R. v. Curreri, 2017 ONSC 5652

CITATION: R. v. Curreri, 2017 ONSC 5652

COURT FILE NO.: CR-15-70000235-0000

DATE: 20170922

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

FRED CURRERI and L.L.

Accused

Scott Patterson, for the Crown

Susan Pennypacker, for the Accused, Fred Curreri

Larry Lebovits, for the Accused, L.L.

HEARD: June 30, 2017

B.A. ALLEN J.

REASONS FOR SENTENCE

BACKGROUND

1I sat as a judge alone on a trial of this matter conducted in May and April of 2016. This case involves a charge of fraud against Fred Curreri (“Mr. Curreri”) and L.L. in connection with eight properties owned by Mr. Curreri’s father (“the elder Fred Curreri”). Mr. Curreri and Ms. L.L. were arrested in 2009. This case is therefore eight years old.

2Mr. Curreri and Ms. L.L. are jointly charged on the indictment with a single count of fraud over $5,000.00 contrary to s. 380 of the Criminal Code. Ms. L.L. was convicted in relation to one property, 1246 St. Clair Avenue West (“1246 St. Clair”), and Mr. Curreri, in relation to all eight properties. The properties were ultimately returned to the estate of the elder Fred Curreri. The total value of the properties was some $4,851,000.00. The loss to the title insurer, Stewart Title, with respect to mortgages taken out on the properties is $3,362,000.00. The loss is therefore with respect to the mortgage funds and not the values of the properties themselves.

PRE-SENTENCE REPORTS

Fred Curreri

3Pre-Sentence Reports were ordered for both Mr. Curreri and Ms. L.L..

4Mr. Curreri is 70 years of age. He has not been married and has no children. His mother passed away in 1980. He has one sibling, a sister is who is ten years his senior, who is married with children. Mr. Curreri spent a major part of his life, before the charges arose, living with his father in the family home at 28 Ruden Crescent (“28 Ruden”), one of the subject properties in the fraud. Mr. Curreri lived off of his father’s resources as he never paid for any living expenses while living there.

5At around age 60, Mr. Curreri’s father ordered him out of the house due to his alcohol abuse and his disapproval of his son’s associates. The sister acknowledges Mr. Curreri’s alcohol problem which she says has been minimized by her brother’s now very limited financial resources. The father passed away in his 90s several months after he discovered the fraud.

6Mr. Curreri completed grade 12 and worked for many years at a stationery business owned by a family member. He was fired in 2006 and had only sporadic work in construction and demolition after he lost that job. His sister describes him as having a “dependent personality” and as “simple” and believes he suffers from an unaddressed learning disorder. The sister states that her brother is “naïve” which led him to get involved with the “wrong people”, people who systematically manipulated him. The sister states that her brother is remorseful.

7The Crown does not dispute the sister’s depiction of Mr. Curreri. The Crown acknowledges, and I agree, that Mr. Curreri was not the mastermind. Under cross-examination Mr. Curreri agreed with every assertion put to him about the fraud and filled in some gaps in evidence about the properties.

8Mr. Curreri is not involved in a relationship currently. Because of the fraud he was excluded from his father’s will and denied a share with his sister of his father’s rather sizeable estate. He lives alone in a rooming house where he shares facilities. He receives a subsistence income of $1,600.00 per month from the Canada Pension Plan and Old Age Security.

L.L.

9Ms. L.L. is 47 years of age. She was born in Newfoundland where she completed grade 11. She left Newfoundland for Toronto with an older man when she was in her teens. She bore two daughters from that relationship.

10Ms. L.L. does not know her biological father since he left her mother when she was a baby. She grew up with her mother, an adoptive father and three half-sisters. Her family received social assistance so Ms. L.L. grew up with modest means. Ms. L.L. spent about two years in protective care because her mother felt she could not control her.

11Ms. L.L. has suffered domestic abuse from men in a number of her relationships. The relationship with the older man with whom she moved to Toronto lasted about 14 years and was fraught with physical abuse by him. In another relationship that lasted four years she again became the victim of physical abuse.

12Ms. L.L.’s two daughters are now ages 27 and 28. She enjoys a good relationship with them. Ms. L.L. attained a legal assistant diploma at college in 1996. Over the years she has worked as a legal assistant in real estate with several law firms. Her eldest daughter, R., wrote a reference letter for her mother’s sentencing hearing. She relates how hard-working and dedicated Ms. L.L. has been in her profession and how she and her sister have learned from their mother the importance of working hard. Ms. L.L.’s friends who provided reference letters also attest to her positive work ethic. They describe her as a helpful and caring person.

13Ms. L.L. is currently employed as an independent contractor in the position of office manager at a law firm. She is relatively young and shows some ambition. She enjoys a long-standing and relatively well-paid profession at which she has worked very hard. As for the future, Ms. L.L. anticipates being employed as the office manager for her current employer when the new law office is opened in Markham. She has positive plans for her employment future. She is in a much better situation than her co-offender.

14For many years Ms. L.L. has suffered from mental health issues. She has been hospitalized on several occasions for depression and anxiety and has been prescribed medication for those conditions. She is currently under the care of a psychiatrist and takes medication for depression. Her friends are concerned because Ms. L.L. seems to have given up on herself and appears to lack any joy in life.

15Ms. L.L. is in the process of attempting to adopt her sister’s two children who are currently in protective care in Newfoundland. Her sister has drug addiction issues. Ms. L.L. will endeavour to move the children to Ontario if she is successful in the adoption.

PRINCIPLES ON SENTENCING

16Section 718 of the Criminal Code sets out the principles that underpin the objectives for sentencing: denunciation, deterrence and the separation of the offender from society.

