R. v. Kioussis, 2011 ONCJ 823

COURT FILE No.: Toronto DATE: 2011·11·16 Citation: R. v. Kioussis , 2011 ONCJ 823 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — GEORGIA KIOUSSIS Before Justice R. Rutherford Reasons for Sentence released on November 16, 2011 Laurie Freedman......................................................................... for the Crown Richard H. Shekter .................................................................. for the accused RUTHERFORD J.: [ 1 ] On September 7, 2011 Georgia Kioussis pleaded guilty to fraud over $5000.00. The matter was adjourned to September 22, 2011.

Prior to September 22, 2011, the Court was provided with Sentencing materials, a Book of Authorities and Written Sentencing Submissions on behalf of Ms Kioussis. Ms Freedman, on behalf of the Crown Attorney’s office, provided the Court with a Book of Authorities supporting her position on sentence. On September 22, 2011 I heard oral submissions and the matter was adjourned to November 16, 2011 for reasons. [ 2 ] Between January 1, 2001 and August 31, 2007 Mrs. Kioussis defrauded her employer, Mr. James Naumovich, of the sum of $607,424.60. Mr. Naumovich is a sole practitioner who specializes in real estate law.

Mrs. Kioussis was the senior law clerk and office manager for Mr. Naumovich’s law firm. Mrs. Kioussis was employed by Mr. Naumovich for 28 years and was a trusted and valued employee. She was responsible for managing accounts payable and receivable and responsible for preparing all bank deposits. She opened and closed real estate transactions and was authorized to sign documents on behalf of Mr. Naumovich. I am told that Mr.

Naumovich, in his law practice, conducts between 75 and 85 real estate transactions per month and had in excess of $15,000,000.00 flowing through his trust account. [ 3 ] In and around the months leading up to November 2007 Mr. Naumovich received many calls from several of his clients inquiring about irregularities in their real estate transactions. It appeared mortgages were not being discharged as required. When Mr. Naumovich investigated he saw that funds from his trust account were unaccounted for.

A forensic audit took place and it was discovered that Ms Kioussis had altered and deleted an accounting software program. Ms Kioussis was taking funds for her own purposes. She was using funds from other transactions to cover the loss. This went on for 6 years. It was discovered that between January 2001 and August 2007 numerous unauthorized cheques from Mr. Naumovich’s account were issued to either Mrs. Kioussis, other individuals, financial institutions and businesses operated by Mrs. Kioussis’ children. It is estimated that approximately 24 real estate transactions were affected by Mrs. Kioussis actions.

On November 2007, Mrs. Kioussis, after 28 years of service did not show up for work. She did not notify or provide an explanation for leaving her position. [ 4 ] On June 16, 2009 Ms Kioussis surrendered herself to the police. The total loss to Mr. Naumovich is $607,424.60. Mrs. Kioussis has made restitution in the amount of $700,000.00.

CIRCUMSTANCES OF MRS. KIOUSSIS [ 5 ] Mrs. Kioussis is 64 years old. She is widowed and has two grown children. She has no criminal record. [ 6 ] She was employed for 28 years by James Naumovich. For the first 21 years of employment she was an honest, trusted and valued employee. Mrs. Kioussis is presently unemployed. [ 7 ] Mrs. Kioussis was married to her husband Harry Kioussis for 31 years. She was both devoted to and dependent upon her husband. In 1987 Harry Kioussis opened a banquet hall which operated as a family business. Mrs. Kioussis played an active role in the business.

Because of her full time employment with Mr. Naumovich she worked at the hall on weekends, where she would do manual work around the premises and meet potential customers. In 1990 Mrs. Kioussis and her husband started an annual Christmas charity event. They opened the doors of the hall to less fortunate members of the community. These citizens are provided with a hot Christmas dinner. Gifts are provided to children. The tradition still carries on. [ 8 ] In the late 1990’s Harry Kioussis’ health declined. In 2000 Mr.

