CITATION: R. v. MASON, 2017 ONSC 1509

COURT FILE NO.: CJ - 8547

DATE: 2017/03/02

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. SCOTT MASON

BEFORE: The Honourable Justice D.A. Broad

COUNSEL: Stephanie Marple, for the Crown Eric Uhlmann, for the Defendant Scott Mason

HEARD: August 8, 2016 and March 2, 2017

DISPOSITION ON SENTENCE

Orally

[1] Scott Mason was found guilty by a jury on March 21, 2016 of one count of theft over $5,000 contrary to s. 334(a) of the Criminal Code of Canada.

[2] Mr. Mason’s sentencing hearing commenced on August 8, 2016. Following the completion of the Crown’s submissions on sentence counsel for Mr. Mason requested an adjournment of the hearing, which was consented to by the Crown, to permit him to bring an application pursuant to s. 52 of the Constitution Act, 1982 for a declaration of invalidity in respect of s. 742.1(f)(vii) of the Criminal Code which makes conditional sentences unavailable following a conviction of theft over $5,000. The application was argued on December 7, 2016 and on January 3, 2017 I released my written Endorsement dismissing the application.

[3] The matter came back on for hearing on today’s date for continuation of the sentencing hearing.

[4] What follows is my disposition with respect to the fit sentence for the crime and my reasons therefor.

Factual Background

[5] The offence occurred when the Mr. Mason was working for C.C. Vending Services (the “employer”) from June to August, 2014 as a temporary route driver. The evidence at trial was that the applicant was solely responsible for stocking vending machines on his route, including ordering product, cleaning the machines, taking out the money being the proceeds of sale of product from the machines, and replenishing the coin mechanisms which dispensed change to customers. The jury found that over the course of Mr. Mason’s temporary employment he stole money from the cash receipts which he retrieved from the employer’s vending machines.

[6] The total loss to the employer ranged between $19,887.05 to $21,637.05. The latter figure represents the shortages in the cash receipts from the vending machines on Mr. Mason’s route during the charge period as calculated by the employer. The former figure represents the calculated cash shortage less 3%, being the employer’s maximum tolerated or expected margin of deviation on cash receipts from its vending machines based upon its experience.

[7] Mr. Mason’s personal circumstances were related by his counsel and described in some detail by the author of the presentence report.

[8] Mr. Mason is 23 years of age and has no previous criminal record. He was born and raised in Kitchener, Ontario and is the eldest of two children. His parents have been married for 25 years and continue to share a loving and supportive marriage. Mr. Mason reported positive memories of his upbringing.

[9] Mr. Mason is single with no children and resides with his parents and sister in the Kitchener area. He had been in one previous long-term relationship which ended in the summer of 2016. He reports to having one close friend and spending his free time with his family and writing or cooking. He has published one book and is working on a second book. He is also involved in local groups volunteering their time in the community.

[10] Mr. Mason completed his high school diploma in 2011 and completed one year in a general arts and science program at a local community college. He is presently employed as a customer retention specialist with a local lease-to-own corporation. He has been employed by this company for nearly 2 years and enjoys his job.

[11] Neither Mr. Mason nor his mother had in the past or have current concerns to report in respect of substance abuse. Mr. Mason advised that he has never tried any illicit substances.

[12] Mr. Mason has the support of his family, especially his mother. Although Mr. Mason did not acknowledge to the author of the presentence report any responsibility for the actions that have placed him before the court, he is ashamed that he is now involved in the criminal justice system. He advised that he understands monies may be required to be repaid and feels that he can manage $300 per month should the court order restitution.

Impact On The Victims

[13] An important factor in considering a fit sentence in the circumstances is the effect on the victims of the crime.

[14] Mr. Mason’s former employer C.C. Vending suffered a loss of $21,637.05 of which sum of $20,637.05 was covered by its insurer Economical Insurance, leaving the deductible under the policy in the sum of $1,000 to be borne by C.C. Vending. Economical Insurance continues to be out the sum of $20,637.05 as no restitution has been made to date.

