Court File and Parties

Court File No.: CR-17-70000585-0000 Date: 2018-11-15 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Suzana Vidinovski, Defendant/Respondent

Counsel: Catherine Glaister, for the Crown Alexander Karapancev, for the Defendant/Respondent

Heard: October 3, 2018

Before: A. J. O’Marra, J.

Reasons for Sentence

[1] Suzana Vidinovski was found guilty after trial by jury of three counts of fraud over $5,000.00, contrary to s. 380(1)(a) and four counts of uttering forged documents contrary to s. 368(1)(a) of the Criminal Code. All of the offences were committed between January 1, 2012 and December 31, 2014 while Ms. Vidinovski was employed as an administrative assistant/receptionist at Core Realty Group Inc. She fraudulently obtained approximately $81,000.00 by forging cheques, and letters of direction for money orders drawn on the Bank of Montreal payable in her interest.

[2] Ms. Vidinovski is here today to be sentenced for these offences.

Background

[3] Ms. Linda Sargeant, the sole owner of Core Realty Group Inc., a small boutique real estate brokerage hired a Ms. Vidinovski as an administrative assistant/receptionist in 2011. She was required amongst her responsibilities to operate the firm’s accounting software, and reconcile monthly bank statements for the brokerage account, the agents’ commission trust account, and the general account. In late 2014 Ms. Sargeant became dissatisfied with Ms. Vidinovski’s performance and consulted a lawyer about terminating her employment. In October 2014, a letter of termination was provided to Ms. Vidinovski and Ms. Sargeant prepared a severance cheque. At the time she drew the cheque she noticed that the next remaining cheque was out of sequence and that the missing cheque had been made payable to Ms. Vidinovski for a period of time that she had not worked. Subsequently, the cheque was obtained from the firm’s bank, BMO and Ms. Sargeant discovered that the signature on the cheque was not hers.

[4] The Bank, at her request, provided all documentation for the Core Realty accounts. Noticed amongst the documentation was a letter of direction under Ms. Sargeant’s forged signature and firm letterhead that directed the Bank to provide money orders from Core Realty’s general account payable to Ms. Vidinovski’s landlord for her rent.

[5] Ms. Sargeant called in technical specialists from the accounting software company to conduct a review of the firm accounts and it was discovered that a number of payroll cheques had been issued to Ms. Vidinovski, again under Ms. Sargeant’s forged signature.

[6] In addition, there were an inordinate number of petty cash cheques drawn on Core Realty’s account bearing Ms. Sargeant’s signature, which again had been forged.

[7] The review revealed that frauds had been committed by Ms. Vidinovski using forged documents and cheques in three ways:

1. Ms. Vidinovski used the company software to generate false payroll cheques by forging Ms. Sargeant’s signature. She negotiated them at the firm’s bank, BMO and then deposited the funds into her accounts at the CIBC. The loss from the forged payroll cheques amounted to $12,071.12.
2. Ms. Vidinovski created forged letters of direction on the company’s letterhead authorizing BMO to provide her with money orders made out to her landlord, which she used to pay her rent. The total loss for the money order frauds was $44,556.44.
3. Ms. Vidinovski created petty cash cheques using the company’s accounting software, again forging the owner’s signature, and cashed them at the firm’s bank for a total of $24,900.00.

[8] The total loss to Core Realty Inc. as a result of Ms. Vidinovski’s actions was $81,527.56.

Background of the Offender

[9] Ms. Vidinovski is 53 years old. She has a criminal record which consists of the following:

1. On June 27, 1994 in Newmarket, Ontario she was convicted of fraud over $1,000.00 and uttering a forged document. She was sentenced to 90 days to be served intermittently for the fraud and a suspended sentence with three years’ probation for uttering a forged document. Further, a compensation order was made in the amount of $31,000.00.
2. On July 4, 2018 in Toronto she was convicted of uttering a forged document and sentenced to a suspended sentence and 12 months’ probation.

[10] A pre-sentence report was ordered in this matter, which provided information that Ms. Vidinovski was the eldest of three children and brought up in a very strict European family. She was married at 18 initially and had two children however, the marriage ended a few years later as a result of her husband’s physical and emotional abuse of her. She married again and has an 11 year old son. She reported that she is separated from her spouse as a result of his verbal abuse of her. She is estranged from her siblings who disapprove of her having been married twice. Currently she cares for her ailing parents and her 11 year old son.

