R. v. Johnston, 2018 BCPC 227

Citation: R. v. Johnston 2018 BCPC 227 Date: 20180907 File No: 82170-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RODNEY BRADFORD JOHNSTON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. HARVEY Counsel for the Crown: B. Webber Counsel for the Defendant: S. Hodson Place of Hearing: Nanaimo , B.C. Date of Hearing: September 7, 2018 Date of Judgment: September 7, 2018 Introduction [ 1 ] The accused Rodney Bradford Johnston is before the Court for sentencing, having previously entered an election of Provincial Court Judge on Nanaimo Court file #82170-1.

The accused pled guilty on January 16, 2018 to the following offence: [ 2 ] Count one as amended alleges that Rodney Bradford Johnston, on or about the 2 nd day of October, 2012, up to and including

June 9, 2015, at or near Nanaimo, in the Province British Columbia, did by deceit, falsehood or other fraudulent means to fraud Maximilian Seelenmayer and Shirley Collins and Richard Provost of money, of a value in excess of five thousand dollars ($5000.00), contrary to section 380(1) (

a) of the Criminal Code . [ 3 ] The accused was between 43 and 45 years of age at the time of the offence and has a previous related criminal record. The Court also had a pre-sentence report prepared for it by Jason Burrows out of the Kamloops Community Corrections office. [ 4 ] The issue for this Court to decide today is: what is the appropriate and fit sentence for this offence to which the accused has pled guilty? Circumstances of the Offence 1. Complainant Maximilian Seelenmayer [ 5 ] On October 2, 2012 Mr. Seelenmayer was introduced to the accused by his sister Shirley Collins. Ms.

Collins and the accused were neighbors at an RV Park (“Resort on the Lake”). The accused advised Ms. Collins about sea cargo containers which had been written off by an insurance company and that he, the accused, was able to buy the contents of those containers at bargain prices. [ 6 ] The accused advised Mr. Seelenmayer that he had purchased nine containers from the port of Vancouver as a result of a damaged goods claim through insurance. Mr. Seelenmayer was advised by the accused that those shipping containers held electronic items such as televisions, iPads, cell phones, laptops and computers.

Based on those representations Mr. Seelenmayer provided the accused with a list of items he wish to purchase. Initially Mr. Seelenmayer provided the accused with $5240.00 in cash in October 2012 and he was provided a receipt by the accused. [ 7 ] Additionally, there was $800.00 further provided regarding legal fees but that money was repaid to Mr. Seelenmayer. The accused then indicated to Mr. Seelenmayer there was a Honda ATV and electric pallet jack coming up for auction via the same Canada customs/damaged goods insurance process from before. As a result of those representations Mr.

Seelenmayer gave the accused a further $1200.00 for the purchase of those additional items. None of those items were ever provided to Mr. Seelenmayer and in addition to the $800.00 for legal fees refunded to Mr. Seelenmayer, an additional $200.00was repaid to him in March 2015. Therefore the outstanding fraudulent amount for this complainant currently stands at $7040.00. Mr. Seelenmayer is currently 56 years of age. 2. Complainant Richard Provost [ 8 ] Mr. Provo was at all times the manager of the Resort on the Lake. This accused befriended him when they met at that RV Park. [ 9 ] The accused advised Mr.

Provost he could obtain golf carts for $700.00 which could easily be sold for $2000.00. The golf carts were already purchased and were being stored in Vancouver at ADESA Auctions. As a consequence of those representations Mr. Provost gave the accused $35,000 to purchase forty-two (42) golf carts. No golf carts were delivered nor any purchased funds refunded to him. [ 10 ] Additionally, whilst awaiting the golf carts Mr. Provost provided additional funds to the accused to help him pay for “living expenses”. [ 11 ] The accused further represented to Mr.

Provost that he had access to purchase various vending machines, televisions, outboard motors and lawn mowers by bidding at an auction for those items. The accused never delivered on any of those items or equipment nor refunded Mr. Provost of any purchase funds he advanced in good faith. [ 12 ] The accused further convinced Mr. Provost into providing cash for the purchase of a motor home and a 5 th wheel RV trailer for resale within a week. Neither of those items were delivered to Mr. Provost nor were any funds refunded to him concerning those transactions. [ 13 ] Also during this period of time, Mr.

