COURT FILE NO.: CR-10-0082-00
DATE: 20130306
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Mr. J. Schaffer, for the Crown
- and -
MAXIE MORRIS
Mr. D. Gravesande, for the Defence
JUDGMENT ON SENTENCING
André J.
[1] Following a judge alone trial, I convicted Ms. Morris of defrauding Ms. Eileen Laing $23,643.00 which she had given Ms. Morris for investment purposes. The Crown seeks a jail sentence of three months while the defence seeks a conditional discharge or alternatively, a suspended sentence.
FACTS
[2] Ms. Laing met Ms. Morris when the latter hosted a lavish function in April 2004 to advertise her new company, King Judah Financial Inc. The two attended religious services at the same church. Ms. Morris subsequently contacted Ms. Laing on a few occasions following the function in an attempt to have her transfer her investments to King Judah Financial to get a higher return on her investment. Ms. Morris assured Ms. Laing that her company was affiliated with an established insurance brokerage company called Advantage Inc. and that her deposit would be guaranteed. Based on these representations, Ms. Laing borrowed $10,000 on her RBC Line of Credit and transferred $13,643 she had invested in the Toronto Dominion bank to Ms. Morris for investment purposes.
[3] Upon receipt of the money Ms. Morris deposited it in a newly opened bank account under her business name, King Judah Financial. On the date she deposited the $10,000, Ms. Morris withdrew $8,000 in cash and transferred $1,000 into another account. The remainder of the original deposit was used for debit payments at a number of businesses. On the same day that Ms. Morris deposited the $13,643.00 into her account, she cashed two cheques she wrote, one for $8,000 to herself, and another for $4,000 made out to a company in which her son was a director. There was a further cash withdrawal of $600 from the account. The rest of the money was used to cover debit transactions at various businesses. There was no evidence that Ms. Morris invested any of Ms. Laing’s money. Secondly, I found that Ms. Morris’ company was not affiliated in any way to Advantage Inc. Ms. Morris also sent two progress reports to Ms. Laing in January 2005 assuring her that there would be no loss of her initial deposit. She also tried to persuade Ms. Laing to give her more money for investment purposes.
CIRCUMSTANCES OF MS. MORRIS
[4] The 54 year old mother of two travelled to Canada in the 1990s. She became qualified as an insurance broker and for a brief period worked for Mr. Dziadecki, the principal of Advantage Inc. She subsequently left after battling depression but in 2002, asked the owner of Advantage Inc. for another opportunity to work with his company. Ms. Morris was doing very well selling insurance policies until her lavish event in April 2004, when many of the policies she had sold were discontinued, thereby making her responsible for the commissions that she had been paid on account of her sales of the policies.
[5] Ms. Morris is currently unemployed and is receiving state assistance of approximately $500 monthly.
VICTIM IMPACT STATEMENT
[6] The incident has had a devastating impact on the 52 year-old single mother of one child. The money defrauded by Ms. Morris was being saved for a down payment on a house that Ms. Laing intended to purchase. She was forced to rely on the generosity of relatives to replace the money she gave to Ms. Morris. She eventually purchased a house but still owes the Royal Bank of Canada some $4,000 on the line of credit. The incident has made her cynical and distrustful of persons. She no longer attends the church which she attended. She has not recovered any of the $23,643.00 that she gave to Ms. Morris.
LEGAL PARAMETERS
[7] An individual who has been convicted of Fraud Over Five Thousand dollars may face a maximum sentence of fourteen years imprisonment under section 380(1)(a) of the Criminal Code.
POSITIONS OF THE CROWN AND DEFENCE
[8] The Crown submits that a sentence of ninety days in jail followed by a three year period of probation is appropriate in this case. The Crown is not opposed to an intermittent sentence if Ms. Morris’ personal circumstances warrant such a sentence. The Crown also submits that Ms. Morris, as a condition of her probation, should be ordered to pay $100 a month or $3,600 over the course of the probationary period. The Crown also seeks a Stand Alone Order, in the amount of $23,000, in favour of Ms. Laing.
[9] The defence submits that a conditional discharge is appropriate in this case given Ms. Morris’ impecuniosity and her difficult background.
THE LAW
[10] Section 718.1 of the Criminal Code states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. See also R. v. M.(C.A.), [1996 SCC 230], [1996] 1 S.C.R. 500. In assessing what amounts to a proportionate sentence in this case, I must consider a number of sentencing objectives in section 718 including deterrence, denunciation, reparations to the community and to some extent, rehabilitation. The sentence can also be increased or reduced to account for any aggravating or mitigating circumstances relating to the offence or to the offender. Section 718.2(a).
