IN THE PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Taylor, 2014 NSPC 75
Date: 2014 September 04
Docket: 2655026; 2655027; 2655029; 2655030
Registry: Halifax
Her Majesty the Queen
v.
Sacha Elizabeth Taylor
Judge: The Honourable Judge Marc C. Chisholm
Heard: September 4, 2014, in Halifax, Nova Scotia
Charge: 380(1)(b) x2; 342(1)( c); 334(b); 367
Counsel: Chris Nicholson, for the Crown
Steve Hiscock, for the Defence
By the Court: Orally
[1] This is the sentencing for Sasha Taylor. Ms. Taylor is to be sentenced in relation her admitted commission of offences contrary to Sections 380(1)(b); 380(1)(b); 342(1)(c); 334(b); and 367 of the Criminal Code. Ms. Taylor, pled guilty to counts 1, 2, 4, 5 and 7 which involved a fraud of the Royal Bank of Canada, two counts of illegal use of a credit card and a Royal Bank of Canada debit card in the name of Marie Duffy, theft under $5000 and knowingly making a false document, specifically a cheque, with the intent that it be acted upon as if genuine, thereby committing forgery.
[2] The agreed facts in relation to these offences involve Ms. Taylor being employed as a supervisor in a small options personal care group home. One of the individuals being cared for was Marie Duffy. Ms. Duffy is a woman in her 70's with issues of dementia. Ms. Taylor accompanied Ms. Duffy to her bank and obtained a new client card for Ms. Duffy. Ms. Duffy’s previous client card, which was in Ms. Duffy’s room at the group home, was no longer valid. Ms. Taylor admitted to using that client card, without any authorization or permission to make “numerous” unauthorized withdrawals from the account of Ms. Duffy.
[3] In relation to counts 5 and 7, Ms. Taylor admits that she was employed by the Calderhead family to clean their house from time to time. While in their place of residence, she admits to stealing two books of cheques. She admitted to writing “several” cheques payable to Marie Duffy and forging the name of Mr. Calderhead. She then used Marie Duffy’s client card to cash the cheques. All of the monies ending up in her possession. The total amount of money defrauded, for all of the offences was approximately $6600.
[4] The Court has had the advantage of reviewing a pre-sentence report (PSR) in relation to Ms. Taylor which includes, at page five of that report, the statement from Ms. Duffy’s sister, which I will quote for the record.
“Marie is 75 years old with dementia; has always had learning disabilities throughout her life. The family were devastated to learn of the betrayal of trust as Ms. Duffy had become quite close to the subject, Ms. Taylor, over the last few years and the family had complete trust in Ms. Taylor. We always trusted Sasha with our sister’s care. She was like almost part of the family. We just couldn’t believe it happened”
[5] That is part of the statement of the sister of Ms. Duffy with respect to the impact of the offence. There was no victim impact statement submitted on behalf of the Calderhead family.
[6] The PSR indicated that Ms. Taylor is 29 years of age. She has no prior criminal record. Ms. Taylor made reference to a previous matter relating to theft as a youth. The record reflects that the matter to which she appears to have referred was an adult matter. There is a CPIC print out attached to the pre-sentence report. It indicated that she received a discharge for that matter so, as I say, she has no prior criminal record having received a discharge for that matter.
[7] Ms. Taylor has a long history of working in positions of trust in nursing homes.
[8] The PSR included comments made by Sue Wyse, of the Sunshine Personal Care Home where Ms. Taylor previously worked, and where Ms. Duffy resided. Ms. Wyse reported that Ms. Taylor had denied the offences when speaking to co-workers. Ms. Taylor responded to those comments indicating that she, at no time, denied involvement in these matters. She said that she elected not to discuss the matters with those persons with whom she had formally worked; some of them were people whom she had supervised. She says today that she did so because she was embarrassed.
[9] The pre-sentence report included comments from one of Ms. Taylor’s former co-workers at the seniors home. Her comments, like those of Ms. Wyse were negative in terms of the trustworthiness, of Ms. Taylor as perceived by them. This is not like character evidence where the Court is being provided an indication of what the community, or a section of the community, feels about Ms. Taylor but, simply, the comments of those individuals and the Court will assign the comments appropirate weight. The co-worker also indicated that Ms. Taylor tended to portray herself as a victim and rarely took responsibility for her own mistakes.
[10] To a like thought, the author of the pre-sentence report made comment on the fact that Ms. Taylor made pains to point out that she herself had been the victim of a fraud, monies taken from her bank account. In his closing comments the author of the pre-sentence report reiterated that Ms. Taylor attempted to portray herself as a victim. The author of the pre-sentence report, having spoken to Ms. Taylor, indicated at page six “the subject did not demonstrate remorse for the victims and attempted at one time during the interview to portray herself as a victim of fraud.”