Provost also gave the accused additional money to purchase 30 campers and farming equipment for resale allegedly via the same ADESA storage/auction facility. The accused represented at all those items could be purchased at low prices and re-sold for a profit. Once again none of those items were ever delivered nor was money ever refunded back to Mr. Provost. [ 14 ] It was over two years where these events occurred whereby Mr.

Provost finally reported the situation to the RCMP on June 9, 2015. [ 15 ] As a result of that investigation the police found no record of Rodney Johnston or Richard Provost buying or selling any vehicles or equipment through ADESA.

Moreover there were no entries or references to Rodney Johnston or Richard Provost storing vehicles, equipment, trailers or golf carts on any ADESA Vancouver property. [ 16 ] Further investigation by the RCMP in conjunction with the Canada Border Security Services agency confirmed that auctions of imported goods prior to Canada customs clearance do not exist. [ 17 ] As a result of the several payments Mr. Provost provided to this accused, mostly involving cash denominations, the Crown alleges this accused received at least $80,352.23 between July 5, 2012 and May 7, 2014 from Mr. Provost. Mr.

Provost is currently 83 years of age. Circumstances of the accused [ 18 ] The accused is presently 48 years of age.

[19] The accused agreed with the circumstances of the offence as outlined by Crown counsel at sentencing. This accused hascompleted grade 11 education and has been regularly employed but for a brief period time when he was involved in a car accident eightyears ago which led to him being prescribed OxyContin, that unfortunately, resulted in an addiction. Further to that addiction toOxyContin, he also abused alcohol which also led to his offending. [20] This accused also suffers from Crohn’s disease. He is married and has two teenage children in Salmon Arm that reside withhim and his wife.

The accused also has a supportive family and they were reference letters filed on his behalf and he has support inCourt here today. [21] Ultimately this accused takes responsibility for his fraudulent behavior and as mentioned by his counsel during submissions, hehas expressed remorse and never set the matter for Trial. Impact on the complainants [22] The Court has also reviewed the victim impact statements of the two complainants filed as exhibits in this matter.

To say thatthese fraudulent transactions have had devastating impact on both complainants would be an understatement. [23] Both complainants have clearly been traumatized by the fraudulent activity perpetrated upon them by this accused and it isunclear whether they will ever have funds returned to them to compensate them for their losses. [24] Mr. Seelenmayer is embarrassed and humiliated, he has had countless sleepless nights and has had constant arguments with hiswife. As a result he’s been placed on stress medication and is left him extremely short for purchasing supplies for his business.

Inrelation to the complainant Mr. Provost, he has suffered with family conflict through this fraud, anxiety and had his hopes and dreams forcomfortable retirement ruined by this accused. He has lost the ability to travel for the winter anymore. He has also lost trust in humanityand his whole lifestyle has changed with lack of this money due to this offender’s actions. Positions of the Crown and Defence [25] The Crown seeks a provincial custodial sentence of eighteen months to two years.

In addition the Crown is also seeking thatjail sentence to be followed by an eighteen (18) month period of probation along with full restitution orders to both complainants as a partof probation, namely $7040.00 to Mr. Seelenmayer and $80,352.23 to Mr. Provost. [26] The Crown is also seeking the following ancillary orders: 1. A prohibition order pursuant to

section 380.2 of the Criminal Code, prohibiting this accused, in addition to any otherpunishment, from seeking, obtaining or continuing any employment, or becoming or being a volunteer in any capacity that involveshaving authority over the real property, money or valuable security of another person for whatever period of time the Court deems asappropriate and; 2. A DNA order pursuant to

section 487.04(

a) of the Criminal Code; [27] The defence says a more appropriate sentence would be at the lower end of that custodial range. [28] Crown counsel provided the following two case authorities: 1. R. v. Pickering

(2012) BCPC 0213 and; 2. R. v. Bernard

(2015) BCPC 0107. [29] In Pickering, the offender victimized a family friend who was in her seventies by repeatedly lying to her over period ofseventeen (17) months. The victim in that case was a senior citizen and a widow and a result of her unfortunate generosity lost all of herlife savings that her and her deceased spouse had acquired for their retirement. The fraud in that case involved a $480,025.