17The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the 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 potential future offenders from committing offences; and (c) to separate offenders from society.

18Deterrence is paramount in fraud cases. As the Ontario Court of Appeal remarked,

“[t]here are few crimes where the aspect of deterrence is more significant. It is not a crime of impulse and is of a type that is normally committed by a person who is knowledgeable and should be aware of the consequences. That awareness comes from the sentences given to others.

[R. v. Dobis, 2002 32815 (ON CA), [2002] O.J. No. 646, at paras. 45, (Ont. C.A.)]

19Proportionality is also a guiding principle for sentencing. A sentence must be proportionate to the gravity of the offence, determined on the particular facts of the case. The narrow focus of the sentencing process is directed to imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender: [Criminal Code, s. 718.1 and R. v. Hamilton (2004), 2004 5549 (ON CA), 186 C.C.C. (3d) 129, 72 O.R. (3d) 1 (Ont. C.A.)].

20The parity principle requires a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is however an individualized process which necessarily means that sentences imposed for similar offences may not be identical: [R. v. Cox, 2011 ONCA 58 (Ont. C.A.) and R. v. L.M., [2008] 2 S.C.R. 163, 2008 SCC 31 (S.C.C.)].

21Section 718.2 of the Criminal Code addresses the totality principle and provides that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. The principle applies with a sentence for multiple offences and requires the court to craft a global sentence for all offences that is not overly excessive.

STATUTORY AGGRAVATING FACTORS

22Section 718.2(a) of the Criminal Code provides that “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender”. Some aggravating and mitigating factors are set by legislation and others have been developed at common law.

Crimes by Persons in Positions of Trust, Criminal Code s. 718.2(a)(iii)

23The Crown takes the view that Ms. L.L. was in a position of trust as a public official when she committed the fraud in relation to 1246 St. Clair. At that time Ms. L.L. was no longer working for a law firm. She was working from her home doing real estate transactions through her registration under the Land Titles system.

24In her function as a legal assistant in a real estate law practice, Ms. L.L. used the Teraview software implemented under the Land Titles system. This software is an electronic software application created by a company, Teranet, and is used to register instruments on title to land.

25In order to provide background to the Crown’s position, I will summarize a portion of my review of the Land Titles system from my trial Reasons for Judgment.

26Ms. L.L.’s transfer of 1246 St. Clair occurred in November 2007. Before 2008 any person who applied to Teranet to obtain the Teraview software could register and sign instruments on title as long as a lawyer in good standing signed any required statements of law. In 2008 the system became more restrictive as to who could submit and sign title instruments. An application was required to be made to the Director of Land Registration. An applicant was required to satisfy certain criteria as to their identity, financial resources and good character. Successful applicants are granted a Personal Security Licence (“PSL”) by the Director which allows them to access the system.

27The Crown takes the position that, as a legal assistant doing transactions under the Land Titles system, Ms. L.L. was in a position of trust as a public officer. On this basis the Crown seeks an enhanced sentence. Section 718.2(a)(iii) provides that abuse of a position of trust is an aggravating factor. The Ontario Court of Appeal held that this factor has traditionally drawn a severe custodial term even with first offenders: [R. v. Dobis, 43 – 45].

28“Officer” is defined under s. 118 of the Criminal Code as a person who holds an office or is appointed or elected to discharge a public duty.

29The Supreme Court of Canada, considering s. 122 of the Criminal Code, dealt with a case involving breach of trust by a public official. The Court addressed the factors that bring a person’s role within the ambit of the responsibilities of a public officer. The Court observed that public officers are entrusted with special powers and responsibilities which they must exercise only for the public benefit. “Public officials are therefore made answerable to the public in a way that private actors may not be”: [R. v. Boulanger, 2006 SCC 32, [2006] 2 S.C.R. 49, at para. 52, (S.C.C.)].

30Watt’s Manual of Jury Instructions (Toronto: Thomson Canada Limited, 2nd ed.) at p. 534 under the title “Breach of Trust (Fraud by an Official), Code, s. 122”, Watts, J.A. defines an “official” as: “a person who has a position or is employed in government or in a government department or ministry, or has been appointed to perform a public duty. The official may be elected to his/her position or appointed to the position.”

31I cannot imagine how Mr. L.L. could be regarded as a public officer or public official in her capacity as a Land Titles legal assistant − whether working at home or in a law firm’s office or whether accessing the Land Titles system before 2008 or after the new system was implemented.

32Ms. L.L. was involved in private real estate transactions and was not performing a public service. She was not employed or appointed by the government or a governmental agency. She was employed by law firms earlier on and was self-employed from home in 2007 when she transferred 1246 St. Clair under the old Land Titles system.

33I take the same view even if when she transferred the property Ms. L.L. was operating under a PSL licence in the more restrictive system. The difference in her situation under the old and new systems is that under the new system there is a requirement that a public official, the Director of Land Registration, grant Ms. L.L. the licence. It is the Director who is statutorily entrusted with powers and responsibilities that he is required to exercise for the public benefit. Ms. L.L. had no such public obligation or authority.

Fraud over One Million Dollars

34Section 380.1(1)(1.1) of the Criminal Code designates as an aggravating circumstance the commission of a fraud exceeding one million dollars. The value of the eight properties exceeds four million dollars. I do not have a figure for the value of 1246 St. Clair. However, over $600,000.00 in mortgages were taken out on that property.

CONDITIONAL SENTENCE AVAILABLE

35In 2011 the law imposed a minimum punishment of imprisonment for a term of two years if the total value of the subject matter of an offence exceeds one million dollars. This of course precludes imposing conditional sentences.The charges before the court were brought in 2009. Conditional sentences are therefore available to Mr. Curreri and Ms. L.L..

