R. v. Upton

R. v. Upton

The court sentenced the defendant to a global sentence of three years’ imprisonment to be served consecutively to the sentence he was then serving because the offences constituted a planned, prolonged, predatory cross‑border advance fee loan scheme with many vulnerable victims, significant aggravating factors and no mitigating factors; parity with co‑accused did not justify a lesser sentence; breach of trust and police resource expenditure were not treated as standalone aggravators; the court ordered stand‑alone restitution to ten located victims totaling $7,576.68 CAD.

Citation
2008 NSSC 360
Parties
Crown: Her Majesty the Queen; Defendant: David Anthony Upton; Co Accused: Paul Upton; Co Accused: Trevor Myers; Co Accused (deceased): Nelson Higginbotham
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
20 November 2008
Procedural Posture
Criminal / Sentencing (post‑conviction)
Outcome
Defendant sentenced to a global term of 3 years incarceration (federal) consecutive to time presently serving; concurrent six‑month sentences on the named complainant counts concurrent to count 1; stand‑alone restitution orders made.
Legal Topics
Fraud, Advance Fee Loan Scheme, Sentencing, Restitution, Aggravating Factors, Parity
Source Language
English
Criminal Law Fraud Advance Fee Loan Scheme Sentencing Restitution Aggravating Factors Parity

Case Brief

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Parties

Her Majesty the Queen

Crown

David Anthony Upton

Defendant

Paul Upton

Co Accused

Trevor Myers

Co Accused

Nelson Higginbotham

Co Accused (deceased)

Procedural Posture

Criminal / Sentencing (post‑conviction)

Legal Issues

  1. 1 Appropriate sentence for large‑scale advance fee fraud and attempted fraud
  2. 2 Whether restitution orders should be made and in what amount
  3. 3 Whether breach of trust or use of police resources are aggravating factors

Ratio Decidendi

The court sentenced the defendant to a global sentence of three years’ imprisonment to be served consecutively to the sentence he was then serving because the offences constituted a planned, prolonged, predatory cross‑border advance fee loan scheme with many vulnerable victims, significant aggravating factors and no mitigating factors; parity with co‑accused did not justify a lesser sentence; breach of trust and police resource expenditure were not treated as standalone aggravators; the court ordered stand‑alone restitution to ten located victims totaling $7,576.68 CAD.

Court Disposition

Defendant sentenced to a global term of 3 years incarceration (federal) consecutive to time presently serving; concurrent six‑month sentences on the named complainant counts concurrent to count 1; stand‑alone restitution orders made.

Orders

  • Global sentence of 3 years imprisonment to be served consecutive to time defendant was then serving
  • On counts relating to named complainants (counts 3,4,5,7,10,11,12,13,14,15,18,19,20,21,22,23,24,25,26,27,28,29,30,31,32,33,34,35,36,39,40,41,42,43,44,45,46,47,48,49,50,51,52,53,54,55): six months incarceration each, concurrent to each other and concurrent to count 1