[15] The owners of C.C. Vending did not deliver a victim impact statement. However, that does not take away from the seriousness of impact on a small business. It is noted that the company’s accountant carried out an investigation into the amount of money that was missing, and he and other company employees were required to testify at trial.

Positions Of The Parties

[16] The Crown submits that a fit sentence in the circumstances of the offence and the offender would be as follows:

• 6 to 9 months incarceration;
• a restitution order;
• a period of probation with consideration of a requirement for community service of 50-100 hours; and
• a DNA order.

[17] The defence submitted that an appropriate range of a period of incarceration would be between 2 and 6 months and, in the circumstances of the offence and the offender in this case, the lower range of two months should be applied, to be served intermittently to permit Mr. Mason to maintain his employment, and to better facilitate the more timely payment of restitution.

Guiding Principles

[18] As set forth in s. 718 of the Criminal Code, the purpose of sentencing is to contribute, along with crime prevention initiatives, respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions on the offender. The stated objectives of any sentencing decision includes denunciation, deterrence, rehabilitation, reparation for harm done, promotion of offender responsibility and acknowledgement of harm done.

[19] Section 718.1 of the Code explicitly states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[20] The principle of parity requires a sentence to be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. However, sentencing remains an individualized process such that sentences imposed for similar offences may not be identical (see R. v. Cox, 2011 ONCA 58 (Ont. C.A.) at para. 45).

[21] Under the introductory portion of s. 718.2(a) a sentence is to be reduced to take into account mitigating circumstances relating to the offence or the offender, or increased to account for any aggravating circumstances.

[22] Pursuant to s. 718.2(a)(iii) evidence that the offender, in committing the offence, abused a position of trust is deemed to be an aggravating circumstance to be considered in imposing sentence.

[23] The Court of Appeal in the case of R. v. McEachern 1978 CanLII 2506 (ON CA), [1978] O.J. No. 987 confirmed at para. 8 that it has long been established that the most important principle in sentencing a person who holds a position of trust is that of general deterrence. At para. 9, Howland, C.J.O., writing for the Court stated “the public interest requires that it be made very clear to one and all that in the absence of exceptional circumstances a person holding a position of trust who steals from his employer must expect a term of imprisonment.” (See also R. v. Dobis 2002 CanLII 32815 (ON CA), [2002] O.J. No. 646 (C.A.) at paras. 42-46, R. v. Caulk 2005 NBCA 86 (N.B.C.A.) at para. 3, R. v. Fulcher 2007 ABCA 381 (Alta. C.A.) at para. 30, and R. v. Budden 2015 NBQB 98 (N.B. Q.B.) at para. 11).

[24] The Alberta Court of Appeal in the case of R. v. Douglas 2014 ABCA 113 noted at par. 12 that denunciation and deterrence are of paramount concern in all cases of trust theft, that theft from an employer requires a sentence which will deter any other fiduciary tempted to do the same, and in cases involving the misappropriation of specific funds entrusted to the offender, the sentencing goals of denunciation and deterrence take on further importance.

Aggravating And Mitigating Circumstances

[25] As indicated above, s. 718.2(a) of the Criminal Code requires that I take into account the aggravating and mitigating circumstances which may serve to increase or reduce the sentence to be imposed. Pursuant to s. 718.2(a)(iii), evidence that the offender, in committing the offence, abused a position of trust is deemed to be an aggravating circumstance.

[26] The Crown points to the following aggravating circumstances:

(a) the actions of Mr. Mason were motivated by greed and were carried out to fuel material gain. As disclosed by his bank records entered into evidence at the trial, the proceeds of the thefts were used to make purchases of luxury items;

(b) the amount of the loss involved, being approximately $20,000;

(c) the fact that the thefts were carried out in a breach of trust situation and that Mr. Mason took advantage of the lack of supervision by his employer to perpetrate the thefts;

(d) the fact that the thefts were repeated and frequent, and did not represent an isolated lapse of judgment.

