J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2004 SKCA 153 Date: 20041110 Between: Docket: 852 Her Majesty the Queen and Mason Johnson Roberts Coram: Vancise, Jackson Richards, JJ.A. Counsel: Lane Wiegers for the Appellant Mason Johnson Roberts in person Appeal: From: Provincial Court Heard: November 10, 2004 Disposition: Appeal allowed (orally) Written Reasons: November 18, 2004 The Court: The Honourable Mr. Justice Vancise The Honourable Madam Justice Jackson The Honourable Mr. Justice Richards The Court (orally) [1] Mr. Roberts was convicted, after trial, of fraud exceeding five thousand dollars, contrary to s. 380(1)(a) of the Criminal Code. [2] Mr. Roberts wrote cheque for $11,000.00 on his personal bank account in February of 2001, knowing that the account lacked sufficient funds. He deposited the cheque into his CIBC Visa account and the next day withdrew the $11,000.00 in cash. About five days later, he repeated the same process, this time depositing and withdrawing $13,000.00. CIBC Visa lost the entire $24,000.00. [3] Mr. Roberts was 28 years old at the time of sentencing. He was married and had two young children. At sentencing, his debt load was $402,000.00 and there were some 37 different creditors interested in his affairs. Mr. Roberts had no criminal record and pre-sentence report suggested that he was low risk to re-offend. [4] The learned Provincial Court judge granted a conditional discharge with a probation order of one year and a requirement of 200 hours of community service work. He also made restitution order in the amount of $24,000.00. He explained his decision as follows: Having heard comments from counsel for the Crown and counsel for the defence, and having heard the evidence; having perused the pre-sentence report in its brevity; taking into consideration the fact that this man has no previous involvement with the system; taking further into consideration the fact that this was rather intricate kiting system that this man was involved in, there’ll be conditional discharge, one year, usual terms and conditions, plus 200 hours of community service work. [Sentencing Transcript at pp. 5] [5] In this Court, the Crown took issue with the discharge and asked that a 12 month conditional sentence be imposed with a condition of 200 hours of community service work. [6] In our view, leave to appeal should be granted and the Crown’s appeal should be allowed. [7] Section 730(1) of the Criminal Code provides that discharge may be granted only if that disposition is both in the best interests of the accused and not contrary to the public interest. Section 730(1) reads as follows: 730. (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in probation order made under subsection 731(2). [8] In R. v. Elsharawy (1997), 1997 CanLII 14708 (NL CA), 119 C.C.C. (3d) 565, at pp. 566-67, the Court of Appeal for Newfoundland commented as follows on the prerequisites to valid discharge: [3] For the Court to exercise its discretion to grant discharge under s. 730 of the Criminal Code, the Court must consider that that type of disposition is: (i) in the best interests of the accused: and (ii) not contrary to the public interest. The first condition presupposes that the accused is person of good character, usually without previous conviction or discharge, that he does not require personal deterrence or rehabilitation and that criminal conviction may have significant adverse repercussions. The second condition involves consideration of the principle of general deterrence with attention being paid to the gravity of the offence, its incidence in the community, public attitudes towards it and public confidence in the effective enforcement of the criminal law. See R. v. Fallofield (1973), 1973 CanLII 1412 (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A.), and R. v. Waters (1990), 1990 CanLII 7561 (SK QB), 54 C.C.C. (3d) 40 (Sask. Q.B.). [9] We are of the view that the learned Provincial Court judge failed to give proper consideration to the public interest criterion in s. 730(1). First, the sentence imposed did not properly reflect the principle of general deterrence. conditional discharge would do little to discourage others in Mr. Roberts’ situation from undertaking similar sorts of criminal activity. See: R. v. Wileniec (S.) (2003), 2003 SKCA 111 (CanLII), 238 Sask. R. 214 (C.A.). [10] Second, the sentence imposed did not reflect the gravity of the offence. This was a serious fraud accomplished by virtue of what the Provincial Court judge called “a rather intricate kiting system.” It involved total of $24,000.00 which amount was lost by CIBC Visa. [11] Third, public confidence in the criminal justice system would be undermined if there was no conviction on the facts at hand. This offence was significant and should attract criminal record. [12] In the result, leave to appeal is granted and twelve month conditional sentence is substituted in place of the conditional discharge. We prescribe the compulsory conditions set out in s. 742.3(1) of the Criminal Code and further condition that Mr. Roberts perform 200 hours of community service work, with credit to be given in that regard for any such work performed to date pursuant to the probation order made by the sentencing judge. The restitution order will remain in place.
The respondent was convicted after trial of fraud exceeding $5,000 contrary to s. 380(1)(a) of the Criminal Code. The trial judge granted him a conditional discharge with a probation order of 1 year and a requirement of 200 hours of community service work. He also made a restitution order in the amount of $24,000. The Crown appeals asking that a 12 month conditional sentence be imposed with a condition of 200 hours of community service. HELD: Appeal allowed orally. 1) The learned judge failed to give proper consideration to the public interest criterion in s. 730(1) of the Code. The sentence imposed did not properly reflect the principle of deterrence or the gravity of the offence. 2) This was a serious fraud accomplished by what the judge called a rather intricate kiting system.