) Mr. S. Sass, ) for the Crown HER MAJESTY THE QUEEN ) ) Ms. T. Walker, - v. -, 2014 MBPC 30

2014 MBPC 30 THE PROVINCIAL COURT OF MANITOBA WINNIPEG CENTRE BETWEEN: ) Mr. S. Sass, ) for the Crown HER MAJESTY THE QUEEN ) ) Ms. T. Walker, - and - ) for the Accused ) KELLY ZABOROWICZ, ) ) Sentence delivered Accused. ) May 16, 2014 _____ ALLEN, P.J. (Orally) This, of course, is the sentencing of Kelly Zaborowicz. The accused, Kelly Zaborowicz, has pled guilty to Criminal Code offence,

Section 334 (a), theft over $5,000.00. The theft arose out of her employment as a nanny, personal assistant, and housekeeper, for Susan Wortzman, and her late husband, John Scurfield. Ms. Zaborowicz worked for the victims from July 1st, 2008, until March 25th, 2011. The sentencing of this matter began on September 16th, 2013, and was put over to October 11th, 2013, for further submissions. At that time defence counsel requested that the court order a report from Restorative Resolutions and a pre-sentence report, PSR. Final submissions were made on January 6th, 2014.

A pre-sentence report was prepared but Restorative Resolutions declined to prepare a restorative resolutions plan. The sentencing of this matter was reserved to today's date. Facts. Ms. Zaborowicz was hired by the complainant and her late husband in July of 2008. At the time she was hired she was told that Mr. Scurfield was terminally ill, and it was explained to her that she would be expected to play a stabilizing role in the life of both the couple's infant son, and the maintenance of the family's home. At some point, while employed with the victims, Ms. Zaborowicz stole cheques and a credit card from Ms.

Wortzman. She subsequently fraudulently wrote 192 cheques to numerous businesses for personal items purchased for her own use. Also while employed, the offender stole a credit card that Ms. Wortzman had activated but never used, and then used that credit card to make $57,549.95 worth of purchases for herself. The offender continued to write cheques for her own use and fraudulently utilized the credit card even after her employment with Ms. Wortzman ended in March of 2011. The total loss to the complainant was $165,673.21.

The money stolen by the offender was used for the purchase of mattresses, orthodontics, golf equipment, dues at the YMCA, automobile tires, a leather sofa and loveseat, a dining room table, a home theatre system, jewellery, clothing, spa treatments, hair salon services, and luggage. The 192 stolen cheques totaled $165,673.21. That total included forged cheques Ms. Zaborowicz used to pay for items purchased on the stolen credit card to the amount of $57,549.95. The Crown provided an example of some of the fraudulent purchases.

These included: March 14th, 2010, Future Shop electronics purchased in the amount of $2,441.55; May 21st, 2010, Golf Town, golf equipment valued at $980.00; May 23, 2010, again to Golf Town on McGillivray Boulevard to purchase golf accessories amounting to $357.07. Between June 23rd, 2010, and September 23rd, 2010: Defresne Furniture - items including a leather sofa and loveseat, a coffee table and a dining table and six chairs valued at $4,846.56. September 8th, 2011: Golf Town once again - golf equipment valued at $409.85. Other large purchases made by Ms.

Zaborowicz using the stolen credit card included: January 9th, 2010, The Bay - $1550.28 for a mattress and box spring; February 8th, 2010: ACP Orthodontics - $896.00; Future Shop, also that same day, a 5.1 channel home theatre system, a Sony blu-ray disc player and a Sony 46 inch LCD television. All of the electronics and furniture were delivered by the respective stores to Ms. Zaborowicz's residence. In addition, Ms.

Zaborowicz made purchases at Tommy Hilfiger, RW&CO. (which is a clothing store at Polo Park), Mappins Jewellers, Ben Moss Jewellers, Fabutan, Manitoba Liquor Mart, Urban Trail, and Mark's Work Warehouse.

These activities did not stop until September 12th, 2011, when the complainant realized that there was something amiss with her bank account and contacted Winnipeg Police. Police subsequently contacted Ms. Zaborowicz and on September 29th, 2011, the accused turned herself in to police. On October 12th, 2011, acting under the authority of a warrant, police searched Ms. Zaborowicz's residence and seized goods purchased with the stolen credit card in the amount of $9,035.03. The complainant, Ms. Wortzman, subsequently brought a civil suit against Ms. Zaborowicz. The offender did not contest the action. Ms.

Wortzman received a judgment for $165,673.21 and costs of $18,443.57. No monies have been voluntarily paid towards this judgment. The court was told that the accused had been employed for approximately one year before being garnished pursuant to the civil judgment. Pursuant to the Garnishment Order, $7,246.08 was taken from Ms. Zaborowicz's paycheques. At some point, in approximately January of 2013, the offender became ill and was not able to work. Counsel submitted that at the time of the initial hearing of this matter for sentencing, Ms.

Zaborowicz had been off work due to meningitis for approximately one year. When this matter returned to court in January of this year, I was told that she had returned to work and had saved $200.00, which she intended to provide to the victim. The court was told that the fraudulent purchases made on the stolen credit card took place between December 23rd, 2008, and September 12th, 2011. The stolen cheques were dated from September 17th, 2008, to September 7th, 2011. The majority of the cheques were payable to the offender and then deposited into her bank account.

The remainder of the cheques were used to pay off the balance of the stolen Hudson's Bay Company credit card. Position of the parties. The Crown and defence both agree that a period of incarceration is called for. The Crown believes that the jail sentence should be served in a provincial institution, and that incarceration in an institution is required to address the sentencing principles of general deterrence and denunciation. Defence counsel argues that those sentencing principles, when balanced with the sentencing principle of rehabilitation, can be met through the imposition of a Conditional Sentence Order.

I will refer to a Conditional Sentence Order as I go along as the CSO. The maximum penalty for this offence is 10 years of imprisonment. Although at the time of this offence a CSO was an available disposition, with amendments to the Criminal Code of Canada in January of 2012 a Conditional Sentence Order is no longer an available sentence for crimes committed after that date. Background of the accused. Ms. Zaborowicz comes before the court with no criminal record. She has pled guilty to the offence, saving the Crown what could otherwise have been a complicated prosecution.

The Pre-Sentence Report prepared by Curtis Moore from Restorative Resolutions, provided information that Ms. Zaborowicz became pregnant when 16 years old. She subsequently left school, but later attended night classes through Adult Education and obtained a GED. It is also related in the PSR that she suffered from asthma as a child and did not develop close friendships. She also indicated that in high school, she had aspirations to be a nurse and is currently inquiring about taking training to be a health care aide. In terms of employment, Ms.

