Court File and Parties

Court File No.: CRIMJ(P) 15-919 Date: 2016 09 20

Ontario Superior Court of Justice

Between: Her Majesty The Queen Christina Sibian, for the Crown

- and -

Nuzhat Mamoon Arman E. Hoque, for the Defence

Heard: June 3, 2016

Reasons for Sentence

Edwards J.

Overview

1What is the appropriate sentence to give a first offender convicted of various counts of fraud involving a breach of trust of several victims?

The Facts

(a) Circumstances of the Offence

2During the period between April 11, 2012 and December 31, 2013 Ms. Mamoon defrauded eight individuals of a total of $98,400.

3Ms. Mamoon sought out opportunities to meet vulnerable, financially unsophisticated individuals, primarily through her charitable organization, thereby earning their trust as she portrayed herself as a wealthy, religious businessperson. She then promised them unrealistic profits on investments that she stated were guaranteed, with respect to non-existent business operations.

4She said that she started her charitable organization to assist poor women; however, the real purpose for which she used it was to connect with potential victims of her deceit.

5She met several of her victims through her attempts to portray herself as a wealthy businessperson who assisted poor women.

6Ms. Mamoon’s interaction with one of the victims, Mr. Waheed, began through her charitable activity of teaching the Koran, and portraying herself as a wealthy, religious businessperson. However, at that point it deviated from her approach with the other complainants, as she promised Mr. Waheed, unrealistically, that he could purchase a home for little money down, and without documentation. Here too, Mr. Waheed’s lack of sophistication in business matters, and his trust in Ms. Mamoon, led to him giving her money without supporting documentation, at a time when he could not afford to do so; he had to borrow a significant portion of the funds.

7Ms. Mamoon’s interactions with Mr. and Ms. Sayani were different in that they did not start via her charitable organization, but are similar in that she portrayed herself as a wealthy, religious businesswoman and she made the same promises of huge returns on guaranteed investments. She then invented one reason after another for either not returning the initial investment, or for asking for additional funds, all with respect to non-existent business enterprises.

(b) Circumstances of the Offender

8Ms. Mamoon was born January 8, 1968 in Lahore, Pakistan. She married in Pakistan on January 29, 1988. She had four children with her husband; the children range between 15 to 24 years of age. She immigrated to Canada with her children and subsequently divorced her husband in 2010.

9She remarried in Pakistan in 2011, but found her new husband to be abusive towards her and her children. She returned to Canada in 2012. Since coming to Canada in 2012 she has held one job for 6 to 7 months at Coffee Time.

10She attended a college enrolled in the personal support worker program, however she could not find a job in that field. She has not had a fulltime job since then. She has taught the Koran for cash, and sold a few embroidered shirts and dresses, but otherwise has not been employed.

11Instead of being employed, according to Ms. Mamoon, she has spent her time helping poor women through her charitable organization. However, in reality she has used that charity as a vehicle to meet and defraud vulnerable people.

(c) Impact on the Victim and/or Community

12I received four Victim Impact Statements, one of which was read by the Victim.

13Ms. Begum read her statement. She expressed shock and disappointment that a Muslim religious woman could commit fraud while reciting the holy book. She said that the fraud created many arguments within her family because she convinced them that giving money to Ms. Mamoon was a good investment.

14Mr. Waheed’s statement indicated that this fraud has negatively impacted his lifestyle and health. Further, because of his advanced age, the financial loss was a severe blow, and very hard to accept.

15Ms. Rashid’s statement advised that the fraud caused financial and emotional stress to her family. Her husband was unemployed at the time and she was the sole source of income for the family. She felt that Ms. Mamoon did not care.

16Mr. Rauf’s statement indicated that he felt sorry for Ms. Mamoon’s victims, but he also was very sad about the impression that she had given to her children.

17Ms. Mamoon’s three daughters provided statements to the court. Two of them set out the virtues of their mother, the sacrifices that she had made to raise them, and the difficult life she had as a single mother, twice divorced. One letter was an apology from a daughter to a mother for the things that she did and did not do as a child growing up. It was entitled “Apology Letter”.

Legal Parameters

18Section 380(1)(a) of the Criminal Code of Canada states that the maximum term of imprisonment for this offence shall not exceed 14 years where the value of the subject matter of the offence exceeds $5,000.

19Section 380.1 describes factors that are considered aggravating circumstances and certain factors that are not considered to be mitigating circumstances.

20In the circumstances of this case the following are potentially aggravating circumstances described in section 380.1(1):

(a) the magnitude, complexity, duration or degree of planning of the fraud committed was significant; the offence involved a large number of victims; (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 to which the offender was held in the community;

21In addition section 380.1(2) states that the 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.

22Finally, I am directed to state on the record the aggravating and mitigating circumstances that I took into account when determining the sentence.

Positions of Crown and Defence:

23The Crown seeks a sentence of two years less one day with a three year probation order that would restrict Ms. Mamoon from operating a charity organization or volunteering for a charity organization. There would be a non-contact order with her victims, including being within 500 metres of any place that a victim is known to attend. In addition, she seeks a restitution order for the amounts set out in my judgment to be repaid at the rate of $500 per month after the period of incarceration ends.

