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R. v. A.R. | Examples Of Favourable Verdicts

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Case Name:
R. v. Rambo

Between
Her Majesty the Queen, and
Alonzo Rambo and Felice Mambo

[2005] O.J. No. 3434

Ontario Court of Justice
Toronto, Ontario
M. Omatsu J.

Oral judgment: April 20, 2005.
(116 paras.)
Counsel:
Ms. E. Winocur Counsel for the Crown
T. Pain, Esq. Counsel for the Accused

M. OMATSU J. (orally):—
1 MS. WINOCUR: Good morning, Your Honour.
2 THE COURT: Good morning.
3 MS. WINOCUR: My name is Erin Winocur. I appear for the Provincial Crown. Your Honour, I’m here on the Rambo and Mambo matter. That matter is here — I have it marked for sentencing. I believe that the guilty plea has been entered. I don’t know that the facts have been read in. I’m mindful that you have other matters. Do you wish me to proceed at this time or not?
4 MR. PAIN: Good morning, Your Honour, it’s Pain, initial T., for the record, and both Ms. Mambo and Mr. Rambo are in the court. I can advise the Court that on the last date there was a plea entered — no facts read in at that point in time. The matter was adjourned for several months to allow Mr. Rambo to improve his position.
5 THE COURT: What was the date that the plea was entered?
6 MR. PAIN: It was in November.
7 MS. WINOCUR: November 18th.
8 THE COURT: November 18th?
9 MR. PAIN: Yes.
10 THE COURT: Okay. Did you want to proceed now?
11 MS. WINOCUR: I’m prepared to proceed now — just checking that the information has made it’s way in. This matter was traversed from another court. Yes, I’m prepared to proceed, Your Honour.
12 MR. PAIN: As am I, Your Honour.
13 THE COURT: Okay …
14 MS. WINOCUR: If I may be excused then, Your Honour, and then you’re going to do the PARs just after that, I understand.
15 THE COURT: Right, so, what time do you think you should come back? In an hour?
16 MS. WINOCUR: I’ll speak to counsel outside, yes, thank you.
17 COURT CLERK: Could I just inquire Madam Crown, did both of these, did both people plead?
18 THE COURT: No, I suspect only Mr. Rambo pled.
19 COURT CLERK: Thank you.
20 THE COURT: Did you want them both to plead?
21 MS. WINOCUR: No, my understanding was that only Mr. Rambo is pleading guilty.
22 MR. PAIN: Yes, Your Honour, Mr. Rambo has already pled guilty. My understanding is that at the end of this sentencing hearing the charge against Ms. Mambo will be withdrawn by the Crown. The facts have not as yet been read in.
23 THE COURT: Okay, and he was arraigned and entered a guilty plea on what date? Sorry.
24 MR. PAIN: Um …
25 MS. WINOCUR: November 18th.
26 MR. PAIN: Yes.
27 THE COURT: Thank you. I did not unfortunately bring my other bench book so I do not have that here. Did you want to proceed now?
