R. v. Penney (B.D.), (2008) 462 A.R. 314 (PC)

• Judge: Allen, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: November 21, 2008
• Citations: (2008), 462 A.R. 314 (PC);2008 ABPC 339

R. v. Penney (B.D.) (2008), 462 A.R. 314 (PC)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. DE.118

Her Majesty the Queen v. Brian Desmond Penney (080183239P1; 2008 ABPC 339)

Indexed As: R. v. Penney (B.D.)

Alberta Provincial Court

Allen, P.C.J.

December 5, 2008.

Summary:

The accused pled guilty to defrauding 20 individuals of $1.1 million over a six year period.

The Alberta Provincial Court sentenced the accused to six years' imprisonment on each count to be served concurrently. The court gave the accused credit of three months for 40 days spent in remand and four months for the seven and one half months he spent on bail with restrictive conditions. Accordingly, the time the accused had left to serve was five years and five months.

Criminal Law - Topic 5831

Sentencing - Considerations on imposing sentence - Retribution or punishment - [See Criminal Law - Topic 5859 ].

Criminal Law - Topic 5831.1

Sentencing - Considerations on imposing sentence - Offences involving breach of trust - [See Criminal Law - Topic 5859 ].

Criminal Law - Topic 5833

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

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The accused pled guilty to defrauding 20 individuals of $1.1 million over a six year period - The accused was on bail for seven and one half months - During that period he was subjected to 18 bail conditions - The most restrictive bail condition dealt with house arrest, which was subject to a number of exceptions - The accused asserted that the time spent on restrictive bail conditions should be credited to reduce his sentence - The conditions were later modified to be less restrictive - The Alberta Provincial Court held that the impact on the accused's liberty toward the end of his bail was not much different than many normally employed people - The court gave him four months' credit for the time while on bail - See paragraphs 77 to 93.

Criminal Law - Topic 5848.7

Sentencing - Considerations on imposing sentence - Denunciation or repudiation of conduct - [See Criminal Law - Topic 5859 ].

Criminal Law - Topic 5859

Sentence - Fraud - The 38 year old accused pled guilty to defrauding 20 individuals of $1.1 million over a six year period - The accused used a number of deceits to obtain money from his trusting victims, usually telling the victims that he had a holding company and needed money because his wife was withholding assets in a divorce proceeding - He also used other lies such as offering younger victims employment - The length of the association with the victims varied - A few victims gave over the money and had little contact with the accused - Others were on the hook for months or years - The longer the relationship the more likely he was to subject them to a series of falsehoods to obtain money from them or put them off when they asked for some money in return of their investment - The accused's criminal record included two convictions of fraud and he was on probation when he committed these offences - The Alberta Provincial Court sentenced the accused to six years' imprisonment on each count to be served concurrently - The accused took advantage of naive and trusting individuals in a ruthless scheme to extract money from them for his own personal enjoyment - The accused was in a position of trust related to the victims - The mitigating circumstances were far outweighed by the aggravating circumstances - Deterrence and denunciation were the primary sentencing objectives in this circumstance - The accused had not been deterred by his previous sentence, or been rehabilitated by supervision by a probation officer; rather, he continued his fraudulent activities during the present offences - Others who might be tempted to indulge in like activity must be deterred so that they did not believe the possible monetary gain was worth the risk - In addition, the courts had to denounce activity such as this which had devastating effects on trusting individuals - See paragraphs 1 to 74.

Cases Noticed:

R. v. Sandercock, [1986] 1 W.W.R. 291; 62 A.R. 382 (C.A.), refd to. [para. 44].

R. v. Ambrose (2000), 271 A.R. 164; 234 W.A.C. 164 (C.A.), refd to. [para. 50].

R. v. Bracegirdle (S.) (2004), 354 A.R. 313; 329 W.A.C. 313 (C.A.), refd to. [para. 50].

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. 51].

R. v. Coulson (D.) (2008), 445 A.R. 226; 2008 ABPC 144, refd to. [para. 55].

R. v. Kirk (A.G.) (2004), 189 O.A.C. 314; 188 C.C.C.(3d) 329 (C.A.), refd to. [para. 58].

R. v. Castaneda, 2008 ONCJ 69, refd to. [para. 60].

R. v. Wyffels (M.) and Oliphant (L.L.) (1995), 178 A.R. 132; 110 W.A.C. 132 (C.A.), refd to. [para. 62].

R. v. McKinnon (V.A.) (2005), 361 A.R. 271; 339 W.A.C. 271; 192 C.C.C.(3d) 494 (C.A.), refd to. [para. 62].

R. v. McTighe (J.) (2005), 361 A.R. 315; 339 W.A.C. 315; 193 C.C.C.(3d) 522 (C.A.), refd to. [para. 62].

R. v. Fulcher (J.J.) (2007), 422 A.R. 329; 415 W.A.C. 329; 228 C.C.C.(3d) 105 (C.A.), refd to. [para. 62].

R. v. Shead (R.G.S.) (1997), 115 Man.R.(2d) 215; 139 W.A.C. 215 (C.A.), refd to. [para. 66].

R. v. Kerntopf (W.B.) (1999), 232 A.R. 154; 195 W.A.C. 154 (C.A.), refd to. [para. 66].

R. v. Wuckert (J.D.) (2000), 145 Man.R.(2d) 181; 218 W.A.C. 181 (C.A.), refd to. [para. 66].

R. v. Heiligsetzer (D.E.), 2005 CarswellAlta 2023 (Prov. Ct.), affd. [2005] A.R. Uned. 656; 2006 ABCA 2 (C.A.), refd to. [para. 66].

R. v. Charbonneau (2008), 57 C.R.(6th) 324 (Que.), refd to. [para. 66].

R. v. Wust (L.W.), [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236, refd to. [para. 76].

R. v. Hilderman (A.E.D.) et al. (2005), 371 A.R. 4; 354 W.A.C. 4; 199 C.C.C.(3d) 561 (C.A.), refd to. [para. 81].

R. v. Spencer (T.-A.) (2004), 188 O.A.C. 363; 186 C.C.C.(3d) 181 (C.A.), refd to. [para. 83].

R. v. Lau (W.T.) (2004), 357 A.R. 312; 334 W.A.C. 312; 193 C.C.C.(3d) 51 (C.A.), refd to. [para. 84].

R. v. Downes (C.) (2006), 208 O.A.C. 324; 205 C.C.C.(3d) 488 (C.A.), refd to. [para. 86].

R. v. Cuthbert (R.B.) (2007), 249 B.C.A.C. 60; 414 W.A.C. 60; 54 C.R.(6th) 99 (C.A.), refd to. [para. 89].

R. v. Ijam (G.) (2007), 228 O.A.C. 296; 226 C.C.C.(3d) 376 (C.A.), refd to. [para. 90].

Authors and Works Noticed:

Canadian Securities Administrators, Investor Education Committee, 2007 CSA Investor Study: Understanding the Social Impact of Investment Fraud, generally [para. 24].

Counsel:

J. Pickard, for the Crown;

Peter Royal, Q.C., for the accused.

This case was heard on November 21, 2008, by Allen, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on December 5, 2008.