On November 8, 2022, the Ontario Court of Appeal reduced a bookkeeper’s fraud sentence from 12 month custodial to a two-year conditional sentence (house arrest) plus probation plus a $45,000 restitution order.
Denise Henn’s original sentence was imposed by Justice Angela McLeod on October 28, 2021. Denis Henn plead guilty to defrauding her employer, a small employer, of $45,222,26 between 2013 and 2016. The funds were taken in 73 transactions and deposited into accounts in her name and that of her daughter. The Court found that she had breached her employer’s trust and that her fraud was motivated by greed.
The Court of Appeal held the trial judge made two errors – (1) she erroneously considered Denise Henn’s failure to pay restitution before her guilty plea as an aggravating factor, and (2) she failed to consider relevant mitigating factors submitted by Denise Henn.
At the time of sentencing, Denise Henn was a 38-year-old first offender with three children. She was separated and the sole bread winner for her family. Between the time of her arrest in 2016 and the spring of 2021, she had sporadic employment and relied primarily upon Ontario Works and payments from the Child Tax Credit.
Denise Henn’s income was $2,150 a month and her bills exceeded $1900. She relied upon food banks. She had “bad credit” and could not borrow the funds required to pay restitution in advance of the plea. At her sentencing hearing, she stated that she had been able to catch up on her bills and to “put money away” and was able to start making restitution. On the eve of sentencing, she provided her counsel with a money order in the amount of $2000 to pay restitution.
The Court of Appeal held that Denise Henn’s fraud was not committed in support of greed. She struggled to make ends meet, in part because of her deteriorated psychosocial status. Her deteriorated psychosocial status led her to make bad decisions. These factors made a house arrest sentence more appropriate than jail time.
The full decision has been published by the Court of Appeal at R. v. Henn, 2022 ONCA 768:https://www.canlii.org/en/on/onca/doc/2022/2022onca768/2022onca768.html?searchUrlHash=AAAAAQASaGVubiAyMDIyIE9OQ0EgNzY4AAAAAAE&resultIndex=1 . The full decision of the original trial judge has been published by the Court at R. v. Henn, 2021 ONCJ 547: https://www.canlii.org/en/on/oncj/doc/2021/2021oncj547/2021oncj547.html