[11] The report does not detail any significant related health issue or addiction issue or intelligence issue. Ms. Taylor is clearly an intelligent individual. The report did not detail any significant mental health or physical health issue that would be relevant to the circumstances of the offence. Ms. Taylor indicated she had never had any serious mental health issue in her life. After the discovery of the offence, she is reported to have become depressed and anxious. She took medication for a period of time. The Defence would have the Court believe her that her anxiety and depression was as a result of her remorse. That is certainly one conclusion that could be drawn. Another conclusion that might be drawn, by someone looking at the matter objectively, is that fear of the consequences of her behaviour may have well caused her anxiety and concern.
[12] The PSR, overall, in the assessment of the Court, is a mixed document. It has both favourable and unfavourable aspects. Ms. Taylor is 29 years of age, single with no prior record. Through her comments, and her Counsel’s comments, she has expressed a complete understanding of the seriousness of her actions, the breach of trust, and the impact of her actions on those who were victimized.
[13] The Defence has also pointed out that, as a result of her involvement in this matter and the charges she, on a number of occasions, having obtained new employment, was let go from that employment as a result of these offences. That is a consequence that she incurred. Ms. Taylor has taken training and education in the field of home care and is hoping to obtain a licence to run a small options home. That prospect may be, somewhat, in jeopardy as a result of her involvement in these matters and that is a factor for The Court to consider in terms of consequences.
[14] Crown and Defence jointly recommended that the Court impose a suspended sentence with three years probation. After hearing counsel’s submissions, I expressed some reservation regarding the appropriateness of the recommended sentence. I invited counsel to submit caselaw supporting their joint recommendation. The sentence hearing was adjourned to permit counsel the opportunity to do so. Counsel were advised that they would be invited to make further submissions if they chose to do so.
[15] During the period of the adjournment, the Court received a memorandum from Crown counsel. The memorandum discussed eight cases involving fraud by a person in a position of trust. In six of the eight cases, a suspended sentence was imposed.
[16] I have read in detail each of the cases provided by Counsel. In many of the cases where a suspended sentence was imposed, there was some significant and unique factor in relation to the individual who was dealt with by the Court. For example, in R. V. Cook, [1994] N.S.J. No 401, the Nova Scotia Court of Appeal upheld in a suspended sentence for 21 offences, most fraud related. The accused had a long history of drug abuse and a significant prior record. Prior to sentencing she entered an in house addictions treatment program. The reports from that program were glowing. In those circumstances, the sentencing judge felt his options were a lengthy period of incarceration or a period of probation allowing her to continue to with the drug treatment. He opted for probation. On appeal, the Court of Appeal found that, in those circumstances, the decision was not unfit.
[17] In R. v. Ahmed, [2005] A.J. No. 1112, the sentencing Judge accepted a joint recommendation for a suspended sentence where the accused pled guilty to welfare fraud involving $13,000.
[18] In R. v. Szlachter, [2005] A.J. No. 801,the accused was given a suspended sentence for defrauding her employer of $7927 by writing a number of unauthorized cheques to herself. She was under a great deal of personal stress and very remorseful.
[19] In R. v. Taylor-Wright, [201] O.J. No. 4578 (Ont. S.C.), the accused received a suspended sentence with 18 months probation for fraud of her husband’s insurance company of $75,000 through some 50 transactions over a three year period. Prior to sentence restitution was paid in full. The PSR was very positive. The accused had been suffering from serious medical issues.
[20] In R. v. Guido, [2007] O.J. No. 434 (Ont. S.C.), the accused misappropriated $120,000 over a period of three years. The money was repaid in full prior to sentencing. The accused had no record and pled guilty. He was given a suspended sentence with probation for 1 year.
[21] In R. v. Guene, [2008] Carswell Man 305 (Man.P.C.), the accused fraudulently obtained $4,400 over a period of 16 days through seven transactions. The accused’s actions were motivated by financial need. The accused pled guilty. He had been in a position of trust. He was sentenced to a conditional sentence order of 6 months followed by probation for a term of two years with a restitution condition.
[22] In R. v. Cousineau (A.K.A. Miller), [2013] B.C.J. No. 1100 (BCSC), the accused worked at a seniors’ residence. In the course of his employment he would receive cheques from seniors who intended to stay at the facility. On three occasions he filled in his own name as the payee and misappropriated a total of $7,367. He was found guilty after trial. At trial he claimed the money was re-imbursement for expenses. The accused had a prior related record. He had a history of depression. He was sentenced to six months imprisonment followed by two years probation. The court stated that denunciation, general deterrence and protection of the public were the primary sentencing principles.
