CITATION: R. v. Venkatacharya, 2017 ONSC 1187
COURT FILE NO.: Crim (P) 336/14
DATE: 2017 02 21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Robin Prihar, Counsel for the Crown
- and –
HARI VENKATACHARYA
Accused
W. Glen Orr, Q.C. and David Shulman, Counsel for the Defence
REASONS FOR SENTENCE
Bloom J.
Overview
[1] The jury convicted the Accused of one count of fraud over $ 5000 contrary to s. 380 (1) of the Criminal Code. I have heard submissions from the parties as to sentence.
The Facts
(a) Circumstances of the Offence
[2] The fraudulent scheme involved the payment by prospective borrowers of due diligence fees in respect of loans to be advanced by a funding group. The funding group did not exist, the loans were not advanced, and the fees were not returned. There were 14 fees totalling $ 509,309.81 USD involving 12 borrowers according to the case proven by the Crown. The period of the fraudulent enterprise was November of 2009 through January of 2013.
[3] Since the case was tried with a jury s. 724 of the Criminal Code governs the determination of facts for sentencing purposes. In R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 at paras 16 to 18 Chief Justice McLachlin set out the principles which I must apply under that provision:
[16] This poses a difficulty in a case such as this, since, unlike a judge sitting alone, who has a duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury’s verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand.
[17] Two principles govern the sentencing judge in this endeavour. First, the sentencing judge “is bound by the express and implied factual implications of the jury’s verdict”: R. v. Brown, 1991 73 (SCC), [1991] 2 S.C.R. 518, p. 523. The sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty” (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), 1995 16075 (MB CA), 95 C.C.C. (3d) 443 (Man. C.A.).
[18] Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.). In so doing, the sentencing judge “may find any other relevant fact that was disclosed by evidence at the trial to be proven” (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: ss. 724(3)(d) and 724(3)(e); see also R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 1987 9452 (ON SC), 58 C.R. (3d) 71 (Ont. H.C.). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.
[4] S. 718.1 of the Criminal Code reads as follows:
A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[5] Therefore, the degree of responsibility of the Accused before me is an issue on sentencing. Since the factual implications of the jury’s verdict are ambiguous on the issue and the parties disagree on it, I must find the facts necessary to deal with the issue. In that regard the burden of proof is on a balance of probabilities, unless the fact would be an aggravating one.
[6] In the matter before me the Crown contends that the Accused was an essential part of the fraud and the face of it; and that his dealings with the victims were extensive. Further, the Crown argues, the Accused undertook his actions knowing that the victims were paying the due diligence fees to his associate in the fraud, one Maharaj.
[7] The Defense contends that the Accused was a foolish pawn of Maharaj, albeit that the lies of the Accused inculpated him in the fraud on the victims. The Defense points to the fact that the only remuneration that the Accused secured from his role in the fraud was $106,500 in Canadian funds advanced as loans from Maharaj, but never repaid; the remainder of the proceeds of the fraud went to Maharaj.
[8] I am satisfied on a balance of probabilities on the evidence called at trial that the role of the Accused was a less culpable one than that of Maharaj. I find that, while he initially honestly believed in the validity of the loan operation proposed by Maharaj, he became criminally liable when, through a series of his lies about loans having been funded, he convinced borrowers to put at risk their due diligence fees. I make this finding in reliance on the evidence at trial, and, in particular, on testimony of the Accused, the e-mail exchanges between himself and Maharaj, the testimony of the borrowers as to the untruths conveyed to them by the Accused regarding the completion of funding of loans to other borrowers by the funding group, and the evidence that the Accused received as remuneration only the $106,500 despite years of working with the borrowers during the scheme.
(b) Circumstances of the Offender
[9] The Accused is 48 years old, and was raised in a culturally rich and supportive home. He remains close to many of his family members.
[10] The offense resulted in the end of his 15 year marriage. He has some university credits. He presently supports himself on social assistance. Prior to the offense he was self-employed in the technology field and had a solid employment history. He is clearly intelligent and articulate.
[11] Given the nature of the offense of which he has been found guilty, it is a fair comment by his counsel that his career prospects have been irreparably diminished.
