R. v. Cassettari, 2010 BCPC 139

2010-07-05

[1]        Kathleen Cassettari has pled guilty that between April 1, 2007 and December 1, 2007 in Vancouver she did by deceit, falsehood or other fraudulent means defraud Dr. Jim Grisdale Inc. of money of a value in excess of $5,000 contrary to Section 380(1)(a) of the Criminal Code.  Cassettari stole the money when she was employed in the office of Grisdale, who was a dental surgeon.

[2]        Grisdale had hired Kathleen Cassettari at the rate of $24/hour to work about two days each week in his office, but there was an agreement between the two that Kathleen Cassettari could work additional hours and also work out of the office.  She was to keep her hours on the “honor system.”  Kathleen Cassettari was to do bookkeeping, banking, and arrange travel bookings for lecture tours.  Dr. Grisdale had a very busy practice as a dental surgeon and was asked frequently to give lectures.  After a time Grisdale obtained a Visa credit card for Kathleen Cassettari to facilitate the various financial arrangements that she had to make on his behalf.

[3]        In the fall of 2006 Kathleen Cassettari opened her own business called “Cheesecake 101”.  This was a bakery modelled on a similar business her sister had in Campbell River.  Kathleen Cassettari asked Grisdale to invest in her business; this was discussed at a number of meetings between the two but Grisdale decided not to participate as an investor.

[4]        Cheesecake 101 ran into financial problems and Kathleen Cassettari began taking money from Grisdale to resolve the financial problems.  The defalcations were in the form of fraudulent cheques, fraudulent bank drafts, exaggerated timesheets and fraudulent purchases on the credit card that was to be used for Grisdale’s business purposes.

[5]        There were 5 fraudulent cheques, each in the amount of $5,000 beginning on April 19, 2007 with the first four cheques monthly and the final cheque on October 2, 2007.  Each cheque was drawn on Grisdale’s corporate account with the accused as payee.  Grisdale signed the cheques, either as blank cheques, or while unaware of the nature of what he was signing.

[6]        There were eight fraudulent bank drafts from July through November of 2007 purchased in the name of Grisdale’s professional corporation.  Five of the drafts were in the amount of $4,610.14 and paid to Cheesecake 101’s landlord.  The others were one for $1,565.00 and two each for $4,500.  The latter two bank drafts were each to the husband of the accused as payee.

[7]        A third area of defalcation by Kathleen Cassettari involved what the Crown characterized as, “a vast overstatement of her hours.”  For the final year of her employment, before she was fired by Grisdale on February 23, 2008, Cassettari billed for 2,586 hours, or an average of 7.08 hours per day for each of the 365 days of the previous year.  Cassettari’s replacement has been performing the same duties and billing for 160 hours each year.  Although it is not possible to determine exactly how much was stolen in this way, the Crown estimates the amount to be $40,000.

[8]        The final method Kathleen Cassettariused to take money from Grisdale was through misuse of a company credit card.  Grisdale had a business card for business expenses but Cassettari was not able to use it at times because her name and signature were not on the card.  Grisdale had a second card on the credit card account issued in Cassettari’s name.  This card was to be used for incidental expenses concerning the medical practice and was not to be used for Cassettari’s personal purposes.  However, she did use the card for personal purposes and a forensic accounting analysis estimated the amount taken was approximately $40,000.

[9]        Cassettari disagreed with some of the Crown’s allegations concerning the credit card defalcations – in particular, a charge for approximately $2,500 to Home Outfitters.  Her position was that this charge had been made with the permission of Dr. Grisdale and had been repaid by her a short time later.

Evidence

[10]      As a result, the Crown called Dr. Grisdale to give evidence.  He said that he has been operating a specialty dental practice for twenty-two years.  He has had various employees and he had hired Cassettari to manage his office – pay his bills, deal with accounts receivable, and make purchases for the practice.  He described how he obtained a second corporate credit card in the name of Cassettari to be used only for purchases for the dental practice.  He said he never had a discussion with Cassettari about a charge to Home Outfitters.

[11]      In cross-examination he said that he was aware that Kathleen Cassettari was setting up her own business while she was working for him.  They had discussed the possibility of Grisdale investing in the business and even had a dinner meeting concerning this, but Grisdale had decided to not invest.

