



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mohenu, 2019 ONCA 291

DATE: 20190411

DOCKET: C64693

Feldman, Fairburn and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shanique Mohenu

Appellant

Breana Vandebeek, for the appellant

Manasvin Goswami, for the respondent

Heard: April 1, 2019

On appeal from the sentence imposed by Justice Jane E.
    Kelly of the Superior Court of Justice on November 28, 2017.

REASONS FOR DECISION

[1]

The appellant was convicted of fraud over $5,000 and attempted fraud
    under $5,000. She appeals her sentence.

[2]

The appellant worked part-time at a large retail
    store. She started work there when she was fifteen years old and continued
    working part-time until her arrest. Just after the appellant turned twenty-one
    years of age, she used her position on the customer service desk to falsify
    returns, defrauding her employer of about $30,000. Her fraudulent conduct
    spanned about 3.5 months.

[3]

The appellant was convicted following a four-day
    judge alone trial. She was sentenced to nine months in custody on the fraud
    over $5,000 count and nine months concurrent on the attempted fraud under
    $5,000 count. A two-year probation order was imposed, along with a restitution
    order in the amount of $28,000.

[4]

The appellant argues that the trial judge made
    three errors in arriving upon the custodial disposition. While we do not accept
    the appellants first argument, we would allow the appeal on the basis of her
    second and third arguments.

[5]

First, the appellant contends that the trial
    judge misconstrued the defence position on sentence. We need not delve into
    this issue in detail. The record supports that the appellant advocated for a conditional
    sentence to be imposed on the attempted fraud under $5,000 count and a
    suspended sentence on the fraud over $5,000 count. She asks this court to
    impose that sentence now. Like the trial judge, we would decline to do so.

[6]

To accede to the defence position and impose a
    conditional sentence on the attempted fraud under $5,000 count and simply suspend
    the passing of sentence on the fraud over $5,000 count, would be to impose
    another version of what this court referred to in
R. v. Bankay,
2010 ONCA 799, at para. 2, as a disguised conditional sentence on
    the fraud over count. Given that the defence acknowledged that a term of
    imprisonment was necessary in this case, it was not open to the appellant in
    seeking a conditional sentence to avoid the operation of s. 742.1(c) of the
Criminal
    Code,
which denies conditional sentences to those
    convicted of offences prosecuted by indictment for which the maximum term of
    imprisonment is 14 years or life. Fraud over $5,000 falls within that category
    of offence: s. 380(1)(a),
Criminal Code.

[7]

Accepting the defence position would have led to
    the absurd situation where, if the appellant had only been convicted of the
    more serious fraud over $5,000 count, she could not have received a conditional
    sentence, but her additional conviction on the less serious attempted fraud
    under $5,000 count would have allowed her to receive a conditional sentence. As
    noted in
R. v. Badhwar,
2011 ONCA 266, at
    para. 45, albeit in the immigration context, the courts should not impose
    sentences designed for the sole purpose of thwarting the will of Parliament:
    Courts ought not to be imposing inadequate or artificial sentences at all, let
    alone for the purpose of circumventing Parliaments will on matters of immigration.

[8]

Accordingly, the trial judge was right not to
    accede to the appellants request.

[9]

Second, the appellant submits that the reasons
    for sentence failed to apply the well-established sentencing principle that where
    incarceration is required to be all or part of an appropriate sentence, a
    youthful first offender should receive the shortest possible sentence of
    incarceration, tailored to meet that offenders circumstances. The appellant
    says that the trial judge essentially ignored the need to emphasize specific
    deterrence and rehabilitation when sentencing youthful first offenders,
    emphasizing instead general deterrence and denunciation as the primary
    sentencing goals. She says that the error is embodied in the following passage
    from the reasons for sentence:

Imposing a proportionate
    sentence is a highly individualized exercise tailored to the gravity of the
    offence, the blameworthiness of the offender and the harm caused by the crime.
    In the case at bar, rehabilitation cannot be ignored. However, the primary
    goals of sentencing in a case such as this must be the denunciation of the
    offenders conduct and the deterrence of both the offender and others [.]

