ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-14-70000376
DATE: 20150728
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
SHAWN FLETCHER
Linda Shin, for the Crown
Shawn Fletcher, unrepresented accused
HEARD: June 23, 2015
K.L. Campbell J.:
Reasons for Sentence
A. Overview
[1] On March 24, 2015, the accused, Shawn Fletcher, was found guilty, by a jury, of four counts of fraud over $5,000.00, contrary to s. 380(1)(a) of the Criminal Code, R.S.C. 1985, chap. C-46, and two counts of possession of money in excess of $5,000.00, knowing that it was obtained by the commission in Canada of an indictable offence, contrary to s. 354(1) of the Criminal Code. All of these offences were alleged to have been committed by the accused in Toronto during a one-week period between December 29, 2011 and January 5, 2012. The victims of these offences were an Alberta construction company, Fabcor 2001 Inc., and two financial institutions, BMO Financial Group and TD Bank Financial Group.
[2] Fabcor was the target of a large-scale fraud. Close to $390,000.00 was fraudulently transferred from Fabcor’s business account and quickly distributed electronically to a host of recipients. Almost $15,000.00 of that money was transferred into two bank accounts belonging to the accused. Over the next few days the accused, using automated-teller withdrawals and point-of-sale monetary transactions, managed to withdraw almost all of this fraudulently obtained money. Before the fraud occurred, one of the accused’s bank accounts contained limited funds, while his other account, which he had just opened, was already slightly overdrawn.
[3] The accused now appears for sentencing.
B. The Facts of the Offences
1. The Fraudulent Theft of Money From Fabcor
[4] The documentary evidence established that someone fraudulently stole a total of $389,087.78 from Fabcor. This was accomplished in three separate electronic transactions on December 29 and 30, 2011. Then these funds were promptly sent electronically to dozens of other individuals. Because this took place just before the long weekend at the end of the year, Fabcor could not countermand the electronic instructions to debit its account and distribute the funds.
2. Fabcor Funds Were Sent to Bank Accounts Belonging to Mr. Fletcher
[5] One of the three fraudulent debits removed $77,699.84 from the Fabcor business account on December 29, 2011. That money was quickly distributed to ten recipients. Two of the payouts were sent to bank accounts belonging to the accused. More particularly: (1) the sum of $7,333.11 was electronically transferred to the accused’s account at the Bank of Montreal; and (2) the sum of $7,604.46 was electronically transferred to the accused’s account at the TD Bank. In total, the accused received $14,937.57 of Fabcor funds that did not belong to him.
[6] Prior to the arrival of the $7,333.11 that was transferred electronically into his Bank of Montreal account at 10:00 p.m. on December 30, 2011, the account was overdrawn by $4. Indeed, the account had only just been opened the previous day, and no money had yet been deposited therein. Prior to the arrival of the $7,604.46 that was transferred electronically into his TD Bank account at 3:25 a.m. on December 31, 2011, the accused had just $205.34 in that account. While these funds arrived as “pay” for the accused, in fact, Mr. Fletcher never worked for Fabcor, and the company never owed him monies for any other reason.
3. The Removal of the Funds from the Accused’s TD Bank Account
[7] Once the money from Fabcor entered the accused’s TD Bank account, he quickly accessed and removed the funds. He did so by withdrawals from automated bank machines and point-of-sale transactions using his personal access card. There were ten such transactions between 12:45 p.m. on December 31, 2011 and 6:43 p.m. on January 2, 2012. The total amount of money taken from that account as a result of those ten transactions is $7,890.15. These transactions completely depleted the funds in the account. The TD Bank’s attempt to reverse the transfer of the Fabcor funds to the accused was unsuccessful because the funds were no longer in his account. Fabcor was never reimbursed for these fraudulently taken funds.
4. The Removal of the Funds from the Accused’s Bank of Montreal Account
[8] The accused did not open his account with the Bank of Montreal until December 29, 2011. At 9:59 p.m. on December 30, 2011, the sum of $7,333.11 was credited to this account in an electronic transfer from Fabcor. On six occasions between 1:00 a.m. on December 31, 2011 and January 3, 2012 at 4:41 a.m., the accused used his personal access card to obtain a total of $3,942.86 by withdrawing cash from automated bank machines and making point-of-sale monetary purchases. At that point the Bank of Montreal took steps to reverse the original transfer of funds from Fabcor into the accused’s account, which still held $3,386.25. Because Fabcor secured the return of all of its funds from the accused’s Bank of Montreal account, the company suffered no actual financial loss from that particular distribution. Rather, the Bank of Montreal suffered an actual loss amounting to $3,942.86.
