COURT FILE NO.: 13-R2027 DATE: 2017-07-05 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN – and – GRACE GO GAURINO Accused
Counsel: Bruce Lee-Shanok, for the Crown Samantha Robinson, for the Accused
Heard at Ottawa: May 4, 2017
REASONS on sentence
Madam Justice B. R. Warkentin, RSJ
1On January 23, 2017 I convicted Grace Gaurino with one count of fraud over $5,000.00 contrary to s. 380(1)(a) and one count of theft over 5,000.00 contrary to s. 334(a) of the Criminal Code.
2The convictions stem from the same facts. Sentencing submissions from counsel dealt with the sentencing principles and jurisprudence relating to the fraud conviction under s. 380(1)(a) of the Code. In light of these circumstances, Count 3 on the indictment of theft over $5,000.00 is stayed pursuant to the principle in Kienapple. (R. v. Kienapple, [1975] 1 SCR 729).
3Counsel for Ms. Gaurino seeks a sentence of 90 days or less to be served intermittently. Crown Counsel seeks a custodial sentence of between 18 and 21 months followed by probation and an order under s. 380.2 of the Code prohibiting Ms. Gaurino from working in a position of authority where she might be in control of money for period of 10 years.
Facts that led to the conviction
4Ms. Gaurino defrauded her employer, Eileen Rennie, a 98 year old woman, of $16,629.96 between December 2012 and February 2013. Ms. Gaurino was one of six employees who provided 24 hour caregiving services for Ms. Rennie.
5Ms. Rennie, notwithstanding her age, had been completely independent until approximately August 2012 when a prior hip replacement failed and she could no longer drive or manage in her home on her own. With the assistance of a close family friend, Mr. Alan Place, a team of care-givers was engaged to permit Ms. Rennie to remain in her home as long as possible.
6Ms. Rennie managed her day to day finances. It was Ms. Rennie who paid her caregivers by cheque based upon a logbook that was maintained with the hours of work and other expenses that the caregivers incurred.
7Irregularities were discovered in Ms. Rennie’s bank statements by her financial advisors who were also her Powers of Attorney for Property in December 2012. Through a review over the early months of 2013, it was ascertained that Ms. Gaurino had been receiving substantial payments in addition to her salary totaling $16,629.96; approximately four times what she had earned for the hours she had worked during the three month period in question.
8In convicting Ms. Gaurino, I found that she had amended the cheques that Ms. Rennie had paid her for her work hours by adding to or altering the value on the cheques.
9Ms. Rennie died in January 2014 at the age of 100 years approximately 10 months after the overpayments to Ms. Gaurino were discovered. There was no evidence in the trial that Ms. Rennie was ever questioned about the payments that had been made to Ms. Gaurino and there was no evidence at trial as to the impact, if any, this fraud had on Ms. Rennie; either to her personally or to her overall financial circumstances.
Background of Grace Gaurino
10Ms. Gaurino is a 41 year old mother of three young children. She was born in the Philippines where she obtained a bachelor’s degree in Nursing. She worked in the Philippines as a nurse and in Taiwan as a personal support worker prior to immigrating to Canada in 2004.
11Ms. Gaurino’s nursing degree was not transferrable to an equivalent degree in Canada, therefore Ms. Gaurino obtained employment in Canada first as a nanny and then as a personal support worker in various retirement homes. She is currently employed part-time as a hemodialysis aid in an Ottawa hospital where she has worked for about 5 years and she also works as a personal support worker in a nursing home.
12Ms. Gaurino’s partner, a Canadian citizen and the father of their children is employed full time in the hotel industry and also works part-time as an Uber taxi driver.
13Their three children, two boys and a girl, were born in Canada and range in age between five and nine years old.
14Ms. Gaurino has no prior criminal record.
15Ms. Gaurino, at trial and in her pre-sentence report, discussed the fact that her mother, with whom she was close, developed breast cancer in approximately 2012 and died in 2015. Ms. Gaurino’s mother, while a Philippine resident, spent a lot of time with Ms. Gaurino and her children and was an active figure in their lives in Canada.
16The diagnosis, illness and death of her mother had a significant impact on Ms. Gaurino. At trial, Ms. Gaurino testified that it was as a result personal financial difficulties and her mother’s cancer and treatment that she sought the additional funds from Ms. Rennie.
17At trial, Ms. Gaurino insisted the funds were gifts; however I did not accept that evidence.
Impact of a Criminal Conviction and Sentence
18During sentencing submissions Crown and defence counsel informed the court that as a result of the guilty verdict, Ms. Gaurino, a permanent resident of Canada, is now “inadmissible on grounds of serious criminality” under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), s. 36(1)(a). “Serious criminality” includes a conviction for an offence that is punishable by a maximum penalty of ten years imprisonment. The offence of fraud over $5,000.00 currently carries a maximum penalty of 14 years imprisonment.