(c) Impact on the Victim and/or Community
[12] The impact of the fraud on victims has been beyond simply the loss of the substantial fees paid. Having regard to the victim impact statements, the additional consequences have included substantial loss of time on unproductive ventures, loss of reputation in the business community, in one case the development of high blood pressure and an irreversible blood condition, the incurring of substantial indebtedness to keep business operations afloat when the promised loan monies were delayed and ultimately never provided, damage to personal relationships with friends and family, and in one case a debt load on parents of a victim as a result of funds they provided to assist him.
Legal Parameters:
[13] The penalty for the offense of which the Accused has been found guilty is set out in s. 380(1)(a) of the Criminal Code as follows:
380 (1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,
(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars;
[14] The Crown has also sought a restitution order; s. 737.1 and s. 738(1)(a) of the Criminal Code, which are reproduced below, apply to that issue:
737.1 (1) If an offender is convicted or is discharged under section 730 of an offence, the court that sentences or discharges the offender, in addition to any other measure imposed on the offender, shall consider making a restitution order under section 738 or 739.
(2) As soon as feasible after a finding of guilt and in any event before imposing the sentence, the court shall inquire of the prosecutor if reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages, the amount of which must be readily ascertainable.
(3) On application of the prosecutor or on its own motion, the court may adjourn the proceedings to permit the victims to indicate whether they are seeking restitution or to establish their losses and damages, if the court is satisfied that the adjournment would not interfere with the proper administration of justice.
(4) Victims and other persons may indicate whether they are seeking restitution by completing Form 34.1 in Part XXVIII or a form approved for that purpose by the lieutenant governor in council of the province in which the court is exercising its jurisdiction or by using any other method approved by the court, and, if they are seeking restitution, shall establish their losses and damages, the amount of which must be readily ascertainable, in the same manner.
(5) If a victim seeks restitution and the court does not make a restitution order, it shall include in the record a statement of the court’s reasons for not doing so.
738 (1) Where an offender is convicted or discharged under section 730 of an offence, the court imposing sentence on or discharging the offender may, on application of the Attorney General or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:
(a) in the case of damage to, or the loss or destruction of, the property of any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding the replacement value of the property as of the date the order is imposed, less the value of any part of the property that is returned to that person as of the date it is returned, where the amount is readily ascertainable;
Positions of Crown and Defence:
[15] The Crown argues that the appropriate sentence without credit for pre-sentence custody would be one of 5 years. Further, the Crown contends that , since the Accused has served 927 days of pre-sentence custody, the appropriate credit for pre-sentence custody at a rate of 1.5 to 1 would amount to 3 years and 296 days. The Crown seeks, therefore, a term of imprisonment of 1 year and 68 days. In addition, the Crown seeks a restitution order of 100% of the loss, if I find that the Accused was an equal participant with Maharaj in the fraud; and of 50% if I find that the role of the Accused was of lesser culpability than that of Maharaj. The Crown also submits that the amount of the restitution order should be fixed in Canadian dollars either at the rate of exchange as of the first date on which I heard submissions as to sentence, November 28, 2016, or as of the date of sentence.
[16] The Defense submits that an appropriate sentence without credit for pre-sentence custody would be 2 years at most. Further, argues the Defense, on the basis of a credit of 1.5 to 1 the appropriate credit would be 3 years and 10 months. Therefore, submits the Defense, the custodial portion of the Accused’s sentence should be time served. The Defense also notes that the Accused, in addition to a credit for pre-sentence custody, would have been entitled to credit for restrictive bail conditions after his release from custody. In that regard the Defense submits that the Accused was on bail on what amounted to conditions of house arrest for 10 months and 23 days.
[17] The Defense argues that any restitution order should be a minor one by reason of the lesser role played by the Accused in the fraud as compared with that of Maharaj, and by reason of the impecunious state of the Accused.
Case Law:
[18] The Crown submits that the case law governing sentencing in large scale frauds applies to this matter. The Defense contends that, given the amount of the loss and the amount of the Accused’s profit from the fraud, that case law does not apply.
