Information No. 12-1875 - DICO - SOAD...~1 ml ~1 251 Information No. 12-1875 SUPERIOR COURT OF...

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Information No. 12-1875

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

DUBRAVKO HAJDAREVIC

R E A S O N S F O R S E N T E N C E

BEFORE THE HONOURABLE JUSTICE B. DURNO

On July 18, 2013 at BRAMPTON, Ontario

APPEARANCES:

S. Sherriff

J. Bloomenfeld

Counsel for the Crown

Counsel for D. Hajdarevic

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1.R. v. Dubravko Hajdarevic

Durno, J. - Reasons for Sentence

THURSDAY, JULY 18, 2013

..OTHER MATTERS SPOKEN TO.

...HAJDAREVIC MATTER ADDRESSED.

...REVIEW AND DISCUSSION OF FACTS.

..QUESTIONS BY JUDGE.

..HELD DOWN, ACCUSED NOT PRESENT.

...OTHER MATTERS SPOKEN T0.

...QUESTIONS ANSWERED BY COUNSEL.

R E A S O N S F O R S E N T E N C E

DURNO, J. (Orally)

Mr. Hadjarevic pled guilty to one count of fraud

alleging that between June lst, 2002, and January

31St, 2009, he defrauded the Croation Credit

Union of a sum of money in excess of $5,000.

With respect to the actual dates of his

involvement, having regard to the summary at the

front of Exhibit 2, the very large volume that

deals with the transactions, it appears that his

actual signing involvement started in November

'03, and ended in March of '05. The Crown

submits that funds went into an account which he

was one of three people who could sign on in

February '07, so that there was a potential for

involvement then. Given all of the facts in

this case I am not certain that the actual

duration between the two competing views makes a

great deal of difference.

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On behalf of the Crown, Mr. Sherriff seeks a

jail term without specifying a fixed time or

range. However, he vehemently opposes a

conditional sentence.

On behalf of the offender, Mr. Bloomenfeld seeks

a conditional sentence for eighteen months,

although submits that two years, less one day,

would not be argued against. He says the range

for this offender is one to two years, which

makes a conditional sentence available and

appropriate. He submits his clients actions

were stupid foolish and greedy.

I take it I have accurately set out the

positions of counsel. Having heard no comments,

I take it I have it correct.

The facts:

The Croation Credit Union was founded in 1958

and was an important institution in the Croation

community in the GTA. There were three

branches. The fraud that I'm involved with

today was carried out at the main branch in

Mississauga.

The fraudulent scheme is known as an "Oklahoma."

Properties are purchased at low values and

quickly re-sold in sham transactions for grossly

inflated prices; forty to fifty times the true

value. The sham equity was created by the sham

sale and then was mortgaged resulting in the

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dishonest acquisition of substantial funds from

the credit union. Mortgage payments were made

regularly by the manager, Mr. Vinski, to cover

the fraud. This offender was neither the moving

force, nor the leader of those involved. His

role was participating in twenty-seven

fraudulent mortgages relating to twenty-three

different properties perpetrated against the

Croation Credit Union. These transactions, and

others, that did not involve this offender led

to the demise of the three credit union

branches, with the doors closing for good, in

2009.

The supposed secondary purchasers were pawns

recruited in the scheme for a fee. They had no

genuine intention of purchasing any property and

no ability to service the mortgages they

purported to accept. While the scheme exposed

them to criminal jeopardy, they have and will

not be charged. However, they now have

substantial judgments against them that will

jeopardize their life savings.

While there was an eight million fraud loss

exposure in June of 2006, money was transferred

by Vinski from Swiss bank accounts to pay out

some of the mortgages and prevent the auditors

and regulators detecting the fraud at that dime.

Ultimately, the loss was three million dollars.

After the payouts in 2006 some of the same

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4.