[11] She has related to the court through documentation that she has a number of health concerns which include recently diagnosed Diabetes Type 2 for which she receives medication, hypertension and suffers anxiety and depression.

[12] Ms. Vidinovski has a grade 12 education. She attended a private college and obtained a diploma to work as a legal assistant. She has also attended an office assistant/administrative program through the YWCA for three months and obtained a certificate. She is enrolled, but has yet to start a travel and tourism course through the Ontario Works Program.

[13] Since her termination with Core Realty she has supported herself through the Ontario Works Program except for several months in 2016 during which she worked briefly for a company called Humboldt Property Management Company as an administrative assistant and receptionist.

[14] While in the employ of Humboldt she was charged with uttering a forged document. The company had requested that she obtain a police record clearance certificate. After a number of requests she produced a letter that stated she had a no criminal record. On further investigation with the Toronto Police Service it was found to have been forged. She pleaded guilty on July 4, 2018.

[15] On the sentencing hearing Ms. Vidinovski provided two character reference letters, one from a neighbour, and another from a real estate broker. Her neighbour described her as being helpful and in her view she was “organized, efficient and took pride in her work and family”. The real estate broker, in an undated reference letter stated that she had hired Ms. Vidinovski in 2015, (post defence and termination from Core Realty) and described her as an effective problem solver and that she “came across as quite genuine and honest”. Neither of the referees had been advised of Ms. Vidinovski’s criminal offences or that the character references would be used for sentencing purposes.

Victim Impact Statement

[16] Ms. Linda Sargeant, the owner of the brokerage, Core Realty provided a victim impact statement in which described her great sense of betrayal and abuse of her trust she had provided Ms. Vidinovski, as a result of her many deceptions. Further, as a small business owner who at the time of discovering the fraud was involved with caring for her own mother in failing health, it took her attention away from her mother and her business. She stated that it detracted from her ability to focus on her business and it caused her great emotional upheaval and anxiety. Subsequently, her mother passed away.

Position of the Parties

[17] The Crown seeks a prison term in the range of 4 to 5 years, restitution, less a settlement of $29,200.00 received from Core Realty’s bank, BMO, a fine in lieu of forfeiture in the total amount of the fraud, $81,527.56 and a DNA order.

[18] The defence submits that Ms. Vidinovski should be sentenced to 2 years less a day with strict house arrest conditions to be served as a conditional sentence together with a 3 year term of probation. In the alternative, counsel submits that if incarceration is required that she be sentenced to a reformatory term in the range of 8 to 10 months, and probation for 3 years with strict conditions. Counsel opposes a restitution order on the basis that Ms. Vidinovski does not have the ability to pay. If the court is to impose a fine in lieu of forfeiture he requests that there be a lengthy period for her to pay the amount of the fine.

Legal Principles

[19] Section 718 of the *Criminal Code* states that the fundamental purposes for sentencing is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of a number of objectives.

[20] Those objectives include denunciation of unlawful conduct, deterrence of the offender and others who might be similarly inclined, separation of the offender from society where necessary, rehabilitation, and the promotion of a sense of responsibility in the offender.

[21] Further, the sanction imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The total sentence should not be unduly harsh.

[22] The court should also take into consideration that this sentence should be similar to sentences imposed in similar offenders for similar offences committed in similar circumstances.

[23] Serious frauds involving breaches of trust and/or that cause devastating consequences to victims the courts have been consistent in imposing substantial jail sentences. The paramount sentencing objectives in such cases have been general deterrence and denunciation. Sentences in the range of 3 to 5 years are common in such cases. (See R. v. Bogart (2002), 2002 ONCA 41073, 167 CCC 3rd 390 (OCA); R. v. Dobis (2002), 2002 ONCA 32815, 163 CCC 3rd 259,; R. v. Drakes and Brewster, 2009 ONCA 560, [2009] O.J. No. 2886 (OCA); R. v. Bertram, [1990] O.J. No. 2013 (OCA); R. v. Wilson, 2003 ONCA 48181, [2003] O.J. No. 1047 (OCA)).

[24] This is a case which involves a substantial amount of money, approximately $81,000.00. However, as a significant fraud, which requires consideration of a significant period of incarceration to give effect to the sentencing objectives of general deterrence and denunciation, it involves a fraudulently obtained quantum at the lower end of amounts considered in many of the cases, (See R. v. McEachern (1978), 1978 ONCA 2506, 42 CCC 2nd 189 (OCA) which involved $87,000.00).