[19] In R. v. Williams, 2007 13949 (ON SC), [2007] O.J. No. 1604 (Ont. Sup.Ct.) at para 29 Justice Hill discusses the applicable case law:
[29] “[A] sentence of six years is within the correct range of sentences for major frauds” and sentences in the 3 to 5-year range are common: R. v. Dobis, at 271; R. v. Bertram, at 3; R. v. Wilson, 2003 48181 (ON CA), [2003] O.J. No. 1047 (C.A.) at para. 5. Penitentiary sentences in the six-year range have been imposed in cases involving millions of dollars. The Dobis decision, at 273, includes at the lower end of “large-scale frauds”, the McEachern case involving $87,000. and the fraud in Pierce in the amount of $270,000., while a $200,000. defalcation was described as a large-scale fraud in R. v. Robinson, at para. 4, 11.
[20] It is useful to review the principles emerging from the case law. In R.v. Dobis, 2002 32815 (ON CA), [2002] O.J. No. 646 (ONCA) the Ontario Court of Appeal articulated principles which apply to large scale frauds; as clarified by that court in R. v. Drakes, 2009 ONCA 560, [2009] O.J. No. 2886 (ONCA), those principles apply whether or not there is present a breach of trust. Justice MacPherson in Dobis, supra at paras 33 to 54 states as follows:
[33] Dobis was an employee in a position of trust with Electro Canada. He commenced stealing from the company less than a year after being made accounting manager. His thefts and fraud continued for more than three years. His dishonest conduct consisted of two different components -- direct thefts for deposit into his personal accounts and thefts to participate in a "get rich" scheme with an eye to reaping more than U.S. $10 million. The amount stolen under both schemes was very large -- about $286,000 and $1.9 million respectively. There was a good deal of planning, skill and deception required to execute such a massive theft and fraud over such a long period of time.
[37] There are fraud cases in which a reformatory sentence has been upheld or imposed by this court. However, in my view, each of those cases had important mitigating or differentiating factors which are not present in this case.
[38] In R. v. McEachern (1978), 1978 2506 (ON CA), 42 C.C.C. (2d) 189, 7 C.R. (3d) S-8 (Ont. C.A.), a bank manager stole $87,000 (not millions). He was married and had two children. He received a suspended sentence at trial. When the appeal hearing took place, the family was expecting a third child. Nevertheless, the court allowed the appeal and increased the sentence to 18 months in custody.
[39] In R. v. Pierce (1997), 1997 3020 (ON CA), 32 O.R. (3d) 321, 114 C.C.C. (3d) 23 (C.A.), a woman defrauded her employer of $270,000. She received a sentence of 21 months. On appeal, the sentence was reduced to 12 months, with the court taking note of her personal circumstances (she was the mother of three small children).
[40] In R. v. Underys, [1999] O.J. No. 4372, this court upheld a conditional sentence of 18 months for a manager who stole more than $1 million from a credit union. However, the issue on the appeal in that case was the appropriateness of a conditional sentence; the court's endorsement began: "The Crown at trial did not take issue with the sentence of eighteen months" (para. 1).
[42] However, in the end I am persuaded that the serious nature and consequences of the offences committed by the respondent required the imposition of a penitentiary sentence. There is a real need to emphasize denunciation and, especially, general deterrence in the realm of large-scale frauds committed by persons in positions of trust with devastating consequences for their victims, which is how I would characterize the offences in this case.
[46] Finally, and quite recently, in Holden, supra, Doherty J.A. identified "general deterrence as the paramount consideration" (para. 2) in large-scale fraud cases.
[47] I agree with all of these statements. Accordingly, general deterrence needed to be central to the trial judge's sentence in this case. In my view, the nature and consequences of the theft and fraud committed by the respondent, which were fully and well described by the trial judge in his reasons, required a penitentiary sentence, probably in the range suggested by the Crown at trial, namely, three to five years.
[50] However, it is also clear that certain offences will usually lead to custodial sentences. As expressed by Lamer C.J.C. in Proulx, at p. 117 S.C.R., p. 494 C.C.C.:
[T]here may be circumstances in which the need for deterrence will warrant incarceration. This will depend in part on whether the offence is one in which the effects of incarceration are likely to have a real deterrent effect.
[51] This court has said repeatedly that general deterrence is central to the sentencing process in cases involving large-scale frauds with serious consequences for the victims: see McEachern, Bertram, Gray and Holden, supra.