Kioussis was diagnosed with Progressive Supranuclear Palsy and within 2 years he was bedridden and required a feeding tube. He could not speak, walk or bathe himself. He required round the clock care. He refused to go into a nursing home. Mrs. Kioussis did not place her husband in a nursing home. She chose to keep him at home and hired private nursing care and made necessary modifications to the home. Mrs. Kioussis had an overwhelming sense of duty to her husband and could not bring herself to put him in long term care. Mr. Kioussis died in March 2007. [ 9 ] During this time Mrs.

Kioussis’ elderly mother fell ill. She lived with Mrs. Kioussis and her family. Around the same time that her husband’s health deteriorated her mother had a heart attack, a series of strokes and was diagnosed with Parkinson’s disease and Alzheimer’s. She too was bedridden and required round the clock care. [ 10 ] The cost of the private care for Mr. Kioussis and for the mother was very high. Mrs. Kioussis hired two private care givers for these purposes. Mrs. Kioussis could not keep up with the payments and consequently she embarked on the fraudulent scheme at her employer’s office.

The mother is presently 92 years old and still lives with Mrs. Kioussis. The mother, I am told, only responds to Mrs. Kioussis. Mrs. Kioussis, therefore, stays with and cares for her mother for a large portion of each day. [ 11 ] At the time of her husband’s illness Mrs. Kioussis began to see a psychiatrist, Dr. Foussias. Dr. Foussias states in his report that Mrs. Kioussis suffers from Major Depression and severe anxiety episodes. Dr. Foussias described the relationship Mrs. Kioussis had with her husband as significantly dependent. He advises that Mrs.

Kioussis was psychologically unable to cope with the prospect of losing her husband. Dr. Foussias advises that subsequent to her husband’s death Mrs. Kioussis’ condition deteriorated. She began to miss appointments, she talked of suicide, she was having difficulty at work and she was not taking her medication regularly. In 2010 she disclosed to Dr. Foussias that she had stolen from her employer to pay for the cost of caring for her husband and her mother. She described her shame and guilt to him and expressed the pressure she felt because she was unable to pay the money back to Mr.

Naumovich as she had intended to do. [ 12 ] Dr. Foussias also describes the relationship between Mrs. Kioussis and her elderly mother as one of responsibility and dependency. Dr. Foussias opines that Mrs. Kioussis could be become suicidal if she is separated from her mother for too long because of her overwhelming sense of responsibility towards her mother and her inability to leave her mother for too long. [ 13 ] Dr. Katz, a psychologist, registered to practice in the Province of Ontario opines that Mrs. Kioussis is suffering from a significant major depressive disorder.

She completed the Personality Assessment Inventory and a Life History Questionnaire. Dr. Katz determined that Mrs. Kioussis was forthright and did not attempt to present an unrealistic impression that was either more negative or more positive than the clinical picture warranted. [ 14 ] Dr. Katz describes Mrs. Kioussis as withdrawn and derives no enjoyment from life. He describes that she is traumatized by how much the impact of her actions have had on her life and the lives of others. [ 15 ] Dr. Katz after assessing Mrs. Kioussis explains that Mrs.

Kioussis was psychologically and almost pathologically dependent on her husband for her own emotional and psychological well being. It appears that Mrs. Kioussis derived her self-worth by how her husband viewed her, consequently she wanted to ensure that he was comfortable and always content. She was depressed when Mr Kioussis fell ill and Dr. Katz explains that because of her dependency on him she was compelled to do anything to fix things. [ 16 ] Dr. Katz further states that Mrs. Kioussis has a similar sense of responsibility towards her mother. Although Dr. Katz does not believe that Mrs.

Kioussis is presently suicidal he does express concern about her notion of self-harm if something should happen to her mother if Mrs. Kioussis is separated from her. Dr. Katz states on the last page of his reports: “Given Gina’s past history of suicidal ideation surrounding her husband’s death, I am concerned that there is a possibility that Gina’s already fragile psychological status could be irreparably damaged, were anything to happen to her mother while Gina is unavailable to her.”

