Modèle:SentencingBrief PART V - Fraud
[This section will usually be customized to the particular offence]
A. Purpose of Criminalization of Conduct
B. Objectives to be Emphasized
[X] In sentencing for fraud over $5,000 it has been well established that the main objectives are denunciation and deterrence. (see R. v. Dobis, 2002 CanLII 32815 (ON CA) and R v Bogart, [2002] OJ No. 3039, 2002 CanLII 41073 (ON CA), per Laskin JA at 29, 33-36 leave ref'd, [2003] SCR vi) General deterrence has been found to have a greater impact on embezzlement-type crimes and those offences where there is planning and deliberation. (see R. v. Williams, [2007] OJ No 1604 (ONSC)) And where there is a relationship of trust he need for custody is even greater (R. v. Howe, [2002] AJ No 1443, 2002 ABCA 277 (CanLII), per Hunt JA, at para 3).
[X] Amongst the primary reasons for emphasizing any type of deterrence for major fraud is in order to ensure that the crime is simply not worth the venture. Is a gain of $20,000, $50,000, or $100,000, even temporarily, worthwhile if the consequence is only a fine? Probation? House arrest? A short jail sentence? A properly deterrent sentence must clearly communicate that the answer to all these questions is unequivocally in the negative. Should a sentence be not sufficiently punitive, regardless of the personal circumstances of the offender, it runs the risk of incidentally relaying the message to the next similarly situated person contemplating such a crime that it may just be worth it.
[X] Factored into this too is the amount of incurred profits and the likelihood of getting caught. Should the penalty for higher dollar amounts be of negligible difference from the penalty for lesser amounts, it too runs a risk that the next offender may see the commission as “in for a penny, in for a pound”, and then proceed to continue the offence once embarked upon. Likewise, an offence that is not easily detected, such as those where the commission involves obfuscation and deception, provide some incentive to the culprit that the venture is worthwhile. There is a calculation in the offender’s mind that a reduced likelihood of getting caught will have a discounting rate upon the sentence. A properly deterrent sentence must tell the culprit that even where detection and punishment may not be particularly high, the consequence of that eventuality renders the risk unacceptable, thereby deterring the commission of the offence.
[X] The justification for the emphasized objectives further extends to consideration of the inherent high degree of moral culpability in large scale commercial crime offences generally. They are often referred to as a “thinking person’s” crime, where the offence requires a multitude of repetitive and persistent decisions on the part of the accused to keep the fraud going. There must be planning to ensure that the victim is sufficiently trusting of the accused to give over their money and to ensure the scheme is not readily detected, including the fabrication of plausible lies and other smoke-screens.
- i. Breach of Trust
[X] Where there is a relationship of rust he need for custody is even greater.
- R v Howe, [2002] AJ No 1443, 2002 ABCA 277 (CanLII), per Hunt JA, at para 3
C. Range of Sentence
[X] Generally across Canada, the sentencing range for the offence of ... ranges anywhere between ... and ... . Our position is that the proper range for this type of offence would land in the between X and Y. When tailored to the specifics to this offender we are recommending a period of incarceration of XX.
[X] The recommended sentence presented here is in light of cases from within the province:
- [list of cases and short summaries]
[X] There are also cases from elsewhere in Canada including the following:
- [list of cases and short summaries]
[X] The recommended sentence presented here is in light of cases from within the province: