DATE: 20020219 DOCKET: C34716&C34717
COURT OF APPEAL FOR ONTARIO
MOLDAVER, FELDMAN AND MACPHERSON JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Christine Tier, for the respondent
Respondent
- and -
PETER HOLUB and SANDA KUFRIN
Leslie Pringle, for the appellant Peter Holub
Delmar Doucette, for the appellant Sanda Kufrin
Appellants
Heard: February 1, 2002
On appeal from the sentences imposed by Justice Hugh R. Locke on July 26, 2000.
MACPHERSON J.A.:
A. OVERVIEW
[1] The appellants, Peter Holub and Sanda Kufrin, were each convicted of committing the offence of fraud exceeding $5000. In fact, in 1995 and 1996 they defrauded several hundred people of at least $400,000 - $600,000 in an elaborate scam involving a modelling agency which Mr. Holub owned and in which Ms. Kufrin was the most important employee. Mr. Holub and Ms. Kufrin were subsequently married in 1999 and now have a 13 month old daughter, Petra. Their illegal scheme seriously hurt, both financially and emotionally, many innocent people, including seniors, recent immigrants and children.
[2] During the third week of their trial, after 39 of the complainants had testified, the appellants decided to plead guilty. A full sentence hearing followed. On July 26, 2000, Locke J. sentenced Mr. Holub and Ms. Kufrin to terms of imprisonment of two years less a day and 15 months respectively. Each was also sentenced to a period of probation of two years. A co-accused, Pavel Krimsky, was given a 12 month conditional sentence. He did not appeal.
[3] The principal ground of appeal advanced by Mr. Holub and Ms. Kufrin is that the trial judge erred by not imposing conditional sentences on them.
B. FACTS
[4] Peter Holub (“Holub”), Sanda Kufrin (“Kufrin”) and Pavel Krimsky (“Krimsky”) were charged with fraud during the period from January 23, 1995 to September 16, 1996 in relation to a business owned by Holub, the Holub Modelling Agency (“the agency”). The agency had two office locations, one on Bathurst Street operated by Holub and the other in Scarborough operated by Kufrin. Krimsky was the chief sales agent at the Bathurst Street office.
[5] The main elements of the fraud were dishonest representations designed to induce persons to obtain modelling services from the agency. Kufrin and Krimsky, with the approval and assistance of Holub, lied to several hundred members of the public by telling them that the agency had lucrative modelling work available and that they were prime candidates for this work. In fact, the agency had virtually no modelling work available for these people.
[6] The fraud operated in this fashion. People received cold calls from the agency or responded to advertisements in newspapers. When they attended one of the agency offices, they were told (usually by Kufrin or Krimsky) that they were ideal candidates for major modelling assignments. However, they were also informed that, before they could obtain those assignments, they had to purchase various services from the agency, including photo portfolios, modelling lessons, internet exposure and magazine profiles.
[7] Some complainants turned over hundreds or even thousands of dollars during this first encounter to pay for these services. However, for hundreds of people, the appellants made no effort to find modelling assignments for them. Instead, they engaged in a variety of dishonest practices to take more money from the victims. These dishonest practices included: using credit cards to make an immediate sale, sometimes contrary to the instructions of the cardholder; advising the victims that agency clients had been shown their photographs and loved them, even though no photographs had been shown to clients; advising victims that portfolios were needed, when this was not true; staging auditions in front of fake clients; promising large contracts when they did not exist; and showing fake faxes to victims to corroborate the claims of large contracts, when in fact the faxes were sent from Holub’s luxury lakefront condominium with false fax headlines suggesting foreign locations.
[8] At the sentencing hearing, the Crown relied on summaries of the evidence along the above lines from some of the witnesses who had testified, as well as summaries of the statements of other complainants who had not yet testified. These were not disputed by the appellants.
[9] Locke J. heard submissions on sentence for three days. He delivered comprehensive reasons for sentence on a fourth day. He began by describing the crime:
The accused are here to be sentenced for having defrauded over three hundred members of the Canadian public of various sums of their hard-earned money. The aggregate dollar amount fleeced by all accused amounts to a sum well in excess of four hundred thousand dollars.
The trial judge described the appellants as “well educated, ambitious, cunning and materialistically avaricious”. He viewed the fraudulent scheme as “elaborate and sophisticated”.
[10] The trial judge read the hundreds of victim impact statements that were submitted. He observed: Without question, the fraudulent process, employed by all three accused, caused proven deprivation and the loss of hard-earned money, as well as embarrassment and humiliation, all in return for no money's worth.
[32] In the letter, the appellant also expressed his concern about being separated from his young daughter if he must serve a custodial sentence. The separation is, of course, unfortunate for father and daughter. However, separation from a child is a consequence of incarceration for many offenders.
Sanda Kufrin
(4) Disparity of sentence
[33] The trial judge imposed a custodial sentence of 15 months on Kufrin and a conditional sentence of 12 months on Krimsky. The appellant contends that both Kufrin and Krimsky were essentially salespeople; accordingly, there is an unfair disparity in their sentences. I disagree for two reasons.
[34] First, Kufrin was more than a mere employee. She managed the Scarborough office. It is also clear that she reaped a much greater financial reward that Krimsky, presumably because of her long relationship with Holub which culminated in their marriage in 1999. Moreover, in the months before her sentencing Kufrin sent $17,000 to Croatia, bought a piano for $16,000 and paid $30,000 - $40,000 for her wedding. She offered $10,000 by way of restitution.
[35] Second, Kufrin’s conduct as a salesperson was so appalling that it would have justified a custodial sentence even if she was not also engaged in the enterprise in a managerial role. The testimony and victim impact statements of scores of victims document Kufrin’s high-pressure and remorseless sales tactics. I cite but three examples from this material.
My feelings towards the action of Holub Modelling Inc. is mistrust. That Sandra gain this child trust at 12 years old and played this child for a fool. She has psychologically destroyed my child confidence in adults and she lied to so many other children. This is very unethical and low to be extorting money from children.
It was and still is horrible. My seven year old daughter and I have suffered terribly for almost two years now, ever since my first dealing with Holub Modelling Inc., on February 12, 1996 . . . I told Sanda that I was on government assistance and that I could not pay for everything right away, but she did not have any sympathy for my situation and just kept pushing me to pay right away. So I used all my credit with VISA, borrowed over $1000.00 from my parents, and sacrificed money for food and bills to pay for the runway course, DBS, and the portfolio . . . .
As a result of what Sanda Kufrin did to me, I am a financial wreck. I paid $1000.00 cash directly to Holub for the magazine/advertising package, $300.00 for clothes and $200.00 for my portfolio along with expenses incurred on my credit cards . . . The money I kindly gave to Sanda was for my children’s Christmas. My children had a terrible Christmas that year . . . What happened to me in the summer of 96 has scarred me for life emotionally. The fact that Sanda Kufrin tried to use my 5 yr. old son to get more money from me is unjust. She knew my situation and she showed no mercy. She deliberately took advantage of a bad situation; a single mother with two children doing the best to look after her children. She had the audacity to ask me for more money telling me to borrow thousands of dollars from friends and family.
[36] In summary, I see no basis to interfere with the trial judge’s conclusion that Kufrin’s role in the enterprise, her behaviour, and the rewards she reaped justified a harsher sentence than the one he imposed on Krimsky.
(5) Pregnancy
[37] The appellant contends that the trial judge erred by not taking into account her pregnancy when he imposed a custodial sentence. In addition, the appellant has tendered fresh evidence indicating that a daughter was born and is now 13 months old and living at home with her parents.
[38] The trial judge was aware that the appellant was pregnant at the time of sentencing; her counsel had referred to her condition in his submissions. There is no obligation on a trial judge to mention every factor when a sentence is imposed. I cannot say that the trial judge erred by not explicitly mentioning the appellant’s condition.
[39] The current situation, as reflected in the fresh evidence, is, I confess, a cause for concern. The father will be serving a custodial sentence. If the mother serves an overlapping custodial sentence, a young child will be deprived of both parents at a crucial stage of her development. The fact that an offender is a sole provider or caregiver is one that can operate as a mitigating factor in sentencing: see R. v. Bunn (2000), 2000 SCC 9, 140 C.C.C. (3d) 505 at 517 (S.C.C.).
[40] However, in the circumstances of this case, I conclude that Kufrin’s current situation does not justify varying her custodial sentence to a conditional sentence. Her role in the fraud and the devastating effects of the fraud on hundreds of people amply justified a custodial sentence. In this case, it is fortunate that there are maternal grandparents who are willing and able to look after the child until Kufrin is released.
E. DISPOSITION
[41] I would grant leave to appeal the sentences, but dismiss the appeals.
RELEASED: February 19, 2002
“J. C. MacPherson J.A.”
“I agree M. J. Moldaver J.A.”
“I agree K. Feldman J.A.”