They cast lots for his clothes, his ID and impersonated him. They drugged and killed him as individuals with scallawag dna. R. v. Mavroudis, 2009 ONCJ 430 (CanLII). Click here.
R. v. Mavroudis, 2009 ONCJ 430 (CanLII)
Date:
2009-08-14
File number:
4911-998-09-06865-01; 4911-998-09-04960-00; 4911-998-09-06866-00
Citation:
R. v. Mavroudis, 2009 ONCJ 430 (CanLII), <http://canlii.ca/t/25pw9>, retrieved on 2019-11-12
COURT FILE No.: Newmarket 4911-998-09-06865-01;
4911-998-09-04960-00; 4911-998-09-06866-00
Citation: R. v. Mavroudis, 2009 ONCJ 430
ONTARIO COURT OF JUSTICE
BETWEEN:
|
HER MAJESTY THE QUEEN
|
— AND —
|
PETER MAVROUDIS
|
Before Justice P.N. Bourque
Heard on August 6, 2009
Reasons for Sentence released on August 14, 2009
Paul Tait .................................................................................................................... for the Crown
Fenton........................................................................................................................... for the Crown
Wine.................................................................................................................... for Peter Mavroudis
BOURQUE J.:
[1] The defendant has pled guilty to one count of conspiracy to obstruct justice and one count of impersonation.
[2] The defendant has also pled guilty to two counts of fraud over $5,000.
[3] I will deal first with the consideration of the fraud charges and then deal with the offences of conspiracy to obstruct justice and impersonation.
FRAUD OVER $5000
[4] The first count involves defrauding Bayshore Capital in an amount of $28,000.
[5] The second count involves defrauding Salvatore Crignano, in the amount of $98,000.
[6] The total of frauds is therefore $126,000. This is, by any yardstick, a considerable sum of money.
[7] There is no evidence that any of these funds have been repaid.
[8] On January 27, 2009, I sentenced the defendant to a term of imprisonment of four years, in addition to the pre-trial custody which he had already served, for three counts of fraud over $5,000 where the total amount of the combined frauds was $355,540. The sentence of four years was a joint submission.
[9] The offences before me today involve a virtual identical set of facts and they occurred in the same general time frame of the offences dealt with on January 27, 2009.
[10] Put simply, the defendant would contract to sell season tickets to popular sporting events (Toronto Maple Leafs Hockey and Toronto Raptors Basketball), obtain payment, and the tickets (or at least the majority of the tickets) would not be delivered. When the victims made inquiries, it was discovered that the funds they had paid had been largely misappropriated by the defendant.
[11] During the previous sentencing process, there was no indication that there were any further offences, and there was certainly no indication that if there were, then they would all be subsumed in the sentencing held at that time.
[12] At the time of the sentencing on January 27, 2009, I indicated that the range of sentence for those offences was four to six years, and I was prepared to accept the sentence of four years (being at the low end of the range) largely because it was a joint submission and did not contravene the test in R. v. Downey.
[13] The offender has a record which precedes the matters before the court today and on January 27, 2009. He was convicted in 1997, and again in 2000, for another series of frauds where the loss was over $500,000. The defendant advises that he has repaid some $398,000 of the restitution ordered in 1997 (there does not appear to be any restitution ordered in 2000). The Crown cannot confirm or deny that those amounts of restitution have been paid.
CROWN POSITION
[14] The Crown seeks a sentence of one year in total for the two fraud offences.
DEFENCE POSITION
[15] The defence does not deny that some period of consecutive incarceration may be required, but feels that the defendant should be given some credit (from six months to a year) for the fact that these charges were not before the court in January 2009, and the defendant has served an extra six months in Provincial detention centers.
LAW
[16] In the previous sentencing I set out what I felt was the appropriate legal framework for a sentencing for a significant fraud conviction:
[17] In R. v. Savard 1996 CanLII 5703 (QC C.A.), (1996), 109 C.C.C. (3d) 471 (Que.C.A.) at 474, the court set out a useful framework respecting sentencing in a fraud case:
…These facts can be summarized as follows: (1) the nature and extent of the loss, (2) the degree of premeditation found, notably, in the planning and application of a system of fraud, (3) the accused’s actions after the commission of the offence, (4) the accused’[s] previous convictions, (5) the personal benefits generated by the commission of the offences, (6) the authority and trust existing in the relationship between the accused and the victim, as well as (7) the motivation underlying the commission of the offences.
[18] As I have noted above, the factors in this case, as measured against the scale of liability in the Savard case, would mitigate towards a harsher sentence for the defendant.
[19] Justice Hill of the Superior Court in R. v. Downey, 2003 CanLII 18329 (ON S.C.), reviewed many cases dealing with significant frauds committed by recidivists. In a fraud on several unsophisticated individuals, by a repeat offender, where the total amount taken was approximately $300,000, the court stated:
[69] A severe sentence is necessary to effect proportionality to the gravity of the fraud crimes and to recognize the significant moral blameworthiness attaching to the offender’s dishonest conduct and its consequences. The crimes are reprehensible and the offender has proven herself to be incorrigible. Specific deterrence and protection of the public are paramount concerns in this offender’s circumstances.
[20] With regard to the issue as to whether the sentences that I must impose today should be concurrent to the sentencing from January 29, 2009, I note some comments from Ruby in “Sentencing” (Seventh Edition) where he states at paragraph 14.12:
Ultimately, the tests are very flexible, and it becomes a fact specific inquiry whether the connection between two offences is sufficiently or insufficiently close to merit either consecutive or concurrent sentences.
[21] It is my opinion that even if the sentence today is consecutive to the sentencing on January 27th, I believe that with regard to the combined sentences I should be mindful of the principle of totality for the following reasons namely:
• The events while they have separate victims, are similar in action
• The events while separate in time, do occur within the same two-year span
• The charges today had occurred when the matter came up for sentencing on January 27th, but the charges had not been laid. An investigation of the charges had probably commenced, however.
[22] Counsel has also pointed out that if all of these matters had been before the court for sentencing on January27, 2009, and I had given a total sentence of five years, then the defendant will have been on his way to the selection process (he wished to serve his sentence in British Columbia) and not have spent the last six months between the Don and Lindsay detention facilities. It is a unique argument and I can find no precedent or similar fact situation. I certainly do not think that there is any authority for the proposition that I should give credit with a rigid formula (as is the case with pre-trial custody).
[23] I agree with the general submission in that in assessing the overall fairness of the sentence today (when I consider the other two charges) I can give this issue some consideration.
[24] I believe that the total range of sentence for fraud offences of this type is in the range from four to six years.
[25] I believe that a total sentence, including all the counts of fraud (those from January 2009 and those before the court today), is five years.
[26] It would therefore be appropriate to impose a further period of incarceration of one year to be served consecutively to the offences for which the defendant is already serving a period of incarceration.
[27] My final sentence will await my review of the other two charges that he has pleaded to today.
CONSPIRACY TO OBSTRUCT JUSTICE AND IMPERSONATION
[28] These two matters arise out of the fact that after the defendant was charged with the offences, which I dealt with by way of a guilty plea on January 27, 2009, he left the jurisdiction and went out to British Columbia.
[29] The facts disclose that he was assisted in his flight by an Ontario Provincial Police Sergeant (Rutigliano), who provided him with the information necessary to undertake his flight and the details of the person whom he impersonated in order to maintain his status in British Columbia as an automobile salesman and above suspicion. An agreed statement of facts was filed (Exhibit #2) and some schedules including transcripts of phone calls with the co-conspirator Rutigliano, were also filed. The defendant took the unusual step of taking the witness stand to “under oath” formally agree to the facts.
[30] The defendant was clearly aware that there was a Canada wide warrant out for his arrest and he was taking steps, and conspiring with Rutigliano to avoid capture and he was seeking from Rutigliano further items of identification so he could continue to avoid capture.
[31] I am informed that the defendant has been cooperating in the further investigation of the co-conspirator, and his taking of the witness stand will be a further step in his cooperation in that regard.
[32] From the facts, I do not know what is the motivation of the co-conspirator, Rutigliano. I am told by the Crown that the defendant Mavroudis did not corruptly induce the police officer to assist him. The motivation of the defendant Mavroudis, as disclosed by the agreed statement of facts, was that he felt threatened by some of the victims of his frauds. The defence describes his delict in this matter as more of a more serious “failure to appear charge”, s. 145(3) of the Criminal Code.
LAW
Consipracy 465(1)(c)
(c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (a) or (b) is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction be liable.