Zaborowicz was employed at Grand & Toy for approximately 18 years until losing her job in 2008. At that point she was engaged by Ms. Wortzman and Mr. Scurfield. After her employment with the victim ended in 2011, she was employed on a full-time basis as a store manager at Stokes Incorporated. As reported in the PSR, the accused told Mr. Moore that she contracted meningitis in January of 2013 and subsequently lost her job. Ms. Zaborowicz is now earning $18.00 per hour as a result of recently rejoining the workforce. Ms.

Zaborowicz also reported that she had declared bankruptcy in 2000 after accruing significant debt with her ex-husband. As well, she told Mr. Moore that she had had her wages garnished "approximately 10 years ago" as a result of unpaid rent. The accused is currently living in an apartment with her youngest daughter. Amongst other expenses, she has a monthly payment on a debt to the Steinbach Credit Union in the amount of $5,000.00. Ms. Zaborowicz told the Probation Officer that she had a "close relationship" with her mother. However, when contacted, the offender's mother told Mr.

Moore that she was "shocked to hear what she did, as she thought (she) was working two jobs, and that is why she was not having any financial difficulties”. That's found in the PSR at the end of page 5 and the start of page 6. The mother also indicated that her daughter had never told her the details of the theft, and what she knows about it, she found out from newspaper articles. This lack of communication also applied to the offender's sister and brother, both of whom said they had not discussed the offence with their sister.

It was this lack of communication with her family which resulted in Restorative Resolutions refusing to do a report on Ms. Zaborowicz. Mr. Moore, the Probation Officer who works for Restorative Resolutions, explained the situation in an email to counsel (Exhibit 4), which said: It has been determined that she is not a suitable candidate for a Restorative Resolutions community based plan. Ms. Zaborowicz does not meet the criteria for accepting responsibility and being accountable in her life. This was determined after speaking (with) family collaterals.

It appears that although the family is aware of her offence, it is only because of what they have read in the paper. The family has never talked with Ms. Zaborowicz about the offence and she has never opened up to them about the offence. The family does, however, state they will support her however they can. And that's the end of the quote from Mr. Moore.

It was later determined at the sentencing hearing that Mr. Moore's opinion that Ms. Zaborowicz had not accepted responsibility and was not being accountable arose because she had not revealed the details of the offence to her family. In being interviewed for the preparation of the PSR, Ms. Zaborowicz told the reporter that "part of the money taken over the years was to help her financially with rent, groceries, clothes, and cash for his (her brother'

s) family." When contacted by the Probation Officer, the brother denied ever receiving financial help from his sister. Ms. Zaborowicz has two daughters ages 18 and 26. She does not have a relationship with her ex-husband, who she described as “an abusive and controlling individual”. Ms. Zaborowicz says that both her daughters have, at various times been, in her words, mentally unstable, and she told the court that her younger daughter had attempted suicide shortly before this matter appeared in court for sentencing. Mr. Moore asked Ms. Zaborowicz what she had used the credit card for.

She replied: I was using the credit card and money for personal reasons. She indicated that she would purchase food for her family, pay rent, monthly bills, buy furniture, clothes, and stuff for grandchildren, braces for her youngest daughter and sending her child to camp. Ms. Zaborowicz also mentions that she went to the bar every weekend, on both Friday and Saturday nights, with her sister for a majority of the three years she was employed by Ms. Wortzman. That is from page 8 of the PSR. Ms. Zaborowicz reported to Mr.

Moore that she had “never had any issues with drugs or alcohol”, and there is no indication that theft was motivated by issues of drug or alcohol addiction. It should be noted that Ms. Zaborowicz is assessed in the Pre-Sentence Report as being a medium risk to re-offend. In this regard, the report states: There are no significant criminogenic risk factors for this individual.

Other factors that may have criminogenic potential and have an impact on this case are; underachievement, financial problems, parenting concerns, depression, low self-esteem, past suicide attempt, other emotional distresses such as her pending court date, family concerns, past physical, sexual, emotional abuse, and being interpersonally anxious. And that is from page 9 of the Pre-Sentence Report. Victim impact. Susan Wortzman testified before the court as to how she has been impacted by this crime.

She told the court that of particular impact upon her was the fact that she had trusted Kelly Zaborowicz "with the care of my son and my home," and that she had breached that trust and betrayed her. She said the shock and impact of this event has "created ongoing difficulties for me in my professional, personal and family relationships." She says that to this day, she finds it very hard to trust others, including those with whom she places her son. She pointed out that as a single, working parent this is particularly stressful. Ms.

Wortzman told the court that her loss of confidence in others has extended to her workplace, where she now "discloses little information and keeps all records under lock and key." She related that she has installed comprehensive security systems in her home and has alarms activated at all times. Physically she said that she suffered many sleepless nights and she missed work due to exhaustion. Ms. Wortzman also talked about the hours of time spent with the police in an effort to determine what had been stolen. The impact on Ms.

Wortzman was so severe that she ended up in therapy and included costs, and, and incurred costs to pay for that counselling. The depth of the anguish felt by Ms. Wortzman is underscored by her statement: I continue to this day to be impacted by the actions of Kelly. When my husband and I first hired Kelly it was after he had been diagnosed with stage 4 melanoma. I clearly remember my husband, John, telling Kelly about his terminal illness and asking her if she could stick around through what was likely to be a terrible time for our family. He said we needed somebody who could help support our family.

He passed away in November of 2009. After that time as an only parent who travelled for work, I left Kelly, and trusted her implicitly to look after my son, my home, and help with some personal clerical matters. I needed tremendous support during this time and it feels like such a nightmare for me that a person in whom I placed so much trust betrayed me. Returning to the position of the parties. The Crown seeks a period of incarceration in a provincial institution.

The Crown cited various factors in support of this position including their assertion that the Pre-Sentence Report reveals discrepancies between statements made by the offender and contradictory remarks made by other members of her family. The Crown also takes the position that on the whole the report is not positive. The Crown also noted that the PSR considers that Ms. Zaborowicz is a medium risk to re-offend. Further the Crown argued that the sheer magnitude of the theft in this matter calls for a significant sentence.

Additionally the Crown suggested that sentencing considerations should include the fact that no stolen monies have been returned other than by garnishment and that the offender has never offered a repayment plan.

The Crown argued that this crime is not only a breach of trust, but is a particularly egregious breach of trust in that a large portion of these fraudulent transactions took place when the victim was particularly vulnerable. In this regard the Crown pointed out that Ms. Wortzman's husband, John Scurfield, died on November 14th, 2009, and on November 9th, 2009, Ms. Zaborowicz signed a cheque for $1,347.00. On November 16th, 2009, two days after Mr. Scurfield's death she signed a cheque to herself for $895.47. And on November 30th, 2009, she signed a cheque for $1357.00.