36Under s. 742.1 of the Criminal Code, a court may order a conditional sentence where:

a) The offence does not call for a minimum term of imprisonment;

b) The court imposes a sentence of imprisonment of less than two years;

c) The safety of the community would not be endangered by the offender serving the sentence in the community; and;

d) A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

37The Supreme Court of Canada dealt with the question whether a conditional sentence is appropriate for offences where the principles of denunciation and deterrence are paramount as is the case with fraud. The Court held that a conditional sentence can achieve both punitive and restorative objectives. A sentencing judge can craft a sentence, with appropriate terms, that addresses the punitive factor. Where a conditional sentence can satisfy denunciation and deterrence a conditional sentence is preferable to incarceration: [R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 99 and 100, (S.C.C.)].

THE PARTIES’ POSITIONS

Length of Sentence

38The Crown seeks a three-year prison term for each of Mr. Curreri and Ms. L.L.. Mr. Curreri’s counsel seeks a two-year less a day conditional sentence. Ms. L.L.’s counsel seeks a conditional sentence of less than two years.

Restitution Orders

39The Crown seeks a restitution order against Mr. Curreri and not against Ms. L.L..

40Section 738 allows the sentencing judge the discretion to order the offender to make restitution by paying the victim an amount not exceeding the replacement value of the property as of the date the order is imposed, less the value of any property returned, where the amount is readily ascertainable.

41A restitution order is part of the overall sentence. A restitution order is not to be simply tacked onto a prison sentence which is itself a suitable sentence. This would offend the totality principle in that this could result in an excessive sentence: [R. v. Castro, 2010 ONCA 718, [2010] O.J. No. 4573, at para. 23, (Ont. C.A.)]. The objectives of imposing a restitution order are enumerated in R. v. Castro at para. 24, namely:

• to emphasize the sanction imposed on the offender;

• to make the offender responsible for making restitution to the victim;

• to prevent the offender from profiting from crime; and

• to provide a convenient, rapid and inexpensive means of recovery for the victim.

42The sentencing court may take the means of the offender into account. But s. 739.1 of the Criminal Code provides that ability to pay does not prevent the court from ordering restitution. When determining whether a restitution order is appropriate, the court must consider, amongst other things, both the present and future ability of the accused to pay restitution: [R v Yates, 2002 BCCA 583, at paras. 15 and 17, (B.C.C.A.)].

43R. v. Castro situates restitution orders in the overall scheme of sentencing principles:

To summarize, a restitution order is simply part of the determination of an overall fit sentence, and general sentencing principles apply. While consideration of the offender’s ability to pay and the impact of a restitution order on an offender’s rehabilitation are factors to be considered, the weight to be given to these factors will vary depending on the nature of the offence and the circumstances of the offender. When the offence involves a breach of trust, a primary consideration is the effect on the victim; rehabilitation is a secondary consideration. Furthermore, consideration of the ability to pay includes the ability to make payments from the money taken as a source of restitution.

[R. v. Castro, at para. 35]

44A serious dispute over legal or factual issues does not support ordering restitution. The loss should be capable of ready calculation. Also for consideration is the nature of the offence, when the money was taken, and what has happened to the money. Whether a breach of trust is involved is important to take into consideration: [R. v. Castro, at paras. 24 and 27].

45In a decision made subsequent to R. v. Castro the Ontario Court of Appeal somewhat tempered or further refined the calculation factor. The Court held that an amount can be ordered that reflects the culpability of the offender without the necessity of relying on slavish calculation or a strict tracing of the amount of the offender’s enrichment: [R. v. Eizenga, 2011 ONCA 113, [2011] O.J. No. 524, at para. 108, (Ont. C.A.)]. The court can order an amount of restitution less than the amount owed: [R. v. Yates, at para. 11].

Forfeiture Orders and Fines in Lieu of Forfeiture

46Section 462.3(1) of the Criminal Code at Part XII.2, and following, govern offences involving proceeds of crime. Those provisions authorize the sentencing judge to make an order of forfeiture or to impose a fine in lieu of forfeiture in respect of such proceeds.

47Section 462.37(1) of the Criminal Code provides where an offender is convicted of an offence involving property that is found to be proceeds of crime and an offence was committed in relation to that property, the court shall order that the property be forfeited to the Crown to be disposed of as the Attorney General directs.

48The overall objective of Part XII.2 is to deal with proceeds of crime separately from, and in addition to, the punishment for committing the crime: [R. v. Lavigne, 2006 SCC 10, [2006] 1 S.C.R. 392, at para. 26, (S.C.C.)]. Forfeiture or a fine in lieu is separate and distinct from a restitution order. In contrast, as noted above, restitution orders are part of a fit sentence to be determined in accordance with general sentencing principles. Forfeiture orders and fines in lieu are not to be treated as part of the general sentencing regime.

49Section 462.37(3) of the Criminal Code addresses the circumstances where the property cannot be made subject to an order of forfeiture. If a court is satisfied that an order of forfeiture should be made in respect of “any property of an offender”, (I will refer to these words below) instead of ordering the property forfeited, the court may order the offender to pay a fine in an amount equal to the value of the property or the part of or an interest in the property. Certain circumstances lend themselves to the imposition of a fine under s. 462.37(3). This provision applies when the property or any part of or interest in the property

a) cannot, on exercise of due diligence, be located;

b) has been transferred to a third party;

c) is located outside Canada;

d) has been substantially diminished in value or rendered worthless; or

e) has been co-mingled with other property that cannot be divided without difficulty.

