) Ms. M. Ambrose ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. D. Walker - v. -, 2016 MBPC 76

THE PROVINCIAL COURT OF MANITOBA BETWEEN: ) Ms. M. Ambrose ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. D. Walker - and - ) for the Accused ) ROSALIE RUTH GURSKE, ) ) Sentence delivered Accused. ) November 29, 2016 _____ THOMPSON, P.J. (Orally) Rosalie Gurske, a 51-year-old woman has pled guilty to one count of theft over $5000. Over a period of six years, while employed as a supervisor for Crosstown Civic Credit Union, she stole a total of $917,750. In the case of theft over $5000,

Section 334 (

a) of the Criminal Code , sets out that the maximum punishment is a ten-year period of imprisonment. This is an indictable offence because of the large amount of money that was stolen. A conditional sentence order is not available in this case due to parliament's change to the law making it ineligible for this offence in November of 2012. This theft offence continued past that date until discovered in early January of 2013. The facts do not appear to be in dispute.

For a period of six years from January of 2007 till January 2013, the accused while in a position of trust at the credit union abused that trust by systematically and regularly stealing money. Due to, due to the trust placed in her by her manager and co-workers, in an organization she started working in in 1995, she devised a system to divert cash from the bank's treasury account at the branch she worked at and manipulated the logs of the account balance to cover the missing funds.

This scheme of stealing and manipulating the log entries continued unabated until she was discovered, when the CFO recognized that too much money was recorded as being held at the local branch in a treasury compartment in the safe. A massive shortfall was discovered in the presence of the accused, who lied and said that a large sum had been transferred out of the bank to the depository by armored car service that day. She went to her office pretending to look for the non-existent receipt, returning to say that it had been misplaced. She promised to find it in the morning.

She returned to the branch at 3:05 a.m. using her alarm code to enter, cleaned out her desk, and never returned. Subsequent investigation by the manager determined that not only no armored car pickup had occurred, rather a drop off of $100,000 had been delivered that day. Most of it was gone. After an outside audit was conducted, Deloitte and Touche determined that the loss to the credit union totaled $917,750. That sum is not disputed by defence counsel for Mrs. Gurske.

It is not contested by the Crown that all of the funds stolen by the accused were gambled away by her at various video lottery terminals and casinos in Winnipeg. There is no evidence she saved any of the money or mixed her lifestyle with personal purchases or trips; it was all lost. I accept the diagnosis of the two psychiatrists that provided reports to the court that Mrs. Gurske is a pathological gambler. I also accept that she has been diagnosed with a general anxiety disorder. The two psychiatrists have different opinions on the third diagnosis.

Her treating psychiatrist has diagnosed her with bi-polar disorder while Dr. Waldner, who prepared an assessment specifically for this court appearance, states his opinion that she does not have difficulties consistent with bi-polar affective disorder. Rather, he diagnoses her as having border line and avoidant traits.

Irregardless, both doctors are of the view that the stressors in her life, magnified by her mental health problems, eventually contributed to her gambling. The excitement from it distracted her from her problems and anxiety. She rationalized that she would pay back the money that she took from the bank with her winnings, yet she never did. Every win was played back into the machines until all was lost.

Section 718 of the Criminal Code sets out the fundamental purpose and principles of sentencing. I’m cognizant of all the purposes and principles including: That a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, and that pursuant to

Section 718.2(3) which makes evidence that the offender in committing an offence abused a position of trust or authority in relation to the victim, an aggravating factor to be considered in sentencing. I have reviewed the Crown's casebook of authorities and the defence sentencing materials. I have also distributed to counsel in advance of today's hearing a transcript of my unreported decision in R. v. Kimberly Dawn Apetagon and Steven Martin Apetagon . A sentencing decision from Norway House, Manitoba, on April 5th, 2012, relating to a breach of trust involving $1,163,000 fraud and theft.

I'm satisfied that the case of R. v. Compton (phonetic), a decision of Judge Meyers of the Provincial Court of Manitoba, reflects a range of sentence of three to six years for large fraud or theft perpetrated over a number of years involving a breach of trust such as stealing from an employer where the paramount sentencing principles are deterrence and denunciation. The length of sentence is dependent on a number of factors including the accused’s moral culpability or blameworthiness, the length of time of the theft, and the sophistication involved as well as the amount of money stolen.

The position of the parties is as follows: The Crown seeks a penitentiary sentence of four years. Defence seeks the imposition of a suspended sentence with supervised probation rather than an incarceratory sentence, relying on evidence to show that the accused has demonstrated "exceptional circumstances" which allow for a deviation well below the accepted range of sentence. Mitigating circumstances in this case include: the fact that the accused pled guilty, although it was on the day of the preliminary hearing was to commence and all the witnesses were present.

Additionally, the accused has no prior criminal record. Other factors to consider include: the accused has paid restitution to settle a civil suit from the credit union. In total, she has paid $315,000 by way of re-mortgaging her home and dipping into personal saving. Leaving a balance outstanding to the credit union's insurance company of $602,750. The accused did not steal the money to enhance her lifestyle by way of purchasing luxury items. As I said earlier, all the money was lost by her gambling. Aggravating factors in this case include: This was a breach of trust.

The accused was a trusted employee who was entrusted with the treasury float account and handling cash at the bank. She was a member services supervisor since 2001. This was not an isolated act but an ongoing planned and deliberate scheme she devised to conceal her ongoing theft over a period of six years. She did not stop on her own. It continued until it was discovered by her superiors. She took an undisclosed amount of funds on January 9th, 2013, her last day of employment.