[54] The respondent abused a position of trust in relation to a victim, his employer. He committed a large-scale well-planned fraud. Moreover, there are none of the extreme personal mitigating circumstances that were central to the decisions to impose conditional sentences in two large-scale fraud cases, Underys, supra ("the many mitigating circumstances of the offender": para. 4), and Bunn, supra ("The respondent was the sole provider and caregiver for both his wife, who suffered from multiple sclerosis and had been confined to a wheelchair for years, and their teenage daughter": p. 198 S.C.R., p. 517 C.C.C.). Accordingly, the imposition of a conditional sentence in the circumstances of this case was also manifestly unfit.
[21] The Defense points to the size of the loss and of the amount of profit to the Accused in its argument that the case at bar is not a large scale fraud within the meaning of the case law. I find that it is a large scale fraud as confirmed by reasoning in Wiliams,supra. The size of the loss and of the profit obtained by the Accused will bear upon the quantum of the sentence to be imposed within the appropriate range for large scale frauds. The mitigating and aggravating factors will also have an impact on that penalty. I turn to them now.
Mitigating and Aggravating Factors
[22] In R. v. Williams, supra at paras 30 to 32 Justice Hill enumerates aggravating and mitigating factors which may apply:
[30] By way of overview and non-exhaustive list only, certain circumstances have, over time, been recognized as aggravating factors in “white collar” breach of trust cases:
(a) The nature and extent of the loss: R. v. Savard (1996), 1996 5703 (QC CA), 109 C.C.C. (3d) 471 (Que. C.A.) at 474. The amount of the theft or fraud is one factor only: R. v. Clark, at 4; R. v. Barrick, at 82.
(b) The dishonest attainment of public monies is a serious crime with its own effects even though the institution, on its face, seems able to bear the loss: R. v. Bogart, at 396; R. v. Coffin, at para. 46.
(c) The degree of sophistication of the dishonesty and the degree of planning, skill and deception: R. v. Dobis, at 272; R. v. Clarke, at para. 18; R. v. Wilson, at para. 8; R. v. Steeves and Connors, at 285, 287; R. v. Savard, at 474; R. v. Downey, [2003] O.J. No. 4997 (S.C.J.) at para. 55 (aff’d [2005] O.J. No. 6301 (C.A.)).
(d) Whether the sole motivation is greed: R. v. Savard, at 474; R. v. Clark, at 5; R. v. Steeves and Connors, at 285, 287.
(e) A lengthy period of dishonesty: R. v. Dobis, at 270; R. v. Wilson, at para. 8-9; R. v. Clarke, at para. 18; R. v. Harding (2007), 2006 SKCA 118, 213 C.C.C. (3d) 543 (Sask. C.A.) at 548; R. v. Reid, at para. 15; R. v. Coffin, at para. 47; R. v. Steeves and Connors, at 285, 287; R. v. Leaf, [2007] EWCA Crim 802 at para. 14-15;R. v. Gulam et al., [2006] EWCA 2320 at para. 11.
(f) The number of dishonest transactions undertaken in the commission of the offence: R. v. Smith, 2004 33793 (ON CA), [2004] O.J. No. 4179 (C.A.) at para. 5-6; R. v. Wilson, at para. 9; R. v. Harding, at 548; R. v. Coffin, at para. 47; R. v. McKinnon, at para. 47.
(g) Where there exists little hope of restitution: R. v. Reid, at para. 15.
(h) The offender was caught as opposed to voluntary termination of the criminality: R. v. McKinnon, at para. 47; R. v. Steeves and Connors, at 287; R. v. Gauthier, at 186-7 (dissent); R. v. Gulam et al., at para. 9.
(i) Running the risk that others would fall under suspicion: R. v. Gulam et al., at para. 3.
(j) The impact on victims of the fraud including members of the public, the employer and fellow employees: R. v. Dobis, at 270; R. v. Reid, at para. 3; R. v. Paul, at para. 16.
(k) The “quality and degree of trust reposed in the offender”: R. v. Barrick, at 82.