50There is no dispute that the mortgage funds derived from the eight properties are proceeds of crime. The Crown seeks, as against each of Mr. Curreri and Ms. L.L., a fine in lieu of forfeiture in the amount of any mortgage funds over which they had possession or control.

51The mortgage funds in the case before me fit under the criterion under s. 462.37(3)(a). The whereabouts of the mortgage funds is unknown. It is reasonable to conclude that the funds were dissipated particularly in view of the fact the properties were transferred and mortgaged more than a decade ago.

52The Ontario Appeal of Court in R. v. Lavigne addresses the issue of whether the offender’s ability to pay is a proper factor to consider. There has been much judicial comment on where the sentencing court’s discretion lies under s. 462.37(3) in deciding the appropriateness and quantum of a fine in lieu of forfeiture.

53When imposing a fine in lieu of forfeiture, the fine substitutes for the value of the property. To be “genuine” then the amount of the fine must be equal to the value of the property for which the fine serves as a substitution. The court applies its discretion on two bases, namely, to the decision whether or not to impose a fine, and to the determination of the value of the property. Once these determinations are made on the evidentiary record the court may not take the ability to pay into account as a basis for determining either to impose a fine or to reduce the amount of the fine: [R. v. Lavigne, 2006 SCC 10, [2006] 1 S.C.R. 392, at paras, 30 – 35 (S.C.C)].

54The Court went on to conclude:

Taking the ability of the accused to pay into consideration is not compatible with the objectives of these specific provisions, which are intended to deprive the offender and the criminal organization of the proceeds of their crime and to deter them from committing crimes in the future. The effect of the word “may” in s. 462.37(3) cannot therefore be to grant the court a broad discretion, having regard to the objectives of the provision, the nature of the order and the circumstances in which the order is made.

[R. v. Lavigne, at para. 52]

55Courts have looked at how to assess the quantum of a fine in relation to property determined to be proceeds of crime.

56The Ontario Court of Appeal in R. v. Dwyer opined that a fine in lieu of forfeiture can be ordered only “where the offender has possession or control of the property or at least had possession at some time”. The Court based this interpretation on the reference in s. 462.37(3) (as referred to above) to “any property of an offender”. The Court held that its determination on this point accords with the objectives of depriving the offender of the proceeds of the crime to ensure they do not benefit from the proceeds. The Court determined that the amount over which bank documents showed the offender had control was the amount of the fine imposed: [R. v. Dwyer, 2013 ONCA 34, [2013] O.J. No. 277 (Ont. S.C.J.)].

57R. v. Khatchatourov involved a total loss of $1,167,869.95. This Court ordered one offender to pay a fine of $423,580.41 and the other a fine of $71,954.63. The Court of Appeal accepted the sentencing judge’s decision that copies of cheques made out to the offenders were sufficient to establish that the funds had been in their control at some point even if it was not clear where the funds ended up: [R. v. Khatchatourov, [2012] O.J. No. 2707 (Ont. S.C.J.); affirmed on appeal by R. v. Khatchatourov, 2014 ONCA 464, [2014] O.J. No. 2847 (Ont. C.A.)].

58Section 462.37(4) of the Criminal Code addresses default penalties. It provides that where a court orders an offender to pay a fine and the offender defaults in the payment of that fine, the court shall impose a term of imprisonment the length of which depends on the quantum of the fraud.

59At the stage of deciding the time-limit for payment the ability to pay may be considered. Where there is default at the expiry of the time-limit for payment, the court may not issue a warrant of committal unless it is satisfied the offender has refused to pay the fine without reasonable excuse. “Failure to pay because of poverty cannot be equated to refusal to pay”: [R. v. Lavigne, at para. 47].

CASE AUTHORITIES

R. v. Williams, 2007 13949 (ON SC), [2007] O.J. No. 1604 (Ont. S.C.J.) – offender age 60, no criminal record, sentenced to 18 months’ imprisonment for embezzling $195,000.00 from her employer over three years; $159,000.00 restitution ordered; as result of offence, offender suffered clinical depression and loss of employment.

R. v. McEachern (1978), C.C.C. (2d) 189 (Ont. C.A.) – offender, in a position of trust in a bank, pleaded guilty to stealing $77,000.00 from bank; sentenced to 18 months’ incarceration.

R. v. Dobis, 2002 32815 (ON CA), [2002] O.J. No. 646 (Ont. C.A.) − offender, accounts manager for electrical wiring manufacturer, in a position of trust, pleaded guilty to large-scale fraud over $2,000,000.00; sentenced to two years less a day reformatory sentence; restitution of $286,636.00 ordered.

R. v. Dwyer, 2013 ONCA 34, [2013] O.J. No. 277 (Ont. S.C.J.) – offender falsified tax documents to obtain a mortgage from a bank; the bank extended a mortgage of $663,750.00; bank recovered $426,049.00; trial judge refused to order fine in lieu of forfeiture; on appeal a fine ordered in the amount of $10,700.00, an amount over which the court held the offender had control.

R. v. Khatchatourov, [2012] O.J. No. 2707 (Ont. S.C.J.) – offenders involved in fraud over seven years involving 11 residential properties and 27 mortgages; financial institutions’ loss was $1,167,869.95 which was reimbursed by Canada Mortgage and Housing Corporation (CMHC); cheques received by Khatchatourov in his name totalled $423,580.41 and received by Reznik, the other offender, in her name totalled $71,954.63; fines in lieu of forfeiture in those respective amounts were ordered against the offenders; restitution orders also made jointly and severally against the offenders in the amount of $495,534.04 in favour CMHC.

