Sentencing Assignment

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I. Introduction

The purpose of the present research is to provide the comprehensive and critical analysis of the assigned case. The current study is caused by the fact that there is often a noticeable disparity in punishment for persons, who have been found guilty of criminal offences. To that end, the research is conceived to ascertain whether such disparity is caused by subjective factors, including a prejudice of a judge or negligence of the police, or by objective determinants, such as the specificities of every single case.

Apart from the above, the current investigations will utilize all knowledge in the domain of criminal sentencing and punishment in order to conduct the most accurate and unbiased application of pertinent legal provisions to the assigned facts. The core problem of the present research is the question of whether the sentence and punishment of Roger are lawful under the Criminal Code of Canada. To provide the clear and well-substantiated answer to the question in dispute, it has been decided to conduct the research through the following sequential steps:

1). To utilize the principle facts of the case.

2). To identify the legal issues, originating from the analyzed facts.

3). To specify the range of sentence available to the Judge in the case.

4). To explicate the legal issues from the side of Defence.

5). To evaluate the anticipated position of the other side.

6). To make firm conclusions by the way of applying the pertinent law to the facts.

II. Factual basis of the case

The key facts of the assigned case should be iterated as follows: First, Glenn provided services of insulation, particularly by the way of selling a special type of foam, which was expected to enhance the energy efficiency. Second, one homeowner in approximately 10 minutes has called the police after having paid 10000$ to Roger for the special type of form. This foam has to be used in the attached garage.

Third, the house of the complaining homeowner was claimed to be colder than before. Fourth, according to the evidence found by police, the complainant’s old insulation was truly substituted with the ‘special foam’ which has been disclosed to be a regular type of foam. Fifth, the inspector found that the amount of the ‘special foam’ was insufficient for the normal winter insulation. Sixth, meanwhile, three homeowners from the neighbourhood noticed police and came to tell that they experienced the same predicaments with the job and noticed the problem only when it became cold enough to feel the disparity.

Seventh, Roger was arrested for fraud. Eighth, Roger was accused and found guilty in few hours. Ninth, Roger confessed own guilt and offered the reimbursement to the victims. Tenth, the homeowner failed to eliminate the new problem, because he was afraid to hire a contractor. Eleventh, Roger’s verdict: 2 years of jail and 2 years of probation.

III. Legal issues, stemming from the key facts of the case

The above-captioned facts of the incident caused a variety of legal issues in the domain of criminal law. The main legal issues of the case should be formulated in the form of the following research questions. First question: Was Roger guilty to fraud? Second question: What are the principal characteristics of the crime of fraud? Third question: Were evidences of police correct? Fourth question: Were Roger’s sentence and punishment lawful?

IV. Legal provisions pertinent to the issues in question

Before making any conclusions concerning the lawfulness of Roger’s sentence and punishment, it is important  to analyze the legal procedures, which regulate the crime of fraud. Thus, the fraud is prohibited under Article 380 of the Criminal Code of Canada. According to the Criminal Code of Canada, fraud must be understood as a crime which has the following salient features. First, it is conducted in the form of a false pretence. Article 361 (1) of the Criminal Code of Canada articulates that a false pretence means any representation of a matter of fact, either past or present, performed by words in any other way, which is known by the perpetrator to be false and which is made with the fraudulent intent to incite the person whom it is addressed to act on it (Criminal Code of Canada, 1985, Article 361 (1)). Thus, a false pretence, as an undeniable constituent of the crime of fraud may be reduced to the allegedly false statement about a matter of fact.

Second, the fraud may be conducted without a false pretence. In other words, the Criminal Code of Canada a false pretence is not the critical characteristic of the offence. Third, fraud may be committed through falsehood, deceit or by other fraudulent means (Criminal Code of Canada, 1985, Article 380 (1)).

Analysis of the case law shows that the act of deceit, a falsehood or any other fraudulent means constitute the actus reus of fraud. In R v Olan (1978), the Court explicates that the actus reus of fraud requires the ascertainment of two elements: dishonesty and deprivation. There is no doubt that the employment of deceit, falsehood or other fraudulent means speaks of dishonesty, while the concept of deprivation stems form the next salient feature of fraud.

Fourth, Article 380 (1) of the Criminal Code of Canada provides that the person, who commits fraud, defrauds either another person or the public, ‘whether ascertained or not, of any property, money or valuable security or any service’ (Criminal Code of Canada, 1985, Article 380 (1)). This part of definition of fraud under the Criminal Code of Canada designates the second element of the actus reus for the offence – the deprivation.

The fact is that a deprivation as the result of fraud occurs as either a real loss, or a risk of losing a pecuniary interest. The issue of deprivation as the result of fraud is construed in R v Kwaidah in particular. According to the case, the result of deprivation may be conformed by providing the evidence of prejudice, detriment or risk of prejudice to the economic interests of the victim (R v Kwaidah, 2010, para. 26). Also, it is not necessary to experience the actual economic loss as the consequence of the fraud (R v Olan, 1978, para. 149).

In addition to deprivation, it is necessary for the prosecutor to prove that the deprivation was dishonest, that is, that the victim would not have permitted the deprivation to happen if he or she had been aware of the genuine state of affairs (R v Knowles, 1979).

Apart from the actus reus, the crime of fraud has its mens rea. In the context of Article 380 of the Criminal Code of Canada, the mens rea should be recognized as the subjective consciousness of committing the forbidden act and awareness of the risk of depriving another person of property (R v Theroux, 1993, paras. 24-39). Importantly, the case law establishes that the personal feelings of the honesty and morality of the act must not be taken into consideration by the judge.

