R. v. Mosychuk
Court File No.: Halton 14-493 Date: 2015-11-24 Ontario Court of Justice
Between: Her Majesty the Queen — and — Walter Mosychuk
Before: Justice D.A. Harris
Heard on: April 15, June 30, September 1, 2015
Reasons for Sentence released on: November 24, 2015
Counsel:
- John Dibski, Erinn O'Marra — counsel for the Crown
- Elliott Willschick — Counsel for the defendant Walter Mosychuk
HARRIS J.:
INTRODUCTION
[1] Walter Mosychuk plead guilty to theft over $5,000. More particularly, he admitted to taking $16,800 from his father while entrusted with a Power of Attorney.
[2] He is before me today to be sentenced.
[3] Crown counsel suggested that I should sentence him to imprisonment for one year.
[4] Counsel for Mr. Mosychuk suggested that I impose a sentence of imprisonment in the intermittent range or a conditional sentence of imprisonment.
[5] Both counsel agreed that I should also place Mr. Mosychuk on probation and make some form of order for restitution.
[6] Crown counsel asked for a DNA order. Counsel for Mr. Mosychuk disagreed.
[7] I noted at the outset of submissions that a conditional sentence is not even available for a theft over case like this one.
[8] On the other hand, imprisonment for one year is clearly outside the range of what I consider to be a reasonable sentence here.
[9] I am satisfied that Mr. Mosychuk should be imprisoned for 45 days on an intermittent basis. My reasons for this are as follows.
FUNDAMENTAL PURPOSE AND PRINCIPLES OF SENTENCING
[10] The fundamental purpose of sentencing as expressed in section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
[11] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.
[12] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.
[13] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:
The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.
He went on to state that:
The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence, especially the fault component, and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.
[14] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:
The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.
[15] On this point, Doherty J.A. concluded by stating that:
Fixing a sentence that is consistent with s. 718.1 is particularly difficult where the gravity of the offence points strongly in one sentencing direction and the culpability of the individual offender points strongly in a very different sentencing direction. The sentencing judge must fashion a disposition from among the limited options available which take both sides of the proportionality inquiry into account.
[16] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.
[17] I must specifically consider section 718.2(d) which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".
[18] I must also consider the impact of section 718.2(e) which provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."
[19] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.
[20] The Supreme Court also noted that section 718 now requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. As a general matter restorative justice involves some form of restitution and reintegration into the community.
[21] Mr. Mosychuk's offence involved a breach of trust. The Criminal Code specifically provides that this is an aggravating circumstance and that his sentence should be increased to account for that.
[22] I have noted before that I do not need the Criminal Code to tell me this. Common sense and numerous appellate decisions have previously made it clear that criminal breaches of trust are serious offences often warranting jail sentences.
[23] The following paragraphs set out just a sample of statements made by the Ontario Court of Appeal regarding such offences.
[24] In R. v. Bertram, Brooke J.A. pointed out that many, if not most, people who commit major frauds "were in the main first offenders. They were educated people of previous good character and reputation, and they held important positions".
[25] In R. v. Gray, Carthy J.A. wrote that a fraud committed over an extended period of time "is not a crime of impulse" and that it "is normally committed by a person who is knowledgeable and should be aware of the consequences. That awareness comes from the sentences given to others."
[26] I must also consider the fact that Parliament has amended the Criminal Code such that a conditional sentence of imprisonment is no longer permitted for Mr. Mosychuk or anyone else who commits the offence of theft over $5,000. I should view this amendment as a reflection of Parliament's intention with respect to such offences.
[27] Before I can apply the applicable principles of sentencing, however, I must look at the facts underlying the offence here, the impact that it had on its victims, and the background of Mr. Mosychuk.
THE OFFENCE
[28] Mr. Mosychuk's 76 year old father lived in a long term care facility. Mr. Mosychuk was appointed by his father as Power of Attorney for the disposition of his father's personal property.
[29] Between February 21, 2013 and January 6, 2014, Mr. Mosychuk diverted $16,800 of his father's money to his own use.
VICTIM IMPACT
[30] It was the long term care facility that bore the loss here. Since the money was not available, the facility was unable to obtain the money from the bank account. However, Mr. Mosychuk's father did not suffer any lower standard of care and he is not in arrears with the facility.
[31] This does not absolve Mr. Mosychuk in any way. He took his father's money and put his father at risk financially. It is not a mitigating factor that the facility chose not to punish the father for the sins of the son.
[32] The facility has obtained a civil judgment against Mr. Mosychuk in the amount of $15,763.64. This judgment is being collected by means of garnishment proceedings. To date they have collected more than $5000.
[33] It is anticipated that this will continue with approximately $200 being garnished every week until the debt is repaid. If so, I calculate that the judgment will be paid in full by February 28, 2017.
BACKGROUND OF MR. MOSYCHUK
[34] I have had the benefit of a Pre-Sentence Report and other material provided on behalf of Mr. Mosychuk. Those sources have provided me with the following information.
[35] Mr. Mosychuk is now 38 years old.
[36] He is the only biological son of his father and his mother. His mother passed away in 2004. Mr. Mosychuk had two adopted siblings. His brother passed away in 2008 at the age of 40. His sister is 45. Her present whereabouts are unknown.
[37] His father was self-employed and worked hard but suffered two separate business failures in 1979 and 2001. They lost the family home.
[38] Despite this, Mr. Mosychuk reported that he had a good childhood.
