R. v. Russell Date:, 2013 BCPC 298

Citation: R. v. Russell Date: 20131008 2013 BCPC 0298 File No: 56473-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HAROLD MAX RUSSELL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. LOW Counsel for the Crown: J. Neal Counsel for the Defendant: M. Ritzker Place of Hearing: Richmond , B.C. Date of Sentencing: October 8, 2013 [ 1 ] THE COURT : 51-year-old Harold Max Russell has pled guilty to defrauding Award Manufacturing Limited, commonly

[ 1 ] THE COURT : 51-year-old Harold Max Russell has pled guilty to defrauding Award Manufacturing Limited, commonly known in the Richmond community as Citation Cabinets, of the sum of $502,673. [ 2 ] The facts are relatively simple. Relying on the high degree of trust his employers placed in him as their comptroller, Mr. Russell made false journal entries in the books of the company showing overhead expenses that the business had not actually incurred. The expenses in fact were actually sums diverted to accounts held by Mr. Russell.

This offending took place over a period of four years between 2001 and 2005. [ 3 ] The offence was discovered when Mr. Russell's employers discovered that in addition to the false journal entries, Mr. Russell was not only taking a paid vacation in the sense that he was being paid his wages while on vacation, but he was also paying himself what is commonly referred to as "holiday pay" in lieu of receiving salary while on vacation. Mr. Russell spent all the money that he stole from the company on personal items. In essence, there was nothing driving the offence other than Mr.

Russell's greed. [ 4 ] The aggravating factors are, this was a breach of Mr. Russell's employer's trust. This is a singularly aggravating factor commented on the courts for the 40-odd-years that I have been involved in the criminal justice system, and specifically statutorily enshrined in the Criminal Code . The fraud took place on a regular basis over many years. The amount of the money involved is very significant. The fraud had a pronounced and profound effect upon the four owners of the business and their respective families.

When I say "effect", I am referring to not only the financial effect, but the emotional affect it had upon those parties. I have listened to and read their compelling victim impact statements in this regard. All of the victims told me they do not ever expect to recover completely from this theft, and they anticipate it will affect them and their families financially, even into their retirement. [ 5 ] Not only is this a classic breach of trust, but Mr. Russell relied on the level of trust bestowed upon him by his employers to carry out his fraud. The employers had a high degree of trust in Mr.

Russell, given the quality of his initial work as their comptroller, and simply accepted his bookkeeping at face value on that basis. I note that Mr. Russell was careful to avoid practicing his scheme when once a year an outside accountant reviewed Mr. Russell's books of account, presumably to ensure that he was not detected. [ 6 ] Mr. Russell committed the offence purely out of greed, as I said before, and not due to some compelling circumstance as is sometimes the case. Mr.

Russell, at the time of this offence, was a mature, intelligent adult and was well aware of the gravity of what he was doing. [ 7 ] The mitigating factors are that Mr. Russell has no criminal record; apparently not even a driving record. Of course, on the other hand it is difficult to comprehend in the absence of such a record, how, at that stage of his life, he became involved in this protracted offence. In addition, Mr. Russell has pled guilty. It is true the plea came some 18 months after he was finally charged.

However, I accept that he first explored legitimate, legal issues relating to the charges against him, and once those legal issues were resolved to his satisfaction and prior to any trial or preliminary inquiry, instructed his counsel to plead guilty. The court, the people of the Province of British Columbia, and the victims themselves were all saved considerable cost, time, trouble and trauma which would surely have been the result of this matter going to trial. [ 8 ] I also accept that Mr.

Russell entered his guilty plea to accept responsibility and express his remorse as confirmed by his statement to the court today and his statement to the victims who are present in court today. [ 9 ] Finally, Mr. Russell, remarkably, apparently continues to enjoy some support in the community. He is currently employed by an accounting firm who is well aware of his malfeasance and, as declared in their letter of reference filed with the court, that they will hold his job with that firm pending his release from prison. [ 10 ] I have a joint submission before me that Mr.

Russell should be sentenced to three years jail to be served in a federal penitentiary. Counsel have filed a brief of cases which I have considered, particularly my colleague's decision in R. v. Datsko , which is an excellent

summary of the principles and authorities to be considered in these sort of cases. The essence of Datsko and the authorities cited therein, are that while all of the principles of sentencing apply in such cases as this one, deterrence to the offender, and specifically general deterrence to the community, are to be given the most weight. That is so, even for first offenders where a large-scale fraud such as this is involved. My colleague in Datsko points out that the usual range of sentence in these circumstances is three to four years.

The joint submission before me today reflects that range. [ 11 ] The only issue between the Crown and the defence is whether I should order that a sample of Mr. Russell's DNA be taken. Mr. Russell's counsel submits that I should exercise my discretion and not order a sample of his DNA to be taken, simply because fraud cases are rarely solved through the use of DNA. However, as the B.C. Court of Appeal pointed out in Awassis, a copy of which is before me today, this is not a factor which can affect my discretion.

There are no other factors put before me for me to consider in terms of not exercising my discretion, and accordingly, I order that a sample of Mr. Russell's DNA be taken prior to his release for the sentence that I am about to impose. [ 12 ] On Count 2 of Information 56473, I sentence Mr. Russell to three years to be served in the penitentiary.

I also order, pursuant to s. 738 of the Criminal Code , that Harold Max Russell will pay to Award Manufacturing Limited, doing business as Citation Kitchens, as restitution the sum of $502,673. [ 13 ] I have considered whether to impose the usual victim fine surcharge, which in this case would be $100. Given Mr. Russell's financial situation for the coming years, and also the stand alone restitution order, I am satisfied that it is appropriate to waive the imposition of a victim fine surcharge. [ 14 ] MR. RITZKER: May I ask Your Honour to consider noting on the record a recommendation that Mr.

Russell serve his penitentiary sentence ultimately at William Head Penitentiary on Vancouver Island? That's where he resides and that's where his family lives. [ 15 ] THE COURT: View of the Crown?

[ 16 ] MR. NEAL: Crown takes no position. [ 17 ] THE COURT: All right. I will make that recommendation, Mr. Ritzker. [ 18 ] MR. RITZKER: Thank you, Your Honour. [ 19 ] THE COURT: Thank you. [ 20 ] MR. NEAL: And direct the clerk of the court to enter a stay of proceedings on Count 1. [ 21 ] THE COURT: My thanks to counsel for their assistance with this difficult matter. (REASONS FOR SENTENCE CONCLUDED)