IMPACT ON VICTIM [ 17 ] Not only have I had the opportunity to review the victim impact statement in this matter but Ms Freedman read out Mr Naumovich’s statement in Court on September 22, 2011. To say that Mr. Naumovich has been devastated emotionally and financially is an understatement. Mr Naumovich described Mrs. Kioussis as a trusted employee who had unfettered access to all his books, records, cheques and accounts. He considered her not just an employee but an associate, a friend and a member of his extended family. He socialized with Mrs. Kioussis and her family. [ 18 ] Subsequent to Mrs.

Kioussis fraudulent activity Mr. Naumovich began to suffer from depression, he developed insomnia and lost 30 pounds. The stress was compounded by the barrage of phone calls from angry clients that were affected by Mrs. Kioussis’ actions. Mr. Naumovich was the subject of at least 28 law suits. [ 19 ] Subsequent to the fraud, Mr. Naumovich was forced to go into association with another lawyer and pay association fees. This was required because he was banned from doing mortgage work for certain financial institutions. Because Mr.

Naumovich is no longer permitted to do mortgage work with these institutions, his associate must certify title when the institutions are involved in real estate transactions. Further the volume of Mr. Naumovich’s legal practice has decreased because of his inability to deal directly with the lending institutions. Mr. Naumovich’s reputation has been significantly damaged. [ 20 ] Mr Naumovich was forced into bankruptcy and was required to liquidate many of his assets. Mr. Naumovich also expresses great concern for his former clients who were affected by Mrs. Kioussis’ actions.

Some of the clients did not have title insurance and therefore lost their property under power of sale. CROWNS POSITION [ 21 ] Ms Freedman on behalf of the Crown argues that Mrs. Kioussis should be sentenced to 2 years less one day followed by three years probation. She argues that general deterrence and denunciation are the paramount sentencing principles in this matter. She argues that a significant jail sentence is required because of the impact of the fraud on the victim, the sophisticated nature of the fraud, the large amount of money involved, the fact that Mrs.

Kioussis was in a position of trust and that the fraudulent activity continued over a 6 year time frame. Ms Freedman acknowledges that full restitution has been made and that Mrs. Kioussis has pleaded guilty but nonetheless argues a significant jail sentence must be imposed. POSITION OF THE DEFENCE [ 22 ] Mr Shekter on behalf of Mrs. Kioussis argues that in the unique and exceptional circumstances that surround this case a conditional sentence in the range of 12-18 months is appropriate. He argues that because of Mrs.

Kioussis’ psychological condition, her age, her prior good behaviour, her extreme remorse, her motivation underlying the fraud and the fact that more than full restitution has been made, general deterrence and denunciation can be adequately addressed by the imposition of a conditional sentence. AGGRAVATING FACTORS [ 23 ] There are many aggravating factors in this matter: i. Mrs. Kioussis worked in a position of trust. She was a trusted and valued senior law clerk of 28 years. She had access to all business records and accounts at Mr. Naumovich’s law firm. ii. The impact of Mrs.

Kioussis’ actions on the victim and his professional reputation has been tremendous. His practice dwindled and he now practices in association with another lawyer in order to continue to practice real estate law. iii. Mrs. Kioussis embarked on a sophisticated fraudulent scheme which continued for 6 years. She was able to do this because of the experience she gained while employed as a senior law clerk by Mr. Naumovich. iv. Mrs. Kioussis defrauded Mr. Naumovich of $607,424.60. MITIGATING FACTORS [ 24 ] The mitigating factors are as follows: i. Mrs. Kioussis has pleaded guilty.

The victim is now spared from having to testify in what would be a very emotional trial. Further, a lengthy preliminary inquiry and trial have been avoided. I have read the reports of Dr. Foussias and Dr. Katz and I accept the remorse expressed by Mrs. Kioussis is genuine.

ii. $700,000.00 restitution has been made. This represents more than full restitution in the matter. iii. Mrs. Kioussis’ actions were not motivated by greed but by an inability to cope after her husband’s healthdeteriorated significantly. She suffered from major depression at the time and because of the pathological dependence she had formed onher husband during their lives together she could only think of keeping him comfortable and alive at the time of his illness. iv. She is 64 years old and mentally fragile. She has no criminal record. v.

