COURT FILE NO.: CR-21-00000035
DATE: 20220628
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CHARLES DEBONO
Defendant
Mr. T. Ofiara and Mr. P. Travers, for the Crown
Mr. D. Goodman, for the Defendant
HEARD: February 17 and April 25, 2022
REASONS FOR SENTENCE
M.K. FUERST J.:
Introduction
[1] Charles DeBono was the architect of Debit Direct, an entity he described as being in the business of providing point of sale debit terminals to merchants. He marketed and promoted investment in Debit Direct as a "passive business opportunity". Hundreds of individuals located across Canada as well as outside of the country invested money in the venture, often encouraging their family members and friends to do so as well.
[2] What Mr. DeBono advertised as a profitable and "Proudly Canadian" investment opportunity was in fact a Ponzi scheme operated by him. Millions of dollars flowed into his hands from investment funds provided by innocent members of the public. Ultimately, Mr. DeBono moved much of this money to the Dominican Republic, and out of the reach of Canadian law enforcement agencies and the investors themselves.
[3] Mr. DeBono was arrested in the Dominican Republic on September 12, 2020. It was discovered that he had fake Dominican and Guatemalan photo identification in different names. He was deported to Canada on the day of his arrest.
[4] On February 17, 2022, he pleaded guilty to one count of fraud over $5000, and one count of money laundering.
The Circumstances of the Offences
(a) The Debit Direct Scheme
[5] Charles DeBono was not known to be a wealthy person. He worked at different middle-class jobs throughout his life, until, in August 2012, he created a company called K.I.S. Media Ventures Ltd. K.I.S. Media Ventures Ltd. became the umbrella corporation for fraudulent activity that Mr. DeBono carried out through an entity called Debit Direct and a second company called Business Partners Ventures Inc. That activity went on over a period of five years, until August 2017. It is described in detail in the agreed "Facts in Support of Guilty Plea" and sample Debit Direct marketing materials. The following is a summary of the agreed facts.
[6] In January 2013, Charles DeBono launched Debit Direct. He claimed that it was a point of sale debit terminal ownership program, in which investors could buy point of sale debit terminals that would be placed in small businesses across Canada. Mr. DeBono portrayed the company as a "passive business opportunity". He marketed it as "Canada's premier third party supplier of debit terminals". The company claimed to take full responsibility for placing the debit terminals at high volume businesses across Canada, as well as for all costs and maintenance associated to the debit terminals.
[7] Investors paid approximately $2500 to $3100 for a single debit terminal. They were to make a return on their investment by receiving 15 cents per transaction that went through the particular terminal they owned. Investors signed contracts, and then were sent lists of actual small businesses in specified cities with debit terminals bearing individual identification numbers associated to them. Investors were provided with monthly reports that showed the performance of their terminal.
[8] Debit Direct was run out of a small office at an automotive repair shop in Barrie, Ontario, called Dave's Car Care. Mr. DeBono had started Dave's Car Care with an unsuspecting friend who was an auto mechanic. Mr. DeBono kept that business afloat with money from Debit Direct. The woman who did the office work for Dave's Car Care became Mr. DeBono's administrative assistant at Debit Direct. She carried out all administrative tasks for Debit Direct from the automotive repair shop.
[9] However, in its "Point of Sale (POS) Debit Terminal Agreement", Debit Direct listed as its address First Canadian Place, Suite 5700, 100 King Street West, Toronto, Ontario. This address, located in the financial district in Toronto, was in fact a "virtual office". For a monthly fee, Debit Direct was able to claim a prestigious mailing address and also to periodically rent office space for in-person meetings with potential investors. Mail sent to Debit Direct at the First Canadian Place virtual office, including cheques, bank drafts and signed contracts, was forwarded to a post office box located in The UPS Store in Barrie.
[10] Mr. DeBono used the aliases "Brian Coneybeare" and "Brian Conneybeare" in promotional material, and in communications and meetings with investors. The real Brian Coneybeare was a friend and colleague of Mr. DeBono. He was aware of Debit Direct, but had no involvement in it. He did not know that Mr. DeBono was using his name.
[11] Investors in Debit Direct were recruited by multiple means. Debit Direct advertised monthly on investor websites. Investors were also recruited at trade shows and franchise shows across Canada. Debit Direct rented booths at these shows, and staffed them with commissioned salespeople who believed they were selling a legitimate business opportunity, as well as with satisfied Debit Direct terminal owners.
[12] Approximately 515 people contracted to buy point of sale debit terminals from Debit Direct, spending somewhere between 40 and 48 million dollars. These terminal owners were mainly from across Canada, with a few from Nigeria.
[13] Debit Direct initially owned 10 or so debit machines. There is no evidence that it ever owned any others. Debit terminals were never actually placed anywhere, nor did they process any payments. The identification numbers provided to investors were randomly assigned and the terminals did not in fact exist. The monthly remittance "earnings" reports that investors received also were false. Unbeknownst to investors, the "returns" on their terminals were actually being funded by new investor deposits. The entire Debit Direct business was a large Ponzi scheme.
[14] Mr. DeBono committed fraud by depriving investors of money by selling them debit terminals that never existed.
[15] At the height of the scam, Mr. DeBono took in between one and three million dollars per month on new sales. From those sales, he paid out approximately one million dollars per month to existing investors. He used several Canadian banks to conduct his business. However, each financial institution became suspicious of the banking activities of K.I.S. Media Ventures Ltd., or later Business Partners Ventures Inc., and eventually shut the accounts down. This was largely due to unusual transaction activity involving large sums of money being deposited from investors and then subsequently moved by daily wire transfers or large bank drafts to Mr. DeBono's other personal and business accounts.
[16] In respect of one bank, when it asked Mr. DeBono to provide details about the business of K.I.S. Media Ventures Ltd., he created fake billing invoices for marketing services. The fake invoices corresponded to the dates and amounts of some investor purchases of debit terminals from Debit Direct. Mr. DeBono provided the false invoices to the bank to attempt to justify the flow of money through his bank accounts.
(b) The Collapse of Debit Direct
[17] In 2014, Mr. DeBono met a Dominican woman. They eventually married. From 2014 onward, he began spending less time in Barrie and more time in the Dominican Republic. He also began transferring significant amounts of cash and personal property, such as luxury cars, from Canada to the Dominican Republic.
[18] In July 2017, the last Canadian bank at which Debit Direct had accounts closed them. Mr. DeBono fled to the Dominican Republic with the remainder of his money and assets on August 22, 2017.
[19] In late August 2017, Mr. DeBono, using the Brian Coneybeare alias, sent an e-mail to all Debit Direct investors telling them that Cielo of Brazil, the largest payment processing company in Latin America, was purchasing Debit Direct. The e-mail claimed that this was a great business opportunity and that investors had nothing to fear.
[20] When their usual monthly income payments stopped in September 2017, some investors contacted Cielo by e-mail. Representatives of Cielo told investors they had no relationship with any company by the name of Debit Direct. One of the investors was able to source the Brian Coneybeare e-mail to a mobile phone using a cellular tower in the Dominican Republic.
[21] At that point, the Debit Direct website was down, and its phone number was no longer in service. When their monthly payments stopped and Debit Direct was nowhere to be found, disgruntled investors came forward to nine different police agencies across Canada. As the scale of the case ballooned, the Ontario Provincial Police Serious Fraud Office eventually took carriage of the entire investigation.
[22] The police investigation concluded that no point of sales debit terminals ever existed, the merchant locations were chosen based on a simple internet Google search, and the investors' returns on investment were funded by new investor deposits.
(c) Money Laundering
[23] Mr. DeBono laundered the money he fraudulently received from investors through various platforms.
[24] Numerous production orders were obtained by police for the many bank accounts operated by Mr. DeBono. Overall, he disbursed approximately $12.2 million from Debit Direct investor funds to the Dominican Republic. Over $10.1 million of this amount was in the form of bank drafts and cables payable to Charles DeBono, and sent to accounts in the Dominican Republic. Once the money reached the Dominican Republic, it was moved to other personal bank accounts belonging to Mr. DeBono as well as to accounts belonging to his associates. Some of those funds have been traced to real estate purchases in various cities in the Dominican Republic, including a hotel, several homes, and more than a dozen condominium apartments. Most of the property is held in the names of nominees, associates or shell companies. Mr. DeBono also sent approximately $170,000 USD to some of those Dominican associates.
[25] Mr. DeBono shipped assets to the Dominican Republic. They included high-end vehicles, ATVs, motorcycles, and recreational vehicles such as Seadoos. The value of the assets investigators were able to identify totals approximately $273,000.
[26] Mr. DeBono also used Debit Direct investor money to purchase two brand new townhomes in Richmond Hill, Ontario. Documents obtained through Production Orders show that funds from investors were used as the down payment for both properties. The first townhome had a purchase price of $1,212,750 with a deposit of $200,000 made by Charles DeBono. The second townhome had a purchase price of $1,685,000 with a deposit of $200,000 made by Charles DeBono. Police restrained the down payments made to purchase the townhomes.
[27] Additionally, Mr. DeBono used investor money to start several unsuccessful businesses in the Barrie area, including Dave's Car Care.
(d) Assets Restrained
[28] Prior to Mr. DeBono's arrest, investigators had restrained a total of $978,264.12 CAD and $300,000 USD in offence-related assets. The Canadian dollar assets included two bank accounts connected to Mr. DeBono totalling $578,264.12, and the $400,000 in deposits on the Richmond Hill townhomes. The $300,000 USD came from reversed bank drafts written by Mr. DeBono to himself and located in an internal CIBC suspense account.
[29] In the summer of 2021, investigators identified further assets for restraint. In May 2016 Mr. DeBono invested in a syndicated mortgage fund. He used funds from Debit Direct investors to make his investment. The syndicated mortgage was used for a property in Milton, Ontario. In the summer of 2021, the property was sold, and funds were sent to a National Bank account. Mr. DeBono had invested $320,000 which grew to $448,000 once the property sold. There was a further $427,006.30 in the same account, for a total of $875,006.30.
[30] The total amount restrained is $1,853,270.42 CAD and $300,000 USD.
(e) Estimated Losses
[31] The Serious Fraud Office retained the services of a forensic accountant from the Forensic Accountant Management Group (FAMG) of Public Services and Procurement Canada to analyze the financial records and estimate a total loss for this fraud. The accountant reviewed 40 bank accounts belonging to Mr. DeBono and his companies.
[32] The forensic accountant concluded that between 2014 and 2018, Mr. DeBono disbursed over $12.2 million in Canadian funds to the Dominican Republic. Over $10.1 million of this amount was in the form of bank drafts and cables payable to Charles DeBono and sent to accounts in the Dominican Republic.
[33] Deposits by Debit Direct received from terminal purchasers were estimated by the forensic accountant to range from approximately $40,935,000 to $47,761,000.
[34] Payments by Debit Direct to terminal purchasers were estimated to range from approximately $5,864,000 to $16,962,000.
[35] Victim losses were estimated to range from approximately $23,972,000 to $41,897,000.
[36] The reason for the range in amounts is due to the inability to reconcile and provide documentation for each transaction. The lower ends of the ranges represent a conservative approach to the calculations, although the true loss is very likely closer to the upper range value.
[37] On the sentencing hearing, Crown counsel filed Statements on Restitution from numerous victims of the fraud. The losses total $29,142,042.41, less recovery of $2,231,270.42, leaving a total restitution amount of $26,910,772.