R. v. Gibb and Grigorovsky, 2014 ONSC 5316 (Ont. S.C.J.) – offenders defrauded an unsophisticated couple of $100,000.00; both offenders no criminal record; conditional sentences of two years’ less a day, a $100,000.00 restitution order payable jointly by the offenders; and payment of fines of $99,000.00 and $49,000.00 ordered against the offenders respectively.

R. v. Callender, [2009] O.J. No. 5510 (Ont. S.C.J.) – offender, first offender, convicted of $280,000.00 fraud against a bank; nine-month conditional sentence and probation; no restitution or forfeiture ordered.

R. v. Hayes, [2003] O.J. No. 4590 (Ont. C.A.) – offenders set up several partnerships over which they had control of the accounting function; both convicted of large-scale fraud; sentenced to 18-month conditional sentence and restitution orders in the sums of $97,006.73 and $29,994.56.

CONCLUSION

Mr. Curreri

Length and Type of Sentence

60I found Mr. Curreri guilty in relation to all eight of his father’s properties. As noted earlier, after the fraud was discovered in 2009 all eight properties were returned to his deceased father’s estate. It is the mortgage funds related to the properties that constitute the loss in this case. The Crown has provided the figure $3,362,000.00 as the total loss to the title insurer.

61An aggravating factor for Mr. Curreri is his central role in facilitating the large-scale fraud against his elderly father. He knowingly and deceptively used his name, which was the same as his father’s, to transfer and mortgage the properties to strangers. The fraud would not have been possible without Mr. Curreri’s co-operation.

62It was very clear to me during the trial that Mr. Curreri is an unsophisticated person. His demeanour and manner of speech at trial was in stark contrast to Mr. Di Vincenzo and Robert Ricciotti who testified for the Crown. Mr. Curreri met these shady characters at an off-track betting café in Toronto. Mr. Di Vincenzo and, as we will see, Mr. Ricciotti, were deeply instrumental, with other like associates, in manipulating Mr. Curreri to participate in the fraudulent scheme.

63A redeeming and mitigating feature for Mr. Curreri is that he admitted his role in the fraud. He did not deny he was hanging out with the wrong people and that he bragged about the properties. However, in spite of his facile nature the fact remains that Mr. Curreri knew he did not own the properties when he surreptitiously stole them from his father and gave them to others.

64Also mitigating is that Mr. Curreri has no criminal antecedents. He is 70 years old and does not have a history of crime much less of the sort on which he now stands convicted. Mr. Curreri also has limited employment experience having done menial work in a relative’s business for three decades until he was fired in his late fifties. He has had negligible employment since then. He had the benefit of living expense-free with his father until his late 50s in rather opulent surroundings until his father made him leave.

65Mr. Curreri is destitute. He receives small government pensions and lives in a rooming house. He has a restricted social life. Mr. Curreri has only one sibling, his sister with whom it appears he has no relationship. Had he not defrauded his father of the properties he would have been a half-share beneficiary of his father’s bountiful estate. The fact of his poor living conditions cuts both ways. No one can deny his is a sad state of affairs. But the reality is Mr. Curreri epitomizes that person who through his own bad acts was the author of his own fate.

66I have balanced the aggravating and mitigating factors in Mr. Curreri’s life. I considered the applicability of the factors in support of a conditional sentence as set out under s. 742.1 of the Criminal Code.

67There is no minimum term of imprisonment for fraud. Mr. Curreri is not a hardened criminal. He committed no crimes before or subsequent to his arrest. He is not a young man. I do not find that public safety would be jeopardized if he serves his sentence in the community.

68I find a conditional sentence will appropriately address the objectives of denunciation and deterrence. I think house arrest will be a particularly harsh reality for Mr. Curreri. Being confined 24 hours a day, seven days a week in his room in a rooming house will have features similar to life in a jail cell.

69I impose a conditional sentence of two years less a day on condition of house arrest for a period followed by a period under a curfew.

70I find a conditional sentence will appropriately address the objectives of denunciation and deterrence.

Restitution Order

71The Crown seeks a restitution order against Mr. Curreri in the amount of $2,730,865.00 payable to Stewart Title. I believe this amount represents a portion of the mortgage amounts placed on the properties.

72Restitution orders are discretionary. While ability to pay is a consideration it is not determinative of whether restitution should be ordered. The particular circumstances of the fraud and the offender’s role are relevant contextual considerations.

73I cannot ignore the fact that Mr. Curreri was by far not the mastermind of the scheme, although he did allow his name to be used, making the fraud possible. As I find below in my findings on whether to order a fine in lieu of forfeiture, there is evidence of only a small portion of the funds, about $276,800.00, passing into Mr. Curreri’s hands. The bulk of the funds were disbursed and dissipated by Mr. Curreri’s greedy accomplices and their friends and family members. Mr. Curreri is an unsophisticated man who got way over his head into something he did not understand.

74I considered Mr. Curreri’s ability to pay in that broader context. He is 70 years old and has a meagre monthly income of $1,600.00. Over ten years have passed since the mortgages on the properties were taken out in Mr. Curreri’s name. He has been unemployed for many years and has no assets. Mr. Curreri has few if any job skills and no future income-making prospects that I can discern.

75It is also important to note that Mr. Curreri was not in a position of trust as this concept is contemplated under s. 718.2 of the Criminal Code. He was financially dependent on his father for the greater part of his life. He might have had some menial management duties in relation to some of the properties at times when his father was away but there is no evidence his father gave him any substantial trust-like authority over the properties. I find there is no ability to pay in the present and little to no prospect that he will be able to pay in the future.

76Taking into account the ability to pay in the context of Mr. Curreri’s role in the fraud and his life circumstances, I decline to order restitution in any amount.