[12]      He was asked concerning an incident in January of 2007 when the purchases had been made from Home Outfitters.  It was suggested to Dr. Grisdale that Kathleen Cassettari had telephoned to him and advised him that she wanted to buy ten mixers for her new bakery business but she had exceeded her credit limit and wanted to use his card. In response to this suggestion, Grisdale said, “I have no recollection of that.  I never had that conversation.”  He agreed that around the time he terminated Cassettari he became aware of the charge, and that Cassettari had repaid it.

[13]      It was suggested to Grisdale that he must have been aware of the charges being made by Kathleen Cassettari from reading the statements sent by his credit card company.  He replied that he never had the opportunity to see any of the statements because they were kept by Kathleen Cassettari “off-site” at her Cheesecake 101 enterprise.  She had told him that she had them there to work on them in her spare time.

[14]      Kathleen Cassettari herself gave evidence.  She described how she had been with her sister at the Metrotown Home Outfitters and they were purchasing the ten mixers for Cheesecake 101.  Her sister had originated the concept of the bakery and had suggested this purchase.  Cassettari’s debit card was declined so she said she phoned Grisdale for his permission to use his card, and then to pay him back, which she did.

Issue

[15]      In resolving this narrow issue of the purchase of the ten mixers, the Crown says that Dr. Grisdale is credible and it makes no sense that Kathleen Cassettari would have phoned and asked permission from Grisdale when she could simply have asked her sister to help – her sister was right there with her.

[16]      The Defence argues that Dr. Grisdale was busy, would have little interest in such a simple matter, and just does not remember it.  In addition, it makes no sense that Kathleen Cassettari would admit all allegations but this one, and her paying it back confirms what she says.

Analysis

[17]      It is clear, from hearing Grisdale and Kathleen Cassettari in evidence, and the submissions of both counsel concerning the Cheesecake 101 inception, that there was a period of time when Cassettari needed financial help and looked to Grisdale.  It is equally clear that Grisdale decided against that.  Nevertheless, Kathleen Cassettari continued with her hope he might assist.  This hope evolved into a belief that he might change his mind, and then a rationalization that he was actually prepared to assist her.  As a result, when the firm accountants asked her for information concerning all of these cheques, drafts, and other transactions, she claimed these sums were taken with the consent of Dr. Grisdale and therefore simply money owing to him.

[18]      At the same time that the accountants were doing their audit she wrote a note to Dr. Grisdale –

Dear Dr. Grisdale-

Hello.  I hate that I’ve resorted to writing you a card, but it beats “no acknowledgement”... of something of interest to you.  I’ve got some monies I owe you through visa and cheques and I want to let you know this is in part (a very large part) why I have acted ‘stressed’ of late.  All is good now (secured financings) but initially we never borrowed enough and then a promise my mum made, she backed out on much to d. and me’s horror, then Mickey’s strokes – so read what I have proposed (we) + please let’s talk – remember I owe you !  ....

[19]      And then she wrote this letter –

February 21, 2008

Dear Dr. Grisdale,

We would like to formalize our arrangement for the loan.  We want to make an agreement on the amount.  It is important that we have a plan to pay this debt to you and we propose that we start on the 1^st of June of this year to repay $1000.00 per month, for one year, then year 2 and 3, $2,000.00 per month.

This plan does not take into account any interest which must be addressed.

As we want our company to grow and expand it is important that all our documentation is in place so we can pursue necessary financing.

In closing, we want to say we more than appreciate the time, the support and trust you have placed in us and our company, many THANKS are owed to you.

(signed)  Katie & Dominic Cassettari

[20]      All of this is very telling concerning Kathleen Cassettari’s thought processes.  It must be concluded that there was no permission from Dr. Grisdale to use his credit card for Kathleen Cassettari’s business and in particular no permission for the purchase from Home Outfitters.  Grisdale is correct – the conversation never happened.  He would certainly have remembered a phone call out of the blue asking him to pay for ten kitchen mixers.  Kathleen Cassettari perhaps believed that if she had asked, he would have agreed.  Or that he should agree.  Whatever the situation, her hopes became part of her reality, and she gradually convinced herself that the situation was as she represented in her evidence.  Just as she later convinced herself that all her thefts from Dr. Grisdale were “monies I owe you through visa and cheques” [the note], and she would “like to formalize our arrangement for the loan” [the letter].

