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The court imposed a custodial sentence for a long-running fraud and breach of trust scheme against the Ministry and vulnerable youth in care, rejecting a conditional sentence.
Despite seriousness of exploiting an elderly, incapacitated victim and the availability of custodial sentences, the court found that factors including defendants' advanced ages, health, lack of criminal records, demonstrated remorse, agreement to restitution, and likelihood of remediation justified suspending sentence and imposing three-year probation with strict conditions and restitution orders, which is proportionate and consistent with sentencing principles and parity.
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The court held that restitution based on replacement value was properly quantified at market value because the stolen refined gold pucks were over 99% pure so replacement required market purchase, and that the fine in lieu of forfeiture must be set at the actual proceeds received ($130,206.19) rather than the market value; the default custodial term and time to pay were not disturbed.
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Although the sentencing judge erred in failing to mention or consider the appellant's offer of restitution, that error did not affect the sentence; given the scale, planning, duration, multiple breaches of trust and need for general deterrence and denunciation in large frauds, a 12-month custodial sentence was fit and a conditional sentence inappropriate.
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Appeal from a 14-month sentence for theft of cocaine from an RCMP exhibit locker dismissed; the court held any error about conditional sentence criteria did not make the sentence unfit.
Because the offence attracted a sentence under two years and the court was satisfied that a conditional sentence would not endanger the community and would be consistent with ss.718–718.2 (including denunciation and general deterrence), the judge imposed an 18 month sentence to be served in the community with specific conditions (1/3 house arrest, 1/3 curfew, 1/3 supervision and 120 hours community service) rather than incarceration, applying individualized sentencing and the mitigation of the offender's vulnerability and demonstrated rehabilitation.
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The Court adopted the trial judge's reasoning and held the appellants' claims for expropriation and breach of trust should be struck for failing to disclose a viable cause of action, and declined to disturb the judge's conclusion that the mismanagement claims should not be struck; accordingly the appeal and cross‑appeal were dismissed with costs.
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Sentence for a long-running employee theft case: the accused received 4.5 years in jail, restitution of $2,319,844.87, and a $100 victim surcharge.
The Court of Appeal dismissed a sentence appeal by a border services officer convicted of sexual assault and breach of trust, affirming two years less a day plus probation.
The judge accepted the expert diagnosis of pathological gambling as a mitigating factor that reduced the appropriate custodial range below the Crown's 12 months, but held that gambling did not eliminate moral culpability given continued conduct and the serious aggravating factor of abusing public office; therefore a custodial sentence that carries the stigma of imprisonment was necessary, resulting in 9 months custody plus 18 months probation with mandatory counselling and a s.738 restitution order for $60,995.
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