She is the primary caregiver to her elderly mother who suffers with Alzheimer’s and Parkinson’s disease. THE LAW [25] Both counsel have provided the Court with many sentencing authorities in relation to large scale breach of trust frauds. I havereviewed all the cases provided. [26] The Crown relies predominantly upon cases where the common theme exists that an offender offends for the first time, hasan impeccable background and suffers from either an emotional or mental health problem.

Ms Freedman argues that notwithstandingthese factors courts regularly impose periods of straight incarceration because general deterrence and denunciation demand it. Sheargues general deterrence and denunciation must act as the predominant sentencing principles. [27] I am mindful of the decision in R v. Dobis, (ON CA) where the Court of Appeal states that courts mustemphasize the principles of general deterrence and denunciation in large scale breach of trust fraud cases. In that case, Mr. Dobis wasthe account manager for a company. The fraud amounted to over a two million dollar loss to the company.

He pleaded guilty, had nocriminal record and made no restitution. The trial judge imposed a conditional sentence but the Court of Appeal overturned the sentencehighlighting that a conditional sentence was not appropriate because of the significant amount of the fraud, the fact that it was a breachof trust and finally the consequences to the victim were devastating.

At paragraph 51 of the decision Justice MacPhearson states: “This court has said repeatedly that general deterrence is central to the sentencing process in cases involving large scale frauds withserious consequences for the victims: see: McEachern, Bertram and Wood, Gray and Holden, supra. Importantly, the court has said thesame thing since the introduction of the conditional sentencing regime. Conditional sentences have been rejected in large scale fraudcases such as Pierce, supra, and Ruhland, supra, and commented on adversely in the leading Ontario case dealing with conditionalsentences, R. v.

Wismayer (ON CA), (1997), 115 C.C.C. (3d) 18 (Ont. C.A.).” [28] In R v. Collins, 2011 ONCA 182 Justice Rosenberg on behalf of the Court held that although there were manysignificant mitigating factors in relation to Ms Collins, the nature and magnitude of the fraud was such that general deterrence anddenunciation demanded that a period of incarceration be ordered. Ms Collins defrauded Ontario Works of almost $100,000.00. Therewas no restitution. She was aboriginal, had a horrific upbringing, had a gambling addiction, and supported a brain injured child.

TheCourt held that notwithstanding these factors the need for general deterrence and denunciation was too overwhelming to consider aconditional sentence. The sentence was reduced from 16 months in jail to 10 months in jail followed by probation. [29] In the Court of Appeal’s decision in R v. Suhr, (ON CA) Mr. Suhr was an employee of Bell Canada for22 years. Over the course of one year he stole equipment worth $100,000.00. He committed the offence to support a gamblingaddiction. He was a first offender, pleaded guilty and made some small amount of restitution.

He was sentenced to 6 months in jail followed byprobation. The Court of Appeal upheld the sentencing judge’s finding that general deterrence and denunciation warranted the impositionof a custodial sentence rather than a conditional sentence. [30] In R v. Bogart, (ON CA), the Court of Appeal held that the imposition of a conditional sentence wasinappropriate in the circumstances. In that case Dr. Bogart defrauded OHIP of approximately 2 million dollars. He submitted falsebillings to OHIP. The Court of Appeal held that notwithstanding the very compelling mitigating circumstances of Dr.

Bogart, the Courtfound that greed and Dr. Bogart’s desire for a certain lifestyle were the underlying motivating factors for the fraud. The Court held thatgeneral deterrence and denunciation demanded that straight incarceration be ordered. The Court of Appeal ordered Dr. Bogart to serve18 months incarceration. [31] Mr. Shekter argues the facts of this case combined with Mrs. Kioussis’ personal circumstances are one of those rare andunique scenarios where a conditional sentence would be appropriate. [32] I am mindful that the imposition of a conditional sentence in a large scale breach of trust case is a rarity.