The Crown, in support of their suggestion that the principles of sentencing call for denunciation and deterrents in this situation suggested that the fact that Ms. Zaborowicz is a first offender should not preclude jail as it is normally the case that breach of trust thefts involve first offenders because it is people who do not have criminal records that are trusted by employers. Finally, the Crown argued that this crime is one of greed and as such should be dealt with accordingly. Defence position.

Defence counsel argued that the principles of sentencing in this case can be adequately met by a period of incarceration in the community. In support of this position the following was presented: The accused not having made restitution payments before being garnished should not be held against her as any payments would be "an admission against interest". The PSR interview makes it clear that Ms. Zaborowicz is ashamed of what she has done and that she is currently more focused on issues with her daughter than she is on her own situation. Defence counsel argued that Mr.

Zaborowicz's brother is an unusual person, and he may not have been completely accurate in denying to Curtis Moore that his sister had given him money. The PSR risk assessment which lists Ms. Zaborowicz as a medium risk to re-offend is contradictory because it says she has no significant criminogenic factors. Counsel argued that Ms. Zaborowicz has already suffered as the threat of jail has been hanging over her head for a considerable period of time.

Additionally counsel argued that a Conditional Sentence Order is within an acceptable range of sentence for this type of offence and that the court should be mindful of the Criminal Code

Section 718.2(

e) which says that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered. Counsel pointed out that the court was provided with letters of reference from her daughters and that the court should consider the offender's background as additionally revealed in those letters. Counsel stressed that his client has coping problems and is vulnerable, that she's a first offender and accordingly, should be treated with leniency. Counsel argued that his client is a victim of a difficult and impoverished childhood and an unsuccessful and abusive domestic relationship.

Counsel pointed out that his client is now employed and she has so far saved $200.00 which she plans to forward as restitution, and that it is her plan to continue to save money and make payments towards this debt as she is able to. Finally, defence counsel suggested that his client should be given credit for her guilty plea and the quantum of the loss could have been a triable issue. Turning to the law. In assessing what is an appropriate disposition in this matter, I've listened to the representations from the Crown and defence, as well as the offender herself. As well the court heard from the victim, Ms.

Wortzman, and was provided with reference letters on behalf of Ms. Zaborowicz. Having heard the above noted evidence I am satisfied that a jail sentence is required in this matter. I do not feel that a penitentiary term is called for. Both Crown and defence provided extensive case law. I turn now to an examination of the relevant law. The issue before the court is whether a Conditional Sentence Order pursuant to

Section 742.1 is appropriate. I am satisfied that having Ms. Zaborowicz serve her sentence in the community would not endanger the safety of the community. The question remains as to whether a CSO in this case would be consistent with the fundamental purposes and principles of sentencing as set out in

Section 718 to 718.2 of the Criminal Code . The relevant principles include, and this is now quoting from the Criminal Code of Canada, purpose and principles of sentencing,

Section 718 : "The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences;

(

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community." The fundamental principle of sentencing, which is at 718.1 of the Criminal Code reads that: "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." Other relevant sentencing principles are found at 718.2, which read: "A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (ii) ..." And I'm eliminating (i), I'm not referring to it, I don't believe it's relevant: "(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, shall be deemed to be an aggravating circumstance; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders." As noted above in

Section 718.1, the fundamental principle of sentencing in the Criminal Code is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In this case there is a high degree of moral blameworthiness. The offender committed a planned deceitful act of theft over a three year period. The amount of the theft is significant. The victim in this case was taken advantage of at an exposed, vulnerable, time in her life.

The nature of the breach of trust, someone who had not only been trusted with the care of the victim's infant child, but was by the nature of her employment part of the victim's household, is particularly egregious. It is also of great concern that these thefts were largely to purchase luxury items and can really only be categorized as stemming from greed. It is clear when a review of the relevant case law is conducted that in cases wherein there have been significant thefts from employers in situations resulting from a breach of trust that principles of denunciation and deterrence are significant.

It has also been accepted by the

highest courts in Canada that these principles can be met by the imposition of a CSO. It is also important to remember that rehabilitationmust be considered in this and in most sentencing considerations. As Ms. Zaborowicz stole money from her employer, this is a breach of trust situation.

Section 718.2(iii) of the Criminal Code, as statedabove, states that when an offender abuses a position of trust in relation to a victim, it is an aggravating factor to consider in sentencingthe offender. In Manitoba, the case of R. v. Paul, 2003 MBCA 153 , 2003 MJ 447, is considered the leading authority for breach of trustcases. Justice Freedman, speaking for the Manitoba Court of Appeal said at paragraph 14: "Abuse of a position of trust is expressly stated to be an aggravating circumstance in sentencing (s. 718.2(a)(iii) of the Criminal Code ofCanada).

Deterrence is the most important principle in such a situation." And he references R. v. McEachern, from the Ontario Court of Appeal in 1978, which is found at 42 C.C.C. (2d) at page 189. Going on with the quote from Justice Freedman: "Since the introduction of conditional sentences, courts have confirmed that abuse of a position of trust will tend to result in a custodialterm." And he refers to R. v. Pierce, which is at 3020 Ontario Court of Appeal 1997.

Going on with the quote: "The very strong message referred to by the trial judge, that persons in such a position who engage in this sort of conduct will be severelydealt with, cannot in my opinion be adequately communicated in this case by a sentence served in the community. While such a sentencecan, obviously, have a deterrent aspect, especially when (sufficient) sufficiently stringent conditions are imposed, there are some caseswhere denunciation and deterrence can only be effectively achieved by incarceration in custody.

A breach of trust, committed over along period of time and involving considerable sums of money, will typically be such a case. " Another leading case in Canadian law is R. v. Proulx, 2000, a decision of the Supreme Court of Canada. This case is often looked to byCanadian courts as instructive in determining whether a CSO will meet the fundamental purposes and principles of sentencing.

ChiefJustice Lamer speaking for the court, said the following at paragraph 113: "In sum, in determining whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing,sentencing judges should consider which sentencing objectives figure most prominently in the factual circumstances (for) the particularcase before them. Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likelybe more appropriate than incarceration.

In determining whether restorative objectives can be satisfied in a particular case, the judgeshould consider the offender’s prospects of rehabilitation, including whether the offender has proposed a particular plan of rehabilitation;the availability of appropriate community service and treatment programs; whether the offender has acknowledged his or her wrongdoingand expresses remorse; as well as the victim’s wishes as revealed by the victim impact statement (consideration of which is nowmandatory pursuant to s. 722 of (of) the (Criminal) Code). This list is not exhaustive.

Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravatingcircumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goalsmight be achieved by a conditional sentence.

Conversely, a conditional sentence may provide sufficient denunciation and deterrence,even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditions imposed, theduration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to beserved. Finally, it bears pointing out that a conditional sentence may be imposed even in circumstances where there are aggravatingcircumstances relating to the offence or the offender.

Aggravating circumstances will obviously increase the need for denunciation anddeterrence. However, it would be a mistake to rule out the possibility of a conditional sentence ab initio simply because aggravatingfactors are present. I repeat that each case may be considered individually. Sentencing judges will frequently be confronted with situations in which some objectives militate in favour of a conditional sentence,whereas others favour incarceration. In those cases, the trial judge will be called upon to weigh the various objectives in fashioning

a...sentence. As La Forest (La Forest) J. stated in R. v. Lyons, 1987 (a decision of the Supreme Court of Canada) “[i]n a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender”. There is no easy test or formula that the judge can apply in weighing these factors. Much will depend on the good judgment and wisdom of sentencing judges, whom Parliament vested with considerable discretion in making these determinations pursuant to s. 718.3." And that's the end of that quote. Returning now to

Section 718.2 of the Criminal Code is it important to note 718.2(

b) which states that: "A sentence should be similar to sentences imposed on similar offenders for similar offences...in similar circumstances." To that end I have been provided case law by both Crown and defence. What follows is an examination of those cases. Firstly, looking at cases provided by the Crown. R. v. Linda Cousins , which is an unreported decision of the Manitoba Provincial Court from July 5th of 2010. In this case, Ms. Cousins was employed as a controller/accountant for a private company selling flooring products. Over a period of approximately 20 months she stole $229,952.41 from the company.

These thefts were accomplished by inflating her paycheques. Ms. Cousins's childhood and domestic background included frequent upheaval and domestic violence which included her father forcing her mother into prostitution and trying to force her, as a young teenager, into prostitution. By the age of 15- and-a-half years she had left home. In the Cousins case the offender was a gambling addict. It was also noted that she had a cocaine addicted child who had been stealing from the family.

It was also agreed by the Crown and defence in that case that the money had been spent on financial obligations such as personal loans, a mortgage and tax payments, and that's from page 15 of that decision. Judge Stannard rejected a defence suggestion for a CSO and ordered Ms. Cousins to jail for 16 months. R. v. Hugh Geary , which is an unreported decision of Justice Schulman of Manitoba Queen's Bench, November 6th, 2006, in this case Mr. Geary served as secretary treasurer for his union while being employed as a mechanic by a large company.

Over a period of approximately 22 months he stole $129,000.00 from the union. Most of this money was used for the purchase of crack cocaine for his own use. Once again the accused did not have a criminal record. Justice Schulman rejected the suggestion of a CSO on the basis that in this opinion: It would be insufficient to satisfy the needs of this case for denunciation and general deterrence. That quote is from page 9, lines 18 to 20. Mr. Geary was sentenced to 15 months of incarceration. Notable that in that case is the fact that Mr. Geary had confessed.

He had found a good job and he had moved away from the drug culture. R. v. Wendy Holroyd , unreported decision of Provincial Judge Giesbrecht, Manitoba Provincial Court, January 8th, 2008. In this case, Ms. Holroyd pled guilty to theft of $81,000.00 from the daycare centre that had employed her. The duration of the thefts took place over an almost two year period. This individual, at the time of her thefts, had been addicted to crack cocaine, was abusing alcohol, and regularly gambled. It was also before the court that prior to the theft Ms.

Holroyd had been diagnosed with a number of mood disorders, including depression, anxiety, ADD, and obsessive/compulsive disorder. She had been prescribed medication, but after becoming addicted to crack cocaine stopped taking those medications. In this case, Judge Giesbrecht felt that a CSO: Would not be consistent with the purpose and principles of sentencing and would not achieve the objective of denouncing this unlawful contact (sic), conduct or deterring others from committing similar offences. That quote is from page 44, lines 17 to 22. Ms.

Holroyd had received a positive report from Restorative Resolutions and had completed substantial therapy. In that case the offender had already spent one month in jail and was sentenced to an additional period of 12 months in real jail. R. v. Brenda Paterson , unreported decision of Provincial Court Judge Guy from February 15th, 2012, in the Paterson case, Ms., Ms. Paterson was a financial controller, paid an annual salary of $40,000.00 a year. She worked for two related companies and stole $393,533.00 from the companies over a three year period.

As is normally the case in breach of trust situations, the offender had no previous record. Some of the stolen money was spent on a mortgage, but it was also spent on gambling and luxury items. In this case Judge Guy made the following comment about applying provided case law:

Counsel have been of assistance in filing not only these reports and exhibits, but a great deal of case law. And I do not downplay it because I have looked at the case law, but it is all over the place, if I could put it that way. Each case varies according to the individuals involved, the offender, and the circumstances of that case. So some cases are close to being on point, others emphasize one point rather than another, but there is no two sets of offenders, or circumstances that are the same, or otherwise somebody would give me one case and say there is the answer.

These cases are important though because they distill some of the principles that the court has to consider and sometimes they can be helpful in emphasising certain points that the court must take into consideration. But all of these cases are fact and offender specific.

The principles, I always say this, the principles that are given to the court on any case are quite understandable, the problem is that for the most part to draw some balance or emphasis between one case and another and where that balance and emphasis should be placed, where the weight should be placed to attach to a particular factor in a particular set of circumstances. That is why the task of judging is always a difficult one trying to get the right balance. And that quote is page 4 and page 5. It is noteworthy that in the Paterson case, Ms.

Paterson had, at the time of sentencing, already made restitution of approximately one- third of the amount stolen. Judge Guy concluded that in that case the principles of sentencing could only be met by a period of actual incarceration. He described the major considerations in his decision as being the amount of the theft, the duration of the theft, and the use made of the money. Ms. Paterson received a jail sentence of two years less one day followed by three years of probation. R. v. Rekken , an unreported decision of Provincial Court Judge Wyant from May 31, 2011. In this case Ms.

Rekken was an accountant in a small family run business. The offender had worked for the business for many years and was treated like a family member by her employers. Judge Wyant noted that the theft was not motivated by greed, but by addiction. He also noted that the likelihood of restitution was a factor.

