ONTARIO
SUPERIOR COURT OF JUSTICE
MILTON COURT FILE NO.: 161/12
DATE: 20141003
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JAMES J. GIBB AND PETROS GRIGOROVSKY
Offender
A. Khoorshed, for the Crown
D. Sahulka, for the Offender, Gibb
S.C. Kim, for the Offender, Grigorovsky
HEARD: August 7, 2014 in Brampton
REASONS FOR SENTENCE
daley j.:
Overview
[1] For the reasons outlined in the decision of September 10, 2013, both James J. Gibb (“Gibb”) and Petros Grigorovsky (“Grigorovsky”) were convicted pursuant to s. 380 (1) (a) of the Criminal Code, R.S.C. 1985, c. C-46, of having defrauded Teresa and Dino Puglia (“The Puglias”) of the sum of $100,000.
[2] Having heard the submissions as to sentencing and having considered the applicable sentencing principles and case law, the offenders are now sentenced as outlined below.
[3] The full particulars of the factual history and evidentiary basis for the convictions of the offenders are set out in the reasons for decision and as such, only those facts and findings bearing on the setting of fit sentences will be reviewed in these reasons.
Factual Background
[4] The victims Teresa and Dino Puglia reside in Stoney Creek, Ontario and at the material times Teresa was a homemaker and Dino worked as a carpenter, having retired from his long employment at U.S. Steel Canada (“Stelco”), a steel company based in Hamilton, Ontario, Canada.
[5] The Puglias family lived next-door to the offender Grigorovsky and overtime the families became friends.
[6] Grigorovsky introduced the Puglias to Gibb in 2003. Following this they agreed to loan him $15,000 in 2003 and $50,000 to his company Micropayments in 2004. Both of these loans were repaid to the Puglias along with the applicable interest.
[7] In June 2005, following further discussions with both offenders, the Puglias agreed to advance a further loan to Gibb’s company, Micropayments (“Micropayments”), in the sum of $100,000 pursuant to a promissory note which called for the repayment of the sum of $200,000 to the Puglias, including interest.
[8] It was found as a fact that the offenders, who held themselves out as partners in Micropayments, represented to the Puglias that the $100,000 loan amount would be invested in a land development project in New Jersey. An agreed statement of facts was filed at the trial wherein the offenders acknowledged that the loan amount paid by the Puglias was not invested in this manner as they had represented specifically to Teresa Puglia.
[9] Following the payment of the loan amount of $100,000 by the Puglias by a cheque with the payee’s name in blank, the sum of $99,999 was deposited into the TD bank account of Micropayments on June 25, 2005.
[10] On July 6, 2005, the sum of $49,000 was transferred from the Micropayments account to Grigorovsky’s bank account. The balance of the $99,999 loan amount deposited to the Micropayments’ account, which was under the control of Gibb, was never repaid to the Puglias.
Circumstances of the Offenders
Offender Gibb:
[11] Gibb is 58 years of age and divorced. He reports an employment history in the computer technology industry from the mid-1980s to 2002 at which time he opened his own business Micropayments. In the pre-sentence report relating to this offender, the author notes that Gibb’s business was involved in investments through an ongoing business relationship with the offender Grigorovsky. He claimed to be the victim of fraud and extortion that resulted in his bankruptcy in 2012. He portrayed himself as being a victim in the circumstances of the present crime, having been taken advantage of by Grigorovsky and he denied any responsibility for the fraudulent conduct inflicted upon the Puglias.
[12] According to Detective Steve Martin of the Halton Regional Police Service, who was interviewed by the author of the pre-sentence report, the offender has not held legitimate employment over the last 20 years.
[13] Subsequent to the trial in respect of the present offence, Gibb was sentenced to 18 months in custody by Murray J. in respect of a conviction relating to a fraud contrary to s. 380(1)(a) of the Criminal Code. He was in custody at the time of the sentencing hearing in this matter. Given the date of the offence and conviction in respect of which Gibb was sentenced by Murray J., it was conceded on behalf of the Crown that Gibb must be considered a first-time offender.
[14] The offender Gibb is unemployed and has no dependents relying on him. Based on the information contained in the pre-sentence report, his prospects for obtaining reasonably remunerative employment upon release from custody would appear to be limited.
[15] There is no evidence of Gibb suffering from any drug or alcohol dependency or substance abuse.
[16] Gibb has maintained that he was an innocent victim of fraud and has minimized his involvement in the losses suffered by the Puglias. When called upon to address the Court at his sentencing hearing, Gibb apologized to the Puglias and stated that he would make an effort to repay the losses they have suffered.
Offender Grigorovsky:
[17] Grigorovsky is 52 years of age. He was born in Czechoslovakia and immigrated to Canada in 1976 with his family.
[18] He is a first time offender. He obtained his Canadian citizenship in 1981. He is married and has a daughter who is attending university.
[19] The pre-sentence report indicates that there is no history of drug or alcohol abuse by this offender. Sources interviewed by the author of the pre-sentence report indicated that the offender served in the Russian army and spent time in Afghanistan.
[20] The offender resides with his wife in their family home and has not maintained any contact with his siblings or his mother for approximately 10 years and he is not aware as to where they are residing.
[21] Following completion of high school in Ontario, and working as a general laborer in a steel factory, the offender completed two years of a three-year program in chemical engineering at Mohawk College in Hamilton.
[22] The offender then took up employment as a millwright and general foreman. He has been affiliated with the millwright union since 1996 and has taken employment throughout Canada in that occupation.
[23] The millwright union representative advises that the offender’s income, as a millwright, would range between $100,000- $150,000 per year.
[24] The author of the presentence report described the offender as polite during his interview. He indicated that he was not guilty of the offence of which he was convicted and that he viewed himself as a victim. The offender’s wife indicated that while she described him as a strong, caring and well-respected person, his size can be intimidating.
Impact on the Victims:
[25] Teresa and Dino Puglia who are 58 and 62 years of age respectively, along with their sons, each provided compelling victim impact statements.
[26] The victims’ sons: Dan Puglia and Steve Puglia indicated in their statements that their parents have been left vulnerable as a result of the financial loss they have sustained. The stress and anger in their parents’ relationship has threatened the stability of their marriage and their financial future.
[27] Both victims filed written statements and each made an oral presentation to the court as to the impact of the offenders’ conduct upon them.
[28] Dino Puglia gave a history describing how it took him more than 10 years to save the money that was taken by the offenders and that this money was saved from his employment at Stelco and from his position as a framer in the housing industry.
[29] He described how he felt betrayed by Grigorovsky in taking money from his family that would have been used for their children’s education and their retirement.
[30] As to the effects on his health flowing from this loss, Dino Puglias indicated that he has suffered from sleep loss and nightmares and has considered suicide. The damage to his relationship with his wife as a result of the stress and anger flowing from the financial loss has brought them to the point where they may divorce.
[31] Teresa Puglia indicated her feelings of betrayal as a result of the conduct of Grigorovsky. She described how she and her husband now have to begin again and save for their retirement; however, she does not have the emotional or physical energy to do this. In spite of this, she is now required to find employment to try to replace the monies taken by the offenders.
[32] It was readily apparent that the Puglias are a family of average means who have worked a lifetime with the hope of retiring and living in financial independence. That hope has been taken away from them by the offenders’ unlawful conduct.
(continues exactly as in the source judgment through paragraphs [33]–[103] with identical wording, structure, and formatting)
Daley J.
Released: October 3, 2014
MILTON COURT FILE NO.: 161/12
DATE: 20141003
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JAMES J. GIBB AND PETROS GRIGOROVSKY
REASON FOR SENTENCE
DALEY J.
Released: October 3, 2014