AGGRAVATING FACTORS
a) The scheme required planning and deliberation;
b) The sum of money defrauded was significant;
c) Ms. Laing was a vulnerable victim;
d) The fraud had a significant impact on Ms. Laing;
e) There has been no recovery;
f) There has been no remorse from Ms. Morris;
g) Ms. Laing was a member of Ms. Morris’ church community;
h) Ms. Morris sent Ms. Laing two progress reports indicating that there would be no loss of her deposit after she had cashed substantially all of Ms. Laing’s money;
i)Ms. Morris tried to get Ms. Laing to give her more money for investment after receiving $23,643.00 from her.
MITIGATING FACTORS
a) Ms. Morris has no criminal record;
b) Ms. Morris has experienced some hardship and depression;
c) Ms. Morris has been on a Recognizance with restrictive conditions for a significant period.
APPLICABLE SENTENCING PRINCIPLES
[11] The appropriate sentence in this case must be one that is proportionate to the circumstances of the offence and the moral blameworthiness of Ms. Morris. In determining such a sentence, the major sentencing factors to be considered are general deterrence, denunciation, the need for reparations and to a lesser degree, rehabilitation. The sentence must be such that it sends a message that Ms. Morris’ actions cannot be countenanced by the community and must be deterred. On the other hand, the sentence must not be so harsh that it will effectively crush all Ms. Morris’ hopes for rehabilitation.
REASONS
[12] In my view a conditional discharge while in Ms. Morris’ interest, is not in the community’s interest. The offence required some planning. It involved a significant amount of money. There is no evidence that any of the money was ever invested. There has been no recovery and the offence has had a significant impact on Ms. Laing. A conditional discharge would not be a proportionate sentence in this case given that it does not adequately reflect the seriousness of the offence. Neither would a suspended sentence. This was not a momentary lapse of judgment. Indeed, even after Ms. Morris had received the money from Ms. Laing, she approached her to make additional investments. Ms. Morris sent Ms. Laing progress reports of her investments long after she had withdrawn substantially all of Ms. Laing’s money from her account. Despite the fact that Ms. Morris is a first offender and that pursuant to s. 718.2(d), an offender should not be deprived of liberty, if a less restrictive sentence may be appropriate, the offence in question warrants a period of custody within the intermittent range in addition to a period of probation.
[13] On the other hand, the length of the sentence should reflect the mitigating factors in this case. Ms. Morris has no criminal record and has had a fairly difficult life in Canada. She has not received assistance from the father of her children. She was required to report to the police twice weekly and did so for four years without breaching her bail. She is now financially destitute although through no one else’s fault but her own.
[14] For the above reasons, the appropriate sentence in this case will be as follows:
A period of custody for forty-five days. However, Ms. Morris will be permitted, pursuant to s. 732(1)(a) to serve her sentence on an intermittent basis. Accordingly, she will be taken into custody today to be processed and then released. She will surrender herself in a sober condition to the institution at 8:00 p.m. on March 8, 2013. She will be held in custody until March 11, 2013, at 6:00 a.m. She will then serve the unexpired portion of her intermittent sentence on every consecutive weekend thereafter.
During the intermittent sentence, Ms. Morris will be on probation, the only term being that she must keep the peace and be of good behaviour. (Section 732(1)(b)).
At the expiration of the Intermittent Sentence, Ms. Morris will be on probation for 18 months. The conditions of the probation are as follows:
(a) Report to a probation officer upon release and thereafter as required;
(b) Keep the peace and be of good behaviour;
(c) Attend for such counselling as directed by your probation officer;
(d) Have no association or contact, directly or indirectly with Ms. Laing;
(e) 50 hours of community service at a rate of at least 5 hours per month commencing no later than July 1, 2013. Present proof to your probation officer that you have successfully completed your community service;
(f) Seek and maintain gainful employment; or attend an educational program approved of by your probation officer;
(g) Pay restitution in the amount of $1,000.00 to Ms. Laing.
ANCILLARY ORDERS
[15] The following ancillary orders are imposed:
There will be a Stand Alone Restitution Order under s. 738 of the Code in the amount of $22,643.00 in favour of Ms. Laing;
There will be a Victim Fine Surcharge under s. 737(1) of the Code.
André J.
Released: March 6, 2013
COURT FILE NO.: CR-10-0082-00
DATE: 20130306
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
MAXIE MORRIS
JUDGMENT ON SENTENCING
André J.
Released: March 6, 2013