[38] The defence took no issue with the Statements on Restitution. Through his counsel, Mr. DeBono accepted the Crown's calculation of the total restitution amount owing and its breakdown to individual victims.
(f) The Victim Impact Information
[39] Dozens of Victim Impact Statements were filed by individuals who invested in Debit Direct. Their financial losses have created economic insecurity, leaving some victims with lines of credit and loans still to pay off, and others having to borrow from family and friends to make ends meet. Life savings and retirement funds are gone. Standards of living have been significantly reduced. Marriages and personal relationships have become strained, and in some cases destroyed altogether. Medical problems including high blood pressure, cardiac issues, and insomnia have surfaced. Personal plans, such as retirement and educational pursuits have had to be put on hold.
[40] Many investors also describe suffering an intense emotional impact. They have feelings of helplessness, despair, shame, distrust, and depression as a result of being defrauded by Mr. DeBono.
The Circumstances of Mr. DeBono
[41] Mr. DeBono is 63 years old. He has no prior criminal record. He has been married twice, and has an adult son with whom he is in contact.
[42] Mr. DeBono finished high school and obtained a diploma from Humber College. He has some work history as a service manager in the autobody and automobile industry.
[43] Following his return to Canada in custody on September 13, 2020, Mr. DeBono waived bail and consented to his detention. As of June 28, 2022, he has spent 21 months and 17 days in pre-sentence custody.
[44] I am told that Mr. DeBono has a variety of health issues. He has a history of prostate cancer, for which he continues to be monitored. He is on medication for both diabetes and high blood pressure. He has bipolar disorder for which he takes Zoloft.
[45] While in pre-sentence custody, he has been subject to full or partial lockdowns due to staffing shortages or medical isolation/observation on more than 220 days. The lockdowns adversely impacted his institutional privileges, and also his ability to meet with counsel in person or by telephone.
[46] In his remarks at the conclusion of the sentencing hearing, Mr. DeBono apologized for his offences, and said he will do his best to make restitution to the victims.
The Positions of the Parties
[47] On behalf of the Crown, Mr. Travers submits that a jail sentence of seven years, less pre-sentence custody, should be imposed. In addition there should be a s. 380.2(1) order for life, a DNA order, and a s. 743.21 order in respect of the named victims.
[48] Mr. Travers submits that this is one of the larger frauds in Canadian history, and calls for an exemplary sentence. Denunciation and general deterrence are the primary objectives of sentencing in this case. Mr. Travers points to a number of aggravating factors. The fraud was a Ponzi scheme that extended over a period of five years and involved a significant degree of planning, including the preparation of written materials and appearances at trade shows to attract potential investors, Mr. DeBono's personation of a real individual, and the fabrication of false monthly statements for those persons who did invest. Second, there were more than 500 victims. Third, the losses due to the fraud have had devastating consequences for the victims. Fourth, Mr. DeBono destroyed records that evidenced the fraud. Fifth, the magnitude of the fraud was very large, totalling over $20 million.
[49] Mr. Travers acknowledges that there are mitigating factors. Mr. DeBono pleaded guilty, he has no prior criminal record, and his conditions of pre-sentence custody including lockdowns have been harsher than usual because of the COVID-19 pandemic.
[50] The Crown additionally seeks an order of restitution to named victims in specified amounts totalling $26,910,772. The Crown also seeks an order for a fine in lieu of forfeiture of proceeds of crime in that total amount, with Mr. DeBono being required to pay the fine within five years of the date of his release from jail, and in default of payment to serve a further seven years in jail.
[51] On behalf of Mr. DeBono, Mr. Goodman does not dispute that there should be a penitentiary sentence for this crime born of selfishness, but submits that the sentence sought by the Crown is excessive. He seeks a sentence in the range of five years in jail. He emphasizes that Mr. DeBono pleaded guilty, which is a sign of his remorse, and which avoided a lengthy trial. Mr. DeBono has no criminal record. This fraud did not involve the aggravating feature of a breach of trust. Mr. DeBono's pre-sentence custody has been harsher than usual as he has been in custody during the COVID-19 pandemic and has been subjected to numerous lockdowns. Mr. DeBono intends to take whatever programs are available to him while he serves his sentence, including to develop his computer skills. On his release he wants to work toward making his victims whole again.
[52] Mr. Goodman does not oppose the ancillary orders sought by the Crown, with one exception. He submits that the period of five years to pay the fine in lieu of forfeiture should run from the date of completion of the sentence, and not from the date of Mr. DeBono's release from jail. He suggests that Mr. DeBono will have difficulty finding a job on his release given his age and the offences, and so will need more time before he will have an income from which to pay the fine.
The Principles of Sentencing
[53] The objectives of sentencing are set out in s. 718 of the Criminal Code. They are: the denunciation of unlawful conduct and the harm done to victims or the community, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to victims or the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done to victims or the community.
[54] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The Supreme Court of Canada has indicated that proportionality is the chief organizing principle in determining a fit sentence. See, for example, R. v. Parranto, 2021 SCC 46, at para. 10.
[55] Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors, one of which is that the offence had a significant impact on the victim, considering their personal circumstances including their financial situation. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or the community be considered.
[56] Fraud over $5000 is punishable, where the subject matter of the offence exceeds one million dollars, by a minimum of two years in jail and a maximum of 14 years in jail. Laundering the proceeds of crime is punishable by a maximum of 10 years in jail.
[57] There are additional aggravating circumstances that apply in cases of fraud. They are set out in s. 380.1(1). They include that the magnitude, complexity, duration or degree of planning of the fraud was significant; that the offence involved a large number of victims; that the offence had a significant impact on the victims given their personal circumstances including their financial situation; and that the offender concealed or destroyed records related to the fraud or to the disbursement of the proceeds of the fraud.
Sentences for Large-Scale Fraud
[58] I have reviewed the cases relied on by Crown and defence counsel. They reflect that in cases of large-scale fraud, significant penitentiary sentences are generally imposed. Cases involving Ponzi schemes are of particular assistance in determining the appropriate sentence in this case. The Court of Appeal for Ontario recognized in R. v. Drabinsky, 2011 ONCA 582, at paras. 172 and 173, that frauds perpetrated as scams call for significantly longer sentences than frauds that occur in the course of the operation of a genuine business.
[59] In R. v. Nowack, [2019] O.J. No. 4792 (Ont. S.C.J.), the accused ran a Ponzi scheme in which he held himself out as a skilled currency trader. Over a period of years, he obtained funds from a number of victims who believed that he was investing their money in currency trading. In fact, he diverted funds to himself. The collective loss to the victims was about $15.7 million. The offender was convicted after a jury trial. Goldstein J. found that the fraud was large-scale, complex, sophisticated, and lengthy; that it involved a large number of victims; and that the accused was in a position of trust. Goldstein J. imposed a sentence of nine years' jail less pre-sentence custody.
[60] In R. v. McGill, 2016 ONCA 139, the appeal court increased a conditional sentence of imprisonment of 23 months, imposed on the offender after a jury trial, to a jail term of four years. The accused was a mortgage broker who participated in a Ponzi scheme by recruiting a number of investors in a purported company. The investments totalled just under $4 million, the majority of which was not invested at all. The Court of Appeal noted various aggravating factors, including that a breach of trust was involved, and observed that the man who was the mastermind behind the scheme and took the majority of benefits from it had been sentenced to six years in jail.
[61] In R. v. Schoer, 2019 ONCA 105, the offender was convicted after a trial. He was a registered investment advisor, and persuaded a number of people to invest in what they believed were positions or shares in various companies. It was a Ponzi-type scheme, and no investments were made as the offender converted the money to his own use. There was over $1.8 million in losses. The offender was sentenced to four years in jail, which was not challenged on appeal.
