Her Majesty the Queen - v. -, 2013 SKPC 218

IN THE PROVINCIAL COURT OF SASKATCHEWAN Date: December 13, 2013 Citation: 2013 SKPC 218 Information: 44331804 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Amanda Davey Appearing: B. Pashovitz For the Crown L. Sullivan For the Accused SENTENCING DECISION D.C. SCOTT , J Introduction [ 1 ] Amanda Davey entered a guilty plea to one charge that between January 1, 2010 and April 30, 2012, she defrauded Prairie Mobile Communications of money in the sum of $41,993.44 contrary to s. 380(1) (

a) of the Criminal Code .

[ 2 ] In addition to sentencing submissions by counsel, I have also considered a pre-sentence report and a letter from and representations by Ms. Davey’s counsellor, Ms. Lisa Hill. [ 3 ] It is not disputed that a jail sentence is warranted in this case. The Crown seeks a period of incarceration for one year, along with an order for restitution. Counsel for Ms. Davey asks that I impose a conditional sentence for 18 months to be followed by probation and restitution.

The Crown does not dispute that a conditional sentence is available, but takes the position such a sentence is not appropriate in the circumstances of this case. If I were to impose a conditional sentence, the Crown asks that it be in the range of two years less one day. Circumstances of the Offence [ 4 ] Ms. Davey was an employee of Prairie Mobile Communications at the time of the offence. As the result of an investigation undertaken by the company after observing unusual refund transactions, Ms. Davey was confronted by her employer.

She admitted responsibility for using three credit cards belonging to her, to process false refunds, for her benefit. A further investigation determined that a total of 79 such transactions had occurred over a period of two years, resulting in false refunds in the amount of $41,993.44. Circumstances of the Offender [ 5 ] Ms. Davey is now 31 years of age and has a Grade 12 education. According to the pre-sentence report, she had a difficult upbringing. She was raised by her mother after her parents divorced and has only a distant relationship with her father. Ms.

Davey reports having been the victim of sexual, physical and emotional abuse during her youth and teen years. Details of the abuse are set out in the report. Until very recently, she has not addressed this trauma through counselling or treatment. [ 6 ] She has been in a serious common-law relationship for the past five years and has no dependants, although her partner has two teenage children from a previous marriage who visit every other weekend. There have been financial and personal difficulties in the relationship, however since Ms. Davey began accessing professional help, the relationship has improved.

Her partner reports Ms. Davey is very good with his children and is a kind, loving, caring and helpful person. [ 7 ] Ms. Davey’s mother, younger brother, common-law partner and his children are her positive pro-social supports. She has a few close friends, none of whom have been involved with the criminal justice system. [ 8 ] Ms. Davey describes herself as in good physical but poor mental health. In the past, she has suffered from multiple miscarriages. In 2009 she was diagnosed with depression accompanied by suicidal ideation. She has since been prescribed medication and is supervised by a family physician.

She reports minimal use of alcohol and no use of other substances. [ 9 ] Ms. Davey says she became addicted to gambling approximately three years ago, as an escape from her troubles. She cited financial, relationship and personal stress, depression and isolation, along with lack of parental support as being factors contributing to her gambling behaviour. [ 10 ] Ms. Davey explains that she took the money from her employer to support her gambling addiction, which at the time consumed her life. After being charged, she quit gambling on her own without any treatment.

She continues to manage the gambling herself, but suggests she needs professional assistance. She has taken no treatment specifically directed at gambling, but is involved in personal counselling. [ 11 ] Ms. Davey is extremely apologetic for her offending behaviour and is embarrassed, ashamed but also relieved, presumably because she can now deal with its underlying causes.

[12] Since April 2012, she made attempts to address her gambling and personal issues without success. However, in August 2013she connected with Ms. Lisa Hill, a personal counsellor. [13] Ms. Davey had met with Ms. Hill four times to October 21, 2013, the date of Ms. Hill’s letter. According to Ms. Hill, Ms.Davey has taken counselling seriously and has been willing to participate during every session. It is Ms. Hill’s opinion that Ms. Daveywould benefit from long term weekly counselling. Ms. Hill is willing to continue working with Ms.