19As a result of her conviction, Ms. Gaurino is now subject to the possibility of a removal order leading to deportation. If she meets specified criteria, Ms. Gaurino may appeal a removal order to the Immigration Appeal Division of the Immigration and Refugee Board, which may stay the removal order if they are satisfied that there are sufficient humanitarian and compassionate considerations that warrant special relief in light of all the circumstances of the case. (IRPA, s. 68(1)).
20Ms. Gaurino loses her right to appeal a removal order if she receives a custodial sentence that is six months or longer. This is as a result of an amendment to s. 64(2) of the IRPA in 2013 when the definition of “serious criminality” changed from a crime that was punished in Canada by a term of imprisonment of at least two years to one punished by a term of imprisonment of at least six months.
21If I accept the Crown’s submissions on sentence or find that Ms. Gaurino should be sentenced for a period of six months or more, she may therefore be subject to a removal order leading to deportation without the right of an appeal for a stay on humanitarian or compassionate considerations. In Ms. Gaurino’s circumstances, the fact that her partner is a Canadian citizen, that she has three young children who are all Canadian citizens and need her physical and financial support would likely be factors militating toward a stay of a deportation order should she have a right of appeal.
22Both Crown and defence made reference to the Supreme Court of Canada case of R. v. Pham, [2013] 1 S.C.R. 739, 2013 SCC 15 that addresses the collateral consequences that flow from the IRPA.
23Justice Wagner on behalf of the Court held that “when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offender, the most suitable one may be the one that better contributes to the offender’s rehabilitation.” (para 11). Justice Wagner also found (at para 12) that “the weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence.”
24Whether or not any weight may be given to collateral consequences that flow from a conviction and sentence depends on a consideration of the range of sentence that may be imposed based upon the offence in question. Paragraph 15 of Pham made the point that:
The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will.
25Thus, before I may consider the collateral effect to Ms. Gaurino of the consequences she faces under the IRPA when determining a proper sentence, I must first ascertain whether or not a sentence of less than six months is within the range of appropriate sentences or whether it would it would be an inappropriate sentence or one that is artificial for the crime for which she was convicted.
Mitigating Factors
[26] The mitigating factors that I have considered are as follows: a) Ms. Gaurino made a number of admissions regarding her bank records and admitting that the money was paid to her, resulting in the Crown not having to call a number of witnesses or prove certain facts and thus shortening the trial. b) This is Ms.ino’s first offence. c) Ms. Gaurino is unlikely to reoffend. d) The amount of the fraud is in the low end of the spectrum of frauds of this nature and her actions in perpetrating the fraud were not evidence of a sophisticated enterprise. e) Ms. Gaurino was experiencing personal difficulties at the time of the offence including financial problems and personal problems regarding her mother’s illness. f) While at trial Ms. Gaurino claimed that the funds were a gift to her, at the time I received sentencing submissions from counsel, Ms. Gaurino expressed remorse for her conduct and the harm she caused Ms. Rennie.
Aggravating Factors
[27] The aggravating factors I have considered are as follows: a) This is a situation of a breach of trust. Ms. Gaurino was in a position of trust as a care-giver of Ms. Rennie, a vulnerable elderly woman. b) The alteration of the cheques required some planning and definite purpose, although Ms. Gaurino took virtually no steps to avoid detection and as already noted; this was not a sophisticated or large-scale fraud. c) Ms. Rennie’s expression of remorse came late in the day. The fact that she did not plead guilty is not a factor that may be considered an aggravating factor, however, she does not receive the benefit on sentencing that she might have had with a guilty plea.
Determination of a Fit Sentence
28A list of sentencing principles and objectives are set out in section 718 of the Criminal Code. These apply when a court considers a fair and just sentence. The principles in that section require that unlawful conduct should be denounced while at the same time deterring the offender and others from committing similar crimes.
29The court is also required to consider sentences that assist in rehabilitating offenders; provide reparations for harm done to victims or to the community and to promote a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community.
30The principle of denunciation is an expression of society’s attitude towards the offence committed. It focuses on the aspect of conduct, not on the personal characteristics of the offender. In *R v. M. (C.A.), [1996] 1 S.C.R. 500 at para. 81, Justice Lamer wrote that, “In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law.”
31The principle of deterrence is set out in s. 718(b) of the Criminal Code. Deterrence seeks to provide a threat or example to the offender (specific deterrence), or to others (general deterrence), in order to discourage crime by making it clear that criminal behaviour of this nature will result in the imposition of severe punishment. Section 718.2(b) also requires that similar sentences be imposed for similar offences committed by similar offenders.
32Section 380.1 of the Code requires my primary considerations to be the principles of denunciation and deterrence in determining a fit sentence when as here, the fraud involves a breach of trust.
33It is the task of the sentencing judge to assign the relative weight to the particular aspects of each case so that the sentence is shaped in a way that is specific to the accused while following a uniform approach. In doing so, the Court must balance all relevant sentencing principles with the aggravating and mitigating factors and the personal background and history particular to each accused.