I have also considered the pre-sentence report dated June 1st, 2016 which raised concerns beginning under the recommendation and assessment at page eight. Quotes include: “Despite some awareness that she was suffering from mental illness, she did not seek out any meaningful treatment over the years.” And further, at the bottom of page eight: “Of concern for this writer is that the subject has only recently began seeing a psychiatrist regularly to treat her bi-polar disorder and has not received treatment for her gambling.” Further, “Mrs.

Gurske believed that she would not benefit from any treatment to address past gambling behaviour. Rather, she believed that she, that provided she takes her medication as prescribed, her risk to become re-involved in gambling is minimal. As such, the subject's relapse prevention plan is weak and suggests that should her mental health deteriorate she would again be at risk to engage in problematic behaviour.” Also of concern is the fact that Mrs. Gurske was able to hide her behaviour from her family specifically her husband, for years and did not ask anyone close to her for help.

It goes on, “also of note, the seriousness of the offence before the court appears to not resonate with the subject. While she expressed remorse for hurting those close to her at work, she did not appear to have meaningful awareness of how her stealing such a large amount of money would harm her employer or cause customers to lose trust in their financial institution.” A level of case management service and inventory was completed and Ms. Gurske was accept -- assessed to be a medium risk to reoffend.

Significant risk facts identified included: pro-criminal attitude orientation, family marital, companions, leisure recreation and employment education. And finally, the probation officer writes: “Ms. Gurske appears to be in a pattern of behaviour that has not been addressed through professional rehabilitation. And this writer sees a benefit of how a structured long term environment could assist Mrs. Gurske in addressing deep-rooted criminal thinking errors regarding her offence.” Dr.

Waldman's psychiatric assessment highlights his concerns about his belief that she will relapse into her gambling addiction due to a lack of treatment for that addiction to date. And I'm quoting Dr. Waldman's report, page eight, under recommendations: “Ms. Gurske has connected with a very good psychiatrist who is treating her with both medication and supportive psychotherapy with some benefit and relief. Although Ms. Gurske maintains she has not gambled the last three years, the severity of her gambling addiction and the

significant consequences of her pattern of gambling lead me to believe that eventually she will relapse. And she requires more longer term, focused interventions to address her gambling. As such, I would suggest that she attend Gambler's Anonymous on a daily basis, obtain a sponsor and proceed through the steps.” I've also reviewed the letters of reference and recommendation from Mrs. Gurske's family members who uniformly praise her as a caring person. I have considered that Mrs. Gurske has suffered loss and hardship during her lifetime. Yet that is no reason to steal.

I'm not satisfied that a case has been made out that there are exceptional circumstances here. While she was suffering from undiagnosed mental health issues, she was still responsible for her actions. Like an addiction to drugs, a gambling addiction does not excuse criminal behavior; in this case, theft. I am satisfied there are no exceptional circumstances which would take this case out of the accepted range of sentence. Given that I have found the range to be between three to six years imprisonment, what is the appropriate sentence for this offender with these circumstances?

The case that bears striking similarly to this case is R. v. Hatch , Judge Stefanson's decision, found at tab two of the Crown's casebook of authorities. In that case, the accused was an employee of the Royal Bank. She pled guilty to defrauding her employer of one -- sorry, one million, fifty-one thousand dollars. It took place over four years. She paid restitution of 608,000 with a further $175,000 expected from the sale of her car and the family home. Two hundred and sixty thousand dollars was left outstanding. That accused had no prior record. She had two children who were teenagers.

She presented with depression and suicidal thoughts. She required surgery for a medical condition. Judge Stefanson cited direction from the Manitoba Court of Appeal. Firstly, to look at the quality and degree of trust reposed in that person. That accused, like Mrs. Gurske, was trusted and promoted to be in a manager type position within a financial institution. Secondly, the magnitude and the scale of the crime itself. Here it was $917,750; in Hatch it was just over one million dollars. Thirdly, look to the period of time over which the act was committed. In Hatch, it was four years three months. In Mrs.

Gurske's case; six years. Fourthly, the number of separate acts that must be committed to commit the crime. There were many here. This was not an isolated act by Mrs. Gurske. Fifthly, the degree of premeditation and planning. Here it was carefully done to balance the books to cover up the theft. Sixthly, what use was the money put to? In Hatch it was for investment. For Mrs. Gurske, it was her gambling addiction. This is the only significant difference I find in terms of aggravating factors. Mrs. Gurske, unlike Mrs. Hatch, was not motivated by greed, rather, addiction.

I'm satisfied that a reduction from the Hatch precedent of four years to three and a half years adequately takes that difference into account. Mrs. Gurske, I sentence you to three and a half years imprisonment. There will be a victim surcharge of $200. No court costs. There will also be a standalone restitution order against you in favour of Cumis, C-U-M-I-S, General Insurance Company in the amount of $602,750. Counsel, time to pay for the $200 victim surcharge? Do you want no time? MR. WALKER: I'll speak with her husband and it can probably be done -- THE COURT: Sixty days? MR. WALKER: Yeah. THE COURT: Okay.

Within 60 days. Mrs. Gurske, you're in custody. You'll have to go with the sheriff's officer. That ends court. THE CLERK: Order all rise. MS. AMBROSE: Good afternoon, Your Honour. _____