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R v. XXX

Reasons for Sentence, Galati, PCJ
Provincial Court of British Columbia, August 24, 2017

Case Summary and Detailed Outcome:

The accused plead guilty to theft over $5,000.
The accused was in a position of trust as financial services coordinator providing access to bank accounts, cash and cheques, and computerized bank payment and account information.
Circumstances of the offence presented by the Crown not disputed.
Offences took place over a three-year period consisting of 49 transfers of funds to the accused’s accounts; misappropriation of cash and unauthorized purchases for a total theft of $373,747.72. 
When the victim organization changed accounting procedures and systems, the accused left their employment and over several months the thefts were discovered.

When contacted by the former employer, the accused admitted guilt and made some restitution. At time of sentencing the total restitution made was approximately $170,000.

Crown recommended, to satisfy general deterrence and denunciation, a sentence of imprisonment of 18 months followed by a lengthy probation order. Crown cited aggravating factors including: breach of trust, extended time period of offences, sophistication of false accounting measures, large amount of thefts, impact on the victim organization, and a very dated prior minor theft charge. 

The judge agreed with the range of the Crown’s submission, but noted that if the sentence falls within provincial time served then a conditional sentence must be considered. 

Defence provided the Court with mitigating factors including: early acceptance of responsibility, expression of remorse, early guilty plea, the accused’s mental health issues at the time of the offence, significant efforts at rehabilitation over a four-year period since the offending ceased, family and community support, and restitution made to date with possible further restitution.

Galati, PCJ reviewed the cases cited by counsel primarily to determine the appropriateness of a conditional sentence in this case, citing in particular Dickson, para 70: 
“It cannot be necessary in the interests of general deterrence for serious theft, to incarcerate someone who is mentally ill when the offences were committed, whose mental illness was a cause of her committing the offences, who pleads guilty, who makes restitution, and who undertakes an appropriate course of medical treatment.”

Two expert reports were relied on from: 
o    Dr. Sandy Wiseman, a forensic psychologist with 30 years’ experience in Ontario, and
o    Dr. Lisa Doupe, a general practice physician specializing in forensic psychotherapy and the treatment of high-risk behaviours, practicing since 1972. 
Both experts reported that the accused suffered from a mental health condition at the time of the offence which compromised judgment, including: significant depression, personality factors, situational factors and undiagnosed and untreated complex post-traumatic stress.

Galati, PCJ determined that the need for general deterrence and denunciation could be addressed with the imposition of a longer conditional sentence with punitive conditions and sentenced the accused to two years less a day to be served in the community pursuant to a conditional sentence order.  (See Appendix A for additional punitive conditions.)

Galati, PCJ also entered a Restitution Order for the balance of the stolen funds for which restitution had not been made at the date of the order; a victim surcharge was deemed payable. 

Accused was counselled that any breach of the conditional sentence order would result in its termination and the balance of the sentence to be served in custody. 

As of April 2018, the patient is compliant with the sentencing conditions, remains in treatment and continues to do well.  

Primary Mitigating Factors:

•    Accepting responsibility
•    Early guilty plea
•    Remorse
•    Efforts at restitution
•    Expert medical reports from Dr. Sandy Wiseman (assessment) and Dr. Lisa Doupe (treatment)
•    Diagnosed mental health issues at time of offence
•    Voluntary medical treatment and  resulting rehabilitation
•    Family and community support
 

Cases cited by the both Crown and Defence, and referenced by Galati, PCJ:

R. v. Reid, 2004 YKCA 4
R. v. Burkart, 2006, BCCA 446
R. v. Dickson, 2007 BCCA 561
R. v. Wismayer (1997), 115 C.C.C. (3d) 18
R. v. Khan, 2002 BCCA 703
R. v. Proulx, [2000] 1 S.C.R. 61
R. v. Datsko, 2009 BCPC 106
R. v. Houde, [2005] B.C.J. No. 2905
R. v. Laskowski, 2015 BCCA 248
R. v. Hill, [2016] B.C.J. No. 2306