R. v. Upton (D.A.), (2008) 271 N.S.R.(2d) 210 (SC)

• Judge: Beveridge, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 20, 2008
• Jurisdiction: Nova Scotia
• Citations: (2008), 271 N.S.R.(2d) 210 (SC);2008 NSSC 360

R. v. Upton (D.A.) (2008), 271 N.S.R.(2d) 210 (SC);

    867 A.P.R. 210

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. DE.007

Her Majesty the Queen v. David Anthony Upton

(CRH287738; 2008 NSSC 360)

Indexed As: R. v. Upton (D.A.)

Nova Scotia Supreme Court

Beveridge, J.

November 20, 2008.

Summary:

The accused was convicted by a jury of two counts of attempted fraud of the public and 46 counts of fraud with respect to named complainants, arising from the operation of a fraudulent advanced fee loan telephone scheme.

The Nova Scotia Supreme Court sentenced the accused to a global sentence of three years' incarceration in a federal institution.

Criminal Law - Topic 5849.6

Sentencing - Considerations on imposing sentence - Prohibited or improper considerations - The accused was convicted of two counts of attempted fraud of the public and 46 counts of fraud with respect to named complainants ($45,353.20), arising from the operation of a fraudulent advanced fee loan telephone scheme - The Nova Scotia Supreme Court rejected the Crown's contention that the fact that this case involved an extensive police investigation involving a tremendous amount of police resources was to be considered an aggravating factor on sentence - See paragraphs 86 and 87.

Criminal Law - Topic 5859

Sentence - Fraud - The 35 year old accused was convicted of two counts of attempted fraud of the public and 46 counts of fraud with respect to named complainants ($45,353.20), arising from the operation of a fraudulent advanced fee loan telephone scheme - The accused placed ads in United States publications inviting those with bad credit to apply for a loan - A retainer was requested to process the loan and provide insurance - The accused would then keep the retainer and the borrower would receive nothing - No mitigating factors - Planned enterprise covering several months - Accused was one of ring leaders - Targeted vulnerable people - The accused had an unremarkable upbringing - Had a 13 year common law relationship and two children - Now separated - No alcohol or drug issues - Earned Grade 12 through GED equivalency - Described himself as a self-taught mechanic - Maintained his innocence - Accepted no responsibility - Prior record, including theft, fraud, robbery - Gap of 11 years before his involvement with the advanced fee loan scheme - The Nova Scotia Supreme Court imposed a three year global sentence (i.e., three years in a federal institution on the count of attempted fraud and six months on each of the 46 counts of fraud, consecutive to each other and to the three years on the fraud count) - See paragraphs 1 to 109.

Cases Noticed:

R. v. Nichols (R.) (2001), 148 O.A.C. 344 (C.A.), refd to. [para. 63].

R. v. Goertzen (D.K.) et al. (2004), 207 B.C.A.C. 165; 341 W.A.C. 165 (C.A.), refd to. [para. 67].

R. v. Miller (C.D.) (2005), 384 A.R. 356; 367 W.A.C. 356; 2005 ABCA 411, refd to. [para. 68].

R. v. Deutsch (M.) (2005), 205 O.A.C. 272 (C.A.), refd to. [para. 69].

R. v. Drakes (A.) et al., [2005] O.T.C. 577 (Sup. Ct.), refd to. [para. 71].

R. v. Chahine (M.) (2006), 401 A.R. 6; 391 W.A.C. 6; 2006 ABCA 247, refd to. [para. 73].

R. v. Faulkner (E.) (2007), 315 N.B.R.(2d) 198; 815 A.P.R. 198; 2007 NBCA 46, refd to. [para. 74].

R. v. Gallagher (P.D.) (2008), 238 O.A.C. 153; 2008 ONCA 252, refd to. [para. 75].

R. v. Hunter, 2008 CarswellOnt 3073 (C.J.), refd to. [para. 76].

R. v. Bhander (R.S.) (2007), 418 A.R. 111; 2007 ABPC 142, refd to. [para. 86].

R. v. Chisholm (1985), 67 N.S.R.(2d) 66; 155 A.P.R. 66 (C.A.), refd to. [para. 99].

R. v. Fitzgibbon, [1990] 1 S.C.R. 1005; 107 N.R. 281; 40 O.A.C. 81, refd to. [para. 105].

R. v. Yates (A.) (2002), 174 B.C.A.C. 119; 286 W.A.C. 119 (C.A.), refd to. [para. 106].

R. v. Biegus (J.S.) (1999), 127 O.A.C. 239 (C.A.), refd to. [para. 107].

Authors and Works Noticed:

Manson, Allan, The Law of Sentencing (2001), p. 93 [para. 101].

Counsel:

Andrew Mcdonald and Mark Heerema, for the Crown;

Luke A. Craggs, for the defendant.

This matter was heard and decided on November 20, 2008, in Halifax, Nova Scotia, before Beveridge, J., of the Nova Scotia Supreme Court. Written release of this decision was on December 1, 2008.