[10]

The respondent argues that the trial judge was
    right to emphasize the principles of denunciation and deterrence, sentencing
    principles widely recognized as controlling in cases of fraud and employee
    theft over $5,000:
R. v. Castro,
2010 ONCA
    718,
102 O.R. (3d) 609,
at para. 30;
R. v.
    Mathur,
2017 ONCA 403, at para. 14. The respondent
    also says that the appellants first-time offender status did not compel a
    departure from those primary sentencing principles, particularly in light of
    the fact that most people who commit frauds on their employers have been placed
    in a position of trust because they do not have criminal records.

[11]

The respondent also contends that, in the
    circumstances of this case, involving a fraud committed over a number of
    months, and a clear breach of trust, the trial judge was right to focus upon the
    common sentencing principles for offences of this nature. The respondent argues
    that the trial judge was alive to the other sentencing objectives, including the
    need to consider the appellants rehabilitation, the need to exercise restraint
    in imposing imprisonment and the young age of the offender.

[12]

While we agree with many of the respondents
    submissions, they do not answer the fundamental issue raised, that the usual
    primary sentencing principles had to be adjusted owing to the appellants
    youthful first offender status. Because the appellant was a non-violent
    youthful first offender, the principles of individual deterrence and
    rehabilitation should have been stressed and the principles of general
    deterrence and denunciation should have played a less dominant role:
R.
    v. Priest
(1996),
30 O.R. (3d) 538 (C.A.)
, at pp. 543-44;
R. v. Tan,
2008
    ONCA 574, at para. 32;
R. v. Nassri,
2015 ONCA
    316,
125 O.R. (3d) 578,
at paras. 30-31;
R.
    v. Thurairajah,
2008 ONCA 91, at paras. 41-42. As noted
    by Doherty J.A. in
Thurairajah,
at para. 41:

Generally
    speaking, sentences imposed on young first offenders will stress individual
    deterrence, where necessary, and rehabilitation. General deterrence will play
    little, if any, role in fashioning the appropriate sentence in this category of
    offender in most cases. Serious crimes of violence, particularly sexual
    assaults, do provide an exception to the general rule described above. While
    all of the principles of sentences remain important, including rehabilitation,
    for serious crimes involving significant personal violence, the objectives of
    denunciation and general deterrence gain prominence. [Citations omitted.]

[13]

The appellant did not commit a serious crime
    involving significant personal violence. Accordingly, individual deterrence and
    rehabilitation should have been stressed by the trial judge when determining
    the appropriate disposition, one that would have resulted in the least amount
    of custody that could be imposed in the circumstances. Indeed, as a youthful
    first-time non-violent offender, the appellant was entitled to the shortest
    possible sentence, albeit one that was proportionate to the gravity of her
    offence:
Tan,
at para. 33;
Nassri,
at para. 31;
R. v. Laine,
2015 ONCA
    519, at para. 85. Unfortunately, the trial judge did not receive the benefit of
    submissions on this point from either counsel.

[14]

Third, and finally, the appellant says that the
    trial judge erred when she treated the appellants decision to proceed to trial
    as an aggravating factor. The appellant points to the trial judges description
    of the following as an aggravating factor: Although Ms. Mohenu expressed
    remorse during sentencing, she proceeded to trial in the face of an
    overwhelming Crown case.

[15]

A lack of remorse is not an aggravating factor.
    Nor is the decision by an accused to put the state to the proof of its case.

[16]

The respondent says that the trial judge did not
    use the decision to have a trial as an aggravating factor. Rather, the respondent
    argues that the impugned comment reflects the trial judges view of the degree
    of sincerity of the appellants expression of remorse.

[17]

Although the trial judges comment may be open
    to different interpretations, the fact remains that it is listed as an
    aggravating factor. Read literally, this comment constitutes an error.

