Court File and Parties

COURT FILE NO.: 14-4692 DATE: 2016-06-02 ONTARIO SUPERIOR COURT OF JUSTICE (CENTRAL SOUTH REGION)

B E T W E E N:

Her Majesty the Queen Stephen Kim, for the Crown

- and –

Omar Sharif Hussein Peter Boushy, Counsel for the defendant

HEARD: June 2, 2016 Turnbull J.

Reasons for Sentence

[1] The defendant is before the court today for sentencing.

[2] The defendant was found guilty of a series of offences related to his efforts to defraud banks by the use of fraudulent master business agreements and by attempting to cash cheques which were not payable to him. The facts are outlined in the judgment rendered in this matter which is found as R v. Omar Sharif Hussein, ONSC 1882.

Overview

[3] The defendant’s conduct involved three different banking institutions. First with respect to counts 1, 5 and 6, the court found that the defendant uttered a fraudulent master business agreement and provided it to the bank in order to open a small business account. He then presented a cheque payable for $32,343.53 issued by Indigo. The cheque was made payable to N.M.R. Distribution and the cheque was cashed and deposited to the account opened by Mr. Hussein. After Mr. Hussein deposited the cheque, the bank put a hold on the account. Investigation showed that the address of the payee was different from the address on the master business agreement. In due course, evidence was led that Indigo had issued the cheque to a legitimate supplier named N.M.R. but N.M.R. had not received the cheque. In due course, Scotiabank reimbursed Indigo for the amount of the cheque and Indigo then reissued the cheque to N.M.R.

[4] With respect to the second series of charges, the defendant attended in the Bank of Montreal in July 2013 and presented a fraudulent master business agreement for Blue Nation Computers. The business identification number on the fraudulent master business licence was not registered with the Ontario government. Mr. Hussein then attempted to cash a cheque for $373,039.67 issued by the Liquor Distribution Branch of B.C. The evidence showed the name of the payee had been changed. Mr. Hussein wanted to withdraw $50,000.00 from the account into which this money was deposited but a hold was put on the account. No money was ever paid to Mr. Hussein.

[5] In July 2013 Mr. Hussein also attended at the Royal Bank of Canada and presented a master business licence for Blue Nations Computers. In due course, the small business account was opened based upon these fraudulent documents and he received a business banking card for that account.

[6] At the time all of these incidents occurred, the defendant was on probation with respect to an earlier offence. A condition of that probation was that he was to keep the peace and be of good behaviour, which evidently he did not do as he committed these offences.

Principles of Sentencing

[7] Section 718 of the Criminal Code specifies the principles of sentencing. In this matter, the overwhelming principles to be applied are specific and general deterrence as well as denunciation of the offender’s conduct.

Pre-Sentence Report

[8] Mr. Hussein pled guilty to uttering a forged document and failing to comply with a recognizance before Zabel, J. on December 18, 2015. He was sentenced to a suspended sentence and a term of probation of fourteen months. In that matter, Mr. Hussein was found to have fraudulently signed a cheque in the amount of $862.04 and attempted to have it cashed at a Money Mart location in Hamilton. That offence occurred after Mr. Hussein had been charged with all the offences for which he was convicted in this matter. Thus, Justice Zabel did not have the convictions for the offences before this court before him at the time he imposed sentence.

[9] The pre-sentence report from the appearance before Zabel J. was placed before this court. The pre-sentence report is generally neutral. It indicates Mr. Hussein was born in Somalia and described having a wonderful childhood. He was well provided for and his parents did reasonably well financially.

[10] Mr. Hussein completed his secondary school studies in Somalia and pursued post-secondary studies in administration and management. He completed a three year program in Somalia in 1991. He studied at Georgetown University in Washington, D.C. and ultimately moved to Kentucky where he completed a four year medical assistant and lab technician degree in microbiology at the University of Louisville in Kentucky in 2004. He also completed other studies which confirm that he is an intelligent and well educated man.

[11] After he arrived in Canada in December 2004, he applied for refugee status in this country. He had a series of short terms jobs over the following years and as Mr. Boushy has pointed out, he has successfully completed a number of upgrading courses for which he has received certificates of completion. He has been on income support from Ontario Works since 2013 and apparently has been seeking any type of possible employment. The use of alcohol and non-medically prescribed drugs is not a problem.

[12] He is currently 46 years of age.

[13] He is the father of 11 children and is in regular contact with them and his elderly parents who live in Africa.

Prior Criminal Record

[14] In November 2011, he was convicted of assault with a weapon contrary to Section 267 (a) of the Criminal Code and uttering a threat to cause death or bodily harm contrary to Section 264.1 of the Criminal Code. For each of those offences he was sentenced to 40 days in custody concurrent with a 2 year period of probation.

[15] At the same time. He was convicted of breach of probation and sentenced to 30 days consecutive. He also was convicted of assault level 1 contrary to Section 266 of the Criminal Code and received a 30 day conditional discharge.

[16] In 2015 as indicated, he was convicted of uttering a forged document and failing to comply with a recognizance.

Aggravating Factors

[17] There is no underlying explanation other than greed for the offences committed by the defendant. While certainly he had the right to a trial, the evidence in this case was absolutely overwhelming against him. He did not acknowledge that he was guilty of the offences.

Mitigating Circumstances

[18] Having attempted to perpetrate these offences, no one suffered any financial loss. However, the court is aware that the police investigation and the time involved for the bank and other affected parties to produce documentation and attend at trial is an expense which has been incurred by innocent parties.

[19] The court is also aware that Mr. Hussein has immigrated to Canada and presently has a refused refugee status as an immigrant to this country. Most of his family resides in Africa.

