Court of Appeal for Ontario

Date: 2019-04-11 Docket: C64693

Judges: Feldman, Fairburn and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Shanique Mohenu Appellant

Counsel

Breana Vandebeek, for the appellant

Manasvin Goswami, for the respondent

Heard

April 1, 2019

Appeal

On appeal from the sentence imposed by Justice Jane E. Kelly of the Superior Court of Justice on November 28, 2017.

Reasons for Decision

[1] Conviction and Appeal

The appellant was convicted of fraud over $5,000 and attempted fraud under $5,000. She appeals her sentence.

[2] Facts

The appellant worked part-time at a large retail store. She started work there when she was fifteen years old and continued working part-time until her arrest. Just after the appellant turned twenty-one years of age, she used her position on the customer service desk to falsify returns, defrauding her employer of about $30,000. Her fraudulent conduct spanned about 3.5 months.

[3] Original Sentence

The appellant was convicted following a four-day judge alone trial. She was sentenced to nine months in custody on the fraud over $5,000 count and nine months concurrent on the attempted fraud under $5,000 count. A two-year probation order was imposed, along with a restitution order in the amount of $28,000.

[4] Grounds of Appeal

The appellant argues that the trial judge made three errors in arriving upon the custodial disposition. While we do not accept the appellant's first argument, we would allow the appeal on the basis of her second and third arguments.

[5] First Ground: Misconstruction of Defence Position

First, the appellant contends that the trial judge misconstrued the defence position on sentence. We need not delve into this issue in detail. The record supports that the appellant advocated for a conditional sentence to be imposed on the attempted fraud under $5,000 count and a suspended sentence on the fraud over $5,000 count. She asks this court to impose that sentence now. Like the trial judge, we would decline to do so.

To accede to the defence position and impose a conditional sentence on the attempted fraud under $5,000 count and simply suspend the passing of sentence on the fraud over $5,000 count, would be to impose another version of what this court referred to in R. v. Bankay, 2010 ONCA 799, at para. 2, as a "disguised conditional sentence" on the fraud over count. Given that the defence acknowledged that a term of imprisonment was necessary in this case, it was not open to the appellant in seeking a conditional sentence to avoid the operation of s. 742.1(c) of the Criminal Code, which denies conditional sentences to those convicted of offences prosecuted by indictment for which the maximum term of imprisonment is 14 years or life. Fraud over $5,000 falls within that category of offence: s. 380(1)(a), Criminal Code.

Accepting the defence position would have led to the absurd situation where, if the appellant had only been convicted of the more serious fraud over $5,000 count, she could not have received a conditional sentence, but her additional conviction on the less serious attempted fraud under $5,000 count would have allowed her to receive a conditional sentence. As noted in R. v. Badhwar, 2011 ONCA 266, at para. 45, albeit in the immigration context, the courts should not impose sentences designed for the sole purpose of thwarting the will of Parliament: "Courts ought not to be imposing inadequate or artificial sentences at all, let alone for the purpose of circumventing Parliament's will on matters of immigration".

Accordingly, the trial judge was right not to accede to the appellant's request.

[6] Second Ground: Failure to Apply Youthful First Offender Principles

Second, the appellant submits that the reasons for sentence failed to apply the well-established sentencing principle that where incarceration is required to be all or part of an appropriate sentence, a youthful first offender should receive the shortest possible sentence of incarceration, tailored to meet that offender's circumstances. The appellant says that the trial judge essentially ignored the need to emphasize specific deterrence and rehabilitation when sentencing youthful first offenders, emphasizing instead general deterrence and denunciation as the "primary" sentencing goals. She says that the error is embodied in the following passage from the reasons for sentence:

Imposing a proportionate sentence is a highly individualized exercise tailored to the gravity of the offence, the blameworthiness of the offender and the harm caused by the crime. In the case at bar, rehabilitation cannot be ignored. However, the primary goals of sentencing in a case such as this must be the denunciation of the offender's conduct and the deterrence of both the offender and others.

The respondent argues that the trial judge was right to emphasize the principles of denunciation and deterrence, sentencing principles widely recognized as controlling in cases of fraud and employee theft over $5,000: R. v. Castro, 2010 ONCA 718, 102 O.R. (3d) 609, at para. 30; R. v. Mathur, 2017 ONCA 403, at para. 14. The respondent also says that the appellant's first-time offender status did not compel a departure from those primary sentencing principles, particularly in light of the fact that most people who commit frauds on their employers have been placed in a position of trust because they do not have criminal records.

The respondent also contends that, in the circumstances of this case, involving a fraud committed over a number of months, and a clear breach of trust, the trial judge was right to focus upon the common sentencing principles for offences of this nature. The respondent argues that the trial judge was alive to the other sentencing objectives, including the need to consider the appellant's rehabilitation, the need to exercise restraint in imposing imprisonment and the young age of the offender.

While we agree with many of the respondent's submissions, they do not answer the fundamental issue raised, that the usual primary sentencing principles had to be adjusted owing to the appellant's youthful first offender status. Because the appellant was a non-violent youthful first offender, the principles of individual deterrence and rehabilitation should have been stressed and the principles of general deterrence and denunciation should have played a less dominant role: R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at pp. 543-44; R. v. Tan, 2008 ONCA 574, at para. 32; R. v. Nassri, 2015 ONCA 316, 125 O.R. (3d) 578, at paras. 30-31; R. v. Thurairajah, 2008 ONCA 91, at paras. 41-42. As noted by Doherty J.A. in Thurairajah, at para. 41:

Generally speaking, sentences imposed on young first offenders will stress individual deterrence, where necessary, and rehabilitation. General deterrence will play little, if any, role in fashioning the appropriate sentence in this category of offender in most cases. Serious crimes of violence, particularly sexual assaults, do provide an exception to the general rule described above. While all of the principles of sentences remain important, including rehabilitation, for serious crimes involving significant personal violence, the objectives of denunciation and general deterrence gain prominence. [Citations omitted.]