I have however, asstated earlier, reviewed cases in which conditional sentences were ordered. In these cases, unique and exceptional circumstances existedwhereby Courts determined that all sentencing principles and objectives could be met by the imposition of a conditional sentence. [33] In the case of R v. Adams 2009 CarswellOnt 4837 (Ont. Ct. J.) Justice Melvyn Green of this Court ordered a conditionalsentence of 2 years less a day in a case where a 48 year old bookkeeper stole $144,690.00 from her employer over a 6 year period. Norestitution was made.

In that case the offender was a first offender with a psychiatric condition and embarked on an unsophisticatedfraudulent scheme.

ANALYSIS [ 34 ] The community must be assured that Courts deal seriously with people who take advantage of their employers for their own financial gain. The operation of any business, large or small, in our society relies on employees of business organizations to act honestly in order that business and commerce function in society. When employees act dishonestly their actions not only impact the employer and the operation of the business but can impact the community at large.

Often when a business enterprise is defrauded there will be a ripple effect throughout the community whereby others are financially impacted. The community must have confidence that Courts recognize this consequence and adequately address it by imposing firm sanctions. [ 35 ] In criminal proceedings, sentencing is meant to reflect and reinforce the basic values of our society.

Accordingly, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions. [ 36 ] The sentence should be proportionate to the gravity of the offence and the degree of the responsibility of the offender. [ 37 ] The sanction that the court imposes should have one or more of the following objectives: i. to denounce unlawful conduct; ii. to deter the offender and other persons from committing offences; iii. to separate offenders from society, where necessary; iv. to assist in rehabilitating offenders ; v. to provide reparations from harm done to victims or to the community; vi. to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. [ 38 ] Both crown and defence counsel agree that a period of incarceration is warranted in this case.

What I must determine is whether the term of incarceration should be served traditionally in an institution or in the community. CONDITIONAL SENTENCE REGIME [ 39 ] In order for me to consider a conditional sentence I must turn to s. 742.1 of the Criminal Code of Canada . S. 742.1 reads: “ 742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s compliance with the conditions imposed under

section 742.3. 1992, c. 11, s. 16; 1995, c. 19, s. 38, c. 22, s. 6; 1997, c. 18, s. 107.1; 2007, c. 12, s. 1 .” [ 40 ] The first three criteria set out in s. 742.1 are necessary conditions that must be satisfied before a conditional sentence will be imposed. If these criteria are met the final question to be determined is whether the imposition of a conditional sentence will adequately address the necessary sentencing principles and objectives including general deterrence and denunciation. [ 41 ] Mrs. Kioussis has been found guilty of fraud over $5000.00. There is no minimum sentence.

The first criterion, therefore, has been satisfied. [ 42 ] The Crown submits that Mrs. Kioussis should be sentenced to 2 years less one day. The Crown, therefore is not asking the Court to consider a sentence above 2 years. I am of the view that a sentence less than 2 years is appropriate; therefore, the second criterion is satisfied. [ 43 ] Mrs. Kioussis has no criminal record and is otherwise of good behaviour. She has pleaded guilty, thereby accepts responsibility for her actions and is remorseful for her actions. She has made more than full restitution. She is no longer employed.

The risk to the community, should she be granted a conditional sentence, is in my view minimal, therefore, the third pre-condition has been satisfied.

[ 44 ] I now turn to whether the imposition of a conditional sentence in this case is consistent with the fundamental purpose and principles of sentencing, specifically general deterrence and denunciation. I note that no category of offence is presumptively disqualified from the imposition of a conditional sentence so long as the statutory criteria are met. [ 45 ] As I indicated earlier I have been provided with a number of comparable breach of trust fraud cases setting out a broad range of sentences. I am guided by the cases but am always mindful that sentencing is a unique and individualized process.

The fitness of the sentence depends upon the circumstances of the offence, the circumstances of the offender and the weight to be given to all the particular aggravating and mitigating factors of the case. [ 46 ] Mrs. Kioussis is a 64 year old woman with no prior criminal record. She was a devoted wife to her late husband and is still a devoted mother to her two sons. She continues to be a devoted caregiver to her elderly mother. For 22 out of 28 years she was a devoted and trusted employee of James Naumovich where she worked as a senior law clerk with access to all of Mr.