The Offence

[21]      In assessing the seriousness of this offence, the first observation is that these crimes involved a breach of trust.  It is common for a professional to place complete trust in others to administer ancillary services.  Kathleen Cassettari had that trust from Grisdale and she abused it.  This was done over a considerable period of time – at least the eight months charged on the information.  The defalcations were numerous and varied, and there was considerable opportunity throughout for Kathleen Cassettari to consider her position and mend her ways.

[22]      This was not a sophisticated scheme, however.  Once a forensic accounting was done most of the transactions could be easily identified.  The cheques and bank drafts could be traced to the accused.  It was obvious that she was the person responsible for overcharging her timesheets, and for the unauthorized use of the firm credit card.

[23]      The amount of money taken was considerable.  In her letter proposing repayment, Kathleen Cassettari acknowledged an amount of at least $60,000, and said, “We want to make an agreement on the amount.”

[24]      The Crown’s estimate is that the amount was considerably more – at least double the $60,000 Kathleen Cassettari proposed to repay.  The falsified cheques are ascertainable - $25,000.  So too are the bank drafts - $33,615.17.  The Crown says the overpayment of wages was approximately $40,000 and the unauthorized credit charges a similar amount.  Civil proceedings were taken and concluded by Dr. Grisdale and therefore the Crown is not seeking any type of restitution order in these proceedings.  Apparently something like $120,000 was realized in the civil proceedings.  For the purposes of assessing the seriousness of the offence, I have concluded that Cassettari stole an amount well in excess of $100,000 from Grisdale – a very considerable amount indeed, and a most serious breach of trust.

The Offender

[25]      Kathleen Cassettari is 46 years old, originally from Nelson, B.C.  Her mother owns a business in Ashcroft, and she has a sister in Campbell River.  Cassettari has struggled with mental illness much of her adult life and had some breakdowns.  In 2001 she was finally diagnosed as Bi-Polar by a psychiatrist she was seeing.

[26]      Kathleen Cassettari began work as a receptionist and office assistant in the dental industry in 1994.  After working for others, she began working for Dr. Grisdale in about 2002.  After a year or two she decided to open her own business, called Cheesecake 101.  This was patterned after a business her sister had started in Campbell River that was quite successful and it was the hope of Kathleen Cassettari and her husband that they would have the same success.  They paid her sister $40-50,000 for her expertise in setting up the enterprise.  Cassettari’s husband went to Campbell River to learn the business from the sister.  Unfortunately they found they were underfinanced and received too little assistance from the sister.  Kathleen Cassettari’s husband had no income, and when Grisdale decided against giving financial assistance, Kathleen Cassettari committed the thefts.

[27]      Kathleen Cassettari’s relationship with her mother and grandmother had earlier become estranged.  When Cheesecake 101 became unstable, her relationship with her sister was strained.  Then she and her husband had problems, and are now divorced.  At the end of 2007, at the height of these problems, Kathleen Cassettari relapsed into a drinking problem she had previously experienced.

[28]      Nevertheless Kathleen Cassettari has now started to turn things around.  She attends her doctor twice each month concerning her Bi-Polar condition.  She has stopped drinking and attends Alcoholics Anonymous meetings on a regular basis.  She has arranged to rent an apartment in West Vancouver so that she can be near the residence of her six year old daughter and she can exercise access from her ex-husband more easily.

Crown

[29]      Mr. Ross for the Crown suggests that a sentence of 18-24 months is indicated by the case law.  He agrees that a conditional sentence order may be indicated because of the guilty plea and the fact the accused has no criminal record.  There has been re-imbursement, although full credit for this as a mitigating factor would require that it be voluntary and in this case the money that was recovered was as a result of civil proceedings.

Defence

[30]      Mr. Picard agrees that a jail sentence is indicated because of the aggravating circumstance of the breach of trust, but he asks the court to “reject real jail” because of the mitigating circumstances generally, and the personal circumstances of his client.  As a result he says rehabilitation should be primary in this case therefore this court should consider ordering Community Work Service and a Roger’s Order.