28 MS. WINOCUR: If that’s agreeable to the Court, yes.
29 THE COURT: Is that all right with you?
30 MR. PAIN: I’m prepared, Your Honour.
31 MS. WINOCUR: The officer-in-charge is here, Your Honour. May he sit beside me?
32 THE COURT: I did receive your casebook and I did have an opportunity to read it.
33 MR. PAIN: Thank you, Your Honour.
34 THE COURT: Did you get a chance to look at the casebook?
35 MS. WINOCUR: Yes, my friend’s provided me with the casebook.
36 THE COURT: Okay. So, do you want to read in the facts?
37 MS. WINOCUR: Well, I think you need to hear the facts.
38 THE COURT: Okay.
39 MS. WINOCUR: On the 16th of November, Mr. Rambo applied for general welfare …
40 THE COURT: What year?
41 MS. WINOCUR: … 1992, from the Toronto Social Services of Family — he applied, he was — given the circumstances here of Mr. Rambo’s guilty plea I’m going to take the position that he was the primary applicant. His responsibilities regarding the declaration of income, assets, changes in living arrangements including OSAP income, or other circumstances were advised and understood and ongoing assistance was granted. On the 8th of September 1993, on the 13th of December 1993, on the 23rd of August 1994, the 29th of November 1994, the 21st of March 1995, the 22nd of June 1995, and the 16th of April 1996, Mr. Rambo completed present condition reports. No changes were reported. On the 2nd of October Mr. Rambo updated the application for assistance — no changes were reported. On the 10th of December 1996, on the 23rd of April 1997, Mr. Rambo completed a present condition report — again no changes were reported. On the 3rd of February 1998 there was an updated application for assistance — again no changes were reported. On the 16th of April 1998, the 2nd of September 1998, the 26th of January 1998, the 27th of April 1998, again Mr. Rambo completed present condition reports and no changes were reported. On the 31st of July 1999, the file was terminated. On the 29th of September 2000 an allegation was received and investigated that confirmed that Mr. Rambo had undeclared Student Assistance Program income during the benefit period. Mr. Rambo was subsequently arrested for the charge of fraud-over. The amount of overpayment is $30,000.00. And that’s the amount which the Crown alleges Mr. Rambo received in circumstances when he should not have and as a result of his fraudulent misrepresentations. Those are the allegations.
42 THE COURT: Thank you.
43 MR. PAIN: I’ve reviewed those facts with Mr. Rambo, Your Honour, and those are admitted as correct.
44 THE COURT: All right. Is that correct, sir, Mr. Rambo?
45 THE WITNESS: Yes.
46 THE COURT: Pardon me?
47 THE WITNESS: Yes.
48 THE COURT: Okay. There is a finding of guilt on the welfare fraud of $30,000.00. Is there a record alleged?
49 MS. WINOCUR: No, there’s not.
50 THE COURT: Okay, submissions please.
51 MS. WINOCUR: Your Honour, it’s the Crown’s position that this offense ought properly to carry a criminal record. It’s my understanding that there is $15,000.00 of restitution that my friend is able to pay up front — I think it’s in my friend’s trust account.
52 MR. PAIN: Yes, Your Honour, I can indicate I have $15,000.00 in trust which I’m prepared to give an undertaking to forward to the Treasurer for the City of Toronto, Inactive Overpayment Unit, towards restitution. Also, Mr. Rambo is prepared to pay the balance of the $15,000.00 owing, over the course of the probation period, if that assists my friend in her submissions …
53 MS. WINOCUR: Well, I think that the fact of restitution is an important factor in mitigation, and I invite you to consider it. It’s my submission that despite the restitution, and bearing in mind that it’s not complete restitution, I would ask you to impose a suspended sentence and period of probation for three years. It’s my understanding that the remaining $15,000.00 can be paid back in equal installments over the three-year period of probation. I indicated to my friend that if his client can increase the installments, the Crown would consider — would be prepared to join him with a shorter period of probation, but it’s my understanding that he needs the full time to make that; so I would ask that it be divided into equal monthly payments. It’s my understanding that my friend will be seeking a conditional discharge. I understand why that is in his client’s interest, and I don’t dispute that it’s in his client’s interest. My concern is that it’s not in the public interest. My submission simply is that these are funds intended for vulnerable members of the community. There’s always limited resources available for persons in need of welfare and in my respectful submission, if somebody’s taking more than they’re entitled to someone else is going with less. And in my respectful submission, that is a significant societal harm. I further ask you to consider that this is an ongoing type of offense. It involves multiple acts of dishonesty as opposed to perhaps an impulsive act or a one-time instance. This is something which went on for years. In my respectful submission that also speaks against a discharge. I also note that this type of offense in my respectful submission is such that it’s a large amount of money. Even with the restitution, it’s still $15,000.00 — a significant amount of money. And in those circumstances, I invite you to impose a suspended sentence and probation.
54 THE COURT: Thank you. Mr. Pain?
55 MR. PAIN: Yes, Your Honour, perhaps I can start with some background information about Mr. Rambo. I can indicate, Your Honour, he’s 37 years old. He’s married to the co-accused, Ms. Mambo. She’s 31. They have an eleven-year-old son. He came to Canada in 1990 as a landed immigrant, and Ms. Mambo followed him shortly thereafter in 1992. They currently both live in Scarborough at 123 Soup Spoon Road, Apartment 101. When Mr. Rambo first arrived he was supported by his brother. Though he had a B.Comm. from Bulgaria and was a trained accountant, he was not able to find any work in that field. He initially worked nights in a restaurant. He was eventually laid off from that job. His brother stopped supporting him and his wife. It was at that point that he and his wife applied for social assistance. They applied in late 1992; I believe they started receiving it in 1993. At that point, neither had work nor the likelihood of finding good work. Ms. Mambo took an ESL course for one month. Initially, while they were on welfare neither of them were studying. Mr. Rambo’s mother was living with them, making their financial strain even worse. Mr. Rambo couldn’t find any work, and Ms. Mambo was in no condition to work due to a difficult pregnancy. Both of them, determined to get off of welfare, decided to study. Mr. Rambo studied accounting, and Ms. Mambo studied microbiology at Centennial College. They had their first son in 1994. Despite the birth of their son, things got progressively worse for both of them. In 1995, Ms. Mambo’s father died, and shortly after that within the span of a month, both her mother and her brother passed away. Ms. Mambo started experiencing serious health problems. It was first thought that she had cancer but eventually she was diagnosed with a rare disease called achalasia cardia. This is a disease of the esophagus. It’s basically an absence of any muscular contractions in the esophagus, which make it difficult to eat. She lost 30 pounds within a month, and the situation got progressively worse. She couldn’t eat anything, and she tells me that she was vomiting 30 to 40 times a day at that point in her life. In October 1996 she had to have surgery to try to correct the disorder. Otherwise, she was told she would have died of malnutrition. She was put on a liquid diet after the operation, and my understanding is these cans of supplement were $2.25 each. They approached the welfare authorities about getting some compensation for that but they had a very difficult time getting any compensation for that. She couldn’t afford to buy the cans. She fell into a depression. During this time, Mr. Rambo tried to find some work. He couldn’t find anything. He had no job, he had no money, he had a new baby. His wife was violently ill. She could barely take care of the child. He did most of it; the feeding, the bathing, and the diaper changes. They decided to move to Scotland in 1996 because they both had some family there, and it was her doctor’s recommendation that they should move somewhere where they could get some family support. However after six months, Ms. Mambo being a permanent resident, didn’t want to lose that status, so they decided to move back to Canada. They …
56 THE COURT: So did they go to Scotland?
57 MR. PAIN: They did go to Scotland, but they came back after six months.
58 THE COURT: Okay.
59 MR. PAIN: Again they applied for Social Assistance. They got approval for Ontario Housing. They weren’t studying at this time. Mr. Rambo found a part-time job. He did declare the income from that job.
60 THE COURT: He did or did not?
61 MR. PAIN: He did. Ms. Mambo started working at Burger King to help alleviate her depression and also meet their expenses. Mr. Rambo decided not to declare that income. And from my conversations with him it’s my understanding that their justification for not declaring that income was they knew they were going to get off of welfare, and eventually they both voluntarily did quit welfare. Mr. Rambo started an accounting/bookkeeping/income tax business. In 2000, his wife Ms. Mambo got a job in the Hong Kong Bank of Canada in the business banking section. She’s now in the foreign exchange section of the bank. Mr. Rambo has expanded his business and opened — he had a money remittance business much like a Western Union. He had entered into an agreement with the Bulgaria Bank. So the way that business works, my understanding is if there are people here who have relatives in Bulgaria and they want to transfer money to them, they would go through Mr. Rambo’s service and the money would be transferred to the relatives in Bulgaria. This business had been going well for a while. Unfortunately, recently, the business experienced some difficulty because one of Mr. Rambo’s partners decided to take a large portion of the money out of the business without any authority to do so. As a result, Mr. Rambo and his wife had to sell their house to help pay off the business debts, and they also had to sell the business. This led Mr. Rambo to go into a depression, and I understand as recently as several months ago he attempted to take his life. Anyway, since that time, he’s currently maintaining the other aspects of his business. He does the bookkeeping and the corporate tax preparation and payroll accounting. He also works as a mortgage broker’s assistant. He tells me that he feels that he has a chance to make a real good go as a mortgage broker. He wants to apply for a mortgage broker’s license but with a conviction he will not be able to do that. His wife’s condition is being treated but she still has frequent bouts of vomiting. She tells me that sometimes she vomits about five times through the night. She has missed work days and her health continues to deteriorate. It may be a possibility that at some point Mr. Rambo will be the sole income earner in the family. As it stands now Your Honour, she makes approximately $2,000.00 a month. His gross revenues are approximately $5,000.00 a month. Their personal expenses are about $4,400.00 a month. His expenses related to his business, he estimates, are about $1,000.00 a month, and I’ve already done the math so that leaves about $1,600.00 a month. As I’d indicated before, I have $15,000.00 in my trust account which I’m prepared to …
62 THE COURT: Is this before or after taxes?
63 MR. PAIN: Brief indulgence. It’s before taxes, Your Honour.
64 THE COURT: So $1,600.00 a month before taxes?
65 MR. PAIN: I believe so, yes. As I said earlier, I have the $15,000.00 in trust, and he’s prepared to pay the remaining $15,000.00 over a three-year probation period. That would work out to $416.67 a month.
66 THE COURT: Times 36 months.
67 MR. PAIN: Now, he’s hoping he can actually pay it off before the three years. However, I would be asking that the maximum probation be imposed so he has that cushion if he needs it. I’m asking Your Honour to grant a conditional discharge in this case, with a three-year period of probation. I know Your Honour has had an opportunity to go through the cases that I’ve provided. There’s of course the first case there, R. v. Wilson [2005] O.J. No. 382 (O.C.J.), which was a $44,000.00 welfare fraud. There was no restitution in that. The accused had no criminal record. The Court found that a conviction would affect her work. Surprisingly, she wasn’t even ordered to perform any community service. She was granted a conditional discharge. The next case, R. v. Asselstine [2000] O.J. No. 5975 (O.C.J.), that was a decision of Your Honour’s. That was a $7,200.00 fraud. In that case, the accused paid half in the beginning and the rest was to be paid over the course of a probation order. That accused had a criminal record, public mischief, a dated record. It was unclear whether a conviction would affect his work. No community service was ordered. He was granted a conditional discharge. R. v. Xavier [1999] O.J. No. 5601 (Ont. Ct. (Prov. Div.)), $8,500 fraud, no restitution, no criminal record, but the Court found that a conviction would affect that person’s work. Xavier was ordered to perform 75 hours of community service. I can go through the rest of the cases if Your Honour likes but I think Your Honour …
68 THE COURT: No, I’ve viewed them all and except for R. v. Shibley [1998] O.J. No. 2323 (Ont. Ct. (Gen. Div.)) they all did get conditional discharges.
69 MR. PAIN: Yes, that was a husband and wife. The husband got a conditional sentence. That was because I think a large part of that had to do with the fact that he had a criminal record. His wife, however, who had become a registered nurse, was granted a conditional discharge and I believe the judge’s specific finding there was that it was not against the public interest to give her a conditional discharge so she could continue to work and support the family. I would submit to Your Honour that in a situation where Mr. Rambo may find himself as a sole support for the family — and he’s trying to better his career by obtaining a mortgage broker’s license, which he will not be able to do with a conviction, and his ability to keep working will ensure that the government is re-paid what it is owed — I would submit that it is not contrary to the public interest to grant a conditional discharge in this case. And subject to any questions Your Honour has those are my submissions.
70 THE COURT: Thank you. Mr. Rambo, is there something you would like to say to the Court, sir, regarding this matter or the sentence you should receive?
71 THE WITNESS: No thank you, Your Honour.
72 MS. WINOCUR: Could I just have a word with my friend? Your Honour, what caught my attention, my understanding just looking through this was that when the Court chooses to suspend the passing of sentence you can impose a probation period of up to three years. My recollection was that if you choose to impose a conditional discharge you can only impose a probation for two years. The reason, I whispered to my friend, was that that was simply my recollection — we were trying to find the section in the Criminal Code.
73 THE COURT: Well, I’m not sure because it seemed to me that all these people who did get conditional discharges were placed on probation for three years. R. v. Trigueros [1997] O.J. No. 6089 (Ont. Ct. (Prov. Div.)); R. v. Lamptey [1998] O.J. No. 6400 (Ont. Ct. (Prov. Div.)) – plea [1998] O.J. No. 6401 – sentencing; Asselstine.
74 MS. WINOCUR: I’m aware that it is done. I’m not certain that — If the Court is satisfied you can do it for three years, I’m, I’m …
75 THE COURT: Well, did you find anything in the Code that indicates that it’s …
76 MS. WINOCUR: The section we were looking at is s. 731 which relates to in addition to a fine.
77 THE COURT: 731?
78 MS. WINOCUR: 731(b), but I don’t think that applies. I’m not able to find something in the Code and …
79 MR. PAIN: Sorry, if I may interject for a moment, Your Honour, 732.2(5)(b) says, “no probation order shall continue in force for which more than three years after the date on which the order came into force”. So I believe that’s the governing provision.
80 MS. WINOCUR: Okay. That’s fine. Thank you.
81 THE COURT: So, are you in agreement that a conditional discharge can get a probationary period of three years? So what was the section you cited?
82 MR. PAIN: 732.2(5)(b).
83 MS. WINOCUR: That’s where a person is convicted of an offense.
84 MR. PAIN: Yes.
85 MS. WINOCUR: Where a person is convicted of an offense.
86 THE COURT: Did you want this held down so you could …?
87 MS. WINOCUR: Could I have a moment to take a look at this?
88 THE COURT: All right, we’ll hold the matter down.
89 MS. WINOCUR: Thank you.
90 THE COURT: You can come back.
91 THE COURT: Mr. Rambo, can you come back up, again?
92 MS. WINOCUR: Your Honour, I think the bottom line is that I think I’m mistaken. I’m not quite sure where my thought came from, but I looked at the sections of 730 and 731 and 732 and I’m at this point satisfied that it is open to you if you choose to impose a three-year probation on the discharge.
93 THE COURT: That’s a relief. That’s a relief, given the decisions that have been given three-year probationary terms with the conditional discharge.
94 MS. WINOCUR: You know, I obviously have not been asking for them.
95 MR. PAIN: It’s odd though, Your Honour, it doesn’t seem to be specifically addressed. It just talks about convictions and whatnot, so.
96 MS. WINOCUR: I guess the other thing, with respect to Your Honour, it’s a bit unclear. It doesn’t specifically address — in the language of s. 732 if the Court’s interested, speaks of convictions, which may have been the source of my initial confusion. I don’t know. But s. 731 seems to adopt the probation procedures for the discharge provision.
97 THE COURT: Thank you. Alonzo Rambo, please stand. Sir, you are charged with welfare fraud. On the 18th of November 2004 you entered a guilty plea before me. You are a man, 37 years of age, without a criminal record. I have reviewed the cases submitted by Mr. Pain, your counsel, and they are, for the most part, six of the seven were defendants like yourself who were found guilty of welfare fraud and who received conditional discharges and probation. I have heard from Mr. Pain the circumstances of your life, and it does sound as though you have had many difficulties. The health of your wife is obviously a pressing problem for you. The fact that you also were depressed and suicidal indicates how difficult at times your life has become. In sentencing you, I have considered the principles of sentence and obviously there should be denunciation of your conduct. I have also taken into account that you are a first offender at the age of 37, and as such, the Court should be interested primarily in your rehabilitation. You have entered a guilty plea, which indicates your remorse and has saved the Court and the State many days and thousands of dollars in having a trial. You have made restitution in the amount of $15,000.00. You do not have a criminal record. You could potentially become the sole support of your family given your wife’s health, and your career choice — a mortgage broker — would be cut off from you should I give you a record. You indicate that you believe that you can pay off the remaining $15,000.00 if you are given a probationary period of three years. That is certainly in the public interest, that all monies be returned to the public purse so that other persons who are in need can apply to welfare and get funds. Obviously it is in your interest to receive a discharge.
98 So, having considered all those facts and the cases submitted by Mr. Pain, I am prepared to grant you a conditional discharge, sir, and place you on probation for three years. I am following the math of Mr. Pain, and he is saying that you should be able to make restitution in the amount of $416.67 a month for a period of 36 months, and that is supposed to come up to $15,000.00. Is that correct Mr. Pain; does it come up to $15,000.00?
99 MR. PAIN: That’s correct, Your Honour. I’ll just quickly re-do that.
100 THE COURT: Does anyone else have a calculator, and they can just make sure that’s correct? 416.67 x 36.
101 MR. PAIN: Yes, I’ve doubled checked it, Your Honour.
102 THE COURT: Okay, thank you. So report, make restitution. Is anything else suggested?
103 THE CROWN: Report as required.
104 THE COURT: Yes. Is anything else suggested, Mr. Pain?
105 MR. PAIN: Not from my end, Your Honour.
106 THE COURT: Okay. Well good luck, sir, and I am making this decision because I believe that you have learned your lesson and you will never commit a criminal offense again, and you will not come back to Court. Is that correct?
107 THE WITNESS: Yes.
108 THE COURT: All right. Did you want Ms. Mambo to come forward?
109 MS. WINOCUR: She doesn’t need to. I’ve asked that charge be withdrawn.
110 THE COURT: Okay, Ms. Mambo, are you here? [Indication that Ms. Mambo is in the courtroom.] The charge against you is withdrawn at the request of the Crown.
111 MS. MAMBO: Thank you, Your Honour.
112 THE COURT: And I suppose we should say that restitution of the $15,000.00 will be made by Mr. Pain …
113 MR. PAIN: Yes, I can …
114 THE COURT: … to the appropriate authorities.
115 MR. PAIN: Yes, I can indicate formally for the record that I’m undertaking to forward a cheque this week to the Treasurer for the City of Toronto, Inactive Overpayment Unit, and I have the address.
116 THE COURT: Thank you.
QL UPDATE: 20050822
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