[39] His mother spent the last 6 years of her life in a long-term care facility.
[40] In 2010, his father suffered a debilitating illness and responsibility for his care fell chiefly on Mr. Mosychuk. His father's health continued to decline and in 2013, he was placed in the long term care facility.
[41] Following the death of his mother, Mr. Mosychuk "felt devastated, depressed, experienced suicidal tendencies and came under serious stress". He dropped out of school in grade 11 as a result.
[42] He suffered another bout of depression in 2011.
[43] That same year however, he returned to school and obtained his General Education Diploma. He went on to complete the level 1 motorcycle program and was about to complete the level 2 program. He has been employed in this field for more than two years. He expects to receive an increase in his salary once he qualifies for the higher level. His employer is not aware of this offence.
[44] He married in 2014. His relationship with his wife is a good one.
[45] She and others who know Mr. Mosychuk have expressed great surprise that he would commit this or any offence. They all speak highly of him.
[46] He has expressed remorse for his actions. He has further expressed a desire to pay off the judgment outstanding against him as soon as possible.
[47] He has not, however provided any explanation for doing what he did.
ANALYSIS
[48] Mr. Mosychuk committed a very serious offence.
[49] He was supposed to be protecting and caring for his father. Instead he took advantage of his position of trust and stole from his father.
[50] Denunciation and general deterrence are the primary principles of sentencing that are applicable in this case. It is necessary to deliver a clear message to anyone who is thinking of committing a crime like this one that, we as a society will not tolerate that. Anyone who abuses a trust and steals money over a period of time can expect to go to jail.
[51] I cannot however lose sight of the principles of rehabilitation and restorative justice.
[52] Other than committing this offence, Mr. Mosychuk appears to be a hardworking and contributing member of the community. He has taken steps to improve himself professionally. He married in August 2014. He and his wife have expressed an intention to have children.
[53] His wages have been garnished for some time now by the victim in this case. He expects this to continue until the judgment against him has been satisfied.
[54] Needless to say, a sentence in the range proposed by Crown counsel would bring to an end Mr. Mosychuk's ability to continue these payments.
[55] In addition, I disagree with the submission that an intermittent sentence would not satisfy the need for denunciation and deterrence. I am satisfied that other like-minded individuals would not view such a jail term, coupled with lengthy probation and full restitution as a small price to pay for stealing $16,800.
[56] I adopt the comments of Wilkie J. in R. v. Stoutley, that:
Jail is always the last resort, and where it is imposed as here, principally, to satisfy the need for general deterrence and denunciation, its impact, in my view, comes in large measure from the fact of meaningful incarceration, rather than the precise length.
[57] I find that an intermittent sentence does constitute meaningful incarceration. It requires the offender to attend at the jail weekend after weekend, over an extended period, hopefully being reminded each time of the reason why.
[58] As Fish J. of the Supreme Court of Canada stated in R. v. Middleton:
Intermittent sentences strike a legislative balance between the denunciatory and deterrent functions of "real jail time" and the rehabilitative functions of preserving the offender's employment, family relationships and responsibilities, and obligations to the community.
[59] Fish J. then went on to say that:
That balance cannot be sustained indefinitely. Parliament has therefore fixed its duration at a reasonable limit of 90 days. Beyond that limit, intermittent sentences lose their purpose: the recurring "taste of jail" becomes disproportionately punitive as a deterrent and counter-productive as a rehabilitative and correctional alternative to continuous terms of imprisonment.
SENTENCE
[60] For all of the above reasons, I sentence Mr. Mosychuk to imprisonment for 45 days, to be served intermittently. He will be taken into custody today for processing and then released. He will then surrender himself into custody at the jail at 8:00 pm on Friday November 27, 2015 and remain in custody until 5:00 am on Monday November 30, 2015 and thereafter between each subsequent Friday at 8:00 pm until the following Monday at 5:00 am until the sentence is completed.
[61] In addition he will be placed on probation for three years commencing today.
[62] The terms of the probation will require that Mr. Mosychuk:
keep the peace and be of good behaviour;
appear before the court when required to do so by the court or the probation officer;
notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;
report in person to a probation officer within two working days and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in his supervision;
cooperate with his probation officer. He must sign any releases necessary to permit the probation officer to monitor his compliance and he must provide proof of compliance with any condition of this order to his probation officer on request;
appear at the jail to serve his intermittent sentence, on time, in a sober condition, with a blood alcohol concentration of zero and not under the influence of or in possession of any controlled substance unless he is taking that controlled substance pursuant to a lawfully obtained prescription;
not apply for or accept admission into any temporary absence programs at the jail while serving the intermittent sentence;
make reasonable efforts to seek and maintain suitable work;
continue to repay the civil judgment in favour of Northridge Long Term Care Centre by means of the garnishment proceedings currently in place, or alternatively by lump-sum payment in full of the outstanding balance. In any event, the judgment is to be paid in full by February 28, 2017.
[63] Crown counsel requested a DNA order. The offence here is a secondary generic offence pursuant to s. 487.04 (a) of the Criminal Code being an offence that is prosecuted by indictment and has a maximum penalty of imprisonment for five years or more. I am satisfied that such an order is not appropriate in this case. Accordingly I decline to make the order sought.
[64] Mr. Mosychuk will have 90 days to pay the victim fine surcharge.
Released: November 24, 2015
Signed: "Justice D. A. Harris"