R. v. Nowack, 2019 ONSC 5344
The Ontario Superior Court of Justice case of R. v. Nowack is a scenario where the minimum punishment of two years imprisonment imposed by s. 380(1.1) of the Code can be applied to fraud offences valued over $1 million. The offender in this case was convicted of 12 counts of fraud over $5,000. They were sentenced to a prison term of nine years, ordered to never hold an employment or volunteer position of authority over another person’s money or property, and ordered to pay restitution and a larger fine in lieu of forfeiture in the amount of $15,679,087.59.
The circumstances of this offence were that they offender held themself out as an experienced and successful currency trader to the victims. Their trading skill was demonstrated to the victims on practice accounts that carried no risk of actual money being gained or lost. The offender had no such skill and promptly lost the vast majority of the victims’ money or spent it for their own personal benefit, violating the relationship of trust forged with the victims.
The overall scheme was described as follows. “Mr. Nowack perpetrated a scam designed to part people from their money. It was not a legitimate business where he simply cooked the books or tried to hide losses from investors. The currency trading was a fig leaf for the real business of fraud. Mr. Nowack may have hoped to make money from trading currency. Indeed, he likely did hope to make money, but he never intended to distribute any profits to his victims. His intent was to reap any benefits for himself. Any money he did distribute came from other investors – and was only distributed in response to threats and pressure. He never once distributed profits to the investors. [at para 88]
R. v. Deveau, 2020 BCPC 44
The Provincial Court of British Columbia case of R. v. Deveau explores some of the aggravating factors that can result in stronger sentences for fraud offences. Particularly, where a relationship of trust such as employment is abused. The offender was convicted of fraud over $5,000 and sentenced to one year imprisonment as well as probation for 18 months. A restitution order was also issued to pay the victim the value of the fraud, over $200,000. The offender was a bookkeeper for the victim and had access to all the company’s finances. The fraud persisted over several years and even continued after the offender’s employment was terminated.
As part of their reasons for sentencing, the judge outlined the specifics of the scheme, the impact on the victim and how those factors played into the determination of the appropriate punishment. ““It is a lot of coming and going from the workplace, taking that money, knowing that money was not yours, facing those people every single day, and acting as if nothing was wrong and that you were simply doing your job and taking your pay for that job. So the length and degree of the fraudulent activity is an aggravating circumstance in this case. As well, pursuant to s. (c.1) this is an offence that has had, I find, a significant impact on the victims given their personal circumstances including, in the case of Mr. Wade Sr., his age, his health, and the financial situation of the company. This fraud involved a lot of money. Aside from these aggravating circumstances, there is the breach of trust in this case. All of the cases before me indicate this too is an aggravating circumstance on a sentence for this offence.” [at paras 21-22]
R. v. Abdulahi-Sabet, 2019 BCSC 1538
The Supreme Court of British Columbia case of R. v. Abdulahi-Sabet is an example of a case where an offender was convicted of fraud for aiding a friend in a scheme. The two fraudsters acquired several vehicles from multiple dealerships after applying for financing using false information. The court took note that the offender in this case acted at the direction of his accomplice. The proceeds of the scheme were valued at over $700,000, but that value was not completely recoverable as the vehicles had lost some of their value in the meantime.
For this crime, the offender was sentenced to eight months imprisonment and an order was made to repay the victims restitution in the amount of $35,607.09. The rationale behind this punishment accounted for the offender’s guilty plea, their remorse, and the fact that all the vehicles were recovered. The judge described the discrepancy in sentence between the offender here and the mastermind. “While ordinarily a significant period of incarceration may be appropriate, particularly for a fraud in this account, I am mindful of the following. Mr. Moeinian was the mastermind. He was given a 24-month sentence for the offences involving Mr. Abduahi-Sabet based on a joint submission. Mr. Abdulahi-Sabet was acting on Mr. Moeinian’s directions. Mr. Abdulahi-Sabet has no prior criminal involvement. He has fully accepted responsibility for the offence and is remorseful. He is the main daytime caregiver for his sons, who mean the world to him. Any sentence of incarceration will thus be a severe punishment.” [at para 20]
R. v. Tran, 2021 ONSC 1888
The Ontario Superior Court of Justice case of R. v. Tran resulted in an offender being convicted of possession of proceeds of crime over $5,000 obtained by fraud and an accompanying count of fraud. The facts show that the offender was given money by an acquaintance after that acquaintance entered fraudulent returns into their employer’s return system and credited funds to the offender. Over more than three years, the offender received almost $300,000 from the scheme.
The resulting punishment was a two-year-less-a-day conditional sentence, two years of probation and a restitution order to repay the victim. The sentence balanced the goals of denunciation of the offender’s conduct and deterrence, with the circumstances of the offender. To illustrate this, the judge stated, “Given the nature of the crime, the sentence must be susceptible to satisfying the paramount objectives of deterrence and denunciation. Conditional sentences have been allowed in the appropriate circumstances in cases with larger and more complex frauds. While Mr. Tran did not plead guilty, he took responsibility for the crime in his pre-sentence interview. I find, in all the circumstances, releasing him into the community on restrictive terms is a sentence that will achieve the goals of public denunciation and deterrence and deter the prospect of future criminality by Mr. Tran.” [at paras 52-53]