R v Osayande, 2023 ABCJ 144

In the Alberta Court of Justice Citation: R v Osayande, 2023 ABCJ 144 Date: 20230823 Docket: 181289307P1 Registry: Calgary Between: His Majesty the King - and - Harry Osayande Sentencing Decision of the Honourable Justice B.R. Fraser Introduction [ 1 ] The Offender has been convicted of fraud in the amount of $87,540.46 from a company known as Bouvry Export Calgary Ltd. The fraudulent funds have never been recovered although the Offender testified the balance of the funds he withdrew from his bank account were given to a friend, Wesley Wahedin, for safekeeping in the amount of $8,992.50.

This is my sentencing decision.

Principles of Sentencing 1) to denounce and deter the most fundamental purpose of sentencing; 2) rehabilitation; 3) providing reparations; 4) promoting a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community; 5) the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender; 6) the sentence should be similar to sentences imposed on similar offences committed in similar circumstances (the parity principle); 7) the offender should not be deprived of liberty if less restrictive sanctions are appropriate; and 8) it must account for aggravating and mitigating circumstances.

Aggravating Factors 1) the amount of the fraud is not insubstantial; 2) the majority of the funds are not available; 3) no restitution has been made; 4) three times the funds were deposited into his bank account but there were multiple extractions from his bank account byhim with no accounting for where they went; and 5) the simplicity of the fraud by diverting payment into his account by a simple e-mail although there is no evidence he wasthe perpetrator of the e-mail. Mitigating Factors [2] In my view there are none. The most common mitigating factors are a guilty plea, restitution and remorse.

None are presentin this case. He has no criminal record but that is not a mitigating factor. Most offenders who commit fraud do not have criminalrecords. The most that can be said for this Offender is that he does not appear to be the main perpetrator behind the scheme and the e-mail. That appears to have originated in Nigeria. Position of the Crown [3] The Crown submits the appropriate sentence is 18 to 24 months custodial sentence with a Restitution Order or fine in lieupursuant to sec 462.37.

Position of the Defence [4] The defence submits the appropriate sentence is a 2-year Conditional Sentence Order with strict conditions. The Authorities [5] The defence have provided me with four authorities of fraud where the sentences were Conditional Sentence Orders asopposed to actual incarceration. One is an Alberta Provincial Court decision. Two came from Ontario Court of Justice and the fourthfrom the BC Provincial Court.

In all cases there was a guilty plea, a strong indication of remorse, some restitution made or attempted,and in three cases a mental disorder that may have contributed to the commission of the fraud. The fourth case was a joint submission. None of those factors are present in this case. [6] In R v Alakija, 2007 ABPC 234, an early guilty plea was entered, there were expressions of remorse, he voluntarily turnedhimself in, a pathological gambling disorder led to the fraud from his employer, he is attempting to make restitution on a monthly basis.

The theft was over $58,000. [7] In R v Kohuch, 2011 ONCJ 620, the Offender defrauded a hockey association of $63,000. He apologized in writing beforeany charges were laid. He was diagnosed with Bipolar Affective Disorder which the Court found contributed to his crime. He pledguilty and the Court found he was truly remorseful for his conduct. He is on disability as a result of his mental disorder and unable tomake restitution.

The Court quoted Justice Laskin in R v Bogart, (ON CA), [2002] OJ No. 3039 (CA) who statedonly special circumstances could justify a conditional sentence where the amount of the fraud is relatively small, there is full restitutionand there are exceptional personal circumstances such as ill health or advanced age. [8] In R v Pechterski, 2007 ONCJ 533, the Offender pled guilty to an ATM fraud in the amount of $53,000. He was the frontman for a scam and although not the primary driving force was an essential part of the scheme.

He forfeited monies seized at the time ofarrest, has contributed an additional $5,000 to restitution, and promised to pay the rest if he can continue working. The Court inferredremorse from his unqualified acceptance of responsibility. [9] In R v Stuart, 2012 BCPC 327, the Offender pled guilty to defrauding the 2010 Winter Olympics of $60,757 as well as$2,175 US. He took responsibility and showed genuine remorse. He has mental health issues. He was prepared to make monthlypayments towards restitution. His guilty plea was particularly significant since there were many victims spread out all over NorthAmerica.

There was a joint submission for a Conditional Sentence Order for one year which was granted. [10] The Crown produces eight authorities five were the subject of Conditional Sentence Orders that were refused, not granted orif granted, overturned by the Court of Appeal. All are Alberta cases. All pled guilty to fraud or theft. [11] In R v Magas, 2012 ABCA 61, the Offender stole $34,545 while collecting rent money. The sentencing court rejected a jointsubmission for a 1-year CSO and imposed an 8-month period of incarceration. The Court of Appeal dismissed the defence appeal.