24The Crown asserts that Ms. Mamoon utilized her status as a religious and charitable leader to lure her victims. She did this for over two years and she sought out unemployed and unsophisticated victims.

25She submitted that Ms. Mamoon should be separated from society and that all of the aggravating factors described in section 718.2(a) are present here. Ms. Mamoon held herself out as a leader of the Ume Rubab charitable organization and a successful business person to entice her victims to invest in a nonexistent business; there were a series of dishonest dealings; there were eight victims who were strangers to each other; the money that she obtained fraudulently came from savings and from loans; the deceit was carried out over two years, suggesting a high degree of planning; she has no addictions, allowing me to infer that the fraud was motivated by greed; there is minimal hope for restitution; and she gained $98,400, not from institutions, but from individuals of modest means and with little business acumen.

26The Crown submitted that the only mitigating factor is the fact she has no prior record.

27Defence counsel submitted that the sentence should be a 23 month conditional sentence that would include tough terms, such as an anklet to monitor that she not leave her home. He agreed that the probation order should contain a prohibition on Ms. Mamoon seeking employment with a charity or being a volunteer in a charitable organization where she would have authority over real property or money of another person. He also agreed that a restitution order should issue.

28He noted that the PSR report indicated that she had abusive relationships with her two husbands. She had no financial support from them and raised her four children.

29He asserted that Ms. Mamoon’s intentions were good; she had confidence in her plan, but she dug herself into a hole.

30He submitted that Ms. Mamoon gave back to the community some of the money that she obtained from others by holding days celebrating Mothers’ and Fathers’ Day and paying the costs of those events herself.

31He asserted that she never denied owing money, and that she has agreed to pay the debts back.

32He suggested that some of the victims were to blame because the interest rate offered by Ms. Mamoon for the non-existent business ventures was usurious.

33He submitted statements by Ms. Mamoon’s three daughters attesting to her strengths and abilities.

Case Law

34In R. v. Bennett, [2007] O.J. No. 5792 Justice L.C. Templeton sentenced Mr. Bennett to a penitentiary term of three years and granted a restitution order. Mr. Bennett was the accountant for his friend’s company. Mr. Bennett utilized this position of trust and fraudulently obtained in excess of $150,000.

35In R. v. Castro, 2010 ONCA 718, the accused operated a paralegal firm specializing in assisting victims of motor vehicle accidents in reaching personal injury settlements with insurance companies. The accused’s clients were new immigrants to Canada, whose first language was Spanish. Many were unemployed and on social assistance. The accused fraudulently obtained over $140,000 from them. He was sentenced to 23 months imprisonment, two year probation, and a restitution order. The Court of Appeal upheld that sentence.

36In R. v. Gibb, 2013 CarswellOnt 12577, the accused, who was a close friend of the victim, induced him to provide the accused $200,000 to invest what the offender falsely represented was a safe investment. The offender did not take responsibility for his conduct and showed no regard for his victim. Murray J. sentenced the offender to 18 months imprisonment, two years of probation and a $200,000 restitution order.

37Similarly in R. v. Takeshita, 2013 ONSC 1385, the offender abused a position of trust. He did not have insight into his actions and did not take responsibility for the impact upon the church, from which he fraudulently obtained $24,000. He was sentenced to 16 months imprisonment, one year probation and a restitution order.

38In R. v. Williams the offender breached an employer’s trust and fraudulently obtained at least $194,357.21. She was sentenced to 18 months incarceration and a restitution order.

Mitigating and Aggravating Factors

39The Crown and Defence agree that the fact that Ms. Mamoon has no previous record is a mitigating factor, and I agree.

40I find that there are no other mitigating factors.

41There are many aggravating factors. I am satisfied that the following are aggravating factors:

(a) The fraud continued over a period of two years, from which I can infer that the fraud committed required a high degree of planning; (b) There were a series of fraudulent transactions; (c) The offence involved a large number of victims; (d) The offence had a significant impact on the victims given their personal circumstances including their age, health and financial situation. Most were of limited means and either used their limited savings or borrowed the money. Two of the victims were elderly; (e) In committing the offence, Ms. Mamoon took advantage of the high regard to which she was held in the community. She portrayed herself as a very religious, very wealthy person. She drew the Consul from Pakistan to an event that she sponsored. Some of her victims attended and in their eyes her reputation was enhanced. (f) There is minimal hope of restitution. Although Ms. Mamoon has stated that she intends to repay her debts, she has not done so to date.

Principles of Sentencing

42The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. (s.718)

43As well, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. (s.718.1)

Reasons:

44Ms. Mamoon held herself out in the Pakistani community to be a religious, wealthy businessperson. She took advantage of that position of trust that she established with her victims. She has no insight into the effect that her actions have had upon her victims.

45A breach of trust is clearly an aggravating factor and Ms. Mamoon breached the trust of each of her victims. Through the guise of either a religious, holy woman, or that of a rich businessperson, or both, she first earned the victims’ trust, and then their money.

46Her victims were unsophisticated, and some were very elderly. Some not only used up any savings they had, but also borrowed in order to give Ms. Mamoon the money. The impact of her actions was very significant upon all victims. The chance of restitution is low.

47The courts have concluded that general deterrence is the most important factor in sentencing persons who have occupied positions of trust. This is true even for first offenders.

48Specific deterrence in white-collar fraud is generally considered a less important factor, as “most people who get caught stealing from their employer are unlikely to re-offend.” R. v. Williams, supra

49However, I am concerned that Ms. Mamoon expresses no remorse and does not take responsibility for her actions. I believe that on the facts of this case, specific deterrence remains a significant sentencing factor.

50The Defence seeks a conditional sentence.

51The Crown acknowledged that a conditional sentence is available, because the start date of this fraud occurred prior to the changes to the Criminal Code in November 2012.

52However, I am satisfied that a conditional sentence is not appropriate in these circumstances. There is a need for general deterrence and denunciation considering the nature and gravity of Ms. Mamoon’s crime. In R. v. Castro, the offender preyed upon individuals who were relatively new to Canada. Most of Ms. Mamoon’s victims could not speak English well; in fact, they relied upon an interpreter in court. As in R. v. Takeshita, Ms. Mamoon takes no responsibility for her actions, and seems to have no understanding of the impact her actions had on her victims.

53In these circumstances there is also a need for specific deterrence. I am satisfied that a period of incarceration is required and would be proportionate to the gravity of her conduct and the fulfilment of the sentencing objectives.

54A sentence of 18 months incarceration, in all of the circumstances, is a fit and just disposition.

55The Defence ask me to take into consideration the period that Ms. Mamoon has been on bail. I am satisfied that the conditions were not overly restrictive until December 9, 2015, when the conditions of bail were altered due to other charges laid and issues of compliance with the terms of bail. I give no credit for the period of time that she has been on bail.

56I order that Ms. Mamoon shall not communicate, directly or indirectly with any of the victims referred to in paragraph 63(c) while in custody. This order is made pursuant to s. 743.21 of the Criminal Code.

Ancillary Orders:

57There shall be a probation of three years. In addition to the mandatory terms, the probation order will contain the following additional terms: Ms. Mamoon shall:

(a) Not seek, obtain, or continue any employment, or being a volunteer in any capacity, that involves having authority over the real property, money or valuable security of another person; (b) Not operate a charitable organization or volunteer for any charitable organization; (c) Not communicate with Shahid Waheed, Safia Farooq, Naslim Begum, Bilail Rauf, Rahat Tasneem, Almas Rashid, Anis Sayani, Nadeem Sayani, except through her probation officer for the purpose of paying restitution; (d) Not go within 500 metres of any place that person referred to in sub paragraph (c) are known to attend: (e) Report twice monthly to her probation officer, or as otherwise directly by the probation officer; (f) Not change her address without the prior approval of her probation officer; (g) Remain within the Province of Ontario, unless written permission to leave the Province of Ontario is obtained from her probation officer or approval is given by the Court.

58The Crown requested a restitution order in the amount that I had determined in my judgment that Ms. Mamoon had defrauded her victims. She submitted that based upon the Pre-Sentence Report where Ms. Mamoon advises that she has no financial difficulties and the fact that she has said that she would repay what she owed, an order should issue.

59The Defence agreed that a restitution order was in appropriate. However, he expressed concern that the longer Ms. Mamoon was incarcerated the greater her ability to repay the debt would diminish.

60I am satisfied that a restitution order should issue.

61There shall be a restitution order pursuant to section 738 of the Criminal Code ordering Ms. Mamoon to pay to the following individuals the amount opposite their names:

Shaid Waheed: $38,000 Safia Farooq: $ 3,000 Naslim Begum: $ 2,500 Bilail Rauf: $ 1,000 Rahat Tasneem: $ 2,000 Almas Rashid: $ 4,000 Anis Sayani: $25,000 Nadeem Sayani: $22,900

62I order that Ms. Mamoon shall pay the restitution order by minimum monthly payments of $500, commencing after her period of incarceration ends.

63The Crown has requested a DNA order pursuant to s. 487.051(3) of the Criminal Code. Ms. Mamoon has been convicted of a “secondary designated offence”. (See s. 487.04.) After considering the factors described in s. 487.051(3) I am satisfied that DNA order should not issue. Ms. Mamoon has no prior criminal record. The nature and circumstances surrounding the offence and the impact on her privacy do not point towards such an order.

Final Decision

64I order that Ms. Mamoon shall be sentenced to 18 months’ incarceration, followed by a three year probation order upon the terms specified above.

65Ms. Mamoon has been in custody from May 11, 2016 to September 20, 2016, a total of 133 days. She was also in custody for a further 5 days, being a total of 138 days, for which she will be given a credit of 207 days.

66There shall be a restitution order as set out in paragraphs 60, 61 and 62.

67An order shall go for the Victim Fine Surcharge.

Edwards J.