[23] In R. v. Fitzpatrick, [2005] N.J. No. 336 (Nfld S.C.T.D.), the accused, a finance officer misappropriated $2,147. He pled guilty and expressed remorse. The sentencing judge indicated that the primary considerations for fraud by someone in a position of trust were denunciation and general deterrence. But for the crown joining in a recommendation for a suspended sentence he would have imposed a period of a few months imprisonment.
[24] From these cases, I draw the following conclusions:
• An offence of fraud by someone in a position fo trust is a serious offence;
• The number of transactions, the length of time over which the offence was committed, the nature of the fraudulent scheme and the amount defrauded are factors affecting the seriousness of the offence;
• The victimization of a vulnerable member of our society such as an elderly person or persons with diminished mental faculties is an aggravating factor;
• The primary emphasis on sentencing must be denunciation and general deterrence;
• Circumstances of the offender, such as severe stress or other medical condition, or personal circumstances may justify a non-custodial sentence or shorter period of custody. The payment of restitution or ability to do so is a consideration.
[30] When the matter returned to Court today for continuation of the sentence hearing, counsel presented a new joint recommendation. Counsel jointly recommended a conditional sentence order of six months duration followed by probation of 30 months.
[31] The sentence of this Court must be appropriate to the seriousness of the offence and to the circumstances of the Offender. In relation to the seriousness of the offence, in R. v. Cook, supra, the Court stated that for persons who commit fraud while in a position of trust a period of incarceration is, generally, appropriate in order to reflect the need for deterrence and denunciation.
[32] In R. v. Achara (1986) 58 NFLD & PEI.R 188, NfldCA, the offender, Mr Asaryia, misappropriated one cheque in the amount of $5395, drawn on his employer’s account. The money was returned upon discovery of the theft. The trial Judge imposed a period of suspended sentence, 18 months probation and ordered the Accused to perform 100 hours community service work. The Crown appealed. By the time the appeal was heard the 100 hours of community service work had been completed. Nevertheless, the Court of Appeal overturned the decision to suspend sentence and ordered that the Accused serve a period three months imprisonment. The Court commented that, for breach of positions of trust, general deterrence and denunciation were the primary factors and that a term of custody would be the normal disposition. The Court said:
“There were no compelling circumstances to justify a departure from the usual course.”
[33] Cases provided by Crown counsel provide examples where there were circumstances justifying a non custodial sentence or a conditional sentence order. With the exception of R. v. Cousineau , none of the cases referred to the Court involved the victimization of a vulnerable person. The facts in the Cousineau case are clearly distinguishable from the present situation in that the offender in that case had a prior record for theft and was on probation at the time of his involvement in the offence.
[34] In relation to the seriousness of the present offences, it is the view of the Court that this is a serious matter. This type of offence is of concern to the Court and to the community. We live in a world where people are living longer. As people age, it is common for them to have reduced physical and mental capacities and as a consequence, they become more dependant on others over time; and consequently more vulnerable. Persons who are in a position of trust to assist such individuals and who breach that trust are acting in a manner that is contrary to the way that any reasonable thinking person would expect one to act. Such conduct must be deterred and denounced.
[35] Furthermore, these are relatively simple crimes to commit. They are often difficult to discover and difficult to prove. The theft of something from the home of an elderly person may cause people to wonder, has the elderly person simply forgot where they put it? Is it really missing? How does one prove it was stolen? Where there is proof of such an offence, it is the view of the Court that the sanction of the Court must express general deterrence and specific deterrence in a significant way to attempt to dissuade persons in positions of trust from acting in that manner.
[36] The actions of Ms. Taylor go beyond taking a small amount of money, or taking something of some value from the home. In this case, her actions were more planned and more deceitful than that. The taking of a client card, the use of the client card in the way in which she used it to access monies in the victim’s bank account, and the way in which she used it as part of the defrauding of the second victim, is in the Court’s view much more deceitful and serious than the simple taking of cash from someone’s home, or some other object of value.
[37] The Court must express it’s deterrence and denunciation of this behaviour. What is appropriate in terms of denunciation is what a reasonable and intelligent member of the community would view as an appropriate response to the offence. The offence which violated the communities expectation of appropriate behaviour.
