Court Information
Ontario Court of Justice
Date: October 14, 2016
Court File No.: Brampton 13-8324
Parties
Between:
Her Majesty the Queen
— and —
Bradley Rosenberg
Before the Court
Justice: J.J. Keaney
Reasons for Sentence released on: October 14, 2016
Counsel
For the Crown: Mr. Sone
For the Defendant Bradley Rosenberg: Mr. R. Yasskin
Decision
KEANEY, J.:
Guilty Plea
[1] Following his preliminary inquiry, Bradley Rosenberg pled guilty to three counts of fraud over $5,000, contrary to Section 380(1)(a) of the Criminal Code.
[2] In addition to the preliminary inquiry evidence, on the sentencing hearing the court was provided with a summary of facts for the guilty plea, a pre-sentence report, victim impact statements from two of the three victims, two medical reports from the accused's psychologist, and letters of reference.
Circumstances of the Offences
[3] Rosenberg held himself out to his three victims as a businessman with insider opportunities.
[4] At the golf club at which he was a member he befriended Bradley Gibson and made the acquaintance of David Forgan, also club members. In February, 2012, he separately proposed to Gibson and Forgan that he had access to the Facebook IPO before the shares would be publicly offered. Mr. Forgan placed the sum of $25,320.00 in Mr. Rosenberg's hands. Mr. Gibson made two advances, totaling $41,296.00.
[5] All of the representations by the offender to these gentlemen were false and fraudulent.
[6] Neither gentleman received shares or the return of their investments. There were constant excuses given in response to their inquiries.
[7] In January, 2012, the married Mr. Rosenberg began an intimate relationship with Natalie Ohayon whom he met on a dating website. He misrepresented to her his employment, suggesting he worked for a New York City investment hedge firm. He did not.
[8] After six months of dating, he persuaded Ms. Ohayon to invest in respect of an upcoming IPO for a company called Sunguard. He said he could obtain the shares at a lower price prior to the IPO. Ms. Ohayon, a single mother, had minimal investment experience. Her concern was the upcoming university cost for her son. She took a line of credit against her home, and placed $67,953.53 with Mr. Rosenberg. She received nothing for her investment.
Effects on Complainants
[9] In his preliminary inquiry evidence and victim impact statement, Bradley Gibson states he suffered a significant financial loss, suffered stress that affected his health, and compromised a divorce. There was a domino effect requiring him to sell assets. His future has been compromised.
[10] Natalie Ohayon suffered the most devastating loss. She is a single mother. The experience with Rosenberg has left her disheartened with a loss of trust. She states in her victim impact statement: "He introduced and portrayed himself as a business educated man, he invited himself into my home, met my family and took my money without having any remorse in his dishonest words and actions."
[11] Following the fraud, she was obliged to place a second mortgage on her home, her plans to support her son through university failed due to her loss of savings. She has been required to work extra hours to make up the loss.
Circumstances of the Offender
[12] Bradley Rosenberg is a 40 year old man. He has a cognate criminal record. In 2010 he was convicted of three counts of fraud over, and failing to comply with the terms of a recognizance, as well as failing to appear in court.
[13] He was sentenced at that time to a 12 month conditional sentence, on top of 145 days of pretrial custody, and three years' probation.
[14] He is a self-described compulsive gambler, and a diagnosed (by Dr. Long) pathological gambler. He is also, on all of the evidence before me, an un-contrite repeat offender, an inveterate liar, and an unrepentant conman. At the time of the frauds on these three people, he was on probation for the fraud convictions from 2010.
[15] There has been no effort at restitution. Rosenberg says he could not work because of these charges. He alludes to health issues of depression and anxiety. There is no evidence of any effort to deal with those.
[16] He left a brief employment when asked to provide a criminal background check, suggesting he feared (but had not inquired) that he would be terminated as a result.
Submissions
[17] The Crown suggests a global custodial term of 18 months, followed by three years' probation, and a restitution order.
[18] Counsel for the accused suggests an incarceration period of 12 months, followed by two years' probation, and free standing restitution orders.
