R. v. Chamczuk (E.M.), 2010 ABCA 380

• Judge: Berger, Costigan and Slatter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: December 07, 2010
• Citations: 2010 ABCA 380;(2010), 499 A.R. 212

R. v. Chamczuk (E.M.) (2010), 499 A.R. 212; 514 W.A.C. 212 (CA)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. DE.025

Her Majesty the Queen (appellant) v. Eugene Michael Chamczuk (respondent)

(1003-0201-A; 2010 ABCA 380)

Indexed As: R. v. Chamczuk (E.M.)

Alberta Court of Appeal

Berger, Costigan and Slatter, JJ.A.

December 9, 2010.

Summary:

The Crown appealed the sentence of three years' imprisonment imposed on the accused after his guilty plea to eight counts arising from a multimillion dollar mortgage fraud.

The Alberta Court of Appeal allowed the appeal against the length of the sentence, and sentenced the accused to four years' imprisonment. The other aspects of the sentence were unchanged.

Criminal Law - Topic 5792

Punishments (sentence) - Restitution - When appropriate - The Alberta Court of Appeal stated that "[w]hile restitution orders are part of the sentencing process, they are not intended to be punitive. Depending on the matrix of sentencing considerations in a given case, a restitution order may or may not be a proper consideration in setting the punitive parts of the sentence. The restitution order is intended to be restorative. If a mere restitution order was taken as invariably being mitigating, anomalous consequences could arise. The largest frauds, generating the largest losses, would generate the largest restitution orders, and thereby potentially entitle the accused to the largest mitigating credit. Thus, the worse the fraud, the lower the sentence. Further, there are many reasons why a restitution order might not be made, including an inability to pay. Thus, if the accused was impecunious, there would be no order for restitution, the accused would receive no credit, and a harsher sentence would be imposed. Impecunious accuseds would receive harsher sentences than those with assets. On the other hand, if sought or acceded to by an accused, a restitution order may be indicative of remorse and properly be taken into account in mitigation ... [T]he making of a restitution order involves a separate inquiry and should not automatically be treated as a mitigating factor in sentencing in every case" - See paragraph 14.

Criminal Law - Topic 5837

Sentencing - Considerations on imposing sentence - Mitigating circumstances - [See Criminal Law - Topic 5859 ].

Criminal Law - Topic 5859

Sentence - Fraud - The accused and others defrauded a number of mortgage companies and mortgage insurers - The eight counts to which the accused pled guilty (on the eve of trial) arose from 32 transactions that took place between 2000 and 2002 - The face value of the fraudulent transactions was between $3.5 and $3.9 million - A judge sentenced the accused to three years' imprisonment on all counts, to be served concurrently - He indicated that, absent the mitigating features of the guilty plea and the restitution order that he made, totalling approximately $1.26 million, a fit sentence would have been four years' imprisonment - The Crown appealed - The Alberta Court of Appeal allowed the appeal against the length of the sentence, and sentenced the accused to four years' imprisonment - The judge's treatment of the restitution order as a mitigating factor was an error of principle - While the four year sentence might be at the low end of what was acceptable considering all of the aggravating factors, it was not so low as to be demonstrably unfit - The further reduction of that sentence, in part because of the restitution order was, however, unwarranted - The appropriate degree of appellate intervention was therefore to impose the four year sentence originally determined by the trial judge to be the fit sentence - See paragraph 15.

Cases Noticed:

R. v. Steinhubl (J.K.) (2010), 492 A.R. 1; 2010 ABQB 602, refd to. [para. 3].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 8].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 9].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 9].

R. v. Craig (J.A.), [2009] 1 S.C.R. 762; 388 N.R. 254; 271 B.C.A.C. 1; 458 W.A.C. 1; 2009 SCC 23, refd to. [para. 14].

Counsel:

M.J. McGuire, for the appellant;

D.J. Song, for the respondent.

This sentence appeal was heard on December 7, 2010, by Berger, Costigan and Slatter, JJ.A., of the Alberta Court of Appeal. The following Memorandum of Judgment of the Court of Appeal was filed at Edmonton, Alberta, on December 9, 2010.