[27] The mitigating circumstances are relatively few, and include the following:

(a) Mr. Mason had no criminal record and no involvement in the criminal justice system that prior to this offence;

(b) he has been able to maintain gainful employment;

(c) he has the support of his immediate and extended family as well as friends and acquaintances as represented by the letters of support entered into evidence on the sentencing hearing; and

(d) Mr. Mason was of previously good character and antecedents, however, this factor is blunted by the fact that it is often the case that offenders who perpetrate breaches of trust are in a position to do so by reason of their reputation for good character and trustworthiness.

[28] Although not an aggravating factor, Mr. Mason does not benefit from the mitigating effect of a guilty plea, as he did not plead guilty and has not accepted responsibility for his actions, as disclosed in the PSR.

Analysis

[29] Crown and defence counsel do not disagree that in the case of an offence of this nature, being a theft from the offender’s employer while in a position of trust, the principles of deterrence and denunciation are paramount, and mitigating factors and rehabilitation are secondary. They disagree on the available sentencing measures and tools which may satisfy the prominence of deterrence and denunciation as sentencing principles.

[30] Counsel agreed that of the cases cited in submissions, the most analogous case on the facts is the case of R. v. Fleet 1997 CanLII 867 (ON CA), [1997] O.J. No. 4553(C.A.). In that case the Court of Appeal upheld a sentence of six months involving the theft of $7,569.40. The offender was a supervisor of parking attendants at an airport and on two dates funds were stolen from the safe in the airport parking booth. The offender was convicted following a jury trial. In imposing sentence the trial judge had observed that the offender had breached the position of trust that he occupied and made reference to the need to deter others in a like position of trust.

[31] Defence counsel in the case at bar made reference to two cases namely R. v. Scott 2011 ONSC 5964 (S.C.J.) and R. v. Mosychuk 2015 ONCJ 684 (O.C.J.).

[32] In my view the Scott case is of little assistance. The offender in that case was convicted following a judge-alone trial of fraud over $5,000. The offender was alleged to have, on 23 occasions while working as a petty cash cashier, taken $176,817.28 in the aggregate, however, the trial judge found one instance amounting to $5,367.24 where fraud had been proven beyond a reasonable doubt. The Crown argued for a jail sentence of 90 days, a restitution order, and two years probation with 100 hours of community service. Belobaba, J. imposed a 14 month conditional sentence, followed by a twelve-month period of probation. An important mitigating factor was the serious deterioration of the offender’s mental health, including a suicide attempt. The offender was also 56 years of age. The case is of little assistance as the possibility of a conditional sentence is not available in the present case and the circumstances of the offender, and in particular, her mental health, were very different than the situation of Mr. Mason.

[33] The Mosychuk case involved the theft of $16,800 from the offender’s father while entrusted with a power of attorney. The offender acknowledged responsibility and pleaded guilty to theft over $5,000. Justice Harris of the Ontario Court of Justice, at paragraph 50, noted that denunciation and general deterrence are the primary principles of sentencing that were applicable to the case in light of the breach of trust aspect. He noted at paragraph 51 that “I cannot however lose sight of the principles of rehabilitation and restorative justice.”

[34] At paragraph 46 Justice Harris noted that the offender had expressed remorse for his actions and he also expressed a desire to pay off the civil judgment outstanding against him for his actions. His wages had been garnished for some time by the victim and was expected to continue until the judgment has been satisfied.

[35] Justice Harris, at paragraph 55, expressed disagreement with the submission that an intermittent sentence would not satisfy the need for denunciation and deterrence. He stated “I am satisfied that other like-minded individuals would not view such a jail term, coupled with lengthy probation and full restitution as a small price to pay for stealing $16,800.”

[36] Justice Harris made reference to the comments of Fish, J., in the case of R. v. Middleton 2009 SCC 21, [2009] 1 S.C.R. 674 (S.C.C.) that “intermittent sentences strike a legislative balance between the denunciatory and deterrent functions of “real jail time” and the rehabilitative functions of preserving the offender’s employment, family relationships and responsibilities, and obligations to the community.”