At page 5 he said: The fact that there is no reimbursement, and frankly, there's no hope of reimbursement on a realistic scale, whether you go back to work and 455,000.00, I've heard no plan that really would give me any kind of confidence to suggest that there is really any hope of reimbursement and it means that this company and this family is out that money. And it is clear in many of the cases when we deal with them when someone comes forward and has a plan for reimbursement, or has made efforts at reimbursement that is certainly a mitigating factor.

So it's a factor to take into account that really we are talking about money that is not being repaid and little hope to repay it. Judge Wyant found that the fact that the offender did not disclose the breach was a significant factor. He said that at page 5, line 24. It's also found noteworthy in Rekken that, as in this case, the PSR revealed that the offender had not revealed the offence to her family.

In speaking of the pre-sentence report Judge Wyant said at page 8: But what really jumped out of the page for me was the fact that basically the diagnosis was that she was not accepting full responsibility for her actions, that she did not fully understand her wrongdoing, that she lacked insight to it, all of those seem to be huge risk factors to me, and that she had not disclosed it to anybody, to her family, to her husband, to her present employer at that point in time, and really lacked that kind of support.

In reference to an appropriate range of sentencing for breach of trust cases Judge Wyant said: The range of sentencing for breach of trust runs the gamut, and there are many, many cases in Manitoba for which conditional sentences have been given, and where periods of jail in a provincial institution have been given.

If you look at the cases involving major, major losses, planned and pre-meditated, losses as this is over a number of years, it is pretty easy to conclude that the Crown is right when it says that the range of sentence is two to three years for first offenders, depending on again the presence or absence of aggravating and mitigating circumstances. It is noteworthy that in this case the offender was rated as low risk to re-offend. Judge Wyant rejected a conditional sentence and sentenced Ms. Rekken to custody for 18 months and two years of probation. R. v.

Bracegirdle , which is a decision of the Alberta Court of Appeal found at 2004 Carswell Alberta 9, 936. Ms. Bracegirdle was an office manager who stole about $145,000.00 over a period of five-and-a-half years. The victim was the Alberta Cystic Fibrosis Society. The Alberta Court of Appeal in that case replaced a two year CSO with the same period in actual jail. In doing so they said that the sentencing judge had under emphasized both the moral blameworthiness of the accused and the harm caused to the victim.

On the issue of moral blameworthiness, the Court of Appeal said the following: "Dealing first with moral blameworthiness, the Respondent’s actions were persistent, ongoing, planned and deliberate. They were callous, stealing from a particularly vulnerable victim. Her motive was greed. Many crimes are motivated by sudden unanticipated

opportunity, intoxication, or impulse; few involve long term criminal behaviour, motivated by greed and visited upon one particularly vulnerable victim. The Respondent’s crime falls into the latter category. The consequences must be sufficient to deter others of like mind." That's from paragraph 40. Turning to cases provided by the defence. R. v. Davidson , which is a decision of the B.C. Court of Appeal 2012. In this case Mr. Davidson served as treasurer to a non-profit organization. He stole over $100,000.00. This case was distinguished by the fact that full restitution was made.

The Court of Appeal noted that this was a significant factor, and said at paragraph 27: "As to restitution, it is clear the judge recognized this as a distinguishing feature and expressly took it into consideration in deciding the appellant would be permitted to serve his custodial sentence in the community." R. v. Bunn , Supreme Court in 2000, Mr. Bunn was a lawyer who was retained by Russian lawyers to recover and remit inheritance money from the estates of six deceased Manitoba and Saskatchewan residents. In each case he stole some of the monies received. As a result of those thefts he was disbarred. Mr.

Bunn was given a two year conditional sentence. The Supreme Court said: "Turning to a consideration of the principles of sentencing, the court reasonably concluded that the ruin and humiliation that Mr. Bunn had brought down upon himself and his family, together with the loss of his professional status, could provide sufficient denunciation and deterrence when coupled with a conditional sentence of two years less a day with house arrest. The Court of Appeal also imposed a condition of 200 hours of community service which was capable of achieving the restorative objective of reparation to the community.

Moreover, the Court of Appeal noted important mitigating circumstances in this case. The respondent was the sole provider and caregiver for both his wife, who suffered from multiple sclerosis and had been confined to a wheelchair for years, and their teenage daughter." R. v. Victor Loewen , a decision of the Manitoba Provincial Court 2002, found at Canlii 37336. In this case Mr. Loewen defrauded the Bank of Montreal of over 1.3 million dollars and a Manitoba company, Corona Enterprises, of in excess of $200,000.00.

These thefts were done by “cheque kiting”, wherein he took advantage of “flow time” of the transfer of funds from one financial institution to another. Basically Mr. Loewen withdrew money which did not exist in order to keep a number of companies he controlled from declaring bankruptcy. Mr. Loewen was not considered to be in a position of trust with the bank, but he was with Corona Enterprises. It was also noted that Mr. Loewen's thefts took place over a short period of time.

He was given a Conditional Sentence disposition in part because he had already served 60 days in jail for related charges, and because it was accepted that his motivation was not to benefit from a lavish lifestyle, but was to keep his, quoting the case, "to keep his companies afloat and its employees paid." R. v. Champion , a decision of the Newfoundland Supreme court 2011, Carswell Newfoundland 30, Mr. Champion was the manager of a maritime fishing supply company. He stole $155,000.00 over a period of a year-and-a-half.

In granting an 18 month Conditional Sentence Order, Justice Faour of the Newfoundland and Labrador Supreme Court emphasized that Mr. Champion had been assessed as a low risk to re-offend, but placed particular emphasis on the fact that the offender was employed and therefore would be capable of making restitution payments to the victim company and other individual victims. R. v. Miles , Alberta Provincial Court 2010, found at Carswell Alberta 1828. In this case, Ms. Miles was employed by the victim company as an office worker over an almost two and one half year period.

She stole $203,712.00 by forging cheques and writing cheques to herself. After being caught the offender made a full confession. By the time of sentencing Ms. Miles had repaid $53,519.00 by way of restitution. She was considered to be of low risk to re-offend. Ms. Miles was ultimately given a CSO of two years. R. v. Shannon Phillips , 2006 a decision of the Manitoba Provincial Court. In this case Ms. Phillips was employed as an office manager and bookkeeper for Dubrovnik Restaurant Ltd. in Winnipeg. She defrauded that company of $57,870.00 over an 18 month period. Ms.

Phillips used 18 company cheques to pay her personal credit card bills and forged the signature of the owner's daughter on another cheque and placed that money in her own account. When this fraud began in 2003, the offender's salary was $19,000.00 a year. She was a single mother raising a young child with no financial support from the father. The owner of the company told her that he couldn't afford to pay her a larger salary. Ms. Phillips started stealing because she felt that she was being underpaid. Eventually the stolen money financed not only living expenses, but travel, furniture, and luxury items.