Naumovich’s financial records and accounts. During the last 6 years of her employment Mrs. Kioussis husband was diagnosed with a debilitating illness which he eventually succumbed to. Her elderly mother with whom she lived also suffered a heart attack and developed Parkinson’s disease and Alzheimer’s. Mrs. Kioussis took on the role of primary caregiver to both of these people. [ 47 ] It was during this 6 year time period that Mrs.

Kioussis engaged in the deceitful act of stealing $607,424.60 from her employer in order to pay for the high health care costs that were required for the care of both her husband and her mother. Mrs. Kioussis thought the scheme she embarked on would be simple and brief. She believed she could take money from her employer for health care expenses for her husband and mother and pay Mr. Naumovich back quickly without having anyone affected by her actions. She was terribly wrong. [ 48 ] Mr. Naumovich was forced into bankruptcy.

He is no longer permitted to conduct mortgage transactions with certain lending institutions. He was forced into association with another lawyer. He was the subject of over 20 civil lawsuits. Mr. Naumovich’s professional reputation has been forever tarnished. [ 49 ] In 2000, right around the time Mrs. Kioussis’ husband and mother got ill; Mrs. Kioussis attended at the office of Dr. Foussias, a licensed psychiatrist. She was suffering at the time and still suffers from Major Depression and severe anxiety episodes.

She was prescribed anti-depressants and continued in psychotherapy in an effort to cope with her daily life. Following the death of her husband, Dr. Foussias described Mrs. Kioussis as more agitated and anxious. She experienced suicidal thoughts and increased feelings of depression. This description of Mrs. Kioussis appears to be consistent with Dr. Katz’s assessment of Mrs. Kioussis regarding her relationship with her husband. Dr. Katz indicates in his report of August 22, 2011 that Mrs. Kioussis currently suffers from a significant major depressive disorder.

He further reports that from a psychological perspective Mrs. Kioussis became, during the course of her married life, pathologically dependent upon her late husband for her emotional and psychological well-being. She could not put him in a nursing home and spent all her time (when not working) seeing to all of his needs. She hired private nurses for the times when she could not be home and she had the house fitted with items that assisted him during his illness. Her husband was eventually bedridden and was fed through a tube.

All of her spare time was spent caring for him. [ 50 ] Her mother’s illness compounded the situation. Between 2000 and 2007 the mother also required care and medical attention. This care still continues with Mrs. Kioussis as the primary caregiver. [ 51 ] Both Dr. Foussias and Dr. Katz describe Mrs. Kioussis’ devotion to her mother. Both doctors express concern about Mrs. Kioussis’ emotional and physical health should she be separated from her mother. I am told that Mrs. Kioussis would feel incredible guilt for not being able to care for her mother. Both doctors’ opine the guilt Mrs.

Kioussis would experience should she be separated from her mother could be emotionally and physically destructive to the point of self-harm. [ 52 ] Mrs. Kioussis has a supportive family and community. She has told her sons, her extended family and her friends about the criminal behaviour she engaged in. I have reviewed letters of support for Mrs. Kioussis from many different people. Everyone describes Mrs. Kioussis as a kind, caring and hardworking woman who is devoted to her family and community. They were all shocked to hear that Mrs.

Kioussis was capable of engaging in the criminal activity she engaged in. [ 53 ] Mrs. Kioussis has made more than full restitution in this matter. The fraud involved in this matter is $607,424.60. Mrs. Kioussis paid back $700,000.00. All outstanding civil law suits against Mr. Naumovich have been satisfied. Mrs. Kioussis has no assets left. I accept that she has done everything possible to attempt to right the very wrong she did. I accept the remorse she expresses is true remorse. Dr. Katz in his report at page 9 writes: “Gina has been fundamentally devastated by her conduct and its impact on Mr.

Naumovich and her friends, and family. She has had great difficulty accepting her aberrational behaviour, and feels extraordinary remorse, shame, and regret for having so conducted herself. She expressed to me on numerous occasions that she wishes she could turn back the clock and undo the damage that she has done to both Mr. Naumovich and to her friends and family. She knows she has let her employer down, as well as her friends and family.” [ 54 ] Mrs. Kioussis pleaded guilty to defrauding her employer of a substantial amount of money. She abused the trust of Mr.