The Law

[31]      Our Court of Appeal has dealt with breach of trust thefts in two recent cases.  In Regina v. Burkart, [2006] B.C.J. No. 2621, the accused had a gambling addiction and had stolen $81,400 from TD Canada Trust, her employer, over a one year period.  At paragraph 17 Thackeray J. says,

[17]  The circumstances of the case at bar were such that, in my opinion, the form of sentence that would best recognize the purpose of the legislative scheme and accommodate the judicial pronouncements thereon is a conditional sentence.  This would fulfill the provision of section 718.2(d) as the “less restrictive” sanction “appropriate in the circumstances.”  It would also, as per subsection (e), be “reasonable in the circumstances.”

[18]  Nevertheless, I might have been inclined, for reasons of deference, to dismiss this appeal were it not for the fact that in exercising his judgment as to the form of sentence the trial judge applied a test that, to my knowledge, has never been applied by superior courts.

[19]  Earlier in these reasons I underlined the word “unusual” on several occasions where it was used by the trial judge to support the proposition that “unusual circumstances” are required to be present before a judge should make a conditional sentence order.  ...

[20]..I have been unable to find any superior court authority suggesting that the test requires there be “unusual circumstances.”  Nor does any section of the Criminal Code require “unusual circumstances” before a conditional sentence may be imposed.

[32]      The court in Burkart imposed an 18 month conditional sentence.  The other case from our Court of Appeal I wish to refer to is that of Regina v. Dickson, [2007] B.C.J. No. 2472.  In that case the accused pled guilty to stealing $147,000 from her employer’s two businesses.  She did have a criminal record, but she also suffered from a Bi-Polar Disorder.  The court imposed a 12 month conditional sentence order.  At paragraph 70 Finch C.J.B.C. said,

[70] In my respectful opinion, a sentence of imprisonment is unfit in these circumstances.  It cannot be necessary in the interests of general deterrence for serious theft, to incarcerate someone who is mentally ill when the offenses were committed, whose mental illness was a cause of her committing the offenses, who pleads guilty, who makes restitution, and who undertakes an appropriate course of medical treatment.  To the extent that public opinion is relevant to the principle of general deterrence, I am satisfied that reasonable citizens informed of all the relevant circumstances in this case would consider that the provisions of the Criminal Code and the ends of justice are met by a conditional sentencing order.

[33]      My conclusion:  Unusual circumstances may be suggestive of a Conditional Sentence Order on charges of breach of trust.  Unusual circumstances are not a pre-condition to such a sentence.

Decision

[34]      It is clear that for many years Kathleen Cassettari had difficulty coping because of her emotional problems.  It took a very long time for her Bi-Polar Disorder to be diagnosed.  The estrangement of her mother and grandmother was likely in part due to their frustrations in dealing with her.  Nevertheless she managed to cope relatively well and maintained herself as a responsible citizen.  She had a good job with Dr. Grisdale’s office.

[35]      When she tried taking some initiative and started Cheesecake 101, she was overextending herself more than just financially.  She decided to solve her difficulty by stealing from Grisdale.  Her thefts were simple and unsophisticated, but they were not impulsive and there was ample opportunity for her to reconsider.

[36]      In some such schemes more than one perpetrator is involved.   There was not that complication in this case, but her family must have been aware of what she was doing.  It is difficult to understand why her ex-husband or her sister did not realize that someone so emotionally vulnerable needed their help.

[37]      I discussed earlier the rationalizations of Kathleen Cassettari.  She convinced herself that she was not stealing, but that she was borrowing the money and that she could later, “formalize our arrangement for the loan.”  Such rationalizations are not at all unusual – there is often some justification such as “I need it more than they do”, “they’ll never miss it”, “they can afford it”, or “I’ll be able to pay it back right away.”  Cassettari cannot continue to fool herself and she must face the fact that she is a thief – nothing more and nothing less.