In this case, Ms. Phillips stopped stealing and resigned before the thefts were detected. Ms. Phillips did participate with Restorative Resolutions and in imposing a conditional sentence, Judge Judy Elliott felt that the support that the offender would receive from that organization would be a positive factor. In determining sentence Judge Elliott said: "A custodial sentence would be more punitive towards Ms. Phillips than it would be to most other offenders, in that she would be incarcerated far away from her young son. Those factors tilt me in the other direction." That's paragraph 34 from that decision.

Now to analysis. As is clear from a comprehensive review of the cases above noted as well as the other cases provided by counsel but not referred to, and many other sentencing cases related to Theft Over in breach of trust situations, each case is individual and must be looked at as to the individual circumstances of each offence and each offender. As stated previously the Criminal Code of Canada has specifically referenced crimes involving breach of trust at

Section 718.2 (a)(iii). In determining how much of an aggravating factor a breach of trust is we look to the Manitoba Court of Appeal in R. v. Grosbrink , which is a decision from 1992, which said: The extent to which a breach of trust in a particular case will operate as an aggravating factor will depend on the circumstances in which the relationship arises. (paragraph 7) Mitigating factors. In this case there are a number of mitigating and aggravating factors. Ms. Zaborowicz is 43 years old and has no prior criminal record. She has demonstrated remorse for the offence by her guilty plea.

Additionally, she directly addressed the victim in court and apologized to her. She has expressed a desire to make payments towards restitution. Aggravating factors. The large amount of money stolen: $165,673.21. The duration of the thefts, which took place over a period of approximately three years and continued even after the offender was no longer employed by the victim. The offender did not stop stealing from the victim until she was caught. The number of thefts, which included $57,549.95 worth of credit card purchases, and 192 fraudulent cheques.

The money stolen was for the most part used for luxury purchases to allow the offender to live a lifestyle beyond her means. Greed appeared to be the principle motivation for the money stolen. The nature of the breaches of trust. Unlike the vast majority of breach of trust cases, Ms. Zaborowicz was not employed by a company. She was employed by a husband and wife and her workplace was to be within their home and their household. Ms. Zaborowicz was hired by the couple and told that the husband was terminally ill.

The husband's terminal status was not only disclosed by the couple, but it was made clear to her that they were looking to hire someone who would serve as a steady influence through that difficult time for their infant child. She was employed to be a nanny for the child, and a housekeeper for the family. Evidence from the victim in the Victim Impact Statement makes it clear that Ms. Zaborowicz was entrusted with not only the care and maintenance of the child and household, but with financial matters that pertained to provisioning of the house and child. A Victim Impact Statement was provided by Ms. Wortzman.

The details of this statement have been related above. Suffice to say that the difference between a theft from a business or a company as opposed to an individual employer is underscored by the emotions demonstrated by the victim in this case. Unlike a company which can look on a theft of this magnitude as a business loss, likely covered by insurance, in a scenario like the one before this court, the loss is felt directly as a personal betrayal of trust. In her Victim Impact Statement, Ms. Wortzman dealt only incidentally with the significant financial loss.

But more emphatically with the resulting loss of faith she has in other people. In considering the offender's circumstances in this matter, I considered the PSR that was prepared, as well reference letters provided by Ms. Zaborowicz's daughters. Her oldest daughter, Alexandra, wrote about her admiration for her mother's perseverance in her marriage despite abuse from her husband. She also spoke glowingly of her mother's patience in supporting her through the difficulties of adolescence. Above all she wrote of her appreciation for her mother's assistance and support in raising her own children. Ms.

Zaborowicz's 18 year old daughter, Teagan, also provided a reference letter. Teagan also spoke as to the stability provided by her mother, particularly at times of personal crisis. Basically both letters describe Ms. Zaborowicz as someone who put her children's interests ahead of her own. The Pre-Sentence Report included a reference to Ms. Zaborowicz's aspirations to become a health care aide. The reporter says that she is currently making inquires about taking courses at CDI College or Assiniboine College in Brandon. While it is commendable that Ms.

Zaborowicz has aspirations to pursue a health care career, it is also arguable that this ambition demonstrates a lack of concern for reparation to the victim. At this point, the only restitution that has been paid to Ms. Wortzman is the $7,246.00 that was garnished from her. It is also noteworthy that after the thefts were discovered, the offender was employed for a full year before the garnishment was effected and no reparation was paid during that time period. It is arguable that rather than Ms.

Zaborowicz going into a training program, she should be focusing on retaining the job she currently has and making restorative payments to Ms. Wortzman. It is also noteworthy information from the PSR that the current garnishment is not the first time that the offender has been garnished. It appears that the offender had declared bankruptcy in 2000, and more recently had her wages garnished for unpaid rent. These matters coupled with the lavish nature of the purchases made with the stolen money, are to be considered in assessing the future risk presented by this offender.

It is also worth noting that in preparing the PSR, the reporter asked Ms. Zaborowicz as to her income and expenses. I find it concerning that when her basic expenses are looked at against her income, and that is her income without any of the normal deductions which are automatically taken from employment income, her net income is only approximately $500.00 per month more than her expenses. Realistically, this provides very little room for reparation payments. Additionally concerning information from the PSR comes from Mr. Moore's interview with Ms.

Zaborowicz's mother, who told him that she was shocked to find out about the theft and that she thought her daughter was doing so well financially because she was working at two jobs. It would appear that Ms. Zaborowicz, who claimed to be close to her mother, was not honest with her and was deceptive about her actual employment situation. It is also concerning as to Ms. Zaborowicz's honesty when we read in the PSR:

That a part of the money taken over the years was to help her brother financially with rent, groceries, clothes and cash for his (her brother’

s) family. That is from page 5 of the PSR. When the brother, Ken, was spoken to, he denied ever receiving financial help from her. Counsel for Ms. Zaborowicz suggested her brother may not have been telling the truth to Mr. Moore, but provided no satisfactory explanation as to a motive for doing so. Ms. Zaborowicz, through counsel, suggests that caring for her two adult daughters has been a significant strain on her and that her younger daughter recently tried to kill herself.

Yet the grandmother, who concurs as to enjoying a close relationship with her daughter and who was interviewed within two months of the alleged suicide attempt, says her “grandchildren are doing well at this time in their life” (page 7). Restorative Resolutions declined to become involved with Ms. Zaborowicz because they felt that she was "not accepting responsibility and being accountable in her life." This was determined after speaking to family collaterals. It appears that although the family is aware of the offence, it is only aware because of what they have read in the newspaper.