Conditional Sentence

[25] In November 2012, the option of a conditional sentence was rescinded by amendment to s. 742.1 of the *Criminal Code*. In this instance however, both counsel agree it is a sentencing option available to consider because the offences for which Ms. Vidinovski was tried and convicted commenced before the amendment. The issue is whether it should be imposed in this case.

[26] Prior to the November 2012 amendment the Supreme Court in R. v. Proulx, 2000 SCC 5, [2000] 1 SCR 61 made clear that a condition sentence was available for all offences in which the statutory prerequisites had been satisfied. Under s. 742.1 a court may order a conditional sentence where:

(1) the offence does not call for a minimum term of imprisonment; (2) the court imposes a sentence of imprisonment of less than 2 years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 – 718.2 of the *Criminal Code*.

[27] In R. v. Wilson [2016] O.J. No. 5987 (OCA), 2016 ONCA 888 at para. 8 the Court of Appeal noted that the primary sentencing objectives for the offence of fraud over $5,000.00 are general deterrence and denunciation. Further, it is only when there are exceptional mitigating circumstances that a significant fraud with breach of trust would warrant a conditional sentence.

[28] In R. v. Caskenette, 2018 ONSC 1691 at para. 33 Leroy J. echoed the comment made in Wilson and further stated: “conditional sentences are dispensed in cases involving special circumstances such as where the amount of the fraud is relatively small or there are medical conditions, mental health issues, or advanced age that might mitigate the poor decisions or where the impact on a third party, for example, dependent child would be disproportionate”.

[29] In this instance, there are no special circumstances, save possibly Ms. Vidinovski’s care of her 11 year old son. Ms. Vidinovski took the opportunity to address the court prior to sentence being imposed and implored the court not to remove her from her son’s life. Sadly, she committed her continuing acts of dishonesty while caring for her son, knowing that there was a great likelihood she would be incarcerated if caught, as she had been before. Her son will be cared for. It was indicated in submissions that arrangements could be made with her adult son, a step brother to the 11 year old, to take care of him in her absence. Ms. Vidinovski’s recent health issues did not bear upon her deceptive behaviour.

[30] It was further noted in Caskenette that in cases where conditional sentences were dispensed there were exceptional mitigating factors such as substantial restitution being made before sentencing, a confession to the victim, voluntary determination of the fraudulent activity, a commitment to treatment or sincere and credible expressions of remorse. Indeed, in this instance Ms. Vidinovski advised in the pre-sentence report that she considers herself the victim.

[31] Counsel for Ms. Vidinovski provided a number of cases in which courts imposed conditional sentences or short periods of reformatory incarceration, (R. v. Gaurino, 2017 ONSC 4174; R. v. Gosal, 2006 ONCA 700; R. v. Malik, [2005] O.J. No. 2451; R. v. March, [2005] O.J. No. 5971); however, which include significant mitigating factors, such as self-disclosure, guilty pleas, expressions of remorse, lack of criminal records and attempts at restitution, absent in this case.

[32] A conditional sentence would be unfit in all of the circumstances, however, a period of imprisonment less than 2 years should be considered, see R. v. Wilson 2003 ONCA 48181 (OCA).

Aggravating and Mitigating Factors

[33] There are a number of aggravating factors to take into account in fashioning a fit sentence for Ms. Vidinovski. The offences involved a substantial amount of money, approximately $81,000.00, albeit an amount at the lower end considered significant in other cases. However, it was a considerable amount in the context of a small business. Also, Ms. Vidinovski breached the trust of her employer had given her in terms of allowing her to operate the software accounting system, and deal with the banking of the small boutique real estate firm.

[34] Ms. Vidinovski has committed her calculated acts of dishonesty over an extended period of several years, 2012 – 2014, which ended only on her employment being terminated by Ms. Sargeant. Even then, her last act was to prepare a forged cheque for work she did not perform.

[35] Over the course of her employment with Core Realty, Ms. Vidinovski forged the signature of Ms. Sargeant repeatedly on cheques, for petty cash and payroll to her benefit, as well as letters of direction for the issuance of money orders in her interest to pay rent. Her frauds were planned and deliberate.