Position of the Crown

[20] The Crown submits these offences should result in a period of incarceration of 3 years.

Position of the Defence

[21] Mr. Boushy in his able submissions on behalf of Mr. Hussein urged the court to consider a period of incarceration in a provincial institution which would mean a sentence of less than 2 years.

Case Law

[22] Counsel helpfully provided me with a series of authorities to assist me in this matter. Both counsel have agreed that on the scale of “frauds” this was a serious offence. In R v. Dovis (2002), 58OR (3d) 536 (C.A.) the Court of Appeal held that ordinarily frauds of this nature merit a penitentiary sentence in the range of 3 – 5 years. When mitigating circumstances are present, a sentence may be reduced to the reformatory range. I am not satisfied that mitigating circumstances exist in this case to reduce the sentence to a reformatory range.

[23] In R v. Bogart, [2002] O.J. 3039, the Court of Appeal emphasized that general deterrence is the paramount sentencing principle in major fraud cases. The Court noted that most major frauds are committed by well-educated persons of previous good character. Mr. Hussein interestingly enough is a reasonably well educated individual.

[24] In his helpful submissions, Mr. Boushy drew the attention of the court to the case of R v. Williams, [2007] O.J. 1604 (Ontario Superior Court) wherein Hill, J. set out a series of non-exhaustive factors to consider in sentencing in white collar breach of trust cases. While this case does not involve a breach of trust, the list of considerations is relevant to the court in assessing an appropriate sentence. That list includes:

1. The nature and extent of the loss.
2. The degree of sophistication of the dishonesty and the degree of planning, skill and deception.
3. The motivation, i.e. greed as opposed to some other motivating cause such as a medical condition or addiction.
4. Whether or not there was a lengthy period of dishonesty.
5. The number of dishonest transactions undertaken in the commission of the offence.
6. Whether there is hope of recovering the money and whether pre sentence restitution had been made.
7. Whether or not the offender terminated the criminality voluntarily.
8. The impact of victims of fraud including members of the public, the employer and fellow employees.

[25] A major consideration in this matter is to the potential nature and extent of the loss. The cheques involved exceeded $400,000.00. There was a considerable amount of sophistication with respect to the attempt to commit these offences. The business licence numbers were changed and inserted and the payee of a cheque was changed to permit the defendant to attempt to cash the cheque.

[26] In R v. Gallagher [2008] O.N.C.A. 252, the accused plead guilty to six counts concerning a series of fraud related offences. He improperly obtained loans in the amount of $82,135.00. The accused was sentenced to three years’ incarceration after credit for 12 months pre sentence custody in a 2 for 1 basis. Significantly the Court of Appeal stated that a significant penitentiary sentence was justified as the offences were planned, serious and solely motivated by greed.

[27] In this particular case I find that the offences were serious, planned and also motivated only by greed.

[28] In the case of R v. Bondok [2014] O.J. 318, Smith, J. of this court sentenced the 37 year old defendant who had a lengthy related criminal record and was the father of four children, to three and a half years imprisonment. In that case, there was no financial loss.

[29] In the case of R v. Lal [2014] O.J. 6550, Nightingale, J. of this court sentenced the defendant to three and a half years in custody after he was found guilty on six counts of defrauding several financial institutions by acquiring mortgages from them on several properties using fraudulent documents of income. The court found that the accused had been able to carry out a series of complex frauds over a one and a half year time period involving six properties and mortgage applications and one fraudulent line of credit. The court found the scheme required significant planning and coordination to perpetrate each fraud. The banks and financial institutions had lost over $1.2 million dollars which included significant extra costs and losses incurred when the mortgages went into default. The properties were sold under power of sale proceedings. No restitution had been made by the accused. The banks and financial institutions were ultimately reimbursed for a good part of their losses by the Central Mortgage and Housing Corporation but that Corporation in turn suffered a loss.

[30] In his decision, Nightingale, J. reviewed a series of other cases indicating that the principles of denunciation and general deterrence for others in large scale frauds is a period of 3 – 5 years. In particular he cited R v. Khatchatourov [2014] O.N.C.A. 464, R v. Vinsky [2014] O.N.S.C. 2332, and R v. Dwyer O.N.S.C. 6555.

Conclusion

[31] When considering the seriousness of the frauds and the number of transactions and the timeframe in which they were committed, I feel a period of incarceration of 30 months is appropriate. The fact that no financial loss occurred and the fact that the transactions took place in a short period of time, help differentiate the predicate offences from some of the other cases cited to me by counsel.

[32] Therefore the defendant shall be sentenced as follows:

• Count # 1 – 6 months in custody.
• Count # 5 – 6 months in custody to be served consecutive to the sentence in count # 1.
• Court # 6 – 18 months in custody to be served consecutively to the sentences imposed in counts # 1 and 5.
• Count # 3 – 6 months in custody to be served concurrently with the sentence imposed in count 1.
• Count # 2 – 6 months in custody to be served concurrently with the sentence in count # 1.
• Count # 8 – 18 months in custody to be served concurrently with count # 6.
• Count # 9 – 18 months in custody to be served concurrently with the sentence imposed for count # 6.
• Count # 10 – 6 months in custody to be served concurrently with the sentence imposed in count # 1.
• Count # 11 – 6 months in custody to be served concurrently with the sentence in count # 1.
• Count # 12 – 6 months in custody to be served concurrently with the sentence imposed in count # 5.
• Count # 13 – 6 months in custody to be served concurrently with the sentence imposed in Count # 1.
• Count # 7 – 6 months in custody to be served concurrently with the sentence imposed in Count # 1.

[33] The defendant shall forthwith provide a bodily sample of his DNA for storage in the National DNA databank.

Turnbull, J. Released: June 2, 2016