The family has never talked with Ms. Zaborowicz about the offence and "she has never opened up to them about the offence" (which is included in the email from Mr. Moore at Exhibit 4). While it may be understandable that Ms. Zaborowicz is embarrassed and humiliated by what she has done, I am not prepared to accept that because she has not discussed this matter with her family she has not taken responsibility before the court and the victim. She has done that with her guilty plea and her apology to her, Ms. Wortzman, in court.

However, the fact that she has not discussed it with her family suggests that she has not taken responsibility for her crime with them. And collaterally this raises concern as to how much assistance or support they might be to her in the future. The fact that she has not acknowledged her behaviour to her family is one of several factors, including her financial instability, previous problems with money and debt, the lavish nature of the spending, including attending bars "every weekend on both Friday and Saturday nights with her sister for a majority of the three years she was employed by Ms.

Wortzman" (PSR page 8), would indicate that there is a risk that Ms. Zaborowicz may commit a similar offence in the future. Imposition of a Conditional Sentence Order.

Section 741.(1) of the Criminal Code sets out criteria for the imposition of a CSO. Firstly, the sentence must be for a period of incarceration of less than two years. Having looked at case law both in Manitoba and the rest of Canada, I am satisfied that a sentence of less than two years would be appropriate in this case. I am also satisfied that the sentencing guidelines in

Section 718 , most particularly denunciation and deterrence, rule out the possibility that a period of probation alone would be an appropriate disposition. Going further, although I have concerns about the risk Ms. Zaborowicz presents to become re-involved, I do not believe, particularly based on her prior unblemished criminal record, that the service of an appropriate sentence in the community would endanger the community. This, of course, leaves the final criteria being whether a CSO would be consistent with the fundamental purposes and principles of sentencing as set out in 718 to 718.2 of the Criminal Code .

As clearly stated in Canadian case law, in substantial thefts of this nature involving a breach of trust, the primary sentencing objectives are the denunciation of the crime and the deterrence of the accused and others from committing similar offences. The issue before this court is whether these objectives can be met within the context of a CSO. As stated above, there are cases in our law which have found that these objectives could be met within the context of a CSO, and there are cases that have felt that a CSO would not meet these objectives.

Denunciation was described by Justice Lamer in the Proulx case (paragraph 102) as “the communication of society's condemnation of the offender's conduct”. He also further attempted to define this principle in R. v. M(CA) , 1996 Supreme Court Reports 500, at paragraph 81, page 369: It is “a symbolic collective statement that the offender's conduct should be punished from encroaching on our society's basic code of value. ...

The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated.

In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed in the Criminal Code ”. In this case, the quality of the breach of trust is arguably more egregious than a theft from a company and therefore calls more emphatically for denunciation. Ms. Zaborowicz was employed on a personal services basis as a nanny.

She took advantage of a victim who was trying to maintain her infant child, her business, and her household, while in the process of coping with the terminal illness of her husband. Within days, both before and after her husband's death, Ms. Zaborowicz was stealing from the family for her own greed. In my opinion, this is a breach of trust at the high end of the scale of wrongdoing and moral blameworthiness. The Supreme Court of Canada in P.(B.W.);N. (B.V.), a 2006 decision of the Supreme Court, explained the theory behind general deterrence:

General deterrence is intended to work in this way. Potential criminals will not engage in criminal activities because of the example provided by the punishment imposed on the offender. When general deterrence is factored in the determination of the sentence, the offender is punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity. As stated earlier, R. v. Paul from the Manitoba Court of Appeal, in referring to

Section 718.2 (a)(iii) of the Criminal Code said that “deterrence is the most important principle in such a situation”. (paragraph 14) That case pointed out that while a CSO can have a deterrent effect: There are some cases where denunciation and deterrence can only be effectively achieved by incarceration in custody.

A breach of trust committed over a long period of time involving considerable sums of money will be such a case. (Paragraph 16) While the case before the court would appear to meet the above requirements as to having taken place over a relatively lengthy period of time and concerning a large amount of money, each case must be looked at as to its individual circumstances.

As a last word on denunciation and deterrence, Clayton Ruby in his textbook on sentencing ( Sentencing , Clayton Ruby, 8th edition LexisNexis), quotes legal author Barbara Wootton from her book, Crime And The Criminal Law: Reflections of a Magistrate and Social Scientist , as suggesting that “Sentencing should focus on preventing social harm rather than punishing moral wrongs”. (page 17, paragraph 1.48) It seems to me that denunciation in this case is meant to serve this function. An appropriate sentence is not designed to punish Ms.

Zaborowicz for her wrong, but must denounce this crime as harmful to the general well being of society and deter others from similar actions. In most criminal sentencing, the fact that the offender has no previous record will be mitigating. However, some Canadian courts have said that some kinds of offences are unsuited to mitigation for this reason. In R. v. Spiller , which is a 1969 decision of the B.C. Court of Appeal, the offender pleaded guilty to stealing and falsifying documents which amounted to a $492,000.00 loss to her employer, a chartered bank.

On the issue of the perpetrator's general good character the court said the following: Good character may be a mitigating circumstance in some kinds of crime, i.e., an isolated case of criminal negligence or an unpremeditated assault in a fit of anger. But in my opinion this is not so where the offence is a series of acts planned and carried out over a lengthy period. The person of good character who can appreciate to the full how wrong what he is doing is, seems to me just as culpable as a person of poor character who appreciates less clearly the wrongness of his acts.

She used her apparent good character to enable her to perpetrate her crime. Now, her counsel wants to use it in mitigation of penalty. In this case counsel for Ms. Zaborowicz argued that it is only in the community that his client can start to make reasonable reparation. He pointed out that her illness prevented her from working for approximately the last year, and that in the approximately six weeks she's been back to work she has set aside $200.00 to eventually make a restitution payment. While it is true that if incarcerated Ms.

Zaborowicz will not earn monies for reparation, I see this argument as having little merit. The only monies paid back thus far have come from a garnishment and there's been nothing from that for a considerable time period. Additionally Ms. Zaborowicz is earning only a relatively small amount more than her basic costs of living and her prospects for reparation are not great. Very little has been repaid and realistically there's little hope that it will be repaid.

Section 718 (

d) of the Criminal Code lists rehabilitation as one of the fundamental principles of sentencing. A general definition of this principle was provided in the case of Vartzokas v. Zanker , which is a Supreme Court decision from 1989. What follows is a quote from page 279 of that case: Rehabilitation as an object of sentencing is aimed at renunciation by the offender of his wrongdoing and his establishment or re- establishment as an honourable law abiding citizen. It is not confined to those who have fallen into wrongdoing by reason of physical or mental infirmity, or a disadvantaged background.