R. v. Dubravko HajdarevicDurno, J. - Reasons for Sentence

properties were again fraudulently mortgaged,

and several more properties were introduced into

the scheme. According to the agreed statement

of facts that I am working with, the scheme was

masterminded by Josip Vinski, the General

Manager, or in other material he's referred to

as the Chief Executive Officer of the Credit

Union and Mike Anicic, this offender's brother-

in-law. He was also his business partner in

legitimate businesses. Anicic is in jail in

Croatia after his arrest there for possession of

a large quantity of cocaine.

Mr. Hajdarevic knowingly implemented the scheme

to commit frauds. In the words of the Crown, he

was Anicic's ~~front man", making the necessary

arrangements with the lawyers and signing the

necessary documents. To do so, he used

companies that were closely held corporations as

a means to perpetrate the fraud. He was the

principle of the numbered company, carrying on

business as DH Consulting; the principle in

another numbered company, carrying on business

as Avenue 24 Consulting; and a director of a

third numbered company, with Anicic and the

lawyer involved.

The offender's closely held corporations were

heavily involved in almost all of the fraudulent

transactions. He frequently signed the

agreement of purchase and sale buying property

at modest market values. Often within a matter

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of days he would sign another agreement of

purchase and sale conveying the same property

from his company to a pawn for arossly inflated

prices, often forty to fifty times the market

value. The transactions were often orchestrated

using the offenders' corporations.

Vinski, who was employed with the credit union

for over twenty years, was able to prevent

discovery for many years given the make-up of

the credit union. He effectively controlled the

credit union. The Board of Directors and

Mortgage Committee were unpaid volunteers. Most

were unsophisticated in financial matters. The

credit union policy did not require an appraisal

for mortgaging the property.

Essential to the scheme was a corrupt or grossly

incompetent lawyer, who acted on the

transactions as well as on behalf of the credit

union in the majority of the twenty-seven

transactions. He now suffers from dementia and

cannot be prosecuted. Two other lawyers were

used in a few transactions that were dupes of

their unscrupulous clients.

How much the offender benefited financially is

unknown. He submitted that he only received

$30,000. That was not accepted by the Crown,

and the offender declined the opportunity to

have a Gardiner hearing to determine if he could

establish the mitigating fact was probably

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correct.

Exhibit 2 is a two-inch thick brief detailing

each of the twenty-seven transactions. A few

examples illustrate how the scheme worked. I'll

refer to the numbered companies by the last

three digits as it occurs in Exhibit 2.

Company "162", of which the offender was a

director, bought property on September 21St, '04,

for $11,000. He executed the agreement of

purchase and sale on behalf of "162". Ten days

later the company sold the land for $461,000 to

Dragan Mladenovic with the offender executing

the agreement of purchase and sale. On

September 22, '04, mortgage proceeds of

$291,907.27 were paid from the lawyer's trust

account to "162", and deposited by the offender

into an account in the name of the company.

On the same day, September 21St, '04, "162"

bought property for $13,000 with the offender

executing the agreement of purchase and sale on

behalf of "162". Ten days later the property

was sold for $461,000 by "162" to Olivia Music.

The next day mortgage proceeds in the amount of

$291,000 were paid to the lawyers in trust to

"162" and deposited by the offender into an

account in the name of "162".

There are further purchases and sales in

~.R. v. Dubravko Hajdarevic


February 2005 with three purchases with the

offenders' involvement. In one the property was

bought for $10,000 and sold a few days later for

$453,000. The next day almost $295,000 mortgage

proceeds were paid out to another individual5

called Alello and deposited into an account in

the name of the numbered company referred to as

"164".

Further purchases occurred in November of '03;io

June, September, October and November '04;

February and March of '05. There were other

transactions, as indicated by Mr. Sherriff today

in '06. Some properties were flipped twice.

15It is admitted that Anicic was usually hands-on

during the fraud when the mortgage funds were

obtained. Later this offender wired substantial

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25

sums to Anicic overseas.