Sentencing Objectives
[19] The Criminal Code, commencing at section 718, sets out the purposes and principles of sentencing. The fundamental purpose is to protect society and to contribute to respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions that have as their objectives to denounce unlawful conduct and the harm done to victims or to the community; to deter offender and other persons; to separate offenders from society where necessary; to assist in rehabilitating offenders; and to provide reparations for harm done to victims or the community and to promote a sense of responsibility in offenders and acknowledgment of the harm done: see Section 718.
[20] A fundamental principle is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[21] Section 718.2 sets out certain aggravating circumstances.
[22] This repeat offender has committed grave offences calling for denunciation at a level that his previous sentence failed to communicate.
[23] His actions have had a serious impact on all his victims, and in particular Ms. Ohayon. His conduct with her was particularly scurrilous. Defence counsel urges that in mitigation I should consider that the accused had some depression and anxiety, that the offences were driven by his gambling addiction, and that his plea is an indication of remorse and acceptance of responsibility.
[24] I note that the plea was not entered before the three victims were required to attend court and give evidence as to the frauds perpetrated upon them.
[25] In respect of the accused's remorse, I note the comments of the investigating officer, PC Horner, to the presentence report author Ms. Liscio, that he: "…does not believe the subject has shown any remorse for his actions, nor is he able to internalize the impact on the victims, especially the female victim who is a single mother and with whom he allegedly had an intimate relationship." Officer Horner goes on to opine that the accused groomed and manipulated the victims to be comfortable in giving him their money.
[26] On the facts as presented to the court, there is no reason to disagree with that suggestion.
Aggravating Factors
[27] There are many:
This was a breach of trust directed towards friends and acquaintances.
The offender has a record including multiple similar offences in 2010, a mere two years before the commission of these offences. There is a pattern of fraudulent conduct involving large amounts of money. He is a serial fraudster and conman.
He was on probation at the time of these offences.
These frauds exhibit sophistication and planning. They were perpetrated over long periods of time as he befriended his victims. There was a high level of deceit.
There were significant impacts on his victims, including a devastating impact on Ms. Ohayon.
His fraudulent conduct did not end until he was arrested.
There have been no efforts at all at restitution including in the many months following his guilty plea during these unnecessarily protracted sentencing proceedings.
There would appear to have been mere lip service paid to counselling, including that ordered in the previous probation order. That counselling failed to achieve its objective.
Analysis
[28] I have conducted a review of representative cases put before me by both the Crown and defence counsel. The principles of sentencing are well established. Earlier decisions provide some guidelines.
[29] Each case must be decided on its own merits.
[30] I do not consider his gambling addiction to be either an exceptional circumstance or mitigating factor: see R. v. McIvor [1996] O.J. 377 (Alta.C.A.).
[31] These were serious frauds, with grave consequences on his victims, perpetrated by an unrepentant conman while on probation for the same offences.
[32] In R. v. Kowal, [1996] O.J. 2715, the Ontario Court of Appeal determined an appropriate sentence was two years less a day for the fraud of a single victim, a romantic partner, in the amount of $300,000.00.
Disposition
[33] The Crown suggests apportioning sentence as among the three counts, for each of the victims, at six months for each of Forgan and Gibson, and 12 months for Ohayon, therefore 24 months. The Crown argues that the totality principle should be applied to reduce the total to 18 months.
[34] I disagree with the latter submission to, in effect, roll the sentences for the fraud on Forgan and Gibson into one term would give this recidivist offender a single free pass. He exhibits nothing that would entitle him to that. The frauds on Forgan and Gibson involved the same scheme, but they were discreet approaches and events.
[35] In my view a fit sentence that takes into account the totality principle as well as all of the sentencing principles I need to apply, is a global sentence of two years less a day.
[36] On release, Mr. Rosenberg will be placed on probation for a period of three years. The statutory terms will apply. In addition, he will not associate, contact or hold any communication directly or indirectly with David Forgan, Brad Gibson, or Natalie Ohayon. He will remain away from any place he knows any of those individuals to be.
[37] He will not enter into any casino or gaming establishment.
[38] He will not engage in any online gambling.
[39] He will not seek or maintain employment in the financial investment field.
[40] He will attend and actively participate in such counselling as his probation officer may recommend, and will execute in favour of his probation officer such releases or directions as are necessary for that officer to monitor his participation in such programs.
Released: October 14, 2016
Justice J.J. Keaney