It applies equally to those who while not suffering such disadvantages nevertheless lapse into wrongdoing. The object of the court is to fashion sentencing measures designed to reclaim such individuals wherever such measures are consistent with the primary objective of the criminal law, which is the protection of the community. In this case, there are a number of factors which must be considered in determining what, if any, effective measures can be looked at to assist with Ms. Zaborowicz's rehabilitation.

Firstly it is important to note that she is described by Curtis Moore, the author of the Pre-Sentence Report, as a medium risk to re- offend. The factors he cited as having “criminogenic potential” are underachievement, financial problems, parenting concerns,

depression, low self-esteem, past suicide attempts, other emotional de-stressors such as her pending court date, family concerns, past physical, sexual, emotional abuse and being interpersonally anxious. While all of these factors may have contributed to Ms. Zaborowicz's offending and may also contribute to her future potential to re-offend, the court has limited resources to effectively contribute to assist her in these areas. It is also arguable that this crime was a situational response to being in circumstances which allowed the opportunity to steal and that those circumstances arose because Ms.

Zaborowicz was considered to be someone who could be trusted. As a result of this conviction, Ms. Zaborowicz will have a criminal record for a significant theft and the likelihood of her being trusted again will be diminished. There is a significant rehabilitative potential in probation. Probation Officers are dedicated individuals who have chosen a line of occupation which allows them to support and assist those involved in the criminal justice system. There's every reason to believe that Ms.

Zaborowicz stands to gain considerably from the support offered to her by the monitoring and program referrals made by her Probation Officer. The issue of rehabilitation in my mind does not significantly impact the question before the court as to whether Ms. Zaborowicz should serve her sentence in jail or in the community. As the jail sentence in this case will be less than two years, probation will be employed in either case. Counselling is available in jail as it is in the community. I do not believe that anything the criminal system can provide Ms. Zaborowicz would be interfered with by a custodial sentence.

While Ms. Zaborowicz's rehabilitation is one of the significant considerations, this sentencing, as with all sentencings, must balance all significant considerations. The Supreme Court of Canada summed this up succinctly in R. v. Lyons , a 1987 Supreme Court decision, which states at page 22: "In a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender." Having looked at the nature of the crime and the circumstances of Ms.

Zaborowicz, and having asked myself whether the purpose and principles of sentencing can be met within the context of a Conditional Sentence Order, I have come to the conclusion that they cannot. In this case, the aggravating facts of this offence outweigh the mitigating factors and circumstances of the offender. This is a serious offence with significant moral blameworthiness. I am not satisfied that the sentencing principles of denunciation and deterrence can be met with a Conditional Sentence Order. The theft in this case involves taking advantage of victims who were at their most vulnerable.

While this couple was dealing with impending death, Ms. Zaborowicz was stealing from them. These thefts continued for a lengthy period of time, long enough that at some point the offender would have had time to think about what she was doing and to re-consider her actions. The thefts continued beyond the period of employment and only came to an end after discovery by the victim. The net result of Ms. Zaborowicz's greed was that not only did the victim suffer a significant financial loss, but suffered a significant loss of well being from the actions of the offender.

I accept that in some cases a CSO can provide significant denunciation and deterrence. In this case, for all of the above reasons, I believe a period of incarceration in jail is required to communicate society's condemnation of this conduct and to let others know that in situations like this, there will be significant consequences. In considering the appropriate length of sentence I am taking into consideration that: Ms.

Zaborowicz is a first time offender; she plays an important role in supporting her two children; and it is important that she return to the workforce as soon as practicable so that she can start making restitution payments to Ms. Wortzman. In determining an appropriate length of sentence, the precedents are of limited value because in almost all examples, the thefts were from companies or businesses. While I recognize that in many similar cases with thefts of significant amounts of money there is a range from one to two years of incarceration.

I am satisfied that in this case the principles of sentencing are appropriately met by a sentence of 12 months in custody, served in an institution. This period will be followed by two years of supervised probation. The conditions of the Probation Order will include that she is to report to probation within 48 hours of her release from custody using the 1-800 number. She is to keep the peace and be of good behaviour and all the statutory conditions will apply. She's to attend, participate and complete all counselling programming and treatment as directed by her Probation Officer.

She's to actively seek and maintain employment, and she's to notify all perspective employers about this conviction. Costs and surcharge are waived. All items seized are to be forfeited. The Crown has requested restitution and a stand alone Restitution Order is being made in the amount of $158,427.21, which is the requested restitution amount with the garnished monies subtracted. And unless either counsel have any comment about the probation conditions or about the amount of the Restitution Order? I understand that some furniture was seized and so on... I'm not sure. Mr.

Sass, I'm assuming that if those items are sold, I'm assuming that money will go towards the restitution. MR. SASS: That's correct, Your Honour. Yeah, once -- THE COURT: Okay. MR. SASS: -- once they've been sold they'll go against the restitution order.

THE COURT: All right. Mr. Sass, did you have any other probation conditions that you would be looking for? MR. SASS: Not probation conditions, Your Honour. The only other thing I would suggest, it's only a secondary designated DNA offence, however, the Crown's requesting the court make a DNA order. THE COURT: Okay, well, do you want to comment? Does, Mr. Sawchuk, is Mr. Sawchuk not there? MS. WALKER: Mr. Sawchuk's not in attendance, Your Honour. It's Walker, first initial T., for the monitor. I'm aware of -- THE COURT: Yeah. MS.

WALKER: -- the case, and have been involved, and prepared the casebook for Your Honour. THE COURT: Okay. MS. WALKER: In terms of the DNA orders, I would suggest it's a secondary designated offence, and that in ordering one at this point goes beyond what the court needs to do to ensure that Ms. Zaborowicz follows the conditions, that it isn't necessary in this case. THE COURT: You know, I'm prepared to accept that suggestion. I think that under the circumstances, in this being a first offender and the nature of this crime and so on, I'm not necessarily satisfied that a DNA order is appropriate.

So I will decline to make a DNA order. Is there anything else counsel? MR. SASS: I'm not sure if Your Honour ordered a no contact and communication with the complainant. THE COURT: You know, I didn't, and I should have included that. Mr. Sass, thank you for that suggestion. Madam Clerk, there will be a clause included in the Probation Order which will prohibit contact with Ms. Wortzman, and will also include a non-attendance clause which requires that she stay 75 metres from where Ms.

Wortzman is at any time, including her workplace, home, place of worship, and so on. _____ ORIGINAL SIGNED BY: LAWRENCE ALLEN, P.J.