As indicated in the presentence report there is

no evidence at all that this offender had

anything to do with whatever Anicic's drug

involvement may have been out of Canada.

The Victim Impact Statement:

I take it I accurately set out the summary of

the facts?

MR. SHERRIFF: Agreed.

30 THE COURT: Thank you.

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The Victim Impact Statement:

There is one victim impact statement from

Margaret and Slavko Butkovic, representative of

the impact the offence had on credit union

members. They were founding members of the

credit union. The credit union that helped

thousands of Croation immigrants to Canada with

loans and mortgages. When Vinski asked members

to buy additional shares because of financial

problems, they bought shares. Ms. Butkovic

transferred all of her RRSP funds to the credit

union, that was $19,400 and her husband

transferred $25,000. They lost over $44,000

that was a critical part of their old age

savings. Ms. Butkovic is now 70 and had a

nervous breakdown. Mr. Butkovic is 82.

When a new manager arrived and assessed the

situation, he called them to say that their life

savings were gone.

Their loss was as a result of Vinski asking for

additional funds when things started to go

badly, and these folks gave the funds. Neither

this couple, nor anyone else, lost on their

deposits that were covered by the Deposit

Insurance Corporation of Ontario. Mr. Sherriff

appropriately referred to what happened to this

couple, and others, as collateral damage from

the fraud. This offender was not involved with

obtaining funds from these individuals, but it

was the total conduct that the Crown sought to

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show the impact of with this victim impact

statement.

It has to be kept in mind that this offenders'

role was not as the primary player, nor was he

involved in all the fraudulent conduct at the

credit union.

The Presentence Report:

The offender is 44 years of age. He was born in

the former Yugoslavia, now Bosnia. He came to

Canada in 1991 when he was 22 after being

granted a tourist visa. He left his younger

sister behind. He applied for refugee status

and eventually became a Canadian citizen in

1999. His parents and sister came to Canada a

few years later.

He was in a common-law relationship between 1992

and 1994, the now 18 year old son of that

relationship lives with his mother.

The offender was married in 2001 and they have

two young children, ages three and seven. He is

living with his surety and has been for the past

two and a half years.

He went to technical school in Bosnia, focusing

on mechanical engineering, graduating with high

marks. He then served in the Yugoslav army, as

was mandatory, for one year. He later attended

university from 1988 to 1990, completing one

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year of a mechanical engineering program and

then changing to law for the second year.

However, when the civil war broke out and having

to travel over 100 kilometers from his home to

school, understandably that became too dangerous

and he left post-secondary education.

He worked for his uncle in a photo lab in

Yugoslavia before coming to Canada. From `91 to

'93 he could not work in Canada, so he was

social assistance and went to English as a

second language classes.

His Canadian employment history is outlined in

the presentence report. It includes being a

sales representative, operating Duke Security, a

Money Exchange and a consulting firm. It's

indicated he worked with his brother-in-law,

Anicic.

Since his arrest in 2010 he has been unemployed

and living on his wife's salary. His financial

situation is described as bleak, with collection

agencies pursuing him to collect the debts.

The probation officer described him as polite,

cooperative, expressed remorse, but according to

the probation officer, he said he didn't

intentionally break the law. In earlier

appearances it was clarified that what he meant

was he knew what he was doing was dishonest and

that he admits he knowingly assisted in a

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fraudulent scheme.

His friends and family regard him as an

outstanding man and the offence as being out of

character. He has strong support from his

family.

The probation officer wrote:

~~Of concern is the profound impact the crime had

on the victims of the offence, both the Croatian

Credit Union, which had to close their business,

and the members. It is unclear if the subject

recognizes how this has impacted the Croation

community. "

He was assessed as a suitable candidate for

community service, but the probation officer

noted that he would not benefit from any of

their services at this time.

As with any sentencing there are factors in

aggravation as well as those in mitigation.

