COURT FILE AND PARTIES
COURT FILE NO.: 30000416/10
DATE: 20130312
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KOICHI TAKESHITA
Defendant
Peter Fraser, for the Crown
Appearing in Person
HEARD: March 1, 2013
SPIES J.
REASONS FOR SENTENCE
Overview
[1] On November 29, 2012, following a trial before me, I convicted Koichi Takeshita of one count of fraud over $5,000, contrary to s. 380(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46. I found that between January 29, 2002 and June 2, 2006, Mr. Takeshita did by deceit, falsehood, and other fraudulent means, defraud the Wesley Chapel Japanese Church (the “Church”), of the sum of $80,154.75. He now appears before me for sentencing. Mr. Takeshita is still representing himself although he did file a brief setting out submissions and case law prepared for him by a lawyer (the “Brief”).
The Facts
(a) Circumstances of the Offence
[2] The circumstances of the offence are set out in my Reasons for Decision[^1] and so I will only set out a summary of the main findings relevant to sentence. Mr. Takeshita and his wife were long time active members of the congregation of the Church. Mr. Takeshita became the Treasurer of the Church on April 30, 2001, and continued in this position until 2006. Mr. Takeshita resigned as Treasurer in April 2006, but continued on until July 2006, as his successor had health issues.
[3] Mr. Takeshita’s position as Treasurer was a volunteer position; he was elected to this position by members of the congregation. He was a trusted member of the congregation and was to receive no remuneration for his work as Treasurer. While Mr. Takeshita was Treasurer he was also a member of the Church Board.
[4] As Treasurer, Mr. Takeshita and the Church Pastor, Reverend Edward Yoshida (the “Pastor”), had co-signing authority for the Church’s cheques in that both had to sign each cheque.
[5] At trial Mr. Takeshita admitted that he arranged to have the Pastor sign blank cheques drawn on the Church’s bank account that he then filled in and made payable to himself directly and indirectly. There were 95 of these cheques and they totalled $80,154.75. Mr. Takeshita admitted that he concealed the payments to himself and falsified the bank statements that he showed to the Board so that Board members would not become alarmed at the lack of funds in the Church’s bank account.
[6] Mr. Takeshita’s main defence was that he had previously paid a significant amount of money to the Church and that when he wrote various cheques to himself he was simply trying to pay himself back. In summary, Mr. Takeshita testified that he had no intention of depriving the Church of funds, that the Church had no money to steal, and that his only intention was to support the Church. He said he was well to do and had no reason to defraud the Church for small amounts of money. However, Mr. Takeshita also testified that he ran out of his own money after he had spent about $20,000 on behalf of the Church and that he then decided he had to get as much money back as possible. Mr. Takeshita admitted that in his head he justified this on the basis that he had some sort of right to get the money back when he needed it. He said that he wasn’t able to because the Church didn’t have much money. Mr. Takeshita said he did not have a sense of stealing the money and knew the congregation might not be happy but that they would understand. With the payments back to the Church that Mr. Takeshita alleges that he made, he testified that he did not know that he still owed the Church money.
[7] Mr. Takeshita made a number of admissions when he testified at trial which are relevant to sentencing. He testified that the moment he wrote the first cheque to himself he felt very guilty because it was “God’s money” and people trusted and respected him. He admitted that what he was doing was wrong and that he wanted to remedy it as soon as possible but claimed that one of the factors that prolonged the resolution of this issue was that he was really afraid of the Pastor’s reaction. I found as a fact that Mr. Takeshita knew at the time that what he was doing was wrong and that he knew the Pastor and the Board would not tolerate this conduct.
[8] Mr. Takeshita continues to blame the Pastor and some of the letters he filed at the sentencing hearing tend to do the same. The Pastor’s motivation however, was not a matter that I dealt with at trial because I accepted the submission of Mr. Fraser that the credibility of the Pastor was not an issue that I needed to decide. The Pastor’s evidence with respect to the unauthorized cheques was essentially admitted by Mr. Takeshita. The only area where their evidence differed was how the cheques in issue were signed and on that issue, for the purpose of my analysis, I accepted Mr. Takeshita’s evidence. Accordingly, Mr. Takeshita needs to understand that whatever he believes the Pastor did or did not do is not relevant to my finding him guilty of fraud.
[9] I found that the unauthorized cheques to Mr. Takeshita started in January 2002 and the payments back to the Church by Mr. Takeshita started in April 2002. I found that Mr. Takeshita was using funds in the Church bank account for his own purposes and then from time to time paid money back in order to ensure the Church account did not go into overdraft and result in NSF cheques. All of this was done without a record, apart from what the bank records disclose, and was done in secret. To avoid detection, Mr. Takeshita admitted he was making sure the Church’s account did not go into overdraft so that the Pastor and others would not find out what he was doing. On a year by year basis, Mr. Takeshita was in a deficit situation with respect to payments received and payments returned until 2005 when he started to pay more money back than he was taking from the Church. He was, however, always in a net deficit, particularly before two $8,000 payments made in the summer of 2006.
[10] The two payments made to the Church on behalf of Mr. Takeshita each in the amount of $8,000 were made on July 26, 2006, and the other on August 15, 2006. These amounts were paid after the Pastor challenged Mr. Takeshita on the irregularities in his accounting. Mr. Takeshita gave a number of explanations for why he paid the $16,000 to the Church but his evidence was clear that this payment was not intended as restitution. In his sentencing submissions he characterized it as a penalty for what he did.
[11] At trial I found that Mr. Takeshita intended to defraud the Church, that he essentially used the Church’s bank account as his own, that he acted in a systematic way over five years and that this was not a spur of the moment single payment back to himself. I found that the payments Mr. Takeshita made back to the Church between March 28, 2002 and August 15, 2006 totalled $57,113.64 which includes the $16,000 payment. As a result, I found that the net deprivation to the Church was $80,154.75 minus $57,113.64 or $23,041.11.
(Decision continues exactly as in the source text with identical wording and paragraph numbering through paragraph [75].)
SPIES J.
Released: March 12, 2013
COURT FILE NO.: 30000416/10
DATE: 20130312
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
KOICHI TAKESHITA
Defendant
REASONS FOR SENTENCE
SPIES J.
Released: March 12, 2013
[^1]: R. v. Takeshita, 2012 ONSC 6666.