Davey and believes she canovercome her past, because of her strong desire to change the direction of her life. Ms. Hill believes Ms. Davey is open and willing tomake the changes necessary and has done relatively well. In Ms. Hill’s opinion, Ms. Davey is not a high risk to re-offend. [14] As of the date of the pre-sentence report, Ms. Davey reported not having gambled for approximately one and one-half years. She is willing to attend additional programming as required. Pre-sentence Report Risk Assessment [15] According to the writer of the pre-sentence report, Ms.

Davey’s overall risk for general re-offending was assessed as beinglow. Her risk factors include substance use, gambling and her financial situation. The writer is of the opinion these factors can bemanaged within the community, given the steps Ms. Davey has already taken and her willingness to continue working with hercounsellor and physician. Criminal Record [16] Ms. Davey comes before the Court with convictions in 2006 for two counts under s. 342(1)(

c) of the Criminal Code, arisingfrom her use of a friend’s parents’ credit card, for which she received a suspended sentence, 18 months probation and an order forrestitution in the amount of $6,900.00. She paid the restitution in full. Impact on the Victim [17] No victim impact statement was presented, but the Court can infer that her former employer will have experienced somefinancial hardship as well as betrayal arising from Ms. Davey’s abuse of her position of trust as an employee. Analysis [18]

Section 742.1 of the Criminal Code establishes the preconditions for the imposition of a conditional sentence. The offencemust not be one specified as ineligible; the sentence to be imposed must be a jail term of less than two years; the Court must be satisfiedthat the safety of the community would not be endangered and the sentence would be consistent with the sentencing objectives in ss. 718to 718.2. [19] The following principles to be applied when considering the imposition of a conditional sentence were articulated in R. v.Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61: 1.

Because the conditional sentence was enacted to reduce reliance on incarceration and increase the use of restorative justice principles,it should be considered in all eligible cases; 2. A conditional sentence is intended to be both punitive and rehabilitative. Punitive conditions will generally restrict the offender’sliberty;

3. In determining whether the safety of the community would be endangered, the Court should take into account the risk of re-offending and the gravity of the damage that would ensue in the event of re-offence; 4. The Court should consider whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2; 5. A conditional sentence can provide significant denunciation and deterrence; 6.

A conditional sentence will better achieve the restorative objectives of rehabilitation, reparations to the victim and the community, promotion of a sense of responsibility in the offender and acknowledgement of the harm done to the victim and the community; 7. A conditional sentence may be imposed even where there are aggravating circumstances, although the need for denunciation and deterrence will increase in these circumstances. [ 20 ] Ms.

Davey has pleaded guilty to fraud between January 1, 2010 and April 30, 2012, during which time there was no mandatory minimum punishment prescribed by the Criminal Code and the maximum penalty was imprisonment for up to fourteen years. As such, this offence is eligible for a conditional sentence. The Crown is seeking a period of incarceration for one year. I am satisfied that a jail sentence for a period of less than two years is appropriate. [ 21 ] I am also satisfied Ms. Davey would not pose a danger if she were allowed to serve her sentence in the community.

While she has a limited criminal record, she has not been convicted of any offences for more than seven years. There are no issues of substance abuse. She is willing to continue with counselling to address her underlying problems and has family support.

She has been assessed as a low-risk to re-offend. [ 22 ] The Court must also consider whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing in ss. 718 to 718.2 of the Criminal Code . [ 23 ] According to ss. 718 to 718.2 of the Criminal Code , the objectives of sentencing are to denounce unlawful conduct, deter the offender and others from committing offences, separate the offender from society where necessary, assist in the rehabilitation of the offender, provide reparations for victims and promote a sense of responsibility in the offender.

A sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender; should be increased or decreased to reflect aggravating and mitigating factors; and be similar for similar offences, offenders and circumstances. All available sanctions other than imprisonment, that are reasonable, should be considered. [ 24 ] In cases of large scale fraud involving a breach of trust, denunciation and deterrence are the primary factors to be considered.

Incarceration will generally provide more denunciation or condemnation than a conditional sentence, although a conditional sentence can also significantly denounce offending behaviour: Proulx , para. 102 . Similarly, incarceration may provide more deterrence, but a conditional sentence can serve as a general and specific deterrent. While the amount taken in this case is not insignificant, I would not characterize this fraud as “large scale”. [ 25 ] A conditional sentence will better achieve the restorative objectives: Proulx . Ms.