First addressing those in aggravation:

1) The size of the fraud is aggravating. On any

definition it is a large scale fraud. While it

is not his scheme, he played an essential role,

significantly contributing to a large scale

fraud. He was the trusted front man, as the

Crown put it. He was part of a team and

facilitated the fraud.

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12.


2) That he was involved in 27 transactions

aggravates as well. On the defence position his

involvement spans transactions from November of

2003, to March of 2005. It was a sophisticated

fraud with planning, skill and deception

involved. Partway through the period of time

when the offences were committed by this

offender, Section 380.1 of the Criminal Code was

amended to indicate that a fraud's magnitude,

duration or the degree of planning is a

significant aggravating factor.

3) The impact on the Croation community as well

as the victims has been devastating. The Credit

Union had to close, the integrity of financial

institutions was put at risk. However, it has

to be born in mind, and I agree with the Crown's

submission, that this offender's involvement

wounded the credit union while it was his

accomplices who destroyed it by their deeds. He

was not just a gopher. Again, pursuant to 380.1

it's aggravating that the fraud adversely

affected the financial system or investor

confidence in such a financial market.

5) His motivation was pure greed. He received

financial benefits for his dishonesty. While

the amount cannot be determined, he has admitted

that it was about $30,000. The Crown does not

accept that. Notwithstanding that, however, the

Crown's not agreeing to it, it cannot be

disputed that he was paid something for his

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involvement. It was not as if he was doing a

favour for his brother-in-law.

Next, I infer the downfall of the credit union

involved a large number of victims another

statutory aggravating factor, although the

aggravating impact for this offender is

significantly lower than it would be for the

others.

Turning next to the factors in mitigation;

The offender plead guilty, thereby saving the

tax payers the expense of a trial involving him.

The plea, in general, is indicative of remorse

and the potential for rehabilitation. It is a

relatively early plea, certainly an early plea

in this court, meriting substantial mitigation

as opposed to a plea on the day of trial, or

after adverse pretrial application rulings.

While Vinski is at this time proceeding to

trial, this offender has done all he could to

bring finality to the proceedings. The trial

would have lasted about a month, or more.

Without significant admissions it could have

been longer. This is a very, very, busy

jurisdiction, so the plea is a very important

consideration.

Second; he has no record and is to be sentenced

30~ as a mature first offender.

3) He has strong support from his immediate and

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extended family.

4) The presentence report is generally

positive.

5) He has found himself gainfully employed as a

shipper.

6) He provided a statement to police, although

it is regarded by the prosecution as being of no10

value, so it really has minimal mitigating

effect. The Crown notes it was an induced

statement, so the offender had little to lose

and the Crown's not planning on calling him at

Vinski's trial.15

The Court of Appeal examined the use to be made

of cooperation on sentence in R. v. C.M.H.

[2002] 170 Criminal Code of Canada (3d) 253,

where the court adopted the comments from the20

N.S.W. appellate court in R. v. Cartwright

[1989] 17 N.S.W.L.R. (C.C.A.) at 252-253; that

"the reward for providing assistance should be

granted if the offender has genuinely cooperated

with the authorities, whether or not the25

information supplied objectively turns out in

fact would have been effective. The information

which he gives must be such as could

significantly assist the authorities. The

3o information must, of course, be true. False

disclosure attracts no discount at all. What's

relevant here is the potential for the

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information to assist authorities as

comprehended by the offender."

This record does not permit me to conclude

whether the prosecution takes the view that he

failed to tell the truth, failed to tell the

whole truth, as he knows it, or simply gave what

he knew and that it was of no benefit to the

Crown. On this record, while there is some

mitigation because of his cooperation, it is

minimal because whatever he gave I can conclude,

based on the Court of Appeal's criteria, did not

significantly assist the authorities.

Next; he has two small children and his wife.

When given his opportunity to make a statement

on the last day he said, in effect, that his

kissed his children goodnight at night, and

wanted to continue doing so. I accept his

comments as sincere. I accept that he plays a

very important role in the children's lives.