Fine in Lieu of Forfeiture

77Ability to pay is not a factor to consider when determining a fine in lieu of forfeiture.

78The total value of the properties themselves was $4,851,000.00. The Crown takes the view that Mr. Curreri should be ordered to pay a fine in that amount. But given that the properties were returned to the estate a fine could not properly be based on the value of the properties. The total loss in mortgage funds to the title insurer is $3,362,000.00 and it is on that amount that a fine must be considered.

79There is evidence that to my satisfaction shows certain amounts of funds were in Mr. Curreri’s possession or control. Several certified cheques were made out to Mr. Curreri and cashed.

80In considering the quantum of a possible fine, I looked to the broader factual context of the fraud. It is clear from the cheques and other bank documents in evidence that cheques drawn on mortgage funds from the eight properties were made out to a multiplicity of parties besides Mr. Curreri.

81For instance, with the 28 Ruden mortgage, the record shows cheques were made out to Mr. Curreri in the total amount of $215,000.00 and cheques in the amount of $200,000.00 were made out to Mr. Di Vincenzo’s cousin.

82As another example, a TD account was opened for a numbered company owned by Robert Ricciotti. Mr. Ricciotti is another actor in the fraudulent scheme. I found at trial that cheques in large amounts were deposited into that account on dates closely corresponding with the dates of the mortgages taken out on 132 Harwood and 35 Station. For instance, cheques in the amounts of $145,870.00, $91,880.00, $34,000.00 and $45,539.00 were deposited into that account. These deposits were made by four persons a few months after the mortgages were taken out. Mr. Curreri was not one of the depositors. These funds were clearly under the control of others.

83Mr. Ricciotti admitted that drafts drawn on his company’s account payable to a gambling casino were deposited into his casino accounts. Mr. Ricciotti admitted to brazenly gambling with the money from the mortgages thereby using those funds for his own personal gain. Mr. Ricciotti insisted at trial that he was gambling the money but was planning to give money from the winnings to Mr. Curreri. There is no evidence he did this. He could point to no gambling winnings he gave to Mr. Curreri.

84Having in mind Mr. Curreri’s subservient role and his lack of sophistication with what was happening around him, I am not prepared to impose a fine for amounts that the evidence shows were not in reality under his control or possession.

85I do however find as the courts did in R. v. Dwyer and R. v. Khatchatourov that it can be reasonably concluded from the record that certain amounts in the form of certified cheques came under Mr. Curreri’s control or possession.

86I found at trial there were certified cheques in large amounts drawn in favour of Mr. Curreri written on Ms. L.L.’s personal TD account where the mortgage funds from the mortgage on 28 Ruden were deposited. The cheque amounts are: $20,000.00, $60,000.00, $70,000.00, and $65,000.00. The cheques were cashed. There is also a further certified cheque drawn on Mr. Ricciotti’s company’s TD account in the amount of $16,800.00 which was also endorsed and cashed. There is no evidence this was a payment from Mr. Ricciotti’s gambling winnings.

87At trial, Mr. Curreri stated he had not seen those cheques and denied they were ever given to him even though the bank stamps on the back of the cheques show the cheques were cashed. I did observe that the quality of the content on the reverse side of the cheques was not easily decipherable.

88The Crown also showed Mr. Curreri a copy of a certified cheque for $45,000.00 from Robert Ricciotti payable to Mr. Curreri. Neither was there evidence this cheque was drawn on gambling winnings. Mr. Curreri testified he did not receive the cheque but admitted that it appeared to be his signature. Mr. Curreri agreed that he must have had possession of the cheque to sign it but he did not recall doing that.

89In total there were funds of $276,800.00 in the form of certified cheques made out to Mr. Curreri. Mr. Curreri displayed a markedly poor memory during the trial. He freely admitted throughout his testimony that he had no recall of many of the details of the dealings with the properties. I do not necessarily believe that in all circumstances Mr. Curreri was feigning a bad memory. It is possible he truly did not recall many things. After all, he was testifying at trial more than a decade after the fraud had been committed.

90But I do not think Mr. Curreri’s lack of recall or the poor quality of the photocopies should automatically excuse Mr. Curreri of having possession of any of the fraudulent funds. I do not think that would be a reasonable way to approach whether funds went into Mr. Curreri’s possession. He could not recall the cheques. The signatures on the backs of the cheques were not clear. This is unfortunately often the case with photocopies of cheques.

91I am however not convinced Mr. Curreri did not have control of these funds or that he did not have possession of them at some time given the cheques were certified, endorsed and had been cleared by the bank. I think Mr. Curreri simply did not recall receiving the funds or in his self-interest just denied receiving them.

92In the circumstances, I find Mr. Curreri had control of funds in the amount of $276,800. 00.

93R. v. Lavigne allows the sentencing judge to consider the offender’s ability to pay when deciding the length of the term for repayment. Mr. Curreri is age 70 with meagre financial resources and no reasonable prospect of future employment.

94In the circumstances, I order a fine in lieu of forfeiture in the amount of $276,800.00. I apply the approach used by the Ontario Court of Appeal in R. v. Angelis. I allow Mr Curreri 20 years to pay that fine and, in default of payment, pursuant to s. 462.37(4)(iv) of the Criminal Code, impose a sentence of three years to be served consecutively to the conditional sentence: [R. v. Angelis, 2016 ONCA 675, at para. 86, (Ont. C.A.)].

Ms. L.L.

Length and Type of Sentence

95Ms. L.L. had a much more disadvantaged early life than Mr. Curreri. This is a mitigating factor.

96Ms. L.L. grew up in Newfoundland in an environment where she was abused by her stepfather. She spent a period in the care of child protective services in Newfoundland. She fled her home for Toronto with an older man at age 15 with only a grade 11 education. She found herself in more than one domestic abuse relationship in Toronto.