TheOffender cooperated with the investigation and made partial restitution and by the appeal had made full restitution. She was remorseful.

[ 12 ] In R v Fulcher , 2007 ABCA 381 (Alta CA), the Offender pled guilty to defrauding his relatives of over $268,000. He agreed to make restitution and cooperated with the investigation. He was sentenced to a 2-year CSO. The Court of Appeal allowed the Crown appeal and sentenced him to 2 years actual incarceration citing the necessity for denunciation and deterrence which demanded imprisonment. [ 13 ] In R v Bracegirdle , 2004 ABCA 252 , the Offender pled guilty to stealing $150,000 from a charitable organization but showed no remorse and made no restitution. The sentence was a CSO.

The Court of Appeal overturned it and sentenced him to 2 years incarceration as the CSO did not reflect the appropriate denunciation or deterrence. The Court stated crimes of this type usually involve planning and deliberation and a process of weighing the risks and benefits. [ 14 ] In R v Sevcik , 2005 ABCA 194 , the Offender pled guilty to defrauding his employer of $95,000. The sentencing court refused a Conditional Sentence Order and imposed a sentence of 18 months incarceration. There was no restitution made.

The Court of Appeal found the sentence was fit and it was upheld. [ 15 ] In R v McKinnon , 2005 ABCA 8 , the Offender pled guilty to defrauding her employer of over $61,000 and sentenced her to a CSO. The Court of Appeal overturned the CSO and imposed a sentence of 1 year incarceration. The Offender had paid $40,000 in restitution. There was little or no remorse shown.

The Court stated the great majority of crimes of embezzlement are not granted conditional sentences and any Provincial Court decisions that have granted them are not precedential. [ 16 ] In all the Alberta Court of Appeal authorities I have examined, Conditional Sentence Orders for fraud have been overturned. This is so even where there was a guilty plea, remorse shown and restitution made or attempted. This appears to be because the sentencing objectives of denunciation and deterrence cannot be achieved by the imposition of a CSO in cases involving fraud or embezzlement.

Section 462.37 Forfeiture or Fine in Lieu [ 17 ] I have considered making an Order under this section. With the exception of the $8,992.50, given to a friend, Wesley Wahedin, by the Offender for safekeeping, the rest of the defrauded moneys have either been sent out of the country to Nigeria or the United States or no longer exist. The moneys sent out of the country were sent to third parties who are also responsible for the fraudulent scheme. It is impossible to determine the amount of fraudulent proceeds that went into the pockets of this Offender. [ 18 ] However, pursuant to sec 412.37

(1) I order the $8,992.50 being held on behalf of the Offender be forfeited to the Crown to be returned to the victim, Bouvry Export Calgary Ltd. As the rest of the defrauded money or a good portion of it appears to have been sent to the perpetrator of the fraudulent scheme, I am not prepared to order a fine in lieu of forfeiture in those circumstances. The Sentence [ 19 ] In my view, based on the numerous authorities, particularly from the Alberta Court of Appeal, a Conditional Sentence Order is not a fit sentence as it would not meet the principles of sentencing mentioned earlier.

In almost all cases where a CSO was considered and/or granted, there was a guilty plea, remorse shown, restitution made or attempted, and a mental disorder of some sort that contributed to the commission of the crime. None of these factors are present in this case. [ 20 ] The sentence must be first and foremost one that deters and denounces. It must promote a sense of responsibility in the Offender and acknowledge the harm done to the victim company and the community. It must be proportionate to the gravity of the fraud and the degree of responsibility of the Offender.

It must be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances although circumstances are never the same. Only a sentence of actual incarceration will account for those principles of sentencing as well as rehabilitation. [ 21 ] The length of the period of incarceration should be dependent on the amount of the fraud as set out in sec 462.37(4). In the authorities reviewed, sentences of one year or less were imposed when the fraudulent amount was less than $50,000. In this case, the fraud was over $87,000.

Therefore, the sentence should be in the 18 – 24 month range as submitted by the Crown as the appropriate sentence. [ 22 ] The sentence will be 18 months incarceration. There will be no victim fine surcharge. There will be a stand-alone restitution order under sec 738 in the full amount of $87,540.46 payable to Bouvry Export Calgary Ltd. This will allow the victim to claim the forfeited amount as well as take out a judgment order for the remainder without going through the civil process. Dated at the City of Calgary, Alberta this 23 rd day of August, 2023.

B.R. Fraser A Justice of the Alberta Court of Justice Appearances: Z. Lakhoo for the Crown I. Shittu for the Accused