IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           On May 15, 2018, Antonette Dizon entered a guilty plea to one count of fraud over $5000, over a period of almost 16 months between January 14, 2015 and May 7, 2016.  Sentencing was adjourned to allow for the completion of a pre-sentence report.  The sentencing hearing occurred before me on November 19, 2018, at the conclusion of which I reserved my sentencing decision until today.

[2]           The Crown and defence agree that a Conditional Sentence is not available for this offence.  They are further agreed that a custodial sentence is appropriate.  Where they part ways is with respect to the duration of a custodial sentence.  The Crown submits that a sentence of 16 to 18 months along with probation of 12 to 18 months.  The Crown also seeks a restitution order.  The defence seeks a 6 month custodial sentence along with a period of probation.  As for a restitution order, the defence was somewhat equivocal, agreeing that one was appropriate but questioning the amount sought by the Crown.

[3]           In September 2014, Ms. Dizon was hired by an elderly couple, Henry and Helen Abfalter, through an agency, to provide them with homecare assistance.  At the time Mr. and Mrs. Abfalter were living in a retirement home and required extra assistance due to their deteriorating health.  They were both 86 years old at the time. 

[4]           Ms. Dizon assisted the Abfalters with many of their daily activities, which at first was mostly with Mrs. Abfalter given her more significant health challenges.  Ms. Dizon spent a great deal of time with them and developed a close relationship with both of them.

[5]           One of the activities that Ms. Dizon assisted the Abfalters with was banking.  She attended the bank with Mr. Abfalter and at some point learned of the PIN number on his debit card.

[6]           Mr. Abfalter was hospitalized in December 2014.  In the following months, he required 24 hour care as he moved back and forth between the hospital and the retirement home.  Ms. Dizon continued to be a caregiver for both Mr. and Mrs. Abfalter during that period.  Mr. Abfalter passed away in September 2015.

[7]           In January 2015, shortly after Mr. Abfalter had been admitted to hospital, Ms. Dizon took his debit card from his wallet in his bedroom.  Beginning on January 14, 2015, she began withdrawing money from the Abfalters’ chequing and saving accounts by using the debit card.  Withdrawals were made frequently, sometimes daily.  The amounts withdrawn were usually made in the maximum daily allowance of $1000.

[8]           In March 2015, Ms. Dizon began working in a cleaning business although she continued to do caregiving for the Abfalters.  In September 2015, she stopped being a paid caregiver for the Abfalters in order to work full time in the cleaning business.  She nonetheless remained close to Mrs. Abfalter and her family, visiting her at Christmas and Mother’s Day.  Ms. Dizon’s daughter sang at Mr. Abfalter’s funeral.

[9]           While she continued to remain close to the Abfalter family, Ms. Dizon continued to steal from them by regularly withdrawing funds with the debit card.

[10]        On April 28, 2016, Mrs. Abfalter’s daughter, who had a power of attorney for her bank account, was advised by the bank that the account balance was approximately $200,000.  This was alarming to her as when she had last looked in January 2015 there was a balance of approximately $490,000.  She then learned of the regular withdrawals being made from the account at bank machines throughout the lower mainland.

[11]        A report was then made to the police.  The police then reviewed surveillance video from the banks which disclosed that Ms. Dizon was using the debit card.  Ms. Dizon made her last attempted withdrawal in April 2016 when the bank machine would not return the card to her due to the investigation into the account.

[12]        The police then obtained and executed a search warrant on Ms. Dizon’s home and arrested her.  By the time she was arrested, Ms. Dizon had withdrawn approximately $260,000 from the Abfalter’s bank account.

[13]        Following her arrest, Ms. Dizon admitted to stealing the money from the account.  She said that she had taken the money to provide her children with a good life.  She said that she had purchased a number of things with the money, including a new car for her daughter, a piano, a floor polisher for her cleaning business, a bedroom furniture set for her daughter, tuition for her daughter, a trip to Disneyland and the cleaning business that she now owns.  She also paid for rent and food, paid off her Visa debt and sent some funds to family members in the Philippines.  She had no almost no money left at the time of her arrest.

[14]        Through the investigation process, the Abfalter estate has had a number of assets seized to recoup some of the funds.  In addition, the estate has received some funds by way of civil settlements with the bank and the agency.  However, the Crown advises that approximately $105,000 remains owing.

[15]        A pre-sentence report was prepared to assist the court in crafting a fit sentence.  That report reveals that Ms. Dizon is now 50 years old.  She was born and raised in the Philippines.  She had a positive upbringing until she was in grade 6, when her mother left to work abroad.  At that point, her father began to sexually abuse her three to four times per week over a period of three years.  She did not see a counsellor about the abuse.

[16]        Ms. Dizon married in 1996.  She and her husband immigrated to Canada in 2000.  They have three children together, aged 21, 18 and 13.  She separated from her husband in 2010 after he was arrested for child luring.  She has been a single parent since then.  All three of her children currently reside with her.

[17]        Ms. Dizon has a high school diploma as well as a two year post-secondary diploma from the Philippines.  Prior to immigrating to Canada, she worked as a nanny for several years in Hong Kong.  After coming to Canada, she worked in a factory for a year and then worked in home care for 14 years.  As noted, she was working in health care when this offence began.  Since 2015, she has owned and operated a cleaning service franchise.  Her daughter, her eldest son and her boyfriend all work with her in that business.  She works seven days per week in that business, 12 hours per day.

[18]        Ms. Dizon claims that despite the magnitude of the funds stolen from the Abfalters, she has no savings and in fact has visa card debts of $11,000. 

[19]        Ms. Dizon has no criminal record. 

[20]        There have been no issues with respect to her abiding by bail conditions.  Since July 2016, she has not been required to report to a bail supervisor.

[21]        She appears to have little insight into why she committed this offence.  Her explanation does not go beyond stating that she was tight on money and wanted to provide a good life for her children.  She does however, accept responsibility for her actions and acknowledges that she betrayed the victims’ trust.  She also says that the media attention surrounding the offence had an effect on her children which has led to her feeling shameful and embarrassed. 

[22]        Helen Abfalter passed away nine months after Ms. Dizon’s crime was discovered.  When she first became aware that Ms. Dizon was responsible for the loss of her money, she initially refused to believe it, referring to Ms. Dizon as “the kindest person”.  She was devastated when she had to acknowledge Ms. Dizon as the perpetrator.

[23]        A victim impact statement was prepared by Helen and Henry Abfalter’s daughter, Sandra Grushcow.  She says that her mother was shocked and angered to learn what a close friend and caregiver had done to her.  The last months of her life were overshadowed by this event and the efforts to attempt to recoup some of the lost funds from the bank and the care agency that Ms. Dizon worked for.  She could not understand how to reconcile what Ms. Dizon projected - a good mother, church going and conscientious - with someone who could do something so dishonest and cruel.

[24]        The Criminal Code requires a sentencing judge to consider the purpose of sentencing and apply a number of principles in determining what a fit sentence is for an offender.  The purpose of sentencing is set out in s. 718 of the Code, which states:

[25]        Section 718.1 describes the fundamental principle of sentencing as requiring a sentence to be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[26]        Sub-section 718.2(a) states that a sentence should be increased or reduced to account for any relevant aggravating or mitigating factors.  Some of the aggravating factors are codified in the subsection while others have evolved in the case law or can be found in the particular circumstances of an offence or an offender.

[27]        Subsection 718.2(b) requires a judge to consider the concept of parity by imposing a sentence that is similar to previous sentences imposed on similar offenders for similar offences in similar circumstances.

[28]        Finally, subsections 718.2(d) and (e) require a sentencing judge to exercise restraint by considering less restrictive sanctions than imprisonment, where appropriate, giving consideration to the harm done to the victim or the community.

[29]        The Crown has relied on four cases which it says either has similar facts to the present case, or are illustrative of principles that should guide the sentence for Ms. Dizon. 

[30]        The first case is that of R. v. MacNaughten [2001] BCJ No. 3113 (BCSC).  The 59 year old offender in that case was convicted of two counts of fraud over $5000 and three counts of theft over $5000, following a trial.  The offender had set up fraudulent business arrangements in which he agreed to loan individuals money after they paid him a “solvency deposit”.  One individual paid him a deposit of $10,000 and two other individuals paid him deposits totalling $64,300.  All three of the victims were unsophisticated.  These deposits were never repaid.  The offender had no criminal record.  The offences were planned and deliberate. 

[31]        The sentencing judge concluded that the primary sentencing objectives applicable to the case were denunciation and deterrence of others from committing similar crimes.  Reparation for the victims was also an important objective.  He further found that the range of sentences for similar cases was 15 months up to three and a half years plus restitution.  Ultimately the offender was sentenced to 30 months imprisonment, as well as an order for restitution in the amount of $74,300.

[32]        The second case relied on by the Crown is R. v. Woodward 2009 BCPC 259.  In that case, the offender was found guilty of theft and fraud from two clients in the amounts of $145,000 and $40,000.  The offender was a financial advisor and the convictions arose from him obtaining funds from clients to invest in a company that he was promoting but instead depositing the funds in his personal account.  The funds were never returned.  The offence had been driven by the offender’s gambling addiction.  He had no criminal record.  The court found that the range of sentences for similar cases centred around 18 months.  She then found that given the offender’s age (which is not mentioned in the decision) and the 10 years that had passed since the offences, a 12 month sentence, being the low end of the range, was appropriate.