[38] I believe the statements of the Newfoundland Court of Appeal in R. v. Acharya, supra, and the Newfoundland Supreme Court in R. v. Cooke, supra, reflect the proper approach that should be taken on sentencing in cases such as this, ie, that absent some circumstances that reduce the moral blameworthiness of the individual, that a period of custody is the appropriate sanction. Having reviewed the circumstances with respect to Ms. Taylor, there is in the view of the Court, nothing in the pre-sentence report which reduces her moral blameworthiness for these matters. She had no serious contributing medical condition as in some of the other cases. She was not in dire financial straits as in one of the other cases. She was not under the influence of someone else; she had no addictions issues.
[39] Ms. Taylor chose to commit these crimes. She indicated to the author of the pre-sentence report she didn’t know why. Those persons looking at the matter objectively would likely conclude it was her greed and no other reason. These offences were planned and premeditated. A scheme was developed and implemented to commit the offences and to attempt to avoid detection. This was not a momentary impulsive decision and not a one time thing. This was a crime that was continued by her over a period of time and not an insignificant amount of money taken.
[40] Ms. Taylor has expressed remorse to the Court and through her counsel. The author of the pre-sentence report questioned her remorse. The PSR is mixed, with both positive and negative informaiton. The information leaves me uncertain as to the extent of Ms. Taylor’s remorse.
[41] For the reasons expressed in this decision, I would have rejected the recommendation that this Court impose a suspended sentence. That is no longer the joint recommendation. It is for a period of 6 months custody followed by 30 months of probation. Counsel have jointly recommended that the period of custody be served in the community. To permit the period of custody to be served in the community, the Court must be satisfied that doing so would not be inconsistent with the purpose and principles of sentencing and that Ms. Taylor would not create a danger to the community.
[42] In my view, so long as Ms. Taylor is not in a position of trust, there are no other concerns that she will be a danger to the community. As a condition of the sentence proposed by counsel, Ms. Taylor would not be permitted to work in a personal care capacity unless she, first, disclosed this conviction to her employer/clients. This condition substantially addresses the Court’s concern. I am persuaded that the placing of Ms. Taylor on a conditional sentence order would not endanger the safety of the community.
[43] The remaining question is whether or not a conditional sentence order, in this case, properly addresses the need for denunciation and deterrence of the offender’s conduct. If there had not been a joint recommendation, this Court would have determined that a period of straight time in custody of 3-4 months would have been the appropriate sanction followed by a period of probation. But, as in R. v. Cook, supra, the position of the Crown is a relevant factor. The Crown has jointly with Defence counsel recommended a conditional sentence order. This Court is aware of the guidance of the Nova Scotia Court of Appeal in relation to joint sentence recommendations. I am persuaded that the joint recommendation of counsel in this case is the result of extensive negotiations. The agreement of counsel eliminated the need for a trial. The period of custody being recommended is longer than would have been imposed if it were to be served on a straight time basis. The conditional sentence order contains strict conditions including a condition of house arrest for the entire six months. The recommendation includes a 30 month probation order with a condition requiring the payment of restitution.
[44] I find that the sentence recommended by counsel is within the range of appropriate sentences. I accept the recommendation of counsel and will impose the sanction as recommended jointly by counsel. I do so with some hesitation given the substantial need for emphasis on general deterrence and denunciation.
[45] The sentence order will be the same for each of the offences. They will run concurrently. It is the sentence of this Court that you serve a term of six months imprisonment. That six months of imprisonment to be served on a Conditional Sentence Order.
[46] The terms of the Conditional Sentence Order will be: That you keep the peace and be of good behaviour; That you appear back before the court whenever required by the court to do so; That you report as directed to a sentence supervisor. The court is directing that you report for the first time before the end of the day today, September the 4th of 2014, to the office in Halifax, Nova Scotia, and that you report thereafter as directed by your sentence supervisor. Further that you remain within the province of Nova Scotia at all times, unless you are given written permission in advance from your sentence supervisor to leave the province.
[47] Further, that you promptly notify your sentence supervisor of any change of name, address or employment status. Counsel have recommended a term with respect to mental health. It is clear from the pre-sentence report that subsequent to her involvement in these matters, there were concerns in that regard and therefore the court will accept that as part of the joint recommendation.
[48] There will be a condition of the order that you attend for mental health assessment and counselling as directed by your sentence supervisor. I should note also for the record, the author of the pre-sentence report having spoken to you at some length also felt that mental health would be an appropriate consideration. You are further to attend for such other assessment, counselling, program or programs as directed by your sentence supervisor. It will be a condition of the order that you participate in and fully cooperate with any assessment, counselling, program or programs as directed by your sentence supervisor.