Davey’s history and personal circumstances suggest there ought to be a rehabilitative component to any sentence imposed. This is supported by the pre-sentence report. She has begun to take steps toward her rehabilitation by engaging in personal counselling and treatment by a physician and is willing to continue doing so. The imposition of conditions would support her in her efforts. [ 26 ] To date, Ms. Davey has repaid $6,690.00 to her former employer. She is willing to make full restitution and has taken on three jobs to allow her to do so.

The need to make reparations does not necessarily preclude a sentence of incarceration, as a restitution order under s. 738 of the Criminal Code would bind Ms. Davey after her release from custody. However, as pointed out by her counsel, an order for monthly payments in the range of $1,000.00 as part of a conditional sentence and probation order would ensure that

restitution is repaid in a timely manner. [27] The principle of proportionality seeks to ensure offenders are held responsible for their actions and that the sentence properlyreflects the gravity of the offence. The offence here is very serious, carrying a maximum penalty of fourteen years imprisonment. Amendments to the Criminal Code in 2012, although not applicable in this case, no longer allow a conditional sentence for frauds over$5,000.00, indicating Parliament’s view of the seriousness of this crime. Here, Ms.

Davey carried out a relatively sophisticated planinvolving many transactions over a two year period, taking more than $40,000.00 from her employer. [28] The principle of parity requires that the sentencing Court consider similar sentences imposed on similar offenders for similaroffences committed in similar circumstances. A review of relevant cases follows. Gambling cases [29] In R. v. Horvath, (SK CA), 1997 S.J.

No. 385 (C.A.), where a bank manager, who had been diagnosed witha severe case of pathological gambling addiction, defrauded her employers of more than $200,000.00 over a two year period through anelaborate scheme, the Court of Appeal upheld a conditional sentence of two years less one day. [30] In R. v. Harding, 2006 SKCA 118, a union employee with no criminal record, defrauded his employer of more than$300,000.00, involving 900 transactions, over a period of six years. The offender was diagnosed as having a pathological gamblingdisorder with a medium risk to re-offend.

The Court of Appeal overturned a two year conditional sentence, indicating eighteen monthsincarceration was necessary to reflect the seriousness of the offences and offender’s involvement. The Court also found the gamblingproblem was not as severe as in Horvath. [31] In R. v. Oates, 2008 SKQB 274, an employee with a severe gambling addiction defrauded her employer, a governmentagency, of more than $400,000.00 by an elaborate scheme over a period of several years.

Although the offender used the money tosupport her gambling addiction, paid $200,000.00 into Court prior to sentencing and expressed remorse, because of her related criminalrecord and the magnitude and premeditation of the offence, individual deterrence warranted a sentence of fifteen months incarceration. The circumstances were distinguishable from Horvath, where the offender had significantly diminished her personal resources to gamble. [32] In R. v.

Salikin, 2011 SKPC 179, where a village administrator who defrauded her employer of $65,000.00 over a period ofseveral years was motivated by financial difficulties and a gambling problem, the Court imposed a conditional sentence of eighteenmonths. [33] In R. v. Hache, 2012 SKPC 38 , 2012 SKPC 038, I imposed a conditional sentence of two years less one day and arestitution order upon an offender, who defrauded his employer, a public entity, of approximately $143,000.00 over a period of fourweeks, and who suffered from a serious gambling addiction resulting in the depletion of his family resources.

Other fraud cases involving breach of trust [34] In R. v. Purves, 2011 SKQB 162, the offender pleaded guilty to three counts of defrauding her employers and a communitygroup with which she was associated, by manipulating financial records, using the employer’s credit card for her own benefit and writingcheques to herself, over approximately two years and resulting in losses of more than $150,000.00. The offender suffered from alcoholdependence, depression and anxiety. She had no criminal record and was assessed as a medium risk for re-offending.

