



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wa, 2015 ONCA 117

DATE: 20150220

DOCKET: C57971

Gillese, Watt and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matthew Joseph Wa a.k.a. Kaamin Ming Wa

Appellant

Melanie Webb, for the appellant

Alex Hrybinsky, for the respondent

Heard: February 18, 2015

On appeal from the sentence imposed on August 28, 2006 by
    Justice William B. Horkins of the Ontario Court of Justice.

Gillese J.A.:

[1]

Matthew Wa (the appellant) worked as a senior property accountant for
    the Salvation Army.  His responsibilities included reviewing invoices received
    by the Salvation Army in relation to ongoing building projects to insure that
    the invoices were proper and ought to be paid.

[2]

Between 2003 and 2005, the appellant defrauded the Salvation Army of
    over $2.3 million.  He did so by creating fictitious invoices in the names of
    two separate companies in relation to the Salvation Armys ongoing building
    projects.  After processing the invoices and forwarding them for payment, he
    intercepted the cheques generated as payment and deposited them into the bank
    accounts of the companies that he had created.

[3]

Mr. Wa admitted the fraud and cooperated with investigators, who recovered
    about $1 million.  He was very vague as to what had happened to the remaining
    $1.3 million.

[4]

On August 28, 2006, the appellant entered a guilty plea to the charge of
    fraud over $5,000 and was sentenced immediately thereafter.  The sentencing
    judge accepted counsels joint submission and sentenced the appellant to two
    years imprisonment and imposed two restitution orders totalling approximately $1.3
    million (the Orders).

[5]

At the time of sentencing, the appellant had two prior convictions, one
    for uttering counterfeit money and the other for attempted fraud under $5,000.

[6]

The appellant has now served his prison sentence.  He seeks leave to
    appeal sentence and asks that the Orders be set aside or reduced because he
    cannot afford to pay them.  Although he has obtained employment in the
    accounting field since his release from prison, he says that he cannot advance
    his career because of his criminal record.  He says his inability to pay the
    Orders is a barrier to his application for a pardon (what is now termed a
    record suspension).

[7]

The appellant also seeks to introduce fresh evidence to show that at the
    time of sentencing, he simply accepted the imposition of the Orders because their
    amounts were accurate.

The Issues

[8]

This sentence appeal raises two issues:

1.

Should the fresh evidence be admitted?

2.

Should the restitution orders be set aside?

The Fresh Evidence

[9]

It is not apparent that the proposed fresh evidence meets the test for
    admission because, among other things, it is difficult to see how it meets the
    due diligence requirement.  In any event, however, as I explain below, its
    admission would not affect the result of the sentence appeal.

The Restitution Orders

[10]

I
    see no basis on which to interfere with the Orders.

[11]

One
    of the primary purposes of restitution orders is to deprive criminals of the
    fruits of their crime. A restitution order is part of the total sentence
    imposed and is entitled to deference.  Absent an error in principle, failure to
    consider a relevant factor, or an overemphasis of the appropriate factors, an
    appellate court shall intervene only if the sentence is demonstrably unfit.  See
R. v. Eizenga
, 2011 ONCA 113, 270 C.C.C. (3d) 168, at para. 91.

[12]

When
    determining whether to impose a restitution order, the sentencing judge must
    consider the offenders ability to pay. However, where the circumstances of the
    offence are particularly egregious, such as where a breach of trust is involved,
    a restitution order may be imposed even if there does not appear to be any
    likelihood of repayment:
R. v. Castro
, 2010 ONCA 718, 102 O.R. (3d)
    609, at para. 28.  As the sentencing judge found, the fraud in this case was a
    clear breach of trust, which was particularly odious given the charitable
    nature of the work performed by the victim.

[13]

Moreover,
    when assessing ability to pay a restitution order, the court may consider what
    disclosure has been made respecting where the money is or has gone.  In fraud
    cases, bald assertions by offenders that they have no ability to make
    restitution are entitled to little weight when the offender has not explained
    where all of the stolen assets have gone:
Castro
, at para. 34.  This
    consideration applies in the present case.  Despite being an accountant, the
    appellant has been vague about what happened to over $1 million of the stolen
    money, and he has failed to provide detailed records or an explanation of the
    moneys use.

[14]

Further,
    I attach little weight to the appellants claim that he did not appreciate that
    the Orders would result in him being excluded from the accounting field.  The
    sentencing judge expressly referred to the appellants reduced career prospects
    as a mitigating factor.  That factor was also expressly referred to by defence
    counsel and agreed to by the Crown at the time of sentencing.  Furthermore, and
    in any event, the appellant has been able to obtain employment in the
    accounting field since his release from prison.

[15]

The
    fresh evidence does not show that this is an appropriate case for vacating the
    Orders.  In the eight years since sentencing, the appellant has made a single
    payment on the Orders: $500 on April 1, 2014, several months after being given
    an extension of time to file this appeal.  During that same time, he has made
    large discretionary purchases, including the purchase of two new vehicles, almost
    $1,000 a year for dog grooming and about $1,500 a year for cleaning services. 
    He has also saved $50,000 in RRSPs, although he recently chose to redeem
    approximately $20,000 of that amount so that he would have cash on hand in the
    event of an emergency, now that his wife is on maternity leave.  The appellant
    acknowledged that in making his investments in RRSPs, he had chosen to allocate
    his income to personal expenses rather than towards the payment of the Orders.

[16]

The
    money that the appellant has spent on his discretionary purchases could have
    been put towards restitution.  Moreover, as he admits, he could have made
    payments on the Orders despite those discretionary expenditures but he has
    chosen not to.  Consequently, I put little stock in the appellants assertion
    that if he obtained a record suspension and better employment, he might be
    enabled to make a significant contribution towards restitution.

[17]

The
    appellant has benefitted from the Orders, as they factored into his relatively
    lenient custodial sentence. I see no basis on which to release him from those
    Orders, particularly when he has made little real effort to repay them, despite
    having had the time and money to do so and having given no credible explanation
    for where the money went.

DISPOSITION

[18]

Accordingly,
    I would grant leave to appeal sentence but I would dismiss the sentence appeal.

Released: February 20, 2015 (E.E.G.)

E.E. Gillese
    J.A.

I agree. David Watt J.A.

I agree. D.M. Brown J.A.