The appellant did not commit a serious crime involving significant personal violence. Accordingly, individual deterrence and rehabilitation should have been stressed by the trial judge when determining the appropriate disposition, one that would have resulted in the least amount of custody that could be imposed in the circumstances. Indeed, as a youthful first-time non-violent offender, the appellant was entitled to the shortest possible sentence, albeit one that was proportionate to the gravity of her offence: Tan, at para. 33; Nassri, at para. 31; R. v. Laine, 2015 ONCA 519, at para. 85. Unfortunately, the trial judge did not receive the benefit of submissions on this point from either counsel.

[7] Third Ground: Treatment of Trial as Aggravating Factor

Third, and finally, the appellant says that the trial judge erred when she treated the appellant's decision to proceed to trial as an aggravating factor. The appellant points to the trial judge's description of the following as an aggravating factor: "Although Ms. Mohenu expressed remorse during sentencing, she proceeded to trial in the face of an overwhelming Crown case."

A lack of remorse is not an aggravating factor. Nor is the decision by an accused to put the state to the proof of its case.

The respondent says that the trial judge did not use the decision to have a trial as an aggravating factor. Rather, the respondent argues that the impugned comment reflects the trial judge's view of the degree of sincerity of the appellant's expression of remorse.

Although the trial judge's comment may be open to different interpretations, the fact remains that it is listed as an aggravating factor. Read literally, this comment constitutes an error.

[8] Appellate Intervention

Although appellate intervention is not called for in all cases where there has been an error in principle or failure to consider a relevant factor or erroneous consideration of aggravating and mitigating factors, intervention is called for where the error has had an impact on the sentence imposed: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 43-46. When fixing the proportionate sentence for this youthful first-time offender, we are satisfied that the sentence was impacted by overemphasizing general deterrence and denunciation such that appellate intervention is required. We say this in light of the trial Crown's position that a one-year sentence should be imposed. The trial judge agreed, but discounted that sentence by three months, not because of rehabilitation prospects or youthfulness or because it was the least amount of custody that could be imposed in the circumstances, but because the appellant had already suffered the loss of her future career aspirations by virtue of obtaining a criminal record. Had the proper sentencing principles been taken into account, and in light of all of the circumstances of this case, more than a three month discount to the trial Crown's proposed sentence would have been given.

[9] Fresh Evidence and Current Circumstances

It now falls to this court to determine the fit sentence. The parties agree that if this court decides that intervention is called for, the court should take into account the appellant's current circumstances as reflected in the fresh evidence.

This was a serious crime involving a breach of trust and multiple transactions over a number of months. It was brazen and did not stop until the appellant was discovered. The store owner filed a victim impact statement underscoring the serious consequences of the appellant's conduct on the store. Nothing in these reasons should be taken as suggesting that the crime was anything other than serious.

At the same time, the appellant is a youthful first offender. When she committed the offences in question, she was living in her single mother's home with a younger sibling, contributing to household expenses by working part-time. She was also attending McMaster University and working toward her B.A. in Sociology, with the goal of eventually working with the vulnerable. By the time of sentencing she had successfully obtained her degree.

The appellant was the first person in her family to attend university. She had accumulated a significant amount of student debt which she was still paying off at the time of sentencing. She acknowledged that her crime would preclude her from putting her degree to work with the vulnerable. Indeed, she had to forgo some jobs after her conviction because she could not pass the criminal record check.

The impact of her crime on her family was serious: when she offered her apology to the court, the appellant specifically acknowledged her regret for the harm she had caused to her mother. The appellant's mother had worked at the same retailer as her daughter for 17 years. Her mother was also fired when the appellant's offence was discovered. The mother was required to take lower-paying work.

At the time of sentencing, the appellant had been working full-time at a large hotel chain for some time pending trial. She was described by her employer as an "exemplary" employee. The trial judge accepted that the appellant was humiliated and ashamed by her conduct, that her conduct had a "ruinous" impact on her life and that she had strong family support.

The fresh evidence suggests that the appellant has continued to work full-time at the same hotel since she was originally sentenced in November 2017. She has volunteered at a number of places that have provided strong letters of reference. She is also involved in her religious community and remains supported by her family.

[10] New Sentence

The appellant committed a serious crime. But the appellant has shown great promise on her path to rehabilitation. Having regard to all of the circumstances as they exist today, a fit sentence in this case is one that will contribute to maintaining that path. At the same time, the seriousness of her crime, the breach of trust and the victim impact cannot be ignored. In our view, in light of the appellant's current circumstances and having regard to all of the relevant sentencing principles, the shortest sentence possible is a 90-day intermittent sentence.

[11] Disposition

Leave to appeal is granted, the appeal is allowed and the 9-month sentence is varied to a 90-day intermittent sentence to be served from 8:00 p.m. on Friday to 7:00 a.m. on Monday. The time already served by the appellant will be attributed to her intermittent sentence. The probation and restitution orders remain unchanged.

K. Feldman J.A. Fairburn J.A. I.V.B. Nordheimer J.A.