5. The Denial Defence – Rejected by the Jury
[9] At trial, the accused argued that the Crown had not established: (1) that he was in any way involved in the alleged fraud on Fabcor, whereby its corporate funds were fraudulently obtained and then deposited into his personal bank accounts at the TD Bank and the Bank of Montreal; or (2) that he was in any way involved in the subsequent depletion of those funds from his bank accounts by means of bank machine withdrawals and point-of-sale transactions over the following days. By their verdict, the jury clearly rejected this defence.
C. The Personal Circumstances of the Accused
[10] The accused is 34 years old. He is single and has three siblings (one brother and two sisters). He has a dysfunctional family background. Apparently, while his father worked “on and off” in the construction industry for a time, neither parent has been gainfully employed for approximately 20 years. According to the accused, he was mistreated by his parents throughout his entire childhood. He was physically abused by his mother. Mr. Fletcher told the author of the pre-sentence report that his parents, whom he called “those people,” were “useless.” There were no extended family members to help the accused and his siblings through these difficulties.
[11] For all practical purposes, the accused has been homeless since the age of 14. According to the accused, his parents would lock him out of the family home and he would have to sleep in the park under a bridge. He left the family home permanently in grade 11, when he was 16 years old. He left school at the same time. Thereafter, the accused stayed temporarily in group homes and other shelters. He worked sporadically in a number of “telemarketing” jobs. He continues to have an interest in “internet marketing.” Although he enrolled in 2002 in an Academy of Learning program to become a “Personal Computer Support Specialist,” it is not clear that he completed it. He has also held a “general labour” job in a grocery store and worked as a roofer. He was reported to be a good employee with a sound work ethic. At one point, the accused undertook training to become a short-order cook. He describes his “ideal goal” as some type of “self-employment.”
[12] Currently, the accused lives alone in a “geared to income” Toronto Community Housing project, and is employed with the City of Toronto through “United Staffing Services” doing general labour for the waste-management company “Wasteco.”
[13] The accused has a criminal record. He has been convicted of a wide variety of criminal offences, including: failing to appear in court; theft under $5,000.00; possession of stolen property; failing to comply with a recognizance; robbery; driving while disqualified; possession of a prohibited or restricted firearm; possession of a controlled substance for the purpose of trafficking; possession of a firearm or ammunition contrary to a prohibition order; escaping lawful custody; and failing to comply with a probation order. To date, his longest custodial sentence, imposed in late 2007, was one year imprisonment, in addition to the five months of pre-sentence custody he had already served. The accused has also already served a number of probationary terms, including a successful three-year term of probation, and is considered “suitable for any future community supervision.”
[14] The accused used marihuana as a young adult, and he has convictions for drug-related offences (including selling crack cocaine) on his criminal record. The accused was “not forthcoming” to the author of the pre-sentence report about his “prior involvement with banned substances.” Accordingly, any potential community supervision would require an assessment for potential substance abuse issues.
[15] According to the author of the pre-sentence report, the accused’s recidivism may be motivated by a “mixture of frustration, family dysfunction, and a sense of personal failure.” His unresolved family difficulties seem to have “deeply affected” the accused on a personal level.
[16] The accused did “express his regrets” to the author of the pre-sentence report “regarding his current offences before the court.” Moreover, despite having chosen a life path involving a “criminal lifestyle,” the accused is aware of his “bad lifestyle choices” and continues to express “a desire to succeed in life without crime.” The author of the pre-sentence report expressed the opinion that the accused was actively trying to stay away from crime, and might be able to “make use of some form of community supervision.”
D. The Governing Sentencing Principles
[17] Pursuant to s. 718 of the Criminal Code, the “fundamental purpose” of sentencing is to contribute to “respect for the law and the maintenance of a just, peaceful and safe society” by imposing “just sanctions” that have one or more of the following objectives: (1) to denounce unlawful conduct; (2) to deter the offender and others from committing offences; (3) to separate offenders from society where necessary; (4) to assist in rehabilitating offenders; (5) to provide reparations for harm done to victims or the community; and (6) to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and the community.
[18] According to s. 718.1 of the Code, the “fundamental principle” of sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
[19] Section 718.2 of the Code requires a sentencing court to also consider a number of other principles: (1) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (2) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (3) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (4) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (5) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
[20] More specifically, s. 380.1(1) of the Criminal Code provides that, without limiting the generality of section 718.2, a court sentencing an offender for fraud must consider the following as aggravating circumstances: (a) the magnitude, complexity, duration or degree of planning of the fraud committed was significant; (b) the offence adversely affected, or had the potential to adversely affect, the stability of the Canadian economy or financial system or any financial market in Canada or investor confidence in such a financial market; (c) the offence involved a large number of victims; (c.1) the offence had a significant impact on the victims given their personal circumstances including their age, health and financial situation; (d) in committing the offence, the offender took advantage of the high regard in which the offender was held in the community; (e) the offender did not comply with a licensing requirement, or professional standard, that is normally applicable to the activity or conduct that forms the subject-matter of the offence; and (f) the offender concealed or destroyed records related to the fraud or to the disbursement of the proceeds of the fraud. Further, s. 380.1(2) of the Code provides that, in such cases, the sentencing court shall not consider as mitigating circumstances the offender’s employment, employment skills or status or reputation in the community if those circumstances were relevant to, contributed to, or were used in the commission of the offence. Finally, according to s. 380(3) of the Code, the sentencing court “shall cause to be stated in the record the aggravating and mitigating circumstances it took into account when determining the sentence.”
