Court File and Parties

File No.: 2811-998-13-25122-02

Ontario Court of Justice

Her Majesty the Queen - v. - Roben J. Ohanian

Proceedings at Sentencing

Before the Honourable Mr. Justice G.R. Wakefield

Date: Tuesday, December 15, 2015

Location: Oshawa, Ontario

Appearances

T. Jackson – Counsel for Crown

R. Robinson – Counsel for Roben Ohanian

Reasons for Sentence

WAKEFIELD, J: (Orally)

After a lengthy trial I convicted Mr. Ohanian on 16 counts of fraud arising from his involvement with his employer's billing of a customer.

No other employee or owner of Attersley Tire was charged. Hence despite high suspicions of other parties' involvement and knowledge, I realize that must be tempered with the acknowledgement that no others at Attersley had the ability to defend themselves at trial.

However in assessing the appropriate consequences for Mr. Ohanian's culpability on these charges, I also take into consideration my view that Attersley Tire was quite aware of the billing practices being used and encouraged them as part of the expectations within that firm.

I appreciate that Mr. Mackey denied such knowledge, but for someone who claimed not to have understood the accounting system he was able to access the records with remarkable facility in response to cross-examination questions.

Victim Company's Position

Giving my understanding from the trial that Attersley had not reimbursed the victim, Highland Trucking, nor has Highland demanded the repayment of the $17,353.00 fraud totals and for both companies value their ongoing their business relationship more than rationalizing the fraud cost.

To put it another way, I infer from both companies' lack of interest in remitting the funds that they both see this as a cost of doing business and part of the business culture in the tire industry. However Highland's apparent acquiescence after the fact to the frauds does not in any way amount to a consent which would vitiate the criminality of the frauds.

Business Culture and Criminal Conduct

Culture is a loaded word. It is a word that I previously used to describe what I perceive to be the working environment of Attersley Tire, but perhaps I use the word inappropriately.

The Ontario Court of Appeal in R. v. H.E., 2015 ONCA 531 reviewing what if in any way Sudanese culture could have as an impact on sentencing in a case of horrifying domestic violence sets out clearly at paragraph 30, "Cultural norms that condone or tolerate conduct contrary to Canadian criminal law must not be considered a mitigating factor on sentencing". As such, perhaps reviewing the apparent understanding between Highland and Attersley and certainly my concerns regarding the expectations by Attersley of its employees, in my view amounts to an accepted business practice within Attersley encouraged by Attersley and had left this defendant participating in a business practice which I have found criminal.

I do note that the clear message in the H.E. case is in the context of that accused being the dominant power abusing the vulnerable members of his family. I also infer and accept that this defendant chose to conduct himself at least partly in a context of the power and balance any employee has in relation to his employer especially in these troubled economic times.

While such economic dependency in employment can never be a defence, in my view it may be a factor on sentencing. I am certainly not convinced beyond a reasonable doubt that the defendant acted alone within the Attersley chain of command, but certainly have found Mr. Ohanian as a party due to his knowledge of how the accounting system was used in order for Attersley to invoice Highland for the "gifts" or "promotion" provided to Mr. DePasquale and in participation in providing those promotional opportunities to Mr. DePasquale.

Benefit to the Accused

I do note that any benefit that Mr. Ohanian received from the frauds was indirect. He kept his job and maintaining Highland as an Attersley client may very well have had an indirect impact on the defendant's salary and bonuses.

While Highland was clearly out of pocket, the fraudulent activity was to the direct and sole benefit of Attersley Tire and its owner. This benefit to Attersley Tire and its owner had not been returned to Highland Trucking by the time of the trial. It follows from my analysis of the role Attersley Tire played in the frauds. The Crown has not proven beyond a reasonable doubt the aggravating factor of Mr. Ohanian having breached his employer's trust.

Sentencing Principles and Comparable Cases

Notwithstanding the Crown has not proven an employer breach of trust, the sentencing factors in R. v. Beverly Williams and its review of case law by Justice Hill is informative, especially at paragraph 30 regarding those factors. Unlike the Williams case here the value of the fraud is a fraction of the Williams case and the loss to Highland seems to be of little interest to the victim company. Here there was no loss of public monies.

I am not convinced that the sophistication of this fraud was constructed by Mr. Ohanian quite the contrary, and the most likely source of the necessary planning, skill and deception would be among those having control over the accounting system at Attersley.