[49] Further that you not have any direct or indirect contact or communication with Marie Duffy, Vince Calderhead, and/or Clare MacNeil. Further that you not be on or within 5 metres of any place known to you to be the place of residence of Marie Duffy, Vince Calderhead and/or Clare MacNeil. Further, that you not be on the premises of any personal care home for persons under disability unless you are there in the course of your employment and your criminal record has been disclosed to the operators of the facility, as noted in clause F herein.
[50] Further, that you make reasonable efforts to locate and maintain employment or when not employed, to attend an education program as directed by your sentence supervisor.
[51] The clause to which I referred to earlier, clause F, will be worded in this way; That you not be employed in personal home care unless your criminal record for this offence is disclosed to your employer or to any person, or their appropriate family member you are caring for, if self employed, or employed in the course of your own company.
[52] For the period of six months of the Conditional Sentence Order, you will be required to abide by a condition of house arrest. You are to remain in your place of residence at all times beginning at 7:00 pm today, September 4, 2014, until the end of the six months of the Conditional Sentence Order. You may be out of your residence when one of the following exceptions apply:
[53] When you are at regularly scheduled employment, so long as your supervisor knows of your employment, and to travel to and from your employment by a direct route; When dealing with a medical emergency or attending a pre-scheduled medical appointment involving yourself or a member of your household and to travel to and from by a direct route; When attending a scheduled appointment with your lawyer, or sentence supervisor, or probation officer, and to travel to and from the appointment by a direct route; When attending court at a scheduled appearance or under court subpoena and to travel to and from the court by a direct route; When attending a counselling appointment, a treatment program, a meeting of alcoholics or narcotics anonymous at the direction of, or with the permission of your sentence supervisor, and to travel to and from that appointment, program or meeting by a direct route; For a period of not more than 4 hours each week, the time to be approved in advance by your sentence supervisor, for the purpose of attending to personal needs. There will be a general exception to permit you to be out of your place of residence at such other times, and for such other purposes when you have the advance permission of your sentence supervisor. You are to prove that you are complying with the house arrest condition by presenting yourself at the front entrance of your place of residence should your sentence supervisor or any peace officer attend at your place of residence at any time of day or night to check to make sure that you are there complying with the house arrest condition for the next six months.
[54] Following that period of six months, you will then be required to serve a period of thirty months on a Probation Order. Many of the terms of probation will be the same as the terms of the conditional sentence order. The probation order will include conditions that you keep the peace and be of good behaviour, appear back before the court as required, notify the court or your probation officer before any change to your name, address, or employment status. You will be required to report to a probation officer throughout that period of time, first reporting within the first 5 days of the start of the order and thereafter as directed.
[55] There will be the same conditions with respect to no contact or communication with Ms. Duffy, Mr. Calderhead and Ms. MacNeil and not being on or within 5 metres of any place of residence of those individuals, or any place of residence of persons under disability unless in the course of employment, consistent with clause F with respect to that employment, which will be as worded in the previous part of the order, that you disclose your record for these offences.
[56] There will be a condition that you make reasonable efforts to locate and maintain employment or attend an education program. The probation order will include the same conditions with regard to assessment and counselling. There will not be a condition of house arrest, and therefore no exceptions, and no condition requiring proof of compliance therewith.
[57] The Probation Order will contain a condition requiring you to make restitution in the agreed amount of $4708.58 for the benefit of the Royal Bank of Canada, Herring Cove Road, Halifax, Nova Scotia and the Bank of Montreal, 5151 George Street, Halifax, Nova Scotia, in the agreed amount of $1,900.00. The restitution to be paid in full through the clerk of the court by no later than the 25th day of July of 2016.
[58] Given the extensive restitution which has been ordered by the Court, these offences occurring at a time when the Court had discretion whether to impose a fine surcharge, I am satisfied, given Ms. Taylor’s financial circumstances and the significant order with respect to restitution, that it is appropriate to exempt her from the payment of the fine surcharge with respect to each of the five offences.
[59] Ms. Taylor, do you understand the sentence which has been imposed. Where the sentencing includes a period of probation, the Court is required to advise you that during the period of probation if you believe a change in the terms of the probation order would be appropriate, you do have the right to come back to the court and make application for a change in the terms.
[60] Would you stand for a moment, Ms. Taylor. Ms. Taylor do you understand each of the conditions with which you will be bound to comply? [ Yes I do.] And you understand the importance of your compliance with those terms and the consequences of any breach? [Yes I do.] Do you have any questions? [No I don’t] Just have a seat for the moment if you would Ms. Taylor. Anything further counsel? [ Just the remaining charges Your Honour, we would withdraw those.] On motion of the Crown, all remaining counts on the Information before the court as against Ms. Taylor are now withdrawn.