[31] In addition to the usual factors mitigating sentence, such as first offender status, a plea of guilt, cooperation and assistance with the authorities, impact of incarceration on a third party as in Bunn, other circumstances in breach of trust fraud cases can serve to ameliorate the harshness of the disposition to be imposed:
(a) “[S]ubstantial recovery” of the proceeds of the dishonest conduct: R. v. Wilson, at para. 9; R. v. Nichols, 2001 5680 (ON CA), [2001] O.J. No. 3220 (C.A.) at para. 47, 49 (leave to appeal refused [2001] S.C.C.A. No. 508).
(b) The pre-sentence making of restitution is a mitigating factor: R. v. Pavich, 2000 16971 (ON CA), [2000] O.J. No. 4209 (C.A.) at para. 2; R. v. Bogart, at 400; R. v. McKinnon, at para. 22, 88-92; R. v. Francis, [2000] O.J. No. 5043 (C.A.) at para. 2; R. v. Clark, at 5.
(c) Where the dishonesty resulted in personal benefit to the accused, was there a motive mitigating the breach of trust, whether a medical condition, or addiction, or other motivating cause existing other than greed or financial gain: R. v. Poutney, at para. 1, 3; R. v. Davies (2005), 2005 63757 (ON CA), 199 C.C.C. (3d) 389 (Ont. C.A.) at 399-401; R. v. Bogart, at 400; R. v. McKinnon, at para. 47; R. v. McIvor, at 286-7; R. v. Harding, at 548-9; R. v. Gulam et al., at para. 8; R. v. Barrick, at 82; R. v. Clark, at 4.
[32] A sentencing court may take into account in the exercise of its sentencing discretion, not as an aggravating feature of sentencing, but as the absence of a factor entitling sentence reduction, and as relevant to whether restorative objectives can be satisfied in a particular case, an offender’s lack of remorse and acceptance of responsibility for her crime: R. v. Proulx, at para. 113; R. v. Valle-Quintero (2002), 2002 45123 (ON CA), 169 C.C.C. (3d) 140 (Ont. C.A.) at 164; R. v. A.(K.) (1999), 1999 3756 (ON CA), 137 C.C.C. (3d) 554 (Ont. C.A.) at 570; R. v. Downey (S.C.J.), at para. 61.
[23] In R. v. Atwal, 2016 ONSC 3668 at paras 43 to 46, and 51 Justice Hill further expanded on this issue of aggravating and mitigating factors:
[43] The aggravating circumstances of the offender’s crimes are manifestly apparent including:
(1) the offences of fraud and forgery were planned and deliberate crimes not transactions of a spontaneous character or on account of a momentary lapse of judgment
(2) after years of earned trust from her employers, the offender secured authorized access to Star Plastics’ cheques during her role of preparing accounts payable – in this “insider” position, the offender abused the trust of her employer through her dishonest conduct (a statutory aggravating factor pursuant to s. 718.2(a)(iii) of the Code)
(3) the criminality continued for a period of weeks with dozens of forgeries and fraudulent cheques executed to the offender’s benefit
(4) when the presence of Mr. Bishop’s signature was discovered on cheques unrelated to legitimate Star Plastics’ expenses, suspicion turned to this innocent individual however briefly – at trial, there was a suggestion that Jasvir Dhami forged the relevant cheques, a submission rejected by the court
(5) the offender’s dishonesty resulted in a fraud of over one million dollars of risked loss to Star Plastics with an actual loss of $645,301.16, which imperilled the victim company’s continued viability
(6) whether or not described as a sophisticated looting of the victim company, it is apparent that the offender carefully thought out the scheme, for example by creating Leader Plating to deceptively mirror the identity of a legitimate supplier to Star Plastics
(7) the offender was caught – she did not terminate her criminal conduct on her own.
[44] In the balance, in mitigation, these factors fall to be considered:
(1) Ms. Atwal is a 54-year-old first offender
(2) the offender’s criminality has resulted in negative stigma and the diminishment of reputation as well as loss of business opportunity
(3) there is a generally positive PSR.
[45] Of course, in a large-scale fraud involving abuse of trust, the previous good character of the offender as a mitigating factor is blunted by the contextual reality that generally only a person of unblemished character can achieve a position of trust allowing them to handle someone else’s financial affairs.
