ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-R1944

DATE: 20140416

BETWEEN:

HER MAJESTY THE QUEEN

– and –

AYMAN BONDOK

Offender

John Semenoff, for the Crown

Michael Spratt, for the Offender

HEARD: December 18, 2013

AMENDED REASONS FOR SENTENCE

Corrected Decision: The word consecutive at para. 20 in the original Reasons for Sentence issued on January 22, 2014 was amended to concurrent.

R. Smith J.

[1] Mr. Ayman Bondok (“Mr. Bondok”) was convicted of conspiracy to commit fraud and also fraud by taking over Mr. Pijselman’s account with ING Direct Canada (“ING”) and transferring $497,000 from his account.

A. Circumstances of Offences

Mr. Bondok was found guilty of conspiring with Ahmed Adam (“Mr. Adam”) to commit the offence of fraud by depriving Mr. Pijselman of $497,000 in his ING account. Mr. Pijselman inadvertently gave Mr. Adam his PIN number during a phone conversation with ING to transfer monies between his two accounts. Shortly after Mr. Pijselman revealed his PIN number to Mr. Adam, a number of phone calls were made accessing his account by someone other than Mr Pijselman.

I find that the jury concluded that Mr. Adam gave Mr. Pijselman’s PIN number to Mr. Bondok who then linked Mr. Pijselman’s ING account with a Royal Bank account belonging to Mr. Giannuzzi. Mr. Bondok then impersonated Mr. Pijselman in a phone call wherein he directed ING to transfer $497,000 from Mr. Pijselman’s ING account to Mr. Giannuzzi’s Royal Bank account in Ottawa. ING followed Mr. Bondok’s instructions and transferred the funds from Mr. Pijselman’s account to that of Mr. Giannuzzi.

B. Offender’s Circumstances

Mr. Bondok is currently 37 years of age and is the father of 4 children aged fourteen, thirteen, five and six months. Mr. Bondok has been caring for his children while their mother has been living in Egypt. The mother has now returned to Canada and is caring for the children.

Mr. Bondok has received Ontario Disability Support Program (“ODSP”) benefits since June of 2004. In October of 2013 he worked as a manager at Pharoah’s restaurant and states that the owner of the restaurant has agreed to allow him to return to his former position once he is released from jail. The owner of the restaurant stated that he never employed Mr. Bondok and that he only volunteered for him in various positions before being imprisoned on these offences; but is prepared to offer employment.

Mr. Bondok suffers from diabetes and takes insulin injections and also takes medication for his thyroid and has kidney problems.

C. Impact on Victim

A victim impact statement was filed by Mr. Pijselman’s son. He stated that the crime created undue stress on his parents who were the victims. A victim impact statement was also filed by ING. All of the funds were ultimately recovered, however, ING incurred legal expenses and staff costs of approximately $50,000. The bank also stated that its reputation had suffered a loss due to the breach of trust by Mr. Adam.

D. Positions of Crown and Defence

The defence seeks a conditional sentence for the accused and in the alternative, if jail time is to be imposed, two years plus a day in a federal institution.

The Crown submitted that the range of sentence for this type of serious planned and deliberate fraud on a bank is between three and five years. The Crown seeks a term of imprisonment of four years.

E. Mitigating Factors

The following are mitigating factors for the accused:

All of the $497,000 transferred from Mr. Pijselman’s account was recovered.

Mr. Bondok was not the person who committed the more serious breach of trust as he was not an employee of ING. Mr. Adam obtained the confidential banking information from Mr. Pijselman and transferred this information to A. Bondok.

He argues that he played a limited role in the fraud, however, I find he played a principal role as he called ING, impersonating Mr. Pijselman and directed ING to transfer Mr. Pijselman’s funds to Mr. Giannuzzi’s account.

The offender had been caring for a number of children, however, this is not a mitigating factor related to the commission of this offence.

The accused has complied with the bail conditions while awaiting trial.

F. Aggravating Factors

The following are aggravating factors:

This offence was committed while the accused was released from custody on conditions on a charge of defrauding the same ING Bank;

A substantial the amount of money, namely $497,000, was fraudulently transferred from an elderly gentleman’s bank account;

The fraud required organization and planning as it involved linking of another bank account to Mr. Pijselman’s account and then instructing ING to transfer $497,000 to Mr. Giannuzzi’s Royal Bank account;

The offence involved the takeover of an individual’s bank account using confidential information provided to him by Mr. Adam;

The offender has a prior conviction for bank fraud and a lengthy criminal record.