V. The range of sentencing available to the Judge

After the main legal provisions, clarifying the offence of fraud have been overhauled, it is essentially to outline the range of sentence available to the judge. Thus, Article 380 (1) (a) of the Criminal Code of Canada articulates that a person guilty of crime is ‘liable to a term of imprisonment, not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars’.

On the other hand, the person guilty of fraud may be found ‘liable to imprisonment for a term not exceeding two years, or (ii) of an offence punishable on summary conviction, where the value of the subject-matter of the offence does not exceed five thousand dollars’ (Criminal Code of Canada, 1985, Article 380 (1) (b)).

Additionally, Article 380 (1.1) of the Criminal Code of Canada prescribes that the court must order ‘a minimum punishment for a term of two years if the total value of the subject-matter of the offences exceeds one million dollars’. To sum up, there are two ranges of sentence available to the judge deciding on the case of fraud: 1) not exceeding 2 years of imprisonment; 2) from 2 to 14 years of imprisonment.

VI. The position of the Crown

Crown contends that Roger was sentenced and punished correctly because his actions were correctly qualified as fraud under the prescriptions of the Criminal Code of Canada.The assigned facts show that Roger has sold a regular foam, but represented it as a ‘special foam’ capable to increase the level of energy efficiency. Thus, Roger made a false statement about the properties of the product. According to Article 361 (1) of the Criminal Code of Canada, a false pretence is any representation of a matter of fact, either past or present, performed by words in any other way, which is known by the perpetrator to be false and which is made with the fraudulent intent to incite the person whom it is addressed to act on it (Criminal Code of Canada, 1985, Article 361 (1)).

Elaborating on the aforesaid definition of the false pretence, it is possible to infer that Roger incited the homeowner to act on the misrepresentation of the foam. Thus, Roger acted with the fraudulent intent. The case law shows that the act of deceit, a falsehood or any other fraudulent means constitute the actus reus of fraud. In R v Olan (1978), the Court explicates that the actus reus of fraud requires the ascertainment of two elements: dishonesty and deprivation.

There is no doubt that the employment of deceit, falsehood or other fraudulent means speaks of dishonesty, while the concept of deprivation lies in the infringement on the economic interest of the victim. In the case of Roger, the fact of the false pretence means that Roger acted dishonourably. On the other hand, the homeowner paid Roger $10000 only because he thought the foam to be a ‘special’ one. In this sense, Roger infringed on the homeowner’s economic interest by inflicting losses in the sum of $10000.

All these facts justify the fact of Roger’s sentencing and punishment. Besides, Roger committed fraud under aggravating circumstances which increase the amount of his liability. Thus, Article 380.1 of the Criminal Code of Canada prescribes that one of the aggravating circumstances of sentencing is when the offence of fraud involves a large number of victims. In this connection, the homeowner’s neighbors were also victims of the fraud and thus, Roger’s acts involve a large number of persons who have experienced economic losses.

VII. Evaluation of the anticipated position of Defence

As far as the first legal issues are concerned, Defence may claim that Roger was not guilty of fraud, because the side of Prosecution failed to prove both the actus reus and mens rea of the offence.

Thus, the Defence may claim that it was questionable whether the special type of foam decreased or increased energy efficiency of the garage. According to the assigned incident, the homeowner used the purchased foam in his attached garage, but claimed that the house became colder as the result. Such allegation has not evidential significance because there is no causal nexus between the employment of the foam in garage and the level of energy efficiency in the house. The house and garage are two different premises of the property which require independent insulation.

According to Article 380 (1) of the Criminal Code of Canada, fraud takes place only if a person defrauds another person or the public. Furthermore, the term ‘defraud’ implies any dishonest conduct which aims at depriving the victim of an economic interest. In the context of the assigned incident, the Defence may refutes that Roger had any dishonest motive in selling the special type of foam as there are no facts proving that Roger sold his own special foam rather than delivered the special foam of Glenn. This possible claim of Defence has no evidential power, because the person selling product is always responsible for the proper representation of the product.

Also, the Defence may object that the court erred in pleading Roger guilty in fraud under Article 380 (1) (a) of the Criminal Code of Canada, because it had no sufficient evidence proving both Roger’s guilt and the allegation that the value of the subject-matter of the offence exceeded five thousand dollars. The assigned facts demonstrate that the homeowner paid 10000$ to Roger for the ‘special foam’. Nevertheless, the Defence may state that there is no information about the real price of that foam and thus, it is impossible to estimate the losses. This claim of Defence can also be refuted by comparing the prices on regular types of foam and ascertaining whether regular foam costs $10000. As the foregoing discussion must suggest, fraud takes place only if there is a deprivation of economic interests. The expertise may prove the fact that Roger caused deprivation of the homeowner’s economic interests in the amount exceeding 5000$.

Besides, the assigned facts make evident that Roger has agreed to reimburse the victim. The defence may claim that Roger’s initiative to reimburse should be deemed a mitigating factor, while the fundamental principle of sentencing is the requirement that a sentence is proportionate to the gravity of the crime and the degree of responsibility of the criminal (Criminal Code of Canada, 1985, Article 718.1). This claim of Defence has no evidential significance, because the legal provisions regulating fraud do not indicate on reimbursement as a mitigating circumstance.

VIII. Conclusions

After everything has been given due consideration, it should be generalized that the sentencing and punishment of Roger are lawful under the Criminal Code of Canada. The conducted research showed that the degree of sentence, as well as the amount of punishment, does correspond with the actual evidence collected by the police. The main criteria of fraud (dishonesty and deprivation) were proved by the side of Crown. The conducted research helped to achieve the research objectives completely.

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