Naumovich who counted on her to be honest and forthright. Her guilty plea, however, is a clear demonstration of remorse. I also accept that her deceit and dishonesty were not motivated by greed but by anxiety, depression and a psychological dependency on her late husband and elderly mother. More than full restitution has been made. She continues to suffer from depression and remains under the care of Dr. Foussias. There is genuine concern from the professionals monitoring Mrs. Kioussis that should Mrs.

Kioussis be incarcerated she may become ill to the point of self-harm. [ 55 ] These distinguishing features were not present in many of the Appellant Court decisions where the Court held that general deterrence and denunciation overrode the mitigating factors which otherwise supported a conditional sentence. [ 56 ] In my view despite the significant aggravating factors in this case, this is one of those rare cases where a conditional sentence is appropriate. [ 57 ] Mrs. Kioussis is sentenced to 2 years less 1 day. Her sentence will be served in the community. [ 58 ] Ms.

Kioussis is subject to the following Mandatory Conditions: i. keep the peace and be of good behaviour; ii. appear before the Court when required to do so by the Court; iii. report in person today and thereafter to a supervisor and report when required by the supervisor and in the manner directed by the supervisor; iv. remain within the Province of Ontario unless written permission to go outside the Province is obtained from the Court or the supervisor; and v. notify the supervisor in advance of any change of name or address and promptly notify the supervisor of any change in employment or occupation. [ 59 ] For the first twelve (12) months of the conditional sentence you will be confined to your residence except for the purpose of approved medical appointments for yourself or your mother, psychiatric appointments, employment, religious services, emergencies pertaining to yourself or your mother and legal obligations regarding compliance with this Conditional Sentence order.

You will provide a

schedule of all work, medical appointments, psychiatric appointments and religious services to your Conditional Sentence supervisor who will incorporate them into a written letter of permission. You must carry the authorization on your person while outside the residence and produce it to a peace officer on demand. You may be absent from your residence for any reason deemed appropriate by your Conditional Sentence Supervisor and you will carry a letter of permission from your Conditional Sentence supervisor authorizing the absence.

Such written permission shall be carried on your person at all times while out of the residence and produced upon demand to a peace officer. You may be absent from your residence each Saturday between 12:00 P.M. and 4:00 P.M. to attend to your personal needs. [ 60 ] You will attend such rehabilitative programs for depression and any other mental health issues as directed by Dr. Foussias or his designate and provide proof of same to your Conditional Sentence Supervisor. [ 61 ] You will provide to Dr.

Foussias a copy of this order as well as the name, address and phone number of your Conditional Sentence supervisor. [ 62 ] For the second 12 months and 1 day you will be subject to a curfew. You will be in your place of residence each and every night between the hours of 11:00 P.M. and 6:00 A.M. except for the purposes of medical emergencies pertaining to you or your mother or unless permission is obtained in writing from your conditional sentence supervisor or his/her designate. [ 63 ] You will perform 100 hours of community service work.

The work is to commence within 6 months of this Order and to be performed and completed during this Order to the satisfaction of the Conditional Sentence supervisor. [ 64 ] Following the Conditional Sentence you will be placed on probation for a period of 18 months. [ 65 ] You will be subject to the Mandatory Conditions which are: i. keep the peace and be of good behaviour; ii. appear before the Court when required to do so; iii. notify the Court or the probation officer in advance of any change of name or address; iv. promptly notify the Court or the probation officer of any change of employment or occupation.

[ 66 ] You will report to a probation officer as directed and remain under the supervision of the probation officer for the duration of this Order. [ 67 ] You will continue to attend upon the offices of Dr. Foussias or his designate for psychiatric counselling or attend for any counselling as directed by your probation officer. [ 68 ] You will sign the necessary consents and releases to allow your probation officer to monitor your attendance at said counselling. Released: November 16, 2011 Signed: “Justice Rebecca Rutherford”