[36] Although Ms. Vidinovski has a dated record of convictions for the same offences, fraud over and uttering forged documents, I take into account that they are offences of like kind. Further, while on release after her arrest on the extant matters, she prepared a forged document relating to a police clearance certificate. Ms. Vidinovski continues to display a willingness to be deceptive and dishonest for her own benefit. Although general deterrence and denunciation are the paramount considerations, because of the nature of her offences and her behaviour consideration of specific deterrence is also required to fashion a fit sentence in this case.

[37] There is little in way of mitigation to consider here. However, there is no indication in the evidence that the funds she obtained went to purchasing exorbitant gifts or other extravagances. It would appear that Ms. Vidinovski committed these crimes of dishonesty to pay for rent and other living expenses.

[38] Ms. Vidinovski maintains her innocence and asserts she is the victim. While there is an absence of remorse, it is not an aggravating factor. It is however, an absence of a mitigating factor which would convey an acceptance of responsibility for her crimes “relevant to whether restorative objectives can be satisfied” and entitle the offender to a sentence reduction. (See R. v. Atwal, 2006 ONSC 3668 at para 61).

Restitution

[39] With respect to the issue of restitution, Laskin C.J. noted in R. v. Zelensky, 1978 SCC 8, [1978] 2 SCR 940 that the purpose of a compensation/restitution order as part of the sentence is:

• it emphasizes the sanction imposed upon the offender;
• it makes the offender responsible for making restitution to the victim;
• it prevents the offender from profiting from the crime; and
• it provides a convenient, rapid and inexpensive means of recovery for the victim.

However, such an order should be made with restraint and caution.

[40] The Court of Appeal in R. v. Biegus, 1999 ONCA 3815, [1999] O.J. No. 4963 at para. 22 stated that in considering imposing a restitution order the court is required to consider and weigh the offender’s ability to pay, although it is not an overriding consideration.

[41] In R. v. Castro, [2010] ONCA 718 Weiler J.A. stated in para. 27 that “reviewing courts have, however, consistently held that no single factor is itself determinative of whether a compensation order should be granted and the weight to be given to individual considerations will depend on the circumstances of each case”.

[42] Although Ms. Vidinovski has not worked for the last several years, she has the ability in the future to obtain remunerative work. She has expressed a desire to use her training and skills as an administrative assistant and to change her focus of employment in areas other than real estate and property management.

[43] In these circumstances, I shall order that she pay restitution in the amount of $44,556.44, the amount which went directly to pay her rent. Ms. Sargeant received $29,200.00 in settlement from the bank, which accounts for a considerable portion of the funds obtained by Ms. Vidinovski through forging cheques for additional pay and petty cash.

[44] I have considered the provisions of s. 462.37 of the *Criminal Code* and their objectives and in the circumstances of this case I do not find a fine in lieu of forfeiture appropriate in this case.

Sentence

[45] In considering all the factors discussed above, the nature of the crime and circumstances of the offences and offender, I consider a fit and proper sentence to emphasized the sentencing objectives of specific deterrence, general deterrence and denunciation her conduct requires a substantial period of incarceration in the range of upper reformatory.

[46] In the result, Ms. Vidinovski is sentenced to 18 months incarceration for each count of fraud over $5,000.00 and uttering forged documents all to be served concurrently. On release from custody Ms. Vidinovski will placed on probation for 2 years and is required to:

1. keep the peace and be of good behaviour;
2. appear before the court when required to do so;
3. notify the court or probation officer in advance of any change that were made in address;
4. report within 72 hours of release from custody in person to a probation officer;
5. report thereafter as required;
6. attend and actively participate in any assessment, and counselling, as recommended by your probation officer and to complete such programs to the satisfaction of the probation officer;
7. sign any releases so the probation officer can confirm participation in the assessment, counselling or treatment programs;
8. notify the probation officer of any employment and/or business activity;
9. not to contact or communicate in any way either directly or indirectly with Linda Sargeant, owner of Core Realty Group Inc.;
10. not to attend upon the premises of Core Realty Group Inc. located at 747 Queen Street East, Toronto.

[47] Ms. Vidinovski is ordered to pay restitution to Core Realty Group Inc. in the amount of $44,556.44.

[48] In considering Ms. Vidinovski’s criminal record, the nature of her offences, I am prepared to exercise my discretion to order that she provide a sample of her bodily substances for the purpose of DNA analysis pursuant to s. 487.051 of the *Criminal Code*.

A. J. O’Marra, J. Released: November 15, 2018