[37] No other cases were cited, and certainly no Superior Court of Justice cases were cited, in which an intermittent sentence was imposed in a case involving theft or fraud in a breach of trust situation. Mosychuk, as far as I have been able to discern, has not been cited by any subsequent cases to date.

[38] Counsel are agreed that, in order to make a determination that an intermittent sentence is appropriate, I need not undertake a formulaic two-step process of first determining whether an appropriate period of incarceration would be 90 days or less before proceeding to consider the use of an intermittent term. Rather it is open to me to take a more holistic approach.

[39] The question before me is whether the predominant principles of deterrence and denunciation may be satisfied in this particular case by the imposition of a sentence of 90 days or less served intermittently.

[40] In the case of R. v. Ruhl [2012] O.J. No. 4233 (O.C.J.) Justice Hearn of the Ontario Court of Justice carried out a very useful and instructive analysis in circumstances which may be compared to this case, although it involved the theft of a greater amount of money. At paragraph 55 Justice Hearn stated “this is a troublesome sentencing. The sentencing of an individual is perhaps one of the most difficult tasks for a judge and the circumstances of this particular case certainly emphasize that difficulty. The theft here involves a substantial amount of money and the conduct takes place over an extended period of time. The case law dictates general deterrence and denunciation are primary principles of sentencing to be considered.”

[41] These words are equally applicable to the present case.

[42] In my view two very important mitigating factors were present in Mosuchuk which are not present in the case at bar, namely an early acceptance by the offender of responsibility and a guilty plea, and an expressed determination by the offender to pay the stolen money back as soon as possible, combined with the fact that significant amounts had already been paid.

[43] In the present case these important mitigating factors are not present. Mr. Mason has not accepted any responsibility and a jury trial was required. Two and one-half years have passed since Mr. Mason was charged with the offence and no amount has been paid by way of restitution.

[44] I am not satisfied that the period of incarceration of 90 days or less, served intermittently, would satisfy the direction repeatedly given by the Court of Appeal, and by appellate courts across Canada, that in cases involving theft or fraud in a trust situation, the principles of denunciation and deterrence are to be given primary importance with relatively less emphasis to be placed on rehabilitation and the circumstances of the offender.

[45] In the case of R. v. Bandiera [2012] ONSC 6015 (S.C.J.), included in the Crown’s Brief of Authorities, a sentence of five months incarceration, followed by a period of two years probation was imposed in a case involving the theft of $332,198 from complainants to whom the offender was in a trust relationship. The theft took place over a number of years. Although the offender pleaded guilty in that case, the amount involved was of a much higher order of magnitude than the amount involved in the present case, and the degree of trust responsibility of the offender, as an independent bookkeeper for the complainants, would be considered greater than that of Mr. Mason.

[46] The Fleet case did not involve a guilty plea, and although the amount involved was less, the offender was in a supervisory position, unlike Mr. Mason.

[47] In my view a sentence involving four months incarceration, followed by a period of probation, and a restitution order would be the least restrictive sentence which would reasonably address the applicable principles of sentencing.

[48] I do not find that this is an appropriate case for a DNA order under s. 487.05(1) of the Criminal Code. There is no indication that the investigation could have been advanced by the presence or absence of Mr. Mason’s DNA on any document, and there is little or no likelihood of him committing any crime in the future that could be investigated more reliably with his DNA (see R. v. Palantzas [2009] O.J. No. 3862 (S.C.J.).

Disposition

[49] Mr. Mason would you please stand.

[50] For the reasons just outlined, I impose a sentence of four months in custody. There will be an order for restitution for a total of $21,637.05, being $20,637.05 to Economical Insurance and $1,000 to C.C. Vending. Following your release from custody you will be placed on probation for a period of one year. The terms of the probation will be that you report to your probation officer upon your release and as directed thereafter, take such counselling programs as may be directed by your probation officer, that you keep and maintain suitable employment and that you complete 50 hours of community service.

D.A. Broad, J.

Date: March 2, 2017