Accused was convicted after trial of fraud. Accused operated a mortgage brokerage and started a private investment fund. More than 10 individuals lost all or part of their investments after investing in the accused’s fund. In reality, no investments were made over a 2-year period. Total amount lost was over $1 million. Crown sought sentence of 5 years’ jail; defence sought CSO of 2 years less a day plus 3 years probation.
Held: 4.5 years jail imposed.
While a CSO was technically available at the time of the offence, a CSO would be inconsistent with principles of denunciation and deterrence. Aggravating factors included breach of trust, motivation of personal gain, size and duration of fraud, and aspect of planning. Mitigating was the accused’s remorse, community support and lack of prior record. Restitution order with only “speculative prospect of being satisfied does not justify a reduction in the custodial portion of the sentence”: Chamczuk, 2010 ABCA 380.
A. King – Defence Counsel