In R v Reeve, 2020 ONCA 381, the appellant, Daniel Reeve, sought to appeal both his conviction and sentence for perpetrating a large-scale Ponzi-scheme. The court decided to hear the sentence appeal first due to time sensitivity. The original sentence was the maximum term of 14 years’ imprisonment; however, on appeal, the court reduced it to 10 years.
The appellant ran a successful financial investment company and was well respected in his field. After falling into financial difficulty, the appellant perpetrated a large-scale Ponzi-scheme on 41 unsuspecting victims – most of whom were vulnerable and loyal clients. This went on for over two years, and over $10 million was defrauded. Once caught, the appellant was tried and convicted of fraud over $5,000 and theft over $5,000 and was sentenced to 14 years in prison – the maximum possible term.
The sentencing judge wrote in detail how devastating the appellant’s crime was to the victims. The judge concluded that nothing about the circumstances warranted a mitigation of the sentencing; in fact, he found that “virtually every aggravating circumstance recognized by the Criminal Code and the case law” was present in this case. The judge considered sentencing decisions in similar fraud cases, but ultimately concluded the appellant’s case was unique and warranted the maximum sentence.
The sentencing judge relied on many aggravating factors when coming to his decision, but the appeal court found only one of the factors necessary to review: the use of lack of remorse as an aggravating factor. A reading of the sentencing judge’s decision shows that the appellant’s lack of remorse for his actions was given substantial weight in the decision to apply the maximum sentence.
A genuine expression of remorse can sometimes serve as a sentence mitigator; remorse can show that an offender honestly recognizes and takes responsibility for the harm that they caused, giving hope that the offender is on a path of change. That said, an offender cannot be punished for showing a lack of remorse. An accused has a right to full answer and defence against the claims made against them, and a right to maintain their innocence even after being found guilty. To punish someone for showing a lack of remorse would undermine these fundamental rights. The court of appeal found this to be the case, stating that the significant weight the sentencing judge gave to lack of remorse as an aggravating factor was directly linked to the appellant having chosen to make full answer and defence in the face of “absolute overwhelming evidence” of guilt. Consequently, the court found the sentencing judge’s decision was in error.
When an appeal court finds that an error has impacted a person’s sentence, that court must undertake its own sentencing analysis to come to a more just sentence. To do this, the court will take into account the key sentencing principles of proportionality and parity.
Proportionality means that sentences must be proportional to the gravity of the offence and the degree of responsibility of the offender; whereas parity stands for the principle that similar offenders who commit similar offences in similar circumstances should receive similar sentences. To satisfy these principles, the court canvased the sentence terms of a number of Ponzi-scheme cases. From these authorities, the court found that the sentencing range of other large-scale fraud schemes often ranged from 8-12 years; however, the maximum 14-year term had yet to be imposed – even in more egregious cases.
Notably, the Crown wished to enter new evidence for the court to consider when determining the new sentence. The appellant, during his day parole, broke his parole officer’s directions by, again, engaging in fraud related activities; as a result, the Parole Board revoked the appellant’s day parole. The Crown contended that the appellant’s behaviour reveals the presence of his disregard for authority and his continued propensity for fraud – attesting to the appropriateness of the original 14-year sentence. However, the court decided that accepting fresh evidence outside of a fair trial is beyond the appropriate bounds of appellate review. Moreover, the court stated that it had enough evidence from the trial to come to a just sentence without the need to consider after-the-fact developments.
Conclusion and Decision
The court decided to grant the appeal and vary the original sentence from 14 to 10 years. They concluded that – despite the gravity of the offence – a 14-year sentence is, nevertheless, inconsistent with the principles of proportionality and parity. The court did not alter any other aspect of the appellant’s original sentence.