E. The Positions of the Parties
[21] The Crown suggested that the accused should be sentenced to a term of imprisonment of between six and nine months’ duration, and a term of probation between 18 and 24 months in length. The Crown also asked that I make a “free-standing” restitution order, pursuant to s. 738(1)(a) of the Criminal Code, in favour of Fabcor 2001 Inc. in the amount of $7,604.46, and in favour of the BMO Financial Group in the amount of $3,942.86, reflecting the actual losses suffered by these two corporate victims. The Crown contended that the restitution order was appropriate given that the accused is a 34-year-old man with future job prospects, which would suggest an ability to eventually repay his debt to these two corporations.
[22] In advancing this position, the Crown stressed the importance of general deterrence and denunciation given the large-scale, sophisticated, inter-provincial nature of the fraud on Fabcor and the disbursement of its funds. It also emphasized the important individual role the accused played in receiving and quickly withdrawing the funds from his accounts. On the other hand, the Crown fairly noted that the accused is still a relatively young man with realistic prospects for rehabilitation. His current employment appears to suggest that he is capable of breaking away from his past criminal life style and becoming a more productive and contributing member of society, and he expresses personal goals in that regard. However, the Crown argued that the accused’s criminal record is an aggravating circumstance that requires the imposition of a significant term of imprisonment, as it demonstrates that the accused continues to periodically commit criminal offences notwithstanding his ability to periodically find work and be a helpful and valued employee.
[23] The accused was unrepresented throughout the trial proceedings, and spoke on his own behalf at the sentencing hearing. During the course of his submissions, Mr. Fletcher said that he was “sorry” for “everything that happened,” which I understood to be an expression of his remorse for the commission of the current fraud offences. The author of the pre-sentence report also noted that the accused had expressed “his regrets” regarding his “current offences.” Mr. Fletcher also said that he was “sorry for what happened in the past,” which I understood to be an expression of his regret over his criminal history.
[24] Without seeking to excuse his current criminal conduct, the accused commented on some of the difficult circumstances of his life. He stated that he has tried to overcome his personal obstacles despite a lack of any real opportunities for financially rewarding employment. As Mr. Fletcher noted, he has been forced to accept a series of minimum-wage jobs and live in subsidized housing. He attributes some of his past criminal conduct to his lack of financial success.
[25] Mr. Fletcher spoke optimistically about his current employment, which he said included some “day trading” in foreign stocks, and about some prospects he had for future endeavours. Mr. Fletcher acknowledged that he was still “struggling to make it,” but he said that that he was doing what he could to change himself and his life for the better.
[26] With respect to sentencing, Mr. Fletcher urged me to impose a “conditional sentence” that would permit him to continue working, and which might allow him to eventually make the restitution proposed by the Crown.
[27] The Crown conceded that a conditional sentence was legally available in his case, given the date the offences were committed, but argued that a conditional sentence was not appropriate in all of the circumstances of this case, and that a period of actual incarceration was required.
F. Analysis – The Sentence Imposed
[28] In my view, in all of the circumstances of this case, the accused should be sentenced to a nine-month term of imprisonment, followed by a two-year term of probation, for each offence, served concurrently. I appreciate that this sentence is at the upper end of the range of sentence proposed by the Crown. In my view, in light of the gravity of the offences committed, and Mr. Fletcher’s criminal record, the sentence proposed by the Crown was quite lenient. Indeed, the custodial sentence imposed upon the accused could easily have been longer. Nevertheless, in my view a nine-month term of imprisonment and a two-year term of probation will appropriately balance all of the relevant sentencing principles.
[29] First, the nine month custodial sentence proportionally reflects the gravity of the frauds and the specific role of the accused in those criminal offences. While the accused may have played a lesser role in the fraud on Fabcor, such large-scale, sophisticated electronic frauds could not be committed without the assistance of offenders willing to play the important, lesser roles of receiving and quickly withdrawing the distributed funds. General deterrence is important in these types of cases. Potential offenders must understand that their participation in such crimes will have serious custodial consequences upon conviction.