Analysis
[62] There can be no dispute that the paramount objectives of sentencing in this case are denunciation and general deterrence. This was a large-scale fraud perpetrated as a Ponzi scheme by a calculating offender. He duped hundreds of people across Canada and elsewhere to part with their money, in some instances their life savings, so that he could live in luxury. It is a kind of fraud to which s. 380.1(1) of the Criminal Code is directed.
[63] The aggravating factors in this case are many, and they are significant. They include:
This was not a fraud committed in the course of the operation of a legitimate business. Debit Direct was a scam from the outset, a Ponzi scheme driven by pure greed on Mr. DeBono's part. To borrow phrasing used by the Court of Appeal for Ontario in Drabinsky at para. 171, Mr. DeBono set out to cheat those he hooked as investors, while lining his own pockets.
The fraud was perpetrated over a period of several years.
Its magnitude was extreme. It involved hundreds of victims, and over $29 million in actual losses to investors.
It was a sophisticated scheme involving considerable planning, and very deliberate conduct by Mr. DeBono, both to lure victims and to assuage possible concerns about the legitimacy of Debit Direct. He purposely incorporated into the structure of the scam many hallmarks of a genuine investment opportunity. Potential victims were solicited through advertisements on independent investor websites, and at booths set up at legitimate trade and franchise shows frequented by persons with an interest in business investment opportunities. Written marketing materials were provided to potential investors, commissioned salespersons were used as a point of contact, a prestigious address in Toronto's financial district was adopted, and investors were required to sign documents styled as contracts. Once signed up, investors received lists purporting to show the placement of individually identified debit terminals at actual small businesses.
Investors were sent fabricated monthly remittance "earnings" reports. They received monthly payments they were told came from actual debit terminal transactions. This too was a lie. The payments came from money paid to Mr. DeBono by subsequent investors.
Mr. DeBono engaged in other criminal activity to perpetrate the fraud. In his personal dealings with investors, he used as an alias the name of someone known to him. He misused the services of multiple Canadian banks to accumulate and disburse to himself the proceeds of the fraud. He created false invoices to answer the concerns raised by one of those banks.
Over a period of time, Mr. DeBono moved funds and assets offshore to the Dominican Republic, and out of reach of Canadian law enforcement agencies and his victims.
When it became clear that bank investigators were making inquiries, Mr. DeBono arranged for all Debit Direct files and computers to be removed from the automotive repair shop so that they would not be located and examined.
He fled to the Dominican Republic when the Ponzi scheme collapsed, putting himself out of immediate reach of Canadian law enforcement agencies.
The police investigation was complex and costly. It included the execution of numerous production orders, the review of banking records and FINTRAC documents, steps to locate and restrain assets, the services of a forensic accountant, and efforts to locate and then return Mr. DeBono to Canada from another country.
His victims, who did nothing wrong in pursuing what they believed to be an honest investment opportunity, have been devastated by their economic losses. Some believe that they will never recover financially. While investigators were able to restrain some assets, to date Mr. DeBono has provided no restitution to his victims.
[64] In mitigation, I consider that:
Mr. DeBono pleaded guilty. It is true that the plea was not an early plea, as it was made after a trial date was set. However, it is a sign of remorse and acceptance of responsibility for his offences. The court time set aside for his trial was recoverable for use for other cases, which is important given the scheduling backlog created by the COVID-19 pandemic.
He has no prior criminal record.
He has been in custody throughout the COVID-19 pandemic, and subjected to harsher than usual conditions at the jail, including lockdowns because of staffing shortages and necessary healthcare measures.
[65] I do not consider Mr. DeBono's personal health issues to be mitigating, as there is no evidence before me that they have not been managed while he has been in pre-sentence custody nor is there evidence they will not be managed in a custodial setting going forward.
[66] Additionally, while this case does not involve a breach of trust, that is not a mitigating factor, but rather the absence of an aggravating factor.
