ONTARIO
SUPERIOR COURT OF JUSTICE
OTTAWA COURT FILE NO.: 12-R1944, 13-A12737
DATE: 2015/11/10
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CARMINA CARMEN MONTEMURRO
John Semenoff, for the Crown
Michael A. Johnston and Brett McGarry, for the Accused
HEARD: March 23, June 8 and October 19, 2015 at Ottawa.
DECISION ON SENTENCING
RATUSHNY J.
[1] Ms. Montemurro has pleaded guilty to two criminal offences, a fraud over $5,000 committed in September 2009 and an attempt to obstruct justice committed in October 2013, contrary to sections 380 (1) (a) and 139 (2) respectively of the Criminal Code.
1. The Offences
[2] An Agreed Statement of Facts was filed.
The Fraud
[3] An elderly gentleman, Simon Pijselman now deceased, was the victim of $497,000 being fraudulently transferred out of his ING Direct Canada (“ING”) bank account into the bank account of Mario Giannuzzi.
[4] Ms. Montemurro’s involvement in the fraudulent scheme continues the story told in R. v. Bondok 2014 ONSC 394 involving Ahmed Adam and Ayman Bondok. Both were charged together with Ms. Montemurro and two others with fraud related offences. Mr. Adam received a sentence of 2½ years’ incarceration and Mr. Bondok, 3½ years’ incarceration.
[5] While Mr. Pijselman no doubt suffered shock and anxiety after his bank account was taken over and his monies transferred, he was eventually fully compensated.
[6] It was Mr. Giannuzzi, the police concluded, who ended up as the dupe in the middle of the fraudulent transfers and one of the victims of the fraud. He became involved because he and others in the Italian community had had failed investment dealings with Ms. Montemurro and her husband. In 2008 she still owed him monies from his investment.
[7] In ways that remain unexplained, Ms. Montemurro learned of the fraudulently available $497,000 and in the summer or fall of 2009 told Mr. Giannuzzi to provide her with his banking details so she could repay him his investment monies totalling $141,000.
[8] Mr. Giannuzi complied. On September 25, 2009 Mr. Pijselman’s $497,000 was transferred into Mr. Giannuzzi’s account. This was far in excess of what he was owed and Ms. Montemurro then instructed Mr. Giannuzzi to keep his share and give her the rest in cash so she could pay the other investors. However, he was distrustful of her and instead, dispersed the rest to the other investors by way of various banking instruments, including to his cousin Giuseppe Russo who was repaid $50,000 of what he was owed and $4,000 in cash to Ms. Montemurro.
[9] Once the fraud was discovered the transferred funds were frozen and ING commenced civil litigation proceedings to recover Mr. Pijselman’s monies.
[10] On December 9, 2009 Ms. Montemurro swore in an affidavit that she believed Mr. Pijselman had authorized the transfer to Mr. Giannuzzi’s account.
[11] Despite being told by his own bank representatives and by the police that the monies had not been legitimately obtained, Mr. Giannuzzi resisted returning the monies because he continued to believe Ms. Montemurro’s assurances to him that they had been legitimately obtained.
[12] On February 11, 2011 Ms. Montemurro turned herself in and was charged with fraud over $5,000.
[13] On October 7, 2013 a judge and jury trial involving Ms. Montemurro, Mr. Adam, Mr. Bondok and two other accused persons commenced. Messrs. Giannuzzi and Russo were subpoenaed as witnesses.
The Attempt to Obstruct Justice
[14] On October 8, 2013, the evening after the trial had commenced, Ms. Montemurro met with Messrs. Giannuzzi and Russo and told them what they should say in Court. Mr. Giannuzzi secretly recorded the conversation.
[15] The recording indicates Ms. Montemurro told them they should testify that the money they had given her and her husband had not been an investment but instead, a loan and they had been mistaken in calling them investments. She said Mr. Giannuzzi had to trust her and there was lots of money. She said her lawyer would release a sum of money to them if what they said in Court was satisfactory.
[16] Mr. Giannuzzi took the recording to police. On the advice of her lawyer, Ms. Montemurro turned herself in and was charged with attempting to obstruct justice.