The accusedpled guilty and was sentenced by Judge Jardine to 4 years in the penitentiary along with a standalone restitution order. [30] In Bernard that accused was convicted of defrauding a 79-year-old complainant of over $10,000 by committing a series ofwithdrawals of $500 a day over roughly a 6 week period. [31] Judge McGregor also sentenced Mr. Bernard to four (4) years in the penitentiary.

However, the accused in that case had asignificant criminal record including prior dishonesty offences which also included of non-compliance with court orders and escape fromlawful custody. [32] Defence counsel provided the Court with the following case: 1. R. v Yates (2002) 2002 BCCA 583 , BCJ No. 2415 (B.C.C.A.). [33] I have also reviewed the defence case in detail. That case dealt with considering whether a

section 738 restitution order shouldbe made and that depending on the circumstances it must be included as a factor in the totality of the punishment imposed. [34] The defence says a more appropriate sentence would be at the lower end of the Crown sentencing range and along with a twoyear probation order to follow. There is no dispute with any of the ancillary orders sought by the Crown, but defense is opposed torestitution being placed in a probation order. The stand alone

section 738 restitution orders in favour of the two complainants was notstrenuously opposed by counsel for the accused. Principles of sentencing

[ 35 ] The Court is guided by sections 718 , 718.1 , 718.2 and 380.1 of the Criminal Code . Purpose : [ 36 ]

Section 718 reads as follows: 718. The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 or to the community. Fundamental principle: [ 37 ]

Section 718.1 reads as follows: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles: [ 38 ]

Section 718.2 in part reads as follows: 718.2 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 offense or the offender, and, without limiting the generality of the foregoing, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act. [ 39 ]

Section 380.1 in part reads as follows: 380.1 (1) without limiting the generality of

section 718.2, where a court imposes a sentence for an offence referred to in

section 380, 382, 382.1 or 400, it shall consider the following as aggravating circumstances: (

a) the magnitude, complexity, duration or degree of planning of the fraud committed was significant; (c.1) the offence had a significant impact on the victims given their personal circumstances including their age, health and financial situation. Aggravating and mitigating circumstances [ 40 ] The aggravating factors in this case are as follows: 1. Firstly, the very magnitude of these offences in this particular case, which involved the senseless and continuous scamming of the two complainants, one of whom is in his eighties. 2.

Secondly, the accused approached his victims knowing full well that he had no ability to deliver any of the said items as promised at any time. 3. Thirdly, if those actions were enough, the accused did so whilst he was already serving a conditional sentence on house arrest for an identical offence. 4. Fourthly, both the innocent victims in this case have been deeply impacted financially by the accused’s actions; 5. Fifthly, that this accused has made virtually no restitution to either complainant, in particular against Mr.

Provost, an eighty- three year-old gentleman who suffered the greatest financial loss of the two complainants. [ 41 ] The mitigating factors are as follows: 1. Firstly, the early guilty plea thereby alleviating either complainant from having to testify in this matter. 2. Secondly, the accused had a difficult upbringing in that he was apparently the subject of sexual abuse by an uncle when he was

13 years of age. 3. Thirdly, the expression of remorse by way of an apology to both victims in both his pre-sentence report and to the Court. 4. Fourthly, the accused is married and has a supportive family. 5. Fifthly, the accused has been regularly employed in the past and which was unrelated to the fraud perpetrated against the two complainants. What is a fit and appropriate sentence in this case? [ 42 ] Notwithstanding all of the mitigating factors I’ve outlined in this case, I find that the moral culpability of Mr. Johnston to be very high.

There is absolutely no question that he knew what he was doing and had every opportunity to stop and not cause his victims further financial loss. Moreover he did so over a prolonged period of time without any care or consideration of the two complainant’s financial circumstances. [ 43 ] Of further concern is that this accused chose to continue his fraudulent behavior of these two complainants whilst already serving a conditional jail sentence at the relevant time of this current offence. [ 44 ] Such continuous fraudulent behaviour, regrettably, is becoming all too frequent.

This deliberate and callous financial attack on two unsuspecting victims in their later stages of life is most troubling. I am mindful that this accused has indicated a willingness to follow through on making restitution and is sorry for what he did.