The Crown has not proven beyond a reasonable doubt Mr. Ohanian's motivation being personal greed. The offences before the Court occurred over a period of less than a year. There are 16 transactions proven which were obviously more aggravating than once occurrence, is fractional compared to the overall business of either Attersley or Highland.

While restitution over time is a possibility, it would not hold Attersley accountable for the funds it has kept within the company coffers. As for being caught and not voluntarily stopping until leaving Attersley Tire which apparently triggered the complaint to the police, this would be an applicable aggravating factor albeit in circumstances of my suspicion of it being used by Attersley to keep Highland's as a customer.

While I cannot access risk to others falling under suspicion, clearly the impact to the fraud would result in the public paying more for both company's services.

The Ontario Court of Appeal in R. v. Kerr, [2001] O.J. No. 5085, in reviewing the sentencing on three counts of trafficking in heroine as well as a firearm offence, warns against over emphasizing general deterrence despite the severe damage such a drug has on society.

Kerr was an appellant review between jail and conditional sentence on far more serious charges but struck a balance between general deterrence and rehabilitation and the personal circumstances of that defendant.

In R. v. Klundert, 2011 O.J. No. 4508, the Ontario Court of Appeal substituted a conditional sentence in place of jail. While this decision is focused on determining the type of jail sentence being imposed and in circumstances lacking the level of deceit evidenced here by the false invoices, I note that despite the quantum of that fraud being the unpaid tax on $1,400,000.00 (probably somewhere around half a million dollars in unpaid tax) the Court granted a conditional sentence. The sentencing principles involved included the fact that it was not the average evasion case. Just as the case at bar is not the usual fraud case for personal gain. The good character of that defendant just as this defendant's character seems quite positive as set out in the Pre-Sentence report. That defendant was in every other respect a law abiding citizen, as is Mr. Ohanian.

While not approaching the number of years in which Mr. Klundert was before the Courts, the case at bar was certainly a seriously protracted proceeding. But not as a result of Mr. Ohanian's conduct per se (and I will have more to say about that shortly), but due to a serious under estimation of trial duration by all involved counsel has resulted in serious financial consequences for this defendant as set out in the Pre-Sentence report.

In circumstances of the continuing health issues (also set out in the Pre-Sentence report).

Aggravating Factors

Aggravating is the lack of remorse set out in the Pre-Sentence report demonstrating a lack of insight as to Mr. Ohanian's sense of responsibility. He acknowledges his knowledge and by implication his involvement, but seems to assert that not actually doing the paperwork and working within a criminal scheme imposed by his workplace amounts to non-culpability. Mr. Ohanian is not accepting that his role is still criminally culpable.

Also aggravating, is the death of public resources expended in this prosecution in which even at the time of Mr. Ohanian's statement to the police, there is an acknowledgement by him of his knowledge and involvement. The initial judicial pre-trial estimate of six days ended up consuming a total of 18 days. The majority of it in-chief with Mr. Mackey.

Essentially Mr. Ohanian while not having the insight to understand this, ran a trial in which he had already acknowledged his guilt in his police statement.

However I find the Crown's assertion of Mr. Ohanian's intent to continue the fraud in his new employment by saying he will take care of Mr. DePasquale later is speculative. I have no evidence that the defendant's new employment (apparently now lost) had the same accounting fraud scheme in place.

Mitigating Factors and Conditional Discharge

Remorse expressed through a guilty plea and the consequential savings of judicial resources is often a foundation for a conditional discharge. At the same time I must acknowledge that in this case without the trial evidence raising the concerns I now have as to the architect role of Attersley Tire the company and albeit its controlling individuals in creating this fraud on Highland Trucking, I would not be considering the applicability of a conditional discharge on this defendant. The trial was necessary to raise the very issues that have opened up the door as to the party role of this defendant.

I see the cases of Klundert and Kerr as examples of an egregious fact situation still permitting sentences structured to the individual offender's circumstances despite the principles of general deterrence and denunciation.

In R. v. Button, 2014 ONSC 6970, while a guilty plea albeit to what appears to be a negotiated lesser charge, the breach of that defendant's public duty in a professionally regulated organization did not prevent that accused from the benefits of a conditional discharge.

Similarly in R. v. M.A., 2014 ONCJ 667, despite a clear breach of trust to an employer and for personal gain, a conditional discharge was granted given the unusual circumstances of those funds being then used to pay off on a threat against a family member.

Mr. Ohanian is a first offender who has the benefit of a very positive Pre-Sentence report. From a difficult and challenging childhood, he became self-sufficient and relatively later in life entered into a long-term domestic relationship which from submissions today I understand has certainly suffered from the long-term prosecution here.

The defendant's life appears to revolve around taking care of his spouse and home and is the virtually sole financial source of the family. The criminal litigation has become financially crippling further increasing his financial vulnerability and reliance on reliable employment. Additionally, he has health challenges with both diabetes and a history of heart attacks. Mr. Ohanian has not accepted my verdict and clearly lacks insight into his role and responsibility for becoming a party to the offences.

Restitution, while possible over time will have an extreme adverse affect on himself and his family. Even more so given the current circumstances apprised in today's submissions.

I note that restitution does not seem to be a concern to either Highland, nor to Attersley and its responsibility towards Highland. Indeed I infer that the funds from the frauds as suggested earlier are still in the Attersley Tire company coffers.

Sentencing Decision

In this case I am of the view that general deterrence carries less weight than the personal circumstances of this defendant and encouraging rehabilitation. That the defendant is not otherwise a risk to the community. He has already suffered financial consequences substantially in excess of any indirect benefit from his employment.

Given the positive Pre-Sentence report, I access the need for specific deterrence as minimal. Denunciation certainly plays a role in the sentencing factors, but one in my view can be satisfied in how the sentence is structured.

In balancing all the factors in sentencing, I have come to the conclusion that the interest of justice can be served with a conditional discharge, which in my view would be very much in the defendant's interest and in the particular circumstances of this case, and the circumstances of the sentence I am structuring, not contrary to the public interest.

Conditional Discharge Order

The conditional discharge will be for an 18 month duration. The terms are:

1. You will keep the peace and be of good behaviour.

2. You will appear before the Court when required to do so.

3. You will notify the Court and the probation officer in advance of any change of name or address and promptly notify the Court or the probation officer of any change in employment or occupation.

4. It is a reporting conditional discharge. You will report in person to a probation officer immediately and after that at all times and places as directed by the probation officer and any person authorized by a probation officer to assist in your supervision.

5. You will live at a place approved of by the probation officer and not change that address without obtaining the consent of the probation officer in advance.

6. You will attend and actively participate in all assessment counseling and rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer.

7. Counseling to assist in developing the insight as to your criminal culpability in these offences.

8. You will sign any release of information forms as to enable your probation officer to monitor your attendance in completion of any assessments, counseling or rehabilitative programs as directed.

9. You will perform 100 hours of community service work on a rate and schedule to be directed by the probation officer, but must be completed within 14 months of the start date of this order.

10. You are not to contact or communicate in any way directly or indirectly with any physical, electronic or other means with Vito DePasquale, Mike Mackey or Debbie Mackey except in the presence or through legal counsel.

11. You will remain off the premises of Attersley Tire known municipally as 147 North Port Road in the Town of Scugog and that of Highland Trucking known municipally as 6860 Rexwood Road in the City of Mississauga.

Restitution

Finally I have considered the issue of restitution and normally would have included this as a term of probation. However in the unusual circumstances of this case where the funds in question are still apparently in the hands of Attersley Tire and not asserted by the victim company (who would have been content if charges had not even proceeded) I exercise my discretion to leave restitution to any civil proceedings in which Mr. Ohanian would have the ability to third party Attersley Tire, all subject apparently to the limitation periods and when that clock starts to tick.

Final Remarks to the Accused

Stand up sir. You should understand firstly that the amount of community service hours is a clear indicator to any future judge that you are paying a price to earn a conditional discharge. It is also one that is a clear sign to a future judge as to the seriousness of my findings. As would I hope the reasons for sentencing that I have imposed here. Any breach of the probation order is not only a criminal charge which would put you at risk of jail and indeed given the background here I suspect that the Crown may very well want to seek jail. It would also put at risk the benefit that you gain from the conditional discharge as that can be taken away from you. Do you understand all that?

ROBEN OHANIAN: Yes sir.

Released: December 15, 2015

G.R. Wakefield, J.