That his children would be deprived of his love,

support and affection were he to be

incarcerated, is a valid consideration on

sentence.

However, the Court of

of a similar argument

case of R. v. Spencer

Quoting as follows at

~~It is a grim reality

parents who choose to

Appeal dealt with somewhat

in the cocaine importing

[2204] O.J. No. 3246.

paragraph 46;

that the young children of

commit serious crimes

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necessitating imprisonment suffer for the crimes

committed by their parents. It is an equally

grim reality that the children of parents who

choose to bring cocaine into Canada are not the

only children who are the casualties of that

criminal conduct." The court went on to note

that, "children through their use of that drug

and the use of cocaine by others are heavily

represented among the victims of the cocaine

importer's crime. And concluded, any concern

about the best interests of children must have

regard to all children affected by this criminal

conduct."

I appreciate that there is no specific evidence

with respect to children being affected, and in

particular young children. However, I can't

lose sight of the fact in this case that the

offender contributed to the serious difficulties

of the credit union that caused difficulties for

families that will impact on their children.

Clearly they would have to try and help out

their parents who lost their life savings, or in

other ways were jeopardized. Notwithstanding

the comments of the probation officer, I do

accept that he is remorseful.

There are other factors that are neither

aggravating, nor mitigating. First, the scheme

would have occurred without his participation,

in the sense that I accept for the purposes of

this sentencing that had he not been involved,

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the leaders would have got somebody else to do

it. I don't think that's in dispute. However,

it doesn't mitigate the sentence that he was not

the lead player, prime mover or controlling

mind.

Second, that his role was to go to the lawyer,

sign the papers and, as I'm told today, to

transport some of the pawns to the lawyers,

doesn't mitigate sentence. It reveals his role

in the fraud. Both of these issues also inform

the analysis of similar cases that I will

conduct later in these reasons.

It was suggested by the Crown that it was an

aggravating fact that the 24 pawns were brought

into the scheme and could have been charged with

criminal offences, and that that would be an

aggravating fact on sentence. No doubt Mr.

Sherriff was relying on the most helpful list of

factors provided by Justice Hill in Williams for

sentencing in fraud cases. His Honour notes,

"Running the risk that other would fall under

suspicion is an aggravating factor", as a

potential aggravating factor.

I agree that it is an aggravating factor with

respect to the total fraud that the pawns were

brought into it. But it seems to me that it's

an aggravating fact for the person, or persons,

who brought the pawns in, or who orchestrated

the fraud. It is significantly more aggravating

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for them, as opposed to this individual, who

played an essential, but not a recruiting role

on this record.

So, I'm not persuaded that this offender, first

of all, brought the pawns in, or that they were

open to criminal prosecution. I

consideration that he would have

were involved, because I accept

today, that he drove them and he

the pawns were involved. So, he

of the fraud and how many people

did take into

known that they

what I was told

certainly knew

knew the extent

were involved.

The purposes and principles of sentencing:

Higher courts are clear that the most important

purposes and principles of sentencing for large

scale frauds are general deterrence and

denunciation. Deterrence to send a clear

message to others who would be tempted to engage

in this type of conduct that significant

penalties would be imposed. As the Court of

Appeal noted in R. v. Drabinsky [2011] 107 O.R.

(3d) 595;

"The deterrent value of any sentence is a matter

of controversy and speculation. However, it

would seem to the court that if the prospect of

long jail terms deterring anyone from planning

and committing a crime, it would be people like

the appellants (in that case) who are

intelligent individuals, well aware of

consequences and accustomed to weighing

potential future risk against potential benefits

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before taking the risk."

Those comments apply here and to potential

offenders who were similarly situated to this

offender.