[33]        The third case relied on by the Crown is R. v. Kralik 2006 BCSC 1322.  That case involved a 42 year old offender who was convicted of defrauding an elderly woman of approximately $200,000 over a period of three years.  The offender was a general contractor and entered into a series of contracts with the victim in which to perform work on her home, most of which was never done.  The victim was an elderly single woman with no family and few friends.  The offender had gained her trust and eventually persuaded her to obtain a reverse mortgage on her home in order to advance these funds to him over time.  The offender had a criminal record in the United States which included a sentence of three years and four months in prison for an offence involving defrauding homeowners that the judge described as “hauntingly similar” to the case before her.  The offender remained steadfast in his position that he had done nothing wrong and showed no signs of remorse.

[34]        The judge found that denunciation and deterrence were the primary objectives in sentencing for crimes such as this and ordered a sentence of three and a half year’s incarceration.

[35]        The final case relied on by the Crown is R. v. Bernard 2015 BCPC 107.  In that case, the 57 year old offender was convicted, following a trial, of defrauding an elderly person of over $10,000.  He did so by befriending the victim and moving into the victim’s home in exchange for assistance around the house.  He then obtained the victim’s bank card and made unauthorized bank withdrawals of $500 per day over a period of two months.  When the crime was discovered by the bank, the offender fled, leaving the victim alone with his house in a state of disarray and in seriously compromised health.  The offender had a significant criminal record including property offences, offences of violence and breaches of court orders.  A sentence of four years was imposed.

[36]        The Crown quite properly acknowledges that the aggravating factors in Kralik and Bernard are far more significant than in the present case.  As such, the sentences in those cases are not particularly helpful in determining a fit sentence in the case before me.

[37]        The defence relies on two cases.  The first is that of R. v. Keats [2016] NJ 424.  In that Newfoundland case, the 34 year old offender had pled guilty to defrauding an elderly woman with Alzheimer’s over a period of 12 months.  The offender used her position of trust and her friendship with the victim to defraud her of $5,438 by using her credit card and debit card.  The offender had no criminal record.  Both the Crown and defence sought a conditional sentence but disagreed as to the length.  The sentencing judge ordered that there be an eight month conditional sentence as well as an order for restitution.  I note that the conviction was for fraud under $5000 and, unlike the present case, the Crown proceeded summarily.

[38]        As noted previously, a conditional sentence is no longer available for the offence for which Ms. Dizon has been convicted.  The defence however, asserts that the length of a conditional sentence is generally longer than a sentence of incarceration and as such the eight month CSO in Keats is equivalent to a shorter period of incarceration.

[39]        The second case relied on by the defence is R. v. Burkhart 2006 BCCA 446.  That case was a sentence appeal by the offender of a sentence of 18 months.  The offender was a bank manager and had stolen $81,400 from her employer over a period of 12 months to sustain her gambling addiction.  She was 38 years old and was described as a hardworking, intelligent person.  The Court of Appeal found that the sentencing judge erred in concluding that unusual circumstances must be present in order to consider a conditional sentence.  Accordingly, a conditional sentence of 18 months was imposed.

[40]        In the present case I find the aggravating circumstances to be as follows:

[41]        I find the mitigating circumstances to be as follows:

[42]        While Ms. Dizon’s actions may not have been pre-meditated, it is also difficult to see them as being impulsive since they occurred over a period of 15 months.  She had unlimited opportunities to reflect on what she was doing and to correct or at least stop her conduct.  She did not do so.

[43]        I am also mindful of the fact that Ms. Dizon has already suffered significant consequences by way of the public shame and humiliation arising from the media attention to her case.

[44]        In comparing the cases relied on by the Crown, I note that none of them involved guilty pleas.  Both MacNaughten and Woodward involved a pre-meditation and those offenders were also found to lack real remorse.

[45]        Balancing all of the sentencing objectives, including the mitigating and aggravating circumstances in this case, I find that a fit sentence is one of 12 months.  I believe that such a sentence falls at the lower end of the range for such cases, which I believe is appropriate based on a consideration of all of the facts of this case, including the fact that I intend to impose a restitution order as well.  As referred to at paragraph 23 of MacNaughten, “an order for restitution is punishment; accordingly it should serve to reduce what would otherwise be an appropriate term of imprisonment”.

[46]        The Crown seeks a restitution order under s. 738 in the amount of $105,000.  The defence did not oppose there being an order for restitution but suggested that the amount of such an order was not clear.  He did not however, suggest an alternative amount or the basis for determining an alternative amount.  Under the circumstances, Ms. Dizon is in fact liable for the entire amount of $260,000 and the onus should be on her to establish what amount has been paid back such as to reduce the amount.  Since she has not done so I accept that there should be an order for restitution in the amount of $105,000, which amount is payable to the estate of Helen Abfalter.

[47]        I also order that upon her release from custody, Ms. Dizon will be subject to probation for a period of 18 months.  The terms of the probation will be: