) ) HER MAJESTY THE QUEEN – v. –, 2017 ONSC 2445

CITATION : R. v. Mustafa, 2017 ONSC 2445 BARRIE COURT FILE NO.: 16-002 DATE: 20170502 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – KAFARU MUSTAFA Defendant ) ) ) ) ) ) ) ) Ms. L. Shirreffs, for the Crown Self-Represented Defendant ) ) HEARD: February 28, 2017 and April 4, 2017 reasons for decision EDWARDS j. : [ 1 ] Mr. Mustafa has pleaded guilty to one count of Fraud Over $5,000.

The facts giving rise to the plea of guilty relate to what is commonly known as a “Black Money Scam”, which involves an attempt to fraudulently obtain money from a victim by persuading him or her that piles of bank note sized paper is actual currency which has been dyed black or white to avoid detection by Canada Revenue Agency officials. The victim is persuaded to pay for chemicals to “wash” the money with a promise that he or she will share in the proceeds.

The chemicals wash off the black or white colouring on the bank note paper. [ 2 ] If the victim appears reluctant to participate, he or she will be shown a small washing process. Liquid is poured over one of the bank notes with a slight of hand, and the con- man then produces a real Canadian or U.S. currency bill and provides it to the victim, inviting them to spend the money to earn their trust. The conman then requests money from the victim to purchase the chemicals required to wash a large sum of money, but the chemicals are represented to the victim as being very expensive.

Typically, the victim will front the money for the chemicals and the suspect will leave and never return. [ 3 ] With respect to the facts of this particular matter, the accused showed the victim the washing process and was provided with a $100 Canadian bill and invited to spend it. The victim did spend the money, and was therefore convinced that the washing process was legitimate. [ 4 ] On November 9, 2014, the accused with another individual attended at the victim’s place of business and came up with a purchase price of $25,000 for a vehicle that the victim had for sale.

The accused indicated that he wished to purchase the vehicle using the black money, at which time the victim provided the accused with $9,800 in cash to cover the cost of the chemicals. The washing process began and the victim was advised that it would take approximately one hour to complete. The accused indicated that he would leave and return in approximately one hour to complete the process. The accused left and never returned.

The victim subsequently learned that the accused and the other individual involved in the scam were involved with the police on an unrelated matter, and that they would return when they had finished with dealing with the police. The accused never returned. [ 5 ] The accused was arrested on December 9, 2014. As a result of a search warrant executed at his residence a number of items were seized, including several packs of white and black bank note paper used in the black money scams. Four thousand dollars in Canadian currency was also seized. [ 6 ] Mr.

Mustafa, in entering his plea of guilty, acknowledged the accuracy of the aforementioned facts as read into the record by the Crown. A conviction for Fraud Over $5,000 was recorded. [ 7 ] At the time that the plea of guilty and conviction was registered I ordered a Presentence Report. In the Presentence Report, Mr. Mustafa denied any wrongdoing with respect to this matter and indicated to the author of the Presentence Report that he plead guilty so that he could have the matter addressed. Recognizing that Mr.

Mustafa was self-represented, but equally recognizing that at the time of his plea of guilty he had had access to and received advice from duty counsel, I nonetheless conducted a further plea enquiry to ensure that Mr. Mustafa fully understood the implications of his plea of guilty; that he was not coerced; and that his plea was voluntary and, most importantly, that he understood that his plea was an admission of the essential elements of the offence. [ 8 ] In conducting the further plea enquiry of Mr.

Mustafa at the time of his sentencing it was understood that there was no absolute right to withdraw his guilty plea, and that Mr. Mustafa would have the onus to establish on a balance of probabilities that there were valid

grounds to withdraw the plea. [ 9 ] Having made further enquiries of Mr. Mustafa, it was very obvious to me that Mr. Mustafa’s major concern was that he not have a criminal record. On more than one occasion I advised Mr. Mustafa prior to sentencing that the most likely outcome would result in him having a criminal record. [ 10 ] With this understanding Mr.

Mustafa made it clear to me that he still wished to proceed with his plea of guilty, and that despite his comments to the author of the Presentence Report he was admitting the essential elements of the offence, as reflected in the facts read into the record by the Crown at the time of his plea of guilty. [ 11 ] I proceed now to deal with the position of the Crown and the relevant sentencing principles. Mr. Mustafa’s Background [ 12 ] Mr. Mustafa was born in Nigeria and is one of twenty-one siblings. Mr. Mustafa is 42 years of age. He immigrated to Canada when he was 34.

He has apparently been involved in at least one, if not two motor vehicle accidents, as a result of which he has undergone two surgeries. He is not working, at least in part, as a result of his injuries. [ 13 ] Mr. Mustafa apparently has permanent residence status in Canada but does not have citizenship. Mr. Mustafa expressed to me concerns about having a criminal record and the impact that this may have on his ability to become a Canadian citizen. [ 14 ] Mr. Mustafa has been involved in two relationships, as a result of which he is a father to three daughters who range in age from nine years to nine months.

It would appear that his only source of income at the present time is social assistance. [ 15 ] Mr. Mustafa has no prior involvement with the criminal law and, as such, is a first time offender. Mr. Mustafa was extremely emotional with respect to his plea of guilty and while I had concerns, as reflected above based on his denial to the author of the Presentence Report, I am satisfied that Mr. Mustafa understands the consequences of his plea of guilty and that his emotion demonstrates a degree of remorse, together with his plea of guilty.

Position of the Crown [ 16 ] The Crown accepted the accused’s plea of guilty to the one count of Fraud Over $5,000 and withdrew four other counts that were before the Court. The Crown indicated at the time the plea was taken that the Crown would be prepared to recommend to the Court a suspended sentence with a period of probation provided the accused made restitution of $5,800, which combined with the $4,000 seized from his residence at the time of the execution of the search warrant would fully reimburse the victim who had been the subject of the black money scam.

Aggravating and Mitigating Factors [ 17 ] The fraud perpetrated by Mr. Mustafa demonstrated a degree of sophistication that resulted in a loss of nearly $10,000 to the victim. It undoubtedly would have caused the victim not only the loss of his money but also embarrassment in having been duped into the scheme perpetrated on him by Mr. Mustafa. While the amount of the fraud in comparison to many other frauds seen by this Court was not large, it nonetheless to the victim was a substantial loss. [ 18 ] In mitigation of sentence I take into account Mr. Mustafa’s plea of guilty, albeit on the eve of trial.

I also take into account his emotional state at the time of his entering into the plea, which I accept demonstrates real remorse for his actions. I also take into account Mr. Mustafa’s willingness to increase the monthly amounts over what the Crown had suggested as monthly restitution, as a demonstration of his intent to fulfil the restitution order that I intend to make as well as Mr. Mustafa’s willingness to make good on the fraud perpetrated on the victim. The Guiding Principles [ 19 ] The principles which I am required to consider in sentencing Mr.

Mustafa are well known and are set forth in s. 718 of the Criminal Code (the “ Code ”). The objectives of any sentencing decision must include denunciation, deterrence, rehabilitation, reparation for the harm done to the victim, acknowledgment by the accused of the harm done and a promotion of responsibility in the offender. [ 20 ] I take into account the objectives of s. 718.1 of the Criminal Code , which requires the Court to impose a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender.

I have considered the other sentencing principles set forth in s. 718.2 of the Code , and I am satisfied that none of the circumstances set forth in s. 718.2 that could cause the sentence to be increased apply in this case. [ 21 ] While the suggested sentence by the Crown in this case was not a joint submission, I take from Mr. Mustafa’s position that his only real concern in pleading guilty was the possibility of a criminal record. Mr. Mustafa made no other submissions contrary to the position enunciated by the Crown.

I am not bound by the suggested sentence put to me by the Crown but should only reject it in the event I found it to be unfit, unreasonable, contrary to the public interest, or it would bring the administration of justice into disrepute. [ 22 ] Absent Mr. Mustafa being a first time offender and his plea of guilty, an appropriate sentence for the type of fraud perpetrated on the victim should in my view reflect general deterrence and result in a period of incarceration. Mr.

Mustafa, however, has pleaded guilty, and the Crown has recommended a suspended sentence and I see no reason not to accept that proposal. [ 23 ] It is the sentence, therefore, of this Court, that a suspended sentence shall be imposed on Mr. Mustafa. Mr. Mustafa shall be subject to three years of probation, the terms of which shall include the statutory terms as well as an obligation to make restitution in the amount of $5,800, which shall be repaid at the rate of $162.00 per month.

As well, the property that was seized at the time of his arrest shall be forfeited to the Crown, which property includes the $4,000 seized, which it is my understanding shall be remitted to the victim.

Justice M.L. Edwards Released: May 2, 2017 NOTE: As noted in court, on the record, this written decision is to be considered the official version and takes precedent over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written decision that is to be relied upon. CITATION : R. v. Mustafa, 2017 ONSC 2445 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – KAFARU MUSTAFA REASONS FOR DECISION Justice M.L. Edwards Released: May 2, 2017