The sentence also has to address denunciation,

reflecting society's condemnation of the

offence. As Justice Hill noted in R. v. Cunsolo

[2012] O.J. No. 66;

"When sentencing for fraud involves substantial

dishonesty, the principles of general deterrence

and denunciation merit paramount consideration."

He referred to the Court of Appeal judgment in

Drabinsky, where the court said;

"In any event, this court and all other

provincial appellate courts have repeatedly held

that denunciation and general deterrence must

dominate sentencing for large scale commercial

frauds. Denunciation and general deterrence

most often find expression in the length of the

jail term imposed." Further, "We agree that

cases properly characterized as `scams' will

normally call for significantly longer sentences

than frauds committed in the course of the

operation of a legitimate business."

I also have to consider specific deterrence,

although I find that it is not particularly

important in this case, as it has already been

largely achieved. I have to consider his

rehabilitation, again, that's largely

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accomplished to date.

Higher courts and Parliament have directed that

the parity principle applies for sentencing;

similar offenders who commit similar offences in

similar circumstances should receive similar

sentences. That can be co-accused, which does

not apply in this case. This offender is, I

believe, the first to be sentenced out of the

scheme. Parity also applies to offenders who

have committed similar offences in other cases.

There are a large number of fraud sentencing

cases that I have referenced. Given the

position of counsel, without cases being filed,

and without a set range from the Crown, I am

going to review in brief form numerous cases to

reflect what I feel is the appropriate range for

this offence, and to attempt to explain the

sentence that I'm going to impose.

In R. v. Dobis [2002] 58 O.R. (3d) 536, the

Court of Appeal held the range of sentences for

large scale frauds involving a breach of trust

was three to five years. There's no breach of

trust here.

In Drabinsky the Court of Appeal held in 2011

that five to eight years was appropriate for

large scale premeditated frauds involving public

companies, while noting that one could quibble

with either end of the range.

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A range, however, must be regarded as a starting

point in the analysis as it generally only

focuses on the objective seriousness of the

offence. R. v. Hamilton [2204] O.J. No.33 3252

at paragraph 11. When the factors in mitigation

and aggravation are taken into account the

sentence can be above or below the range or

those considerations may assist in determining

where within the range the sentence falls.

In R. v. Bogart [2006] 61 O.R. (3d) 75, the

Court of Appeal imposed, effectively, a thirty-

two month jail term where the trial judge had

given a conditional sentence ~o a forty-five

year old doctor who defrauded OHIP of roughly a

million dollars. He submitted false billings to

the plan over a seven year period. On average

he billed OHIP for more than 200 services

monthly he didn't perform, just under 20,000

insured services that he didn't do. He was an

excellent doctor. Himself a cancer survivor.

He treated persons with AIDS, and by the time

the Court of Appeal dealt with the case he'd

made over twenty-five percent restitution.

The court noted, however, looking at that - and

it's one of the leading cases in Ontario on

frauds, that that was an "egregious breach of

trust", which isn't present here.

In R. v. Drakes [2009] ONCA 560, two offenders

operated a boiler room where "exceptionally

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gullible victims" were asked for an advance

payment of fees in order to secure the release

of huge multi-million dollar sums from Nigerian

banks, but received nothing. The Court of

Appeal upheld sentences of four and five years.

In R. v. Clark [2004] O.J. No. 3438, the Court

of Appeal imposed an effective three and half

year sentence where a bank employee could have

obtained twenty million dollars. The Crown

alleged that in the course of providing

assistance to three frontline employees he

gained access to their confidential numbers. In

1999 he used the numbers to redeem money from

thirty-three separate mutual funds. The total

amount of the redemption was twenty million

dollars. The evidence suggested he was taking

steps to transfer the money into investment

accounts he controlled. By chance the next day

one of the investors whose funds had been

redeemed discovered the missing funds, and there

was no loss. That sentence was after a trial.

In R. v. Khatchatourov and Reznick [2012] ONSC

3511, Justice O'Marra imposed four years on two

offenders whose frauds over seven years

consisted of manipulating recent immigrants from

Russia and the Ukraine to use their identities

to obtain mortgage financing. The frauds

involved eleven properties and twenty-seven

mortgages. There was a breach of trust, that's

not present here, as they violated the trust of



those who agreed to invest. That was after a

trial. One couple lost their home and went

bankrupt.

Justice Ducharme in R. v. Sanmugam [2012] ONSC5

6663, imposed five years where he targeted

vulnerable victims who were not sophisticated in

financial matters and had no financial

knowledge, telling them he was licenced and an

educated market commentator and venture10

capitalist when he was none of those. There was

also a breach of trust component.

His Honour found that offender posed a

significant risk of re-offending, and found the15

plea was a last minute step to avoid immigration

consequences.

I've also looked at R. v. Cunsolo, that I

referenced earlier, where Justice Hill imposed20

eighteen months after a trial for twenty-three

fraudulent mortgages. It was a case His Honour

regarded as a mortgage fraud of a massive scale.

The mortgages resulted in about 5.5 million

25 being advanced. The total institutional loss

was 3.9 million dollars.

There His Honour outlined a series of fraud

cases at paragraph 37, concluding that sentences

3o as high as six years were within the range, but

three to five was common. Where the amounts are

in the millions, six years have been imposed.

24.


But there were other factors that have to be

taken into consideration in looking at Cunsolo.

First, the lead of that particular fraudulent

scheme on an early plea, I believe in the5

Ontario Court, received three years when the

Crown was asking for six. The Crown didn't

appeal.

Second, Cunsolo had spent seven and a half years10

on bail without further trouble.

15

Third, he was prime caregiver for his father who

suffered from ALS.

Fourth, restitution is part of sentencing and

His Honour made a restitution order of $250,000

in that case, and there is no suggestion here

for restitution, am I correct?

MR. SHERRIFF: Correct.20

THE COURT: All right. In R. v. Leo-Mensah

[2010] ONCA 139, that offender operated an

income tax return preparation business providing

false charitable donations resulting in tax

25 refunds of 3.2 million. He received two years

in addition to eleven months pretrial custody.

30

I've also referenced R. v. Beauchamp [2010] ONSC

1973, from the Superior Court.

In R. v. Prokofiew [2010] ONCA 423, from the

Court of Appeal, three years was imposed after,

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I believe this one was a trial, on a fake GST

scam, where the government loss was 3.25

million.

In R. v. Eizenga [2011] ONCA 113, a first

offender, defrauded investors of thirty-seven

million, and he got eight years.,

I've also referenced R. v. Spinks, an unreported

judgment of Matheson, J. where a paralegal pled

to sixteen counts of fraud involving 2.6

million. The case involved a breach of trust

over a six year period. The sentence was four

years, which the Crown sought.

I've also referenced R. v. Holub [2002] 163

C.C.C. (3d) 166, from the Court of Appeal, where

sentences of fifteen months and two years less a

day were imposed where over roughly an eighteen

month period they defrauded about 300 people of

a total of roughly 400 to $600,000 through a

fake modeling agency. They pled after three

weeks of trial and thirty-seven complainants.

Finally in R. v. Nichols [2001] 148 O.A.C. 344,

the Court of Appeal reduced five years and three

months to four years where a telemarketing

salesman made a cold call to an eighty-two year

old woman in Chicago. He called to sell her a

package of lottery tickets and wound up getting

over a million dollars. That was after a trial.

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The cases reflect a very large range, with the

following being significant factors: the amount

lost, the duration, the number of fraudulent

transactions and whether restitution is

available. Although I want to make it clear

that the failure to pay restitution is not an

aggravating fact on sentence, referencing R. v.

Dwyer 2013 ONCA 34. Importantly whether there

was a breach of trust, the role of the offender

and whether there was a plea and the impact.