[46] While delay can be a relevant consideration in sentencing (Fiorilli, at para. 5), its significance is very much dependent on the particular facts. Where an offender is on bail not under onerous conditions, delay may be deserving of relatively little weight:R. v. R.S., [2005] O.J. No. 5181 (C.A.), at para. 3
[51] “A plea of guilty is an important mitigating factor”: R. v. Spencer (2004), 2004 5550 (ON CA), 72 O.R. (3d) 47 (Ont. C.A.), at para. 38, leave to appeal refused [2005] S.C.C.A. No. 4. Where an offender maintains her innocence, she “cannot rely on remorse or an acknowledgement of harm to the victim” to reduce her sentence: R. v. Araya, 2015 ONCA 854, at para. 31 (conviction appeal allowed 2015 SCC 11, [2015] 1 S.C.R. 581). A sentencing court may take into account in the exercise of its sentencing discretion, not as an aggravating feature of sentencing, but as the absence of a factor entitling sentence reduction, and as relevant to whether restorative objectives can be satisfied in a particular case, an offender’s lack of remorse and acceptance of responsibility for his or her crime: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 113; R. v. Valle-Quintero (2002), 2002 45123 (ON CA), 169 C.C.C. (3d) 140 (Ont. C.A.), at p. 164; R. v. A. (K.) (1999), 1999 3756 (ON CA), 137 C.C.C. (3d) 554 (Ont. C.A.), at p. 570; R. v. Valentini (1999), 1999 1885 (ON CA), 132 C.C.C. (3d) 262 (Ont. C.A.), at paras. 81-3.
[24] In the case at bar a number of aggravating circumstances are present. The human and economic impact on victims extended beyond the substantial loss to them. Moreover, the fraud executed by the Accused was lengthy in duration, sophisticated, and motivated solely by greed. The scheme involved multiple transactions and there is little hope of restitution. Further, the Accused was caught; he did not voluntarily terminate the fraudulent enterprise. Finally, I note that the Accused traded on his spotless reputation in the community to execute the endeavour.
[25] On the positive side the Accused can point by way of mitigating circumstances to his status as a first offender.
[26] The issue of remorse is a disputed one. The Accused has told the Court in his letter of November 28, 2016, exhibit 5 on sentencing, that he has remorse. The Crown contests that assertion; relying on the Pre-Sentence Report the Crown argues that the Accused has neither remorse nor insight into his actions.
[27] The burden of proof in respect of mitigating circumstances lies on the Accused on the balance of probabilities by virtue of s. 724 (3) (d) of the Criminal Code. I am satisfied on that basis that the Accused is remorseful, and will do his best to pursue his life in an honest manner, despite the difficulties that his record of conviction in the matter before me may present to him.
Principles of Sentencing:
[28] In imposing sentence I emphasize, as the law requires, the principles of denunciation and general deterrence.
Reasons:
[29] I now address the quantum of incarceration appropriate in this case and the issue of a restitution order. I take into account the legal principles and circumstances set out above.
[30] The fraud of which the Accused was found guilty was a large scale fraud, but one at the lower end of the quantum of losses. His role was less culpable than that of Maharaj. His personal profit was not large; however, the economic and human damage to the victims was serious. In all of the circumstances I of the view that, had there been no pre-sentence custody, a sentence of 3 years incarceration would have been warranted. Given the presentence custody of the Accused which I credit on a 1.5 to 1 basis as agreed by both the Crown and the Accused, I sentence the Accused to time served.
[31] Further, I also agree with the Crown that a restitution order is appropriate. I am mindful that the Accused is impecunious, but note that at 48 years of age his working life is far from over, although his career prospects have been badly damaged by his participation in the fraud. I also have regard to the fact that the Accused was less culpable than Maharaj. In all the circumstances I find that a restitution order for 50% of the loss ought to be made. I calculate the amount of restitution to be paid based on a loss in Canadian dollars of $ 682,526.08 based on an exchange rate of 1.3401 as of November 28, 2016 according to publicly available Bank of Canada information. Therefore, the amount of the restitution ordered to be made by the Accused is $341, 263.04 in Canadian funds.
Bloom J.
Released: February 21, 2017
CITATION: R. v. Venkatacharya, 2017 ONSC 1187
COURT FILE NO.: Crim (P) 336/14
DATE: 2017 02 21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
HARI VENKATACHARYA
ACCUSED
REASONS FOR SENTENCING
BLOOM J.
Released: February 21, 2017