G. Principles of Sentencing

The principles of sentencing are set out in section 718 of the Criminal Code. The applicable principles in this case are specific and general deterrence as well as denunciation of the offender’s conduct.

H. Case Law

The cases of R. v. Dobis (2002), 2002 32815 (ON CA), 58 O.R. (3d) 536 and R. v. Bogart (2002), 2002 41073 (ON CA), 61 O.R. (3d) 75 set out the general principles of sentencing applicable on a conviction for fraud but are not exactly on point.

In R. v. Drakes, 2009 ONCA 560, [2009] O.J. No. 2886 (CA), the two accused were convicted of fraud over $5,000, attempted fraud, and laundering proceeds of crime. The accused ran a Nigerian letter scam in which victims were sent correspondence claiming that a large sum of money would be deposited into their bank accounts if they paid substantial service fees. The trial judge sentenced Drakes to five years imprisonment and Brewster to four years imprisonment. At para 26 of the Drakes decision, the Court of Appeal quoted from the trial judge and stated as follows:

We agree with and underline this passage from the trial judge’s reasons for sentence:

There is a real need to emphasize denunciation and general deterrence in the realm of large-scale frauds with devastating consequences for their victims. There is a real need to warn individuals currently involved in such scams, and those devising new ones, that substantial penitentiary sentences will follow this type of crime, to say nothing about the serious disgrace to them and everyone connected with them.

In R. v. Gallagher, 2008 ONCA 252, [2008] O.J. No. 1271, the accused pleaded guilty to 6 counts concerning a series of fraud related offences. He fraudulently impersonated his cousin and defrauded cell phone companies and obtained loans in the amount $82,135. The accused was sentenced to three years incarceration after credit for twelve months pre-sentence custody on a two-for-one basis. The court stated that the significant penitentiary sentence was justified as the offences were planned, serious and solely motivated by greed. These factors all apply to Mr. Bondok and the amount of the fraud was larger than that in Gallagher.

In addition, Mr. Bondok does not receive any benefit for a guilty plea, which was the case in the Gallagher decision. Mr. Gallagher had previous convictions for similar offences and his sentence was for two years and three months.

In R. v. Palantzas, 2009 49328, Mr. Palantzas, a bank branch manager, defrauded his employer of $819,000 over several years through fictitious loans to branch customers. The court rejected a joint submission proposing a sentence of fifteen months imprisonment and three years probation. W.B. Trafford J. held that the breach of trust and the complexity of the fraud warranted a sentence with greater emphasis on deterrence and denunciation. There were the mitigating factors of a guilty plea, the loss of status and the offender’s health issues. In Palantzas the court imposed a sentence of four years imprisonment. However, this case is distinguished by the fact that there is an element of breach of trust which is not present for Mr. Bondok.

In R. v. Bradley, 2004 ABCA 362, the Alberta Court of Appeal upheld a custodial sentence of four and a half years for an offender convicted of credit card theft and identity theft using forged documents. The offender stole credit cards from the mail before they reached the intended individuals. The court stated that the fraud was substantial, organized and sophisticated. The court held that a sentence of four and a half years in jail was fit and proper.

The defence has not submitted any cases disagreeing with the above decision relied on by the Crown. I therefore conclude that the range of sentence for this type of serious bank fraud in the circumstances where the accused has a prior record for committing fraud on the same bank is between three and five years.

I. Sentence and Reasons

Having considered the above cases, the principles of sentencing as set out above, and considering the totality principle, and the restraint principle, as this will be the accused’s first penitentiary sentence, I impose a sentence of three and a half years in jail concurrent on both counts. The accused shall be given credit for the 77 days spent in post-conviction custody on a 1.5 to one basis based on the lack of earned remission in the amount of 115 days.

The Victim Surcharge is waved due to the fact that the offender has been on disability and lacks the means to pay a fine and has been sentenced to a substantial term of incarceration.

Mr. Justice Robert J. Smith

Released: April 16, 2014

COURT FILE NO.: 12-R1944

DATE: 20140416

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

AYMAN BONDOK

Offender

AMENDED REASONS FOR SENTENCE

R. Smith J.

Released: April 16, 2014