In considering the case law and some of the

higher penitentiary sentences, two important

distinguishing features arise from most of the

cases, and have to be kept in mind. I have

concluded that as a result of these factors that

the sentence should be below the range suggested

by the Court of Appeal in a couple of the cases

to which I referred.

First, there was no breach of trust on behalf of

the offender. I am not suggesting this is a

mitigating fact, it's not. It's the absence of

a potentially aggravating one. There is no

doubt the Croation community was impacted, but

it was the credit union that they placed their

trust in, not this offender.

Second, this offender wasn't the leader of the

fraudulent scheme. In virtually all of the

other cases they were either the leaders or

actually were involved by themselves. This was

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also a plea and not a trial.

Should there be a conditional sentence?

The first step in determining whether a

conditional sentence is appropriate is to

determine whether one is available. There is no

minimum sentence. Letting him serve the

sentence in the community would not endanger the

community, and I'll deal with whether it would

be consistent with the purpose and principles in

a moment.

The first question that the Supreme Court of

Canada indicated was to determine whether

conditional sentences are available requires

affirmative answers to the elimination of a

suspended sentence and probation as appropriate.

That can easily be done. And second, the

elimination of a penitentiary sentence as

appropriate. Unless that can be done a

conditional sentence is not available.

An examination of similar cases and case

specific features of this case persuades me that

I cannot eliminate a penitentiary sentence.

Accordingly a reformatory sentence, a

prerequisite to imposing a community sentence,

cannot be imposed. That as well that in my view

a sentence in the reformatory would not be

consistent with the purposes and principles of

sentencing.

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If I'm wrong in that conclusion I would still

not have imposed a conditional sentence. The

aggravating factors, notwithstanding those in

mitigation that I outlined earlier, are such

that it would be inconsistent with the purposes

and principles of sentencing.

I appreciate that there have been conditional

sentences imposed for, what would be

characterized as, large scale fraud. In some

even involving breaches of trust. However, the

aggravating factors here, as outlined, in my

view, preclude the imposition of a conditional

sentence.

What should be the length of the sentence?

While I find that a penitentiary term is

appropriate in all of the circumstances that I

have outlined, I find that the bottom Federal

penitentiary sentence range is appropriate. He

will be sentenced to two years in jail.

I would be inclined, subject to the Crown's

view, to waive the fine surcharge?

MR. SHERRIFF: Yes.

THE COURT: And Count 2 would be withdrawn?

MR. SHERRIFF: Yes, please.

THE COURT: Okay. So, it's Count 2 that is

withdrawn. For the reasons dictated a sentence

of two years in jail, fine surcharge waived,

Count 2 withdrawn. Anything further?

...OTHER MATTERS SPOKEN T0.

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Certification

FORM 2

Certificate of Transcript

Evidence Act, subsection 5 (2)

I, Brenda Wakelin, certify that this document is a true and

accurate transcript of the record R. v. Dubravko Hajdarevic in

the Superior Court of Justice, 7755 Hurontario Street,

Brampton, Ontario taken from Recording No. 3199 407 20130718

084645.

ry~~'~ti~ I~~ r ~~ ~'~ ~(Date)

~~Z~~~ ~~(Signature of authorized person(s))

Brenda Wakelin, B.Sc., B.Ed., OCT, CCR, ICDRHILL TRANSCRIPTION INC.Certified Court Reporter, CRAOInternationally Certified Digital Reporter, IAPRT

PLEASE NOTE:

**This certification does not apply to the Reasons forSentence which were judicially edited.

Any copies of this transcript are unauthorized and are indirect violation of Ontario Regulation 587/91, Courts ofJustice Act, January 1, 1990. If additional copies arerequired, please contact the Records Management Clerk.

This transcript is a true certified copy bearing the originalsignature in blue ink.

Transcript Ordered: July 18, 2013Received by Reporter: July 29, 2013Transcript Completed: August 10, 2013Notified Ordering Party: August 10, 2013

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