34Crown counsel provided me with case law where the sentence in fraud cases that involved a breach of trust ranged from nine months to 21 months.
35Defence counsel provided me with case law where there were similar frauds including a breach of trust where the range of sentence included a conditional sentence, (no longer available for the offence of fraud over $5,000.00) to sentences including intermittent sentences of 90 days incarceration.
36Most of the case law provided by the Crown included cases where the offender had a prior criminal record that included similar offences and where the monetary amount of the fraud was substantially greater and involved more planning and sophistication than the amount in question in this case. A number of the cases supplied by the Crown were appellate cases where the court refused to interfere with the trial judge’s determination of a fit sentence.
37In considering deterrence I have already found that there is no expectation that Ms. Gaurino will reoffend and therefore specific deterrence is not a significant issue in this case.
38General deterrence, however, is a paramount consideration in fraud cases. With a fraud that involves a breach of trust, a period of incarceration is expected regardless of the quantum of funds that comprise the fraud.
39Similarly, a custodial sentence is denunciatory and reflects society’s attitude towards offences of this nature.
40I am also mindful that a just sentence must include a consideration of the principle of rehabilitation. I must take into account the personal aspects of Ms. Gaurino’s life and her attempts to overcome those factors, such as financial hardship and personal loss that have contributed to bringing her before the court.
41In this case, the breach of trust is with respect to one individual. There is a victim impact statement from Mr. Pace, the family friend who hired Ms. Gaurino as a care-giver for Ms. Rennie, who described Ms. Rennie as having been angry at being taken advantage of and of becoming more distrustful of others with a fear of being victimized again.
42Mr. Pace testified at trial and there provided no evidence that Ms. Rennie had been made aware of or that she was questioned about the circumstances of the fraud against her prior to her death a few months later. We have no statement that was taken from Ms. Rennie herself with respect to her knowledge of or understanding of the fraud.
43Nonetheless, any time someone who is elderly and vulnerable is taken advantage of, such as here, that is an aggravating circumstance that warrants consideration in sentencing.
44There was no evidence before the court that there were adverse financial effects to Ms. Rennie as a result of the fraud. Even if she had lived a number of more years, it is probable that she would have been able to manage financially despite the fraud.
45While this was a breach of trust of an elderly, vulnerable person, I disagree with Crown counsel that the appropriate sentence is one between 18 and 21 months. A sentence in that range would be at the extreme upper limit and likely would be greater than the upper limit for an offence with facts similar to those in this case.
46I find that the appropriate sentence for an offence of this nature with the facts as presented at trial is one where the range is between a sentence of 90 days and 12 months incarceration.
47Because I have found that a proper sentence in this case is one that may be less than 6 months, I may exercise my discretion to take collateral immigration consequences into account. (Pham at para 14).
48When considering both general deterrence and denunciation, I am also entitled to consider the personal circumstances of Ms. Gaurino; that she has three small children whom she and her partner both work long hours, at multiple jobs to support. She has no other criminal record and has strong prospects for rehabilitation in light of the fact that she has maintained gainful employment and that she was attempting to deal with various personal events in her life at the time the offence occurred.
49I have determined that a fit sentence in this case is one that would enable Ms. Gaurino the opportunity to continue to support and nurture her children and would enable her to have a right to appeal a deportation order on humanitarian and compassionate grounds. Any other sentence would be disproportionate to this offence and this offender.
Disposition
50I therefore sentence Ms. Gaurino to 90 days imprisonment to be served intermittently each weekend commencing July 7, 2017 from Friday at 7:00 pm until Monday morning at 6:00 am until the sentence has been served. She shall be taken into custody today to be processed and then released immediately thereafter.
[51] While serving her intermittent sentence Ms. Gaurino shall be on probation which shall have the following terms that she will abide by all the statutory conditions: a) Keep the peace and be of good behaviour. b) Appear before the court when required to do so by the court. c) Notify the court and her probation office in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. d) Report to her probation officer as required by the probation officer e) Report to the correctional facility on time and in a sober condition.
52There shall be a restitution order pursuant to s. 380.3 and s. 738 of the Criminal Code in favour of the Estate of Eileen Rennie in the amount of $16,629.96, less any amounts already paid or collected pursuant to the civil judgment against Ms. Gaurino. This restitution order shall come into effect after Ms. Gaurino has served her intermittent sentence on January 1, 2018. Ms. Gaurino shall make payments of $100.00 per month.
53There shall also be a prohibition order under s. 380.2 of the Criminal Code for a period of 2 years during which time Ms. Gaurino is prohibited from seeking, obtaining or continuing in employment or becoming or being a volunteer in any capacity, that involved having authority over the real property, money or valuable security of another person.
54The victim surcharge is waived.
Madam Justice B. R. Warkentin, RSJ
Released: July 5, 2017