[17] As a result, a mistrial was declared by the trial Court and Ms. Montemurro was severed from the other co-accused.
[18] On the date set for the commencement of her second judge and jury trial on March 23, 2015, Ms. Montemurro pleaded guilty to both offences.
2. The Victims
[19] In the aftermath of the fraud being discovered and civil litigation commenced, Mr. Giannuzzi incurred significant legal and court costs and became liable for monies disposed of prior to the funds being frozen that became ultimately untraceable. In his victim impact statement he speaks of his continuing financial devastation, tarnished reputation, depression and anxiety as a result of Ms. Montemurro’s crimes.
[20] Mr. Russo, another of Ms. Montemurro’s investors, speaks in his victim impact statement of the false hopes that his repaid sum of $50,000 raised, only to be quickly followed by depression and humiliation in learning that his account had been frozen. He said Ms. Montemurro kept lying to them and told them a mistake had been made and the money was good.
[21] ING (now Tangerine Bank) incurred significant losses in connection with the investigation of the fraudulent scheme, Ms. Montemurro’s involvement in it and reimbursement of $497,000 to Mr. Pijselman.
3. The Accused
[22] Ms. Montemurro is 59 years of age. She is married with adult children. She has a university degree in commerce and economics.
[23] In 2005 she and her husband lost their business and home after an investigation by Canada Revenue Agency and the discovery of unpaid goods and services taxes.
[24] Ms. Montemurro has expressed remorse for her actions to this Court and explains the present offences as having been very bad decisions made by her under great financial stress after the loss of their business and home in 2005.
[25] She has no substance abuse issues.
[26] She does have some current health problems and is under medical care for heart and stroke issues and a urological condition.
[27] She was a first offender at the time of the 2009 fraud offence, however at the time of the 2013 attempt to obstruct justice offence she was a repeat offender, having been convicted on November 8, 2010 of uttering a forged document and an attempt, for which she received a suspended sentence and 12 months’ probation.
[28] The author of the presentence report said she is not able to assess Ms. Montemurro’s level of remorse or insight into her offence pathway because she was evasive about the offence and her feelings surrounding it.
[29] She also commented that while Ms. Montemurro successfully completed her term of probation for her 2010 conviction, the nature of the present charges is of concern because they “require a certain comfort with deception” and rehabilitation in the community “cannot be addressed without honesty and humility”. Notwithstanding this, she has recommended Ms. Montemurro as a suitable candidate for community supervision given her successful completion of her prior probation and bail conditions.
[30] Ms. Montemurro spent 39 days in custody in 2013 after her arrest on the attempt to obstruct justice charge. I agree this is roughly equivalent to a credit of 60 days for that period of time on a ratio of 1.5 to 1. After her release on bail she was under house arrest for 246 days and required to live at her daughter’s home, who is also her surety. Her bail conditions were then varied to change the house arrest condition to a curfew and up until today’s date she has been under that curfew condition for 439 days. She has complied with all bail conditions.
4. Analysis
[31] The Crown requests a total sentence of 3 years’ incarceration less a pre-sentence custody credit, allocated as 2 years for the fraud and one year consecutive for the attempt to obstruct justice.
[32] Defence counsel requests a blended sentence comprised of a 90 days intermittent sentence of incarceration after deduction of a credit for pre-sentence custody totalling 160 days for the attempt to obstruct justice, and a consecutive conditional sentence of between 18 and 21 months for the fraud. A conditional sentence for that 2009 offence is statutorily available.
Mitigating Circumstances
[33] The circumstances serving to mitigate sentence include Ms. Montemurro’s pleas of guilt. Because they came on the commencement of her second jury trial, however, they exert reduced force as a mitigating circumstance.
[34] It is also mitigating that Ms. Montemurro was a first time offender at the time of the fraud and that as of today’s date, a total of 685 days, she has complied with all of her bail conditions.
[35] Ms. Montemurro has expressed remorse for her crimes. She said she committed her crimes under great financial pressures. She has submitted character references portraying her as hardworking and family oriented. She has the support of family and friends. Notwithstanding these circumstances, however, in the context of her history of deception I am unable, as was the author of the presentence report, to assess either the sincerity of Ms. Montemurro’s expressed remorse or her level of insight into her criminal actions.
[36] Finally, while Ms. Montemurro has some health issues they do not appear to be so significant as to be considered as a mitigating circumstance.
Aggravating Circumstances
[37] The aggravating circumstances outweigh the mitigating.
[38] In respect of the fraud, I agree with the Crown’s assertion that her fraudulent activities were not a “one-off” fraud. The fraud involved organization, planning, sophistication and deception over a protracted period of time. It was not a brief impulsive act.
[39] Defence counsel has characterized Ms. Montemurro’s 2009 actions as a crime of opportunity. However, the Agreed Statement of Facts is silent as to the circumstances of Ms. Montemurro’s opportunity and her involvement with the co-accused and the identity theft.
[40] Instead, what the facts do reveal is that beginning sometime before September 25, 2009 when Mr. Pijselman’s funds were transferred to Mr. Giannuzzi and at least until December 9, 2009 when Ms. Montemurro swore in an affidavit that the funds had been legitimately transferred, she involved herself in ways unknown with various co-accused, arranged the illegal transfer of the funds, directed their illegal disbursement and continued to maintain to Messrs. Giannuzzi and Russo that Mr. Pijselman had authorized the transfer.
[41] For at least those four months she knew the funds had been illegally obtained and yet she persisted in her deception and manipulation of Messrs. Giannuzzi and Russo, to their great detriment. Additionally and separate and apart from committing the offence of attempting to obstruct justice, she continued her manipulation of them during the jury trial four years later when she met with them on October 8, 2013 and assured them there was lots of money and her own counsel had funds waiting for them.
[42] The victims of her crime of fraud, therefore, were not only ING and Mr. Pijselman as the direct victims of the identity theft in which she had participated, but also Messrs. Giannuzzi and Russo in terms of the serious emotional and financial consequences suffered by them.
[43] In respect of the attempt to obstruct justice offence in 2013, Ms. Montemurro was by then a repeat offender, having been convicted two years earlier of related offences. Additionally, she committed this 2013 offence during her jury trial on the outstanding fraud charge, exhibiting a continuing pattern of deception some four years after the initial fraud of 2009.
Sentencing Objectives and Principles
[44] The primary sentencing objectives in all of these circumstances are clearly denunciation and deterrence, both general and specific. Specific deterrence rises to the fore.
[45] The sentencing objective of rehabilitation is secondary to the need for specific deterrence. At the age of 59 years, Ms. Montemurro has no issues with substance abuse and until 2010 she had no criminal record. After committing the ING related fraud in 2009, she was convicted of another fraud in 2010 and then chose to continue her deception and manipulation of Messrs. Giannuzzi and Russo for the next four years until October 2013. She then attempted to dishonestly manipulate the justice system.
[46] In these particularly aggravating circumstances indicating a pattern of continuing deception, an appropriate sentence for Ms. Montemurro should serve to deter her from committing similar crimes in the future. The comment in the presentence report to the effect that her conduct indicates a certain comfort with deception is particularly germane to the need for specific deterrence.
[47] Notwithstanding this focus on specific deterrence, I agree with defence counsel that the objective of rehabilitation still plays a role in arriving at a fit sentence.
[48] Of course the sentencing principles of parity, restraint and proportionality are also ever-present, the latter requiring a sentence to be proportionate to the gravity of the offence and the degree of responsibility of the offender pursuant to s. 718.1 of the Criminal Code.
[49] Ms. Montemurro has committed no crimes of physical violence. However, her fraudulent actions had a significant and long lasting impact on Mr. Giannuzzi in particular. It is this aggravating circumstance considered together with the others and the lesser impact exerted by the mitigating circumstances that increases the gravity of the offence and her degree of responsibility for the fraud.
[50] An attempt to obstruct justice is also, of course, a very serious offence, “striking at the heart of the justice system” as characterized in R. v. M.Z., [1999] O.J. No. 5597, at para. 39 referring to interference with witnesses and their providing sworn evidence before the courts.