[30] In furtherance of the statutory obligation created by s. 380(3) of the Code, I note that, in the present case, most of the statutory “aggravating circumstances” outlined in s. 380.1(1) of the Code do not exist. However, the magnitude and complexity of the fraud on Fabcor was significant, must have involved considerable planning, and Mr. Fletcher, like many others, played an important role in its execution. I note in passing that none of the statutory “non-mitigating circumstances” outlined in s. 380.1(2) of the Code exist in the present case.
[31] Second, the nine-month custodial sentence sends an important and necessary message of specific deterrence to the accused. While Mr. Fletcher is only 34 years old, he has already amassed a criminal record displaying convictions for 16 prior criminal offences. Just as he has committed a wide variety of criminal offences, Mr. Fletcher has received a wide variety of sentences. Unfortunately, none of these earlier sentences have deterred him from committing further offences. Not even the one-year term of imprisonment (after more than five months of pre-sentence custody) imposed in the fall of 2007, dissuaded Mr. Fletcher from engaging in further criminal activity. The message must be sent to the accused that he must cease his criminal activity. Mr. Fletcher must be made to realize that if he continues to commit offences, he will receive increasingly severe sentences.
[32] It is for this reason that I have concluded that a conditional sentence would be inappropriate in the circumstances of the present case. While the imposition of a conditional sentence can certainly have a punitive and deterrent impact upon an offender, in my view, a conditional sentence in this case would not provide a sufficiently effective deterrent to Mr. Fletcher. If significant terms of actual imprisonment have already proven to be ineffective in deterring the accused from the commission of further criminal activity, it is hard to believe that a conditional sentence of imprisonment in the community would be more effective. Accordingly, I reject Mr. Fletcher’s request for a conditional sentence.
[33] Third, the nine-month custodial sentence and two-year term of probation emphasizes Mr. Fletcher’s rehabilitative prospects, and will provide him with the necessary structure and support to assist him in his ongoing rehabilitative efforts. As I have indicated, the custodial sentence in this case could easily have been significantly longer. One might reasonably have looked at the criminal record of the accused and the gravity of the current fraud offences, and thought that only a reformatory sentence longer than Mr. Fletcher’s longest previous sentence would be appropriate. However, the Crown has, very fairly, taken the position that a shorter custodial sentence will actually suffice to accomplish all of the relevant sentencing goals.
[34] In addition the two-year term of probation will hopefully provide ongoing assistance and guidance to the accused following his release from custody. This probation order will include the statutory terms outlined in s. 732.1(2) of the Criminal Code, together with the following additional terms:
• The accused shall report to a probation officer within two working days of his release from custody, and thereafter as directed by the probation officer.
• The accused shall abstain absolutely from the purchase, possession and ingestion of any intoxicating substances, including any drugs, except in accordance with a medical prescription.
• The accused shall abstain from owning, possessing or carrying any weapon.
• The accused shall perform 240 hours of community service, over a period not exceeding 18 months, as directed by the probation officer. This community service shall commence within two months of the date the accused is released from the custodial part of his sentence, and shall take place at a rate of not less than 15 hours per month until its completion.
• The accused shall refrain from any contact, communication or association with any individual known by him to have a youth or adult criminal record, unless it is incidental to his employment, education or religious worship.
• The accused shall maintain gainful full-time employment, or attend an educational facility on a full-time basis.
• The accused shall fully participate in any and all counselling, life skills, employment, drug assessment, or educational programs as may be directed by his probation officer, and the accused shall execute any releases that are necessary in order to permit his probation officer to monitor his progress in these programs.
[35] Further, in my opinion this is an appropriate case in which to make orders, pursuant to s. 738(1)(a) of the Criminal Code, that the accused make financial restitution to Fabcor 2001 Inc. in the amount of $7,604.46, and to BMO Financial Group in the amount of $3,942.86. I am satisfied that these amounts reflect the actual financial losses suffered by these two corporate victims as a result of the fraudulent activities of the accused. As required by s. 741.1 of the Criminal Code, copies of these orders shall be provided to these corporate victims.
[36] Finally, the accused is liable to pay a victim surcharge in the amount of $100 pursuant to s. 737(2)(b)(ii) of the Criminal Code, and I order that this surcharge be paid by the accused.
G. Conclusion
[37] In summary, with respect to each of the six criminal offences of which he now stands convicted, the accused is sentenced to a nine-month term of reformatory imprisonment, to be followed by a two-year term of probation on the terms I have outlined. These sentences are to be served concurrently. Further, the accused is required to make financial restitution to the two corporate victims in the amounts I have indicated. The accused shall also pay the small victim surcharge ordered.
Kenneth L. Campbell J.
Released: July 28, 2015
COURT FILE NO.: CR-14-70000376
DATE: 20150728
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
SHAWN FLETCHER
REASONS FOR SENTENCE
K.L. Campbell J.
Released: July 28, 2015