committed fraud in excess of $5,000.00 (because the maximum sentence is 14 years and conditional sentences for that punishment category are forbidden).

That legislation amended the Criminal Code in the midst of the fifty-three false pretenses and precisely one year prior to the commencement of the frauds. [ 7 ] Both counsel took the position that, but for the Criminal Code amendments, this case would satisfy both statutory and common law conditional sentencing requirements. In seeking a suspended sentence with detailed probation conditions, the defence rely upon that proposition as justifying a sentence without incarceration.

The prosecution say that a jail term of between six and nine months is nevertheless called for in view of the many transactions involved as well as the prior criminal court experience of the offender. Antecedents of the offender: [ 8 ] This fifty year old offender is addicted to gambling. A pre-sentence report confirms that she has some insight into this

disease. The probation officer wrote that she expressed regret and was taking responsibility for her criminal actions. Recently she completed an Addictions Foundation of Manitoba residential treatment program at the Parkwood Centre in Brandon and she is now assessed at a very low risk to re-offend. [ 9 ] Two significant events occurred in the offender’s life in 2012. Her mother, with whom she was very close, died after a battle with breast cancer.

A couple of weeks later she was able to get rid of a partner who, for the past four years, caused her emotional abuse and stress. [ 10 ] She told the probation officer that it was “hard to believe I did that, every dime went to gambling”. Her lawyer told me that every day she took whatever cash she had and lost it in one of the many easily accessible slot machines. She told me that she was sorry for the “chaos, craziness and heartache” that she had caused. The losses complained of here are not the only gambling losses of this offender.

She has been a gambler since 2010 and, at one time, lost $50,000.00 from an inheritance. In 2015 she had herself barred from casinos and began attending Gamblers Anonymous meetings, in which she is still involved. [ 11 ] Although she will get no relief from her indebtedness as a result of these crimes, I am told that Ms. Bell has made an assignment in bankruptcy. At the present time her only source of income is a disability payment, her disability being the result of surgery on both hands. Additional Heath Factor: [ 12 ] In 2013 Ms.

Bell was diagnosed with Major Depressive Disorder and Generalized Anxiety Disorder. The probation officer contacted her present doctor who indicated that Ms. Bell continues to receive psychiatric attention, the diagnostics of which include depression and an impulse disorder in relation to gambling. [ 13 ] Previously Ms. Bell had been on a medication known as pramipexole, manufactured under the name Mirapex. Mirapex was prescribed for restless leg syndrome but her doctor feels that it may have contributed to her gambling addiction.

Interestingly, there exists class action litigation concerning whether the drug actually made gambling addicts out of patients for whom it was prescribed. Defence counsel made it clear, however, that they were not taking the position that the gambling losses which compounded her felonies gave Ms. Bell an excuse of some sort. That her doctor does not want her taking the drug is of some significance to me.

Criminal Record: [ 14 ] In view of the date of the prior offence, it is clear to me that this entry is not an aggravating circumstance but was, at the time, the proverbial tip of the iceberg of offending that was going on in Ms. Bell’s life. As for the prior theft conviction, I can only infer that it was a shoplifting offence because there is a reference to a diversion program in the pre-sentence report and I infer that it was unsuccessful. This, too, is an unsurprising entry in the record of an addict.

Accordingly, while this offender cannot say she comes before the Court with a clear record, hers is not a particularly concerning one in the sentencing scheme. [ 15 ] Of real concern is her adapting to a new way to obtain gambling funds by crime while on interim release. When she was released by the police on October 10, 2012, Ms. Bell had to know that she was in serious trouble. Only five months into her conditional discharge, there she was again on a court docket.

Neither her ongoing court appearances nor the terms of her conditional discharge deterred her from going online and making over $20,000.00 worth of fraudulent insurance claims. That is the single most aggravating circumstance for me to consider against the matrix of sentencing principles. Applicable Sentencing Principles: [ 16 ] The competing principles in this case are obvious.

Sections 718.1 and 718.2 of the Criminal Code make it clear that in assessing proportionality, I must consider the aggravating factor that I have identified as well as the frequency and number of transactions in each count and the harm done in abusing business systems that are obviously based on the honour system.

I also have to look for sentencing alternatives that are less restrictive than a jail sentence. [ 17 ] In coming to a sentencing conclusion in this case, I intend to achieve as much reparation as possible while, at the same time, maintaining jurisdiction over the offender should the public require further protection from her. Accordingly, these are my sentences:

a) For the offence of fraud in excess of $5,000.00 committed while on interim release and while bound by the probation order in a conditional discharge, there will be a sentence of seven days. In view of the time spent in custody on her second arrest and her court appearance, I am giving Ms. Bell credit for having served seven days. That term will be followed by probation for a period of three years.

b) For the continuing offence of obtaining funds by false pretenses to a value less than $5,000.00, there will be a concurrent sentence of one day followed by the same probation order for a period of three years, the terms of which I will outline shortly. [ 18 ] Great West Life Assurance Company will receive a restitution order in the sum of $20,660.00 suitable to enable civil enforcement proceedings to take place. Home Depot of Canada will receive a similar order in the sum of $2,641.05. [ 19 ] The terms of probation will be these in addition to the statutory conditions: 1.

Report within two working days to your probation officer by telephone and thereafter attend all appointments at the place and time directed. 2. At your first meeting with your probation officer, disclose and review any and all programs, courses or counselling that you are involved in presently including any facilitated by a medical professional. 3. Enroll in, attend and complete all assessments, counselling, residential treatment or other programming as directed by your probation

officer, including those that address addiction. 4. Do not have or use alcohol or drugs unless prescribed by a doctor with your name on the container. 5. Do not enter the premises of any Home Depot of Canada Store. 6.

Do not enter any casino or other premises where gambling is permitted including bars or restaurants that have lottery machines on the premises or fund raising social events where gambling is permitted; these prohibitions do not apply to businesses, e.g. convenience stores, that sell only ticket entries in lotteries or games of chance, provided that you do not have, acquire or in any way use such items. 7. Commencing June 1, 2016 and on each 1 st of the month thereafter, make the following payments on account of your indebtedness:

a) the sum of $150.00 to Great West Life Assurance Company;

b) the sum of $50.00 to Home Depot Canada. 8. Commencing on July 4, 2016, or so soon thereafter as your probation officer can make arrangements, provide at least 10 hours of community service without remuneration or reward each month until you have provided a total of 240 hours; the 240 hours must be completed within 24 months. [ 20 ] The Criminal Code requires the imposition of a surcharge of $200.00 in each case. I am waiving any further costs and the total of $400.00 must be paid on or before the expiry of your probation order. “Original signed by” R.L. POLLACK P.J.