[18]

Although appellate intervention is not called
    for in all cases where there has been an error in principle or failure to
    consider a relevant factor or erroneous consideration of aggravating and
    mitigating factors, intervention is called for where the error has had an
    impact on the sentence imposed:
R. v. Lacasse,
2015 SCC 64, [2015] 3 S.C.R. 1089,
at paras. 43-46. When fixing the proportionate sentence for this youthful
    first-time offender, we are satisfied that the sentence was impacted by
    overemphasizing general deterrence and denunciation such that appellate
    intervention is required. We say this in light of the trial Crowns position
    that a one-year sentence should be imposed. The trial judge agreed, but discounted
    that sentence by three months, not because of rehabilitation prospects or
    youthfulness or because it was the least amount of custody that could be
    imposed in the circumstances, but because the appellant had already suffered
    the loss of her future career aspirations by virtue of obtaining a criminal
    record. Had the proper sentencing principles been taken into account, and in
    light of all of the circumstances of this case, more than a three month
    discount to the trial Crowns proposed sentence would have been given.

[19]

It now falls to this court to determine the fit
    sentence. The parties agree that if this court decides that intervention is
    called for, the court should take into account the appellants current
    circumstances as reflected in the fresh evidence.

[20]

This was a serious crime involving a breach of
    trust and multiple transactions over a number of months. It was brazen and did
    not stop until the appellant was discovered. The store owner filed a victim
    impact statement underscoring the serious consequences of the appellants
    conduct on the store. Nothing in these reasons should be taken as suggesting
    that the crime was anything other than serious.

[21]

At the same time, the appellant is a youthful
    first offender. When she committed the offences in question, she was living in
    her single mothers home with a younger sibling, contributing to household
    expenses by working part-time. She was also attending McMaster University and
    working toward her B.A. in Sociology, with the goal of eventually working with
    the vulnerable. By the time of sentencing she had successfully obtained her
    degree.

[22]

The appellant was the first person in her family
    to attend university. She had accumulated a significant amount of student debt
    which she was still paying off at the time of sentencing. She acknowledged that
    her crime would preclude her from putting her degree to work with the
    vulnerable. Indeed, she had to forgo some jobs after her conviction because she
    could not pass the criminal record check.

[23]

The impact of her crime on her family was
    serious: when she offered her apology to the court, the appellant specifically
    acknowledged her regret for the harm she had caused to her mother. The
    appellants mother had worked at the same retailer as her daughter for 17
    years. Her mother was also fired when the appellants offence was discovered. The
    mother was required to take lower-paying work.

[24]

At the time of sentencing, the appellant had
    been working full-time at a large hotel chain for some time pending trial. She
    was described by her employer as an exemplary employee. The trial judge
    accepted that the appellant was humiliated and ashamed by her conduct, that her
    conduct had a ruinous impact on her life and that she had strong family
    support.

[25]

The fresh evidence suggests that the appellant has
    continued to work full-time at the same hotel since she was originally
    sentenced in November 2017. She has volunteered at a number of places that have
    provided strong letters of reference. She is also involved in her religious
    community and remains supported by her family.

[26]

The appellant committed a serious crime. But the
    appellant has shown great promise on her path to rehabilitation. Having regard
    to all of the circumstances as they exist today, a fit sentence in this case is
    one that will contribute to maintaining that path. At the same time, the
    seriousness of her crime, the breach of trust and the victim impact cannot be
    ignored. In our view, in light of the appellants current circumstances and
    having regard to all of the relevant sentencing principles, the shortest
    sentence possible is a 90-day intermittent sentence.

[27]

Leave to appeal is granted, the appeal is allowed and the 9-month sentence is varied to a 90-day intermittent sentence to be served from 8:00 p.m. on Friday to 7:00 a.m. on Monday. The time already served by the appellant will be attributed to her intermittent sentence. The probation and restitution orders remain unchanged.

K. Feldman J.A.
Fairburn J.A.
I.V.B. Nordheimer J.A.