97Ms. L.L. bore two daughters with the man with whom she fled to Toronto. One of her daughters spoke to the author of the PSR and prepared a statement in which she attested to her mother being a role model for her children on the importance of hard work. Ms. L.L. managed in spite of her disadvantaged background to qualify as a legal assistant and has been employed as such for many years.

98It is praiseworthy that Ms. L.L. attained the qualification of a legal assistant in spite of her poor start in life. However, aggravating is the fact she employed her hard-earned skills to effect a fraud against an elderly man she had never met.

99Unlike Mr. Curreri, it cannot be said that Ms. L.L. was unsophisticated or that she did not appreciate what she was involved in. Had she not been adept as a real estate legal assistant she would not have been able for so many years to maintain her positions at the law firms that employed her.

100While she did not testify, as is her right, I think it can be reasonably inferred that she was fully engaged in the fraud. Ms. L.L. wrongly took advantage of her access to the Land Titles system when she transferred title to 1246 St. Clair from the elder Fred Curreri to Mr. Curreri and Kristina Motyczka-Fiore. On November 23, 2007 funds of approximately $600,000.00 from two mortgages on 1246 St. Clair were deposited into a TD account held by a numbered company, 1698752, where Ms. L.L., Mr. Di Vincenzo and Ms. Motyczka-Fiore had signing authority. I will discuss this account more fully below.

101In determining the length and type of sentence for Ms. L.L., I considered the parity principle in relation to the sentence I gave Mr. Curreri. Mr. Curreri was convicted of fraud in relation to all eight properties while Ms. L.L. was convicted in relation to only one. However, looking at the larger context of the fraud, Ms. L.L. was more demonstrably and directly involved in the control and use of quantities of funds derived from fraudulent transactions in relation to more than one property.

102Balancing the strengths and weakness of Ms. L.L.’s and Mr. Curreri’s involvement in the fraud, if Ms. L.L.’s circumstances otherwise meet the factors under s. 742.1, I find that a conditional sentence would be a fit sentence.

103Like Mr. Curreri, Ms. L.L. does not have a criminal record. She has not committed any crimes of dishonesty or any other crimes before or since her arrest in 2009. At age 47, she is considerably younger than Mr. Curreri. Unlike Mr. Curreri, Ms. L.L. has been gainfully employed earning a respectable but intermittent salary as a legal assistant. She has friends and family connections in the community. She has two adult daughters and hopes to be able adopt her two nieces residing in Newfoundland.

104Under the circumstances, I do not find that the safety of the public will be jeopardized if Ms. L.L. serves her sentence in the community. I will impose a conditional sentence of two years less a day as I did with Mr. Curreri, under the condition of house arrest for a period followed by a period under curfew.

105I find a conditional sentence will appropriately address the objectives of denunciation and deterrence.

Fine in Lieu of Forfeiture

106The Crown seeks a fine in lieu of forfeiture in relation to the funds from two mortgages on 1246 St. Clair totalling $603,437.00. Those funds were deposited into the TD corporate account of the numbered company [number]. Ms. L.L. was the president, director and owner of [number], Mr. Di Vincenzo, the manager, and Ms. Motyczka-Fiore, the signing officer. All three had authority to sign and deal with the account. Bank documents show there were large deposits into and withdrawals from that account over a year’s time.

107The Crown takes the position that despite Ms. L.L. not being the only person in control of the account and the funds, she should be fined for the full amount of the mortgages on 1246 St. Clair.

108A certified cheque in the amount of $355,937.34, drawn on a lawyer’s account, payable to [number], was deposited on November 23, 2007 into the company’s account; and a cheque drawn on another lawyer’s account, in the amount of $247,500.00, was deposited on December 30, 2008 into the account. A deposit history record shows that one day earlier, on December 29, 2008, there was only $91.31 in […]’s account.

109Another certified cheque dated November 21, 2008 drawn on mortgage funds from 350 Eglinton in the amount of $290,571.81, and payable to [number], was also deposited into the company’s account.

110There are bank records for [number]’s account that show particular dealings with the account by Ms. L.L..

111The Crown presented evidence that in 2008 Ms. L.L. used some of the funds from that account for her own personal benefit: a cheque signed by Ms. L.L. in the amount of $3,897.59 shows a withdrawal by Ms. L.L. for a mortgage payment on 28 Ruden (the property transferred to Ms. L.L.); a cheque endorsed by Ms. L.L. in the amount of $6,000.00, drawn from the account and paid to the order of Ms. L.L., shows an amount she paid to herself; a further cheque endorsed by Ms. L.L. in the amount of $4,000.00 was paid to the order of [number]; a deposit account history and withdrawal slip signed by Ms. L.L. shows a withdrawal of $5,000.00 from the account; and a further cheque in the amount of $7,548.36 paid to the order of the RBC shows another payment toward the mortgage on 28 Ruden.

112The total of the amounts put to personal use by Ms. L.L. is $26,445.95. Of the funds in that account that amount was more clearly in Ms. L.L.’s control and possession. Besides the funds used by Ms. L.L., it is not in evidence who handled the other funds in […]’s account, that is, who of the three authorized on the account dealt with the other large deposits and withdrawals.

113The corporate account of [number] was such that the three corporate officers were authorized to access and use the account. Each of the three officers had signing authority. Cheques drawn on the account by Ms. L.L. and cleared by the bank were signed by her alone, that is, with no co-signer. This is also true of cheques in evidence drawn by others whose signatures are not so clear. It appears therefore that each of the authorized signers could withdraw funds from the account without a co-signer’s signature. To my mind, this would mean that Ms. L.L., Mr. Di Vincenzo, and Ms. Motyczka-Fiore each separately had control over the entire funds in the account.