Obstructing Justice 139(2)
(2) Every one who wilfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
[33] The maximum term of imprisonment is therefore 10 years for the offence as charged.
Impersonation 403
403. Every one who fraudulently personates any person, living or dead,
(a) with intent to gain advantage for himself or another person,
(b) with intent to obtain any property or an interest in any property, or
(c) with intent to cause disadvantage to the person whom he personates or another person,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction.
[34] The maximum sentence for this offence is also 10 years.
CROWN POSITION
[35] The Crown seeks a sentence of two years custody for the conspiracy to obstruct justice charge and one year custody for the impersonation charge, with sentences to be concurrent to each other but consecutive to any other sentences of the court for any other offences being served or being imposed today.
[36] The Crown has cited several cases for my consideration. With a wide variety of factual situations the courts imposed sentences of between five years (for a defendant who corruptly affected the deliberations of a juror) to 18 months (for the juror who was corrupted), to four and half years for a lawyer who had obstructed justice.
[37] In two of the three cases, the defendants were under a sworn duty to uphold the law (a juror and a lawyer). In the other case, the person who corrupted the juror, obtained an acquittal in a case of homicide as a result of his corrupt dealings with the juror.
[38] The Crown admits candidly that the culpability of the co-conspirator Rutigliano, is greater because of his position as a police officer. Rutigliano has not been found guilty of any offence as yet and therefore has not been sentenced for any of these allegations.
DEFENCE POSITION
[39] The defence position is that the role of the defendant Mavroudis cannot be compared to someone who is sworn to uphold justice (like the co-conspirator) and his actions are more akin to a person who is found guilty of a “failure to appear”, and thus should attract a sentence of from three to six months.
SENTENCES FOR CONSPIRACY AND IMPERSONATION
[40] I think that the imposition of a sentence of one to two years in total for these offences is an appropriate range.
TOTALITY
[41] I must look at all of the offences today and apply the principle of totality, notwithstanding that they are not arising from the same fact situation and are quite distinct and separate offences. The fraud offences have some similarities and the obstruct and impersonation offences also share some similarities.
[42] As stated by Ruby in “Sentencing” (Seventh Edition) at 2.54:
The totality principle is a particular application of the general principle of proportionality. It requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. The totality principle requires an assessment of the total impact of the sentence being imposed in relation to the seriousness of the offender’s conduct. As the English Court of Appeal said in Boskei: “when consecutive sentences are imposed the final duty of the sentencer is to make sure that the totality of the consecutive sentences is not excessive.”
[43] I take into account the serious criminal record of the defendant for frauds involving considerable amounts of money.
[44] I take into account the very serious nature of impersonation and obstruction of justice, especially where it involves a corrupt police officer.
[45] I take into account that the defendant has recently been very cooperative, in the continuing investigation of the corrupt police officer.
[46] I take into account the many letters of recommendation filed on behalf of the defendant. It is clear that the defendant made a significant and positive impression on many people over the years, especially those involved in many levels of minor hockey.
[47] I take into account that if all of these matters had been dealt with at once there would be a global consideration and the defendant would probably have been selected for an appropriate federal penitentiary quicker and with less time in Provincial detention centres.
[48] I take into account that sentencing of a serious offender and arriving at the just sentence must balance interests of fairness to the offender and societies need for appropriate denunciation and deterrence.
SENTENCE
[49] Total sentence of two and a half years.
(1) August 30, 2007 – defraud Bayshore Capital Incorporated of monies over $5,000 – 6 months.
(2) August 10, 2006 – defraud Salvatore Crignano over $5,000 – 6 months.
(3) Between September 1, 2007 and December 8, 2008 conspire with Michael Rutigliano to obstruct justice, s. 465(1) of the Criminal Code – 1 year.
(4) Between September 1, 2007 and December 8, 2008 – did impersonate Mindaugas Pareigis with intent to gain advantage, s. 403(a) of the Criminal Code – 6 months.
[50] All sentences shall be served consecutively one to the other, and to any other previous sentence.
RESTITUTION ORDERS
(1) The defendant will pay to the clerk of the court to the credit of Bayshore Capital Incorporated the sum of $28,000.
(2) The defendant will pay to the clerk of the court to the credit of Salvatore Crignano the sum of $98,000.
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