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SENTENCING - Fraud over $5,000 - Sentencing precedents or starting point

Tuesday, May 18, 2021 @ 6:07 AM  

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Appeal by the Crown from conditional sentences imposed on the accused, Dawson and Ross, for fraud and for Dawson for conferring a benefit upon a government employee. The accused defrauded the Department of National Defence over a four-year period through manipulation of the procurement process for a heating plant at a military base. Ross was a civilian employee of the base who collaborated with Dawson to direct approximately 640 contracts worth nearly $2 million to four companies connected to Dawson. The precise amount of the proceeds of the fraud was not determined but was thought to exceed $1 million based on withdrawals from one of the companies. The accused were first-time offenders in their early to mid-60s. The Crown sought a three-year sentence for Ross and a 3.5 to four-year sentence for Dawson. The sentencing judge imposed conditional sentence orders of two years less one day for the fraud convictions. Dawson received a concurrent sentence of the same duration for the additional offence. The Crown appealed.

HELD: Appeal allowed. The sentencing judge mischaracterized the offences and the accused’s moral culpability with the result that the conditional sentences imposed did not adhere to the fundamental principle of proportionality and were demonstrably unfit. In addition, the sentencing judge failed to give effect to the sentencing objectives of denunciation and general deterrence. The judge overemphasized mitigating factors at the expense of the aggravating factors. The fraud was large-scale, sophisticated and carefully planned. The fraud caused harm to taxpayers and to the public trust in public institutions and officials. Compared to similar sentences in similar cases, the sentences in this instance were inconsistent with the parity principle. The conditional sentences were set aside and replaced with penitentiary sentences. The COVID pandemic did not create a justification for imposing a disproportionate sentence for a significant fraud. Sentence for Dawson: 42 months’ imprisonment. Sentence for Ross: 36 months’ imprisonment.

R. v. Dawson, [2021] N.S.J. No. 123, Nova Scotia Court of Appeal, P. Bryson, J.E. Scanlan and A.S. Derrick JJ.A., March 17, 2021. Digest No. TLD-May172021003