[51] I have considered the appropriateness of a conditional sentence for the fraud. Even though such a sentence is often able to adequately reflect the objectives of denunciation and deterrence and even given the principle of restraint that is entirely applicable to Ms. Montemurro as a first time offender and given her mitigating circumstances, I have determined that a conditional sentence would not be consistent with the fundamental purpose and principles of sentencing. A conditional sentence in my view would neither adequately reflect the strong need for denunciation, general deterrence and specific deterrence and would not contribute, in all of Ms. Montemurro’s circumstances, to respect for the law.
[52] Instead, a 16 months sentence of imprisonment less a credit for presentence custody is required to adequately reflect those principles and objectives.
[53] In terms of parity considerations, this is a sentence that recognizes the serious breach of trust committed by the co-accused Mr. Adam, an employee of ING, as being a particularly aggravating circumstance and influencing his sentence of 2½ years’ incarceration after trial. It also recognizes the influence of the prior criminal record of Mr. Bondok, another co-accused, leading to his sentence of 3½ years’ incarceration. None of these aggravating circumstances apply to Ms. Montemurro.
[54] Ms. Montemurro perpetrated this fraud, however, not only on Mr. Pijselman and ING, but also on Messrs Giannuzzi and Russo and on a protracted basis. These circumstances were not applicable to those of her co-accused.
[55] For her offence of attempting to obstruct justice, I accept the Crown’s recommendation of one year’s incarceration to be served consecutive to her sentence of 16 months, as appropriate. This was a serious attempt to obstruct justice that also revealed a continuation of Ms. Montemurro’s deliberate and planned pattern of deception first exhibited four years earlier in 2009 and then again in 2010.
Credit for Presentence Custody
[56] After Ms. Montemurro was arrested for the attempt to obstruct justice offence, she spent 39 days in presentence custody. This, as indicated earlier, entitles her to a credit of 60 days of presentence custody on a ratio of 1.5 to 1.
[57] She then spent 246 days under strict bail conditions including house arrest and the next 439 days under relaxed bail conditions involving a curfew. For all of her time on bail conditions she has lived with her daughter who is her surety and not with her husband. She has complied with all bail conditions since her arrest in 2013.
[58] As stated in R. v. Downes, 2006 3957 (ON CA), [2006] O. J. No. 555 (OCA), at para. 33, “…time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance.”
[59] For Ms. Montemurro, her 246 days under house arrest certainly qualifies her for a credit and I accept the assignment of a 1/5th credit for that time as appropriate, namely 49 days.
[60] Defence counsel submits that because Ms. Montemurro lived with her daughter while under a curfew condition and not with her husband, this makes that period of bail more onerous. However, there is no evidence as to why her husband was living elsewhere and curfew is not an infringement of liberty comparable to pre-trial detention, as discussed in Downes, at paras. 29-32. For those reasons I decline to assign a credit for that period of bail while under a curfew.
[61] In summary, Ms. Montemurro is entitled to a total credit of 109 days for pre-sentence custody.
5. The Sentence
[62] Ms. Montemurro, please stand at this time.
[63] It is for these reasons that I sentence you to 16 months incarceration for the fraud less a presentence custody credit of 109 days and to 12 months incarceration consecutive for the attempt to obstruct justice.
[64] Your warrant of committal is to reflect the deduction for pre-sentence custody credit. For the fraud, your sentence is calculated as 16 months or 485 days less 109 days of credit for presentence custody, leaving a sentence left to serve of 376 days. Your 12 months incarceration for the attempt to obstruct justice is to be served consecutive to those 376 days.
[65] Finally, the Crown’s request for a DNA Order is appropriate in light of your criminal record and the minimum invasiveness of the taking of the bodily sample by way of a finger prick for blood. In my view it is in the interests of justice that such an Order is made. I require you, therefore, to submit to the taking of a bodily sample for DNA analysis and data bank storage.
Madam Justice Lynn Ratushny
Released: November 10, 2015
OTTAWA COURT FILE NO.: 12-R1944, 13-A12737
DATE: 2015/11/10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CARMINA CARMEN MONTEMURRO
DECISION ON SENTENCING
Ratushny J.
Released: November 10, 2015