[67] A sentence in the range of four to six years in jail would fail to recognize the massive size and huge impact of this fraud, along with Mr. DeBono's high moral blameworthiness. It would not be proportionate to the gravity of the offence and the degree of Mr. DeBono's responsibility.
[68] On the other hand, a sentence approaching nine years in jail would fail to take into account the mitigating effect of the guilty pleas.
[69] I agree with Crown counsel that the appropriate global sentence is one of seven years in jail, less credit for pre-sentence custody on a one and a half to one basis.
Restitution
[70] A restitution order can have both a denunciatory and a deterrent effect. See Nowack, at para. 77.
[71] Mr. DeBono does not take issue with the restitution order sought by the Crown, and does not dispute its amount. Indeed, it was the position of defence counsel that Mr. DeBono wants to make his victims whole again, and will be redirecting himself to work on his return to the community. Mr. DeBono himself expressed in court a desire to make restitution to the victims.
[72] I am aware that by the time Mr. DeBono is released from jail, he will be in his mid-sixties. That does not mean he will be unable to earn a legitimate income. More importantly, he admitted through the facts in support of the guilty pleas that profits from Debit Direct were used by him, including to build a hotel in the Dominican Republic and to purchase several homes and dozens of apartments there which are held in the names of nominees, associates, or shell companies. In the absence of any evidence to the contrary, these are assets that could be liquidated to pay restitution.
[73] There will be an order of restitution to the victims named by Crown counsel in the draft order and in amounts specified, for a total of $26,910,772.
Fine in Lieu of Forfeiture
[74] The criteria for a fine in lieu of forfeiture are met in this case. I am satisfied on a balance of probabilities that profits Mr. DeBono received through the perpetration of the Debit Direct scam constitute property that is the proceeds of crime obtained through the commission of designated offences of fraud over $5000 and laundering the proceeds of crime, and that accordingly an order of forfeiture should be made under s. 462.37(1) as requested by Crown counsel. I am further satisfied under s. 462.37(3) that the property cannot be made subject to a forfeiture order because it cannot be located on the exercise of due diligence, and/or it is located outside Canada. There will be an order that Mr. DeBono pay a fine in lieu of forfeiture in the amount of $26,910,772.
[75] Mr. DeBono will pay that fine within five years of the date of his release from jail. I order the time to run from the date of his release for the same reasons that I ordered restitution.
[76] In default of payment of the fine, Mr. DeBono will serve seven years in jail consecutive to any other term of imprisonment.
Conclusion
[77] Mr. DeBono, please stand. On count one, I sentence you to seven years in jail, less pre-sentence custody credited at one and a half to one as 32 months and 11 days, leaving a sentence to serve of 51 months and 19 days, which is four years, three months and 19 days. On count two I sentence you to four years, three months and 19 days in jail, concurrent.
[78] There is a DNA order on each count.
[79] I order restitution to the victims named by Crown counsel in the draft order and in amounts specified, totalling $26,910,772.
[80] I order you to pay a fine in lieu of forfeiture in the amount of $26,910,772. The fine is to be paid in full within five years of the date of your release from jail. In default, there is a term of imprisonment of seven years consecutive to any other term of imprisonment.
[81] The restitution order shall take priority over payment of the fine in lieu of forfeiture, and the fine in lieu of forfeiture shall be reduced by any amount paid pursuant to the restitution order.
[82] I order under s. 380.2(1) that you not seek, obtain or continue any employment or become or be a volunteer in any capacity that involves having authority over the real property, money or valuable security of another person. This order is for a period of life.
[83] There is a s. 743.21 order of non-communication with the victims named by Crown counsel, except through counsel for the purpose of legal proceedings.
Justice M.K. Fuerst
Released: June 28, 2022
NOTE: As noted in court, on the record, this decision in writing is to be considered the official version of the Reasons for Sentence and takes precedence over the oral Reasons read into the record.
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CHARLES DEBONO
REASONS FOR SENTENCE
Justice M.K. Fuerst
Released: June 28, 2022