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SENTENCING - Fraud over $5,000 - Particular sanctions - Imprisonment - Gambling

Tuesday, April 14, 2020 @ 8:14 AM  

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Appeal by the offender, Penttila, from a sentence for fraud exceeding $5,000 involving a breach of trust. The appellant, age 64, worked as the office manager for a company that supplied construction materials. Her job involved cheque-signing authority to pay suppliers. Between 2004 and 2011, the appellant defrauded her employer of $362,740 by altering 166 cheques to make herself the payee after first obtaining the co-signatory's signature to a cheque listing a legitimate payee. After depositing the cheques to her personal account, the appellant ensured that the canceled cheques disappeared. The appellant spent the proceeds of the fraud gambling. Her scheme was discovered following an extensive investigation after she suffered a breakdown. The appellant pled guilty six days prior to the scheduled trial date. The Crown sought a three-year sentence. The defence sought a two-year conditional sentence plus three years' probation. The appellant was sentenced to two years' imprisonment and ordered to make full restitution. The sentencing judge found that a conditional sentence was inconsistent with the principles of sentencing, particularly general deterrence. The judge found that a three-year sentence was appropriate but reduced it to two years in recognition of the appellant's health challenges and her husband's disability. The appellant appealed.

HELD: Appeal dismissed. The sentencing judge erred in rigidly applying jurisprudence standing for the proposition that a gambling disorder that contributed to fraud could never amount to a mitigating factor on sentencing. In addition, the judge erred in treating the appellant's failure to make any restitution prior to sentencing as an aggravating factor, as such failure was, at best, the absence of a mitigating factor. The evidence supported the judge's finding that the appellant lacked insight into her offending behaviour. That finding was tempered by the favourable conclusion that the appellant was remorseful for her conduct. The Crown acknowledged the judge erred in relying upon statutory aggravating forces that were not in force at the time of the offence. None of the errors in principle, individually or cumulatively, had a material impact on the sentence imposed. Given the factual findings supported by the evidence, a more contextual approach would not have yielded a different sentence. The judge expressly acknowledged the appellant's ill health and personal circumstances in reducing the sentence. But for those factors, the sentence would have been higher. Sentence: two years' imprisonment -- Criminal Code, s. 380(1)(a).

R. v. Penttila, [2020] B.C.J. No. 262, British Columbia Court of Appeal, M.E. Saunders, G.J. Fitch, G.B. Butler JJ.A., February 21, 2020. Digest No. TLD-April132020001