The Courtimposed a conditional sentence of two years less one day and orders for restitution. [35] In R. v. Moulton, 2001 SKQB 82, the offender, motivated by financial difficulties, defrauded a government-funded co-operative of which he was a member in the amount of $228,000.00. The Court found the offender had betrayed the trust of hisneighbours and friends who were also members of the co-operative and who were vulnerable victims. The Court found the need fordenunciation and deterrence could be achieved through the terms of a conditional sentence for a period of two years less one day with

strict conditions. [ 36 ] In R. v. Fehr, 2001 SKCA 37 , where a bookkeeper defrauded his employer of $220,000.00 over a period of ten years, the Court of Appeal held that a two year conditional sentence was unfit and replaced it with a term of incarceration for eighteen months. The Court of Appeal took into account the long-term abuse of authority and that the offences were motivated by greed, rather than illness or severe addiction. [ 37 ] In R. v.

Maskwa, 2013 SKPC 15 , an offender, who defrauded a contractor of $146,000.00 over a period of three years, who suffered from bipolar affective disorder and had no criminal record, was sentenced to a conditional sentence of two years less one day, followed by a term of probation and a restitution order. [ 38 ] In R. v. Webb, 2011 SKPC 181 , where the offender defrauded his ailing uncle of $65,000.00 over a one-year period, a joint submission for a 12 month conditional sentence was rejected by the sentencing judge; instead, the Court imposed a conditional sentence of eighteen months. [ 39 ] In R. v.

West, 2012 SKPC 145 , a bookkeeper, with no criminal record, defrauded two separate employers, one in the amount of $9,000.00 over a period of three months and the other in the amount of more than $600,000.00 over a one-year period. The Court held that a conditional sentence would not be consistent with the principles of sentencing and imposed a sentence of 21 months incarceration, in total. [ 40 ] I also note the investigation in the present case uncovered similar transactions committed by Ms. Davey’s co-worker, who was charged with theft over $5,000.00.

The co-worker, who had no criminal record, was granted a conditional discharge, as the amount taken was just over $5,000.00, significantly less than Ms. Davey’s fraud. [ 41 ] The Court must also consider the mitigating and aggravating factors in this case. Mitigating Circumstances [ 42 ] Ms. Davey has accepted responsibility and expressed remorse, shame and embarrassment for her actions. When confronted by her employer, she admitted the offence and provided a warned statement to the police.

She entered a guilty plea and as a result, there was no need for a preliminary hearing or trial. [ 43 ] Her offending behaviour was not motivated by greed or personal gain. She no longer gambles. She was assessed as a low risk to re-offend and is taking steps to address her risk factors. [ 44 ] Ms. Davey has already begun to repay Prairie Mobile Communications. She has expressed her determination to pay the full amount owing, and has taken on three jobs so that she may do so.

Aggravating Circumstances [ 45 ] The offence involved the abuse of a position of trust, which is an aggravating factor according to s. 718.2(a)(iii) of the Criminal Code . The offences for which she is being sentenced involved the planning and execution of a relatively sophisticated scheme and a significant number of transactions over a two year period. While not a large scale fraud, the amount taken was not insignificant. This offender comes before the Court with a criminal record and although somewhat dated, it is related.

Conclusion [ 46 ] In sentencing offenders for frauds involving a breach of trust, the courts have considered key factors to be the amount of funds taken, the period of time over which the fraud occurred, the sophistication of the plan, whether the victim was a public body, whether the offender had repaid any or all of the funds taken, the offender’s motivation, including evidence of gambling, drug, alcohol, psychological or financial problems and any criminal record. [ 47 ] In support of its position, the Crown relied on the Harding decision wherein the Court stated that while there should be no presumption in favour of or against a conditional sentence, there may be circumstances where the need for deterrence and denunciation is so pressing that a period of incarceration is necessary to deter similar conduct in the future and express society’s condemnation of the offender’s conduct: Harding , para. 25 . [ 48 ] There are distinguishing features between circumstances in Harding and those in this case.

In particular, the fraud in Harding involved more than 900 transactions over a period of six years resulting in a theft of more than $300,000.00, which was not used exclusively to support a gambling disorder. [ 49 ] Further, the Crown argues that Ms. Davey’s gambling problem does not amount to a severe addiction as in Horvath , which would serve to diminish the degree of responsibility and culpability. [ 50 ] While Ms. Davey’s gambling problem may not have been severe, there are mental health concerns arising from unresolved trauma which require a rehabilitative component to her sentence.

In the Purves case, where the offender suffered from alcoholism and depression, the Court in sentencing her for three frauds saw the imposition of a conditional sentence as the only realistic hope for her rehabilitation. [ 51 ] In the circumstances of this case, I am satisfied that a conditional sentence is consistent with the principles of sentencing. Denunciation and deterrence, both general and specific to this accused are the primary focus in sentencing Ms. Davey. However, because of her background and personal circumstances, rehabilitation and ability to make reparations are also important factors.

I am satisfied that a conditional sentence of significant length, with stringent conditions, will serve to denounce and deter. Her rehabilitation and ability to make reparations can be addressed by the conditions imposed. Such a sentence is proportionate to the seriousness of this particular offence and is consistent with other sentences for similar offenders in similar circumstances. Sentence [ 52 ] Ms. Davey, I sentence you to a jail term of two years less one day to be served in the community, subject to the mandatory conditions specified in s. 742.3(1) as follows, that you: 1.

Keep the peace and be of good behaviour; 2. Appear before the Court when required to do so; 3. Report to a supervisor within two working dates and thereafter as required by the supervisor; 4. Remain within the jurisdiction of the Court unless written permission to go outside is obtained from your supervisor; and 5. Notify the supervisor in advance of any change of name or address and promptly notify the supervisor of any change of employment or occupation.

You shall also: 1. Reside in a residence approved by the supervisor and not change that residence without prior written permission of the supervisor or the Court; 2. Refrain from the consumption of alcohol or illegal non-prescription drugs and submit to breath, blood or urine testing on demand of a peace officer or supervisor; 3. Refrain from entering any premises where the primary function is the sale of alcohol; 4. Refrain from all forms of gambling, including electronic and internet gambling and from entering any premises where the primary function is gambling; 5.

For the first 9 months of this order, you shall be totally confined to your residence, except for employment purposes or with written permission of the supervisor; 6. For the following 15 months, you shall abide by a daily curfew of 9:00 p.m. to 7:00 a.m., except for employment purposes, unless you have the permission of the Court or the prior written permission of the supervisor; 7. Present yourself in person to any peace officer or supervisor checking any provision of this order; 8. Attend and meaningfully participate in all treatment related to gambling disorders as recommended by your supervisor; 9.

Attend and meaningfully participate in personal counselling as recommended by your supervisor; 10. Complete 50 hours of community service work by the end of the 23 rd month of this order; and 11. Make restitution by paying to the Provincial Court, 220 - 19 th Street East, Saskatoon, $24,000.00 in trust for Prairie Mobile Communications, to be paid at the rate of $1,000.00 per month, the first of such payments to be made on or before January 20, 2014 and continuing on the 20 th day of each and every month thereafter until paid in full. [ 53 ] Given Ms.

Davey is working at three jobs to facilitate the payment of restitution, I have imposed relatively few community service work hours, but it is important that she make reparations to the community as well. [ 54 ] Pursuant to s. 742.6 of the Criminal Code , should it be established that any of the conditions imposed herein have been breached by you, the Court may suspend or terminate the conditional sentence and direct that you serve a portion or all of the unexpired sentence in custody. [ 55 ] The conditional sentence is to be followed by probation for a period of 12 months, on the following conditions, that you:

1. Keep the peace and be of good behaviour; 2. Report to the Court when required to do so; 3. Report within two working days of the expiration of the conditional sentence to probation services and thereafter as directed by your probation officer; 4. Attend and meaningfully participate in all treatment related to gambling as recommended by your supervisor; 5. Attend and meaningfully participate in personal counselling as recommended by your supervisor; and 6.

Continue to make restitution by paying to the Provincial Court at 220 - 19 th Street East, Saskatoon, in trust for Prairie Mobile Communications, at the rate of $1,000.00 per month, the first of such payments to be paid the 20 th day of the first month of this probation order and continuing on the 20 th day of each and every month thereafter, until the full amount of the restitution remaining owing, is paid. [ 56 ] There will also be an order under s. 738 of the Criminal Code that Ms. Davey make restitution to Prairie Mobile 596266 Sask.

Ltd. in the amount of $35,303.44 on or before the 20 th day of January, 2017. [ 57 ] In the circumstances of this case, I waive the victim surcharge as I find it would pose a hardship upon Ms. Davey, given the requirement to make restitution. ___________________ D.C. Scott, J