Nonetheless, I am satisfied that the main factors of concern in this case are those of general deterrence and denunciation. [ 45 ] These are the overriding objectives and concerns that I have with respect to the facts and circumstances involving this accused in the circumstances of this case. [ 46 ] Moreover, I am extremely mindful that every accused is different from those involved in other cases and that the sentence must be crafted with this particular offender in mind having regards to all the circumstances along with the principles of sentencing that I must follow.

Other cases are a useful guide and help to formulate ranges of sentences and I do take into account all of this accused’s background and circumstances in coming to my decision in this matter. [ 47 ] All citizens should be free from such senseless, intentional and fraudulent schemes as was perpetrated against these two complainants, resulting in significant financial loss to both of them. Quite simply, this accused’s actions were despicable and deserve to denounced in strong terms. [ 48 ] I have no doubt that these crimes had, and no doubt will continue to have, a negative effect upon both of the complainants.

To this end I am also guided by

section 718.2 (a)(iii.1) of the Criminal Code as previously mentioned. [ 49 ] This accused should consider himself fortunate with the range of sentence suggested by the Crown in this case. The maximum penalty is one of fourteen (14) years in jail and I am aware of several cases where a penitentiary sentence may very well have been appropriate on the facts of this case. Disposition [ 50 ] Taking all the factors into consideration, it is my view that the appropriate sentence for the offence to which this accused has pled guilty to is as follows: [ 51 ] On Count 1, the defrauding of Mr. Seelenmayer, Ms.

Collins and Mr. Provost of over $5000.00 from October 2, 2012 through June 9, 2015 there will be a jail sentence of two (2) years less one day imposed upon this accused; [ 52 ] Once the accused is released from his custodial sentence he will be placed on probation for eighteen (18) months.

The terms of his probation order are as follows: 1. 2001: • You must keep the peace and be of good behavior. • You must appear before the court required to do so by the court. • You must notify the court or the probation officer in advance of any change of name or address and probably notify the court of the probation officer of any change of employment or occupation. 2. 2104: • You must report in person to probation officer at the Kamloops community corrections office within 2 business days after your release from custody, unless you of obtain, prior to your release, written permission from the probation officer to report elsewhere or within a different timeframe.

After that, you must report as directed by the probation officer. 3. 2201: • When first reporting to the probation officer you must inform him/her of your residential address and phone number. You must not change your residence or phone number without written permission from your probation officer. 4. 2002:

• You must have no contact or communication, directly or indirectly, with Maximillian Seelenmayer, Shirley Collins or Richard Provost. 5. 2005: • You must not knowingly attend upon any residence place of employment or education of Maximillian Seelenmayer, Shirley Collins or Richard Provost. 6. 2401: • You must not possess or consume alcohol, drugs or any other intoxicating substance except according to the medical prescription. 7. • You must not be in receipt of any cash or cheques from third parties for any purpose related to commercial transactions or loans. 8. 2501: • You must attend, participate in and successfully complete any intake, assessment, counseling or programs directed by the probation officer [ 53 ] In addition there will be the following ancillary orders: 1.

Pursuant to

section 380.2 of the Criminal Code , you are prohibited from seeking, obtaining or continuing any employment or becoming or being a volunteer in any capacity that involves having authority over the real property, money or valuable security of another person for ten (10) years upon your release from prison. 2. Count 1 on Information 82170 is a secondary designated offence.

After considering the factors set out in s. 487.051(3), I am satisfied that it is in the best interest of the administration of justice to make an order in form 5.04 authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA National databank. The samples will be taken from you while you are in jail and you must submit to the taking of the samples. 3. Pursuant to

section 743.21 of the Criminal Code , you are prohibited from contacting Maximillian Seelenmayer, Shirley Collins or Richard Provost directly or indirectly while serving your jail sentence. 4. Pursuant to

section 738 of the C riminal Code there will be standalone restitution orders as follows: i. For the complainant Maximilian Seelenmayer I order that you pay to him $7040.00; and ii. For the complainant Richard Provost, I order that you pay to him $80,352.23. [ 54 ] Lastly, the victim fine surcharge will be payable pursuant to the regulations. BY THE COURT ___________________________ The Honourable Judge B. Harvey