114On this view and on the reasoning put forward in R. v. Dwyer and R. v. Khatchatourov, for a period of time Ms. L.L. had possession or control of the entire $603,437.00.

115Ability to pay cannot be considered when considering a fine in lieu of forfeiture.

116In the circumstances, I impose a fine in lieu of forfeiture in the amount of $603,437.00. I allow Ms. L.L. 20 years to pay that fine and, in default of payment, pursuant to s. 462.37(4)(iv) of the Criminal Code, I impose a sentence of three years to be served consecutively to the conditional sentence: [R. v. Angelis, at para. 86].

SENTENCE

117I will now pronounce sentence. Fred Curreri, will you please stand?

118You have been convicted on one count of fraud over $5,000.00 on the singular count on the indictment. I find a fit sentence to be two years less a day sentence to be served conditionally in the community. During the period of the sentence, in addition to the statutory conditions set out in s. 742.3(1) of the Criminal Code:

(a) You shall serve a ten-month period of house arrest with the following conditions and be allowed the following exceptions:

(i) You shall be confined to your residence 24 hours a day, seven days a week, and

(ii) You are only permitted to leave your residence for the following reasons: For court appearances; for medical appointments of which you are required to give seven days’ notice to your supervisor or a designate; for medical emergencies; for religious observance, the day of the week, time and location of which you are required to give advance notice to you supervisor or a designate; to meet with your supervisor; and for shopping and personal errands to be done only on Saturdays between 12:00 p.m. (noon) and 4:00 p.m.

(iii) You are to allow law enforcement authorities, including your supervisor or a designate, to knock on the door of your residence at any time between 6:00 a.m. and 12:00 a.m. (midnight) of any day for the purpose of ensuring your compliance with the house arrest conditions of this Order. Failure to present yourself at the door to the law enforcement authorities, your supervisor or a designate within five minutes will be a breach of this condition.

(b) Immediately following expiry of the house arrest, you shall serve a 14-month less a day period under curfew on the following conditions:

(i) You shall be confined to your residence between 11:00 p.m. and 7:00 a.m.

(ii) You are to allow law enforcement authorities, including your supervisor or a designate, to knock on the door of your residence at any time between 11:00 p.m. and 7:00 a.m. of any day for the purpose of ensuring compliance with the curfew conditions of this Order. Failure to present yourself at the door to the law enforcement authorities, your supervisor or a designate within five minutes will be a breach of this condition.

(c) I order you to pay a fine in lieu of forfeiture in the amount of $276,800.00. You shall have 20 years to pay that fine and, in default of payment of the fine, I impose a three-year prison term to be served consecutively to the conditional sentence.

(d) There shall be a no-contact order imposed pursuant to s. 742.3(1.1) of the Criminal Code that Fred Curreri abstain from communicating, directly or indirectly, with L.L., Tito Di Vincenzo, Robert Ricciotti and Kristina Motyczka-Fiore.

(e) You shall provide a DNA sample pursuant to s. 487.04(a) of the Criminal Code.

119I will now pronounce sentence. L.L., will you please stand?

120You have been convicted on one count of fraud over $5,000.00 on the singular count on the indictment. I find a fit sentence to be a two years less a day sentence to be served conditionally in the community. During the period of the sentence, in addition to the statutory conditions set out in s. 742.3(1) of the Criminal Code:

(a) You shall serve a ten-month period of house arrest with the following conditions:

(i) You shall be confined to your residence 24 hours a day, seven days per week and be allowed the following exceptions:

(ii) You are only permitted to leave your residence for the following reasons: to leave and be away from your residence for your employment only during the time you are at work and during the time it takes to travel to and from work; for court appearances; for medical appointments of which you are required to give seven days’ notice to your supervisor or a designate; for medical emergencies associated with yourself and your children; for religious observance, the day of the week, time, and location of which you are required to give advance notice to your supervisor or a designate; to meet with your supervisor; and for shopping and personal errands to be done only on Saturdays between 12:00 p.m. (noon) and 4:00 p.m.

(iii) You are to allow law enforcement authorities, including your supervisor or a designate, to knock on the door of your residence between 7:00 p.m. and 12:00 a.m. (midnight) of any day for the purpose of ensuring your compliance with the house arrest conditions of this Order. Failure to present yourself at the door to the law enforcement authorities, your supervisor or a designate within five minutes will be a breach of this condition.

(b) Immediately following expiry of the house arrest, you shall serve a 14-month less a day period under curfew on the following conditions:

(i) You shall be confined to your residence between 11:00 p.m. and 7:00 a.m.

(ii) You are to allow law enforcement authorities, including your supervisor or a designate, to knock on the door of your residence any time between 11:00 p.m. and 7:00 a.m. of any day for the purpose of ensuring your compliance with the house arrest conditions of this Order. Failure to present yourself at the door to the law enforcement authorities, your supervisor or a designate within five minutes will be a breach of this condition.

(c) I order you to pay a fine in lieu of forfeiture in the amount of $603,437.00. You shall have 20 years to pay that fine and, in default of payment of the fine, I impose a three-year prison term to be served consecutively to the conditional sentence.

(d) There shall be a no-contact order imposed pursuant to s. 742.3(1.1) of the Criminal Code that L.L. abstain from communicating, directly or indirectly, with Fred Curreri, Tito Di Vincenzo, Robert Ricciotti and Kristina Motyczka-Fiore.

(e) You shall provide a DNA sample pursuant to s. 487.04(a) of the Criminal Code.