[38]      The necessity for the court hearing evidence on the Home Outfitters issue caused me concern that Kathleen Cassettari may not be remorseful.  She has hesitated in admitting to herself and others what she has done.  To say the least, what she has done is devastating.  Here are some of the comments of Dr. Grisdale from his Victim Impact Statement filed in these proceedings –

When I found out she was stealing from me and the extent of her betrayal I lost trust in everyone.  This was not a onetime event.  She stole from me over and over again, hundreds of times, each and every time she used the corporate credit card, over-reported her hours to my payroll service or convinced the bank teller to give her a bank draft drawn on my account.  She didn’t just devastate my life and compromise my ability to trust anyone.  She also affected many other people, from her colleagues ... to the bank teller who lost his job because she preyed on his naivety.

When I discovered the fraud on February 23, 2008 I had no idea how much more pain and damage awaited...  The time, energy, emotional, physical and financial drain exacted a toll on my health that I have yet to recover from.

My experience has utterly shaken my faith in our Criminal Justice System; as it is apparent to me that victims of property offenses are marginalized, patronized and ignored.  ...The price of what she has done cannot be quantified and cannot ever be repaired.  Ms. Cassettari’s criminal acts have changed me irrevocably and have changed my view of the world.

[39]      Had she been well aware of the harm she would cause, real jail would have to be imposed in this case.  But the Court of Appeal has recognized that limitations on mental capacity, such as a Bi-Polar Disorder, must be considered in determining culpability.  In this case, I conclude that her emotional difficulties still cause her to continue with her rationalization of the incidents and her difficulty in admitting her crimes in a more forthright manner.

[40]      This court’s sentence will not help Dr. Grisdale.  The principles of sentencing are many, but reparations and restitution are the only two dealing with the issues of victims.  And the powers of the court to make reparations are very limited.  Dr. Grisdale has his civil remedy, unsatisfactory as he says it was, and that is as far as the court can go.

[41]      The other principles of sentencing are directed at the accused and society in general.  These crimes must be denounced – I echo the words of denunciation of Dr. Grisdale in his Victim Impact Statement.  The courts sentence must deter others – there must be a consequence that others will have in mind if they consider committing such thefts, so that they are dissuaded.

[42]      Cassettari must be specifically deterred from this behaviour.  A related principle is that society must be protected from her repeating such an offence.  Isolation from society would assist in this regard.  So too would a court order limiting her from positions of trust or responsibility for money.

[43]      As the defence has submitted, in this case rehabilitation should be emphasized.  Cassettari was able to function for many years as a responsible citizen and as much as possible the court’s sentence should assist her in resuming that.

[44]      I must conclude that this is a case where a conditional sentence order is indicated.  But because of the gravity of the situation the sentence must be the maximum – two years less a day.  In addition, because of the continuing personal difficulties of the accused, the maximum probation order of three years must follow the sentence.

[45]      I sentence Ms. Cassettari to two years less a day to be served as a conditional sentence order with the following conditions:

1)     Keep the peace and be of good behaviour.

2)     Appear before the Court when required to do so by the Court.

3)     Remain within British Columbia unless written permission is obtained from the Court or your Supervisor.

4)     Notify the Court or the Supervisor in advance of any change of name or address, and promptly notify the Court or your Supervisor of any change of employment or occupation.

5)     Report in person to a Supervisor at 275 East Cordova Street, Vancouver, B.C. before 4:00 p.m. on July 7, 2010, and thereafter when and where directed by a Supervisor or correctional officer.

6)     Reside where directed by your Supervisor.

7)     You are to have no contact directly or indirectly with Dr. James Grisdale or any person known by you to be a member of his family or of his office staff.

8)     You must not attend at any premises known by you to be the residence or workplace of Dr. James Grisdale or any member of his family.

9)     You must not be found outside you place of residence for the period of your conditional sentence order –

a.      Except for a genuine medical emergency pertaining to yourself or;

b.      Except with the written permission of your Supervisor or;

c.      Except while traveling directly to and from or while at any location approved in writing by your Supervisor for any reason deemed appropriate by your Supervisor or;

d.      Except while traveling directly to and from or while at your place of employment or education as approved by your Supervisor.

10)  Present yourself at the door of your residence when requested to do so by a Supervisor or any peace officer.

11)  You shall participate in the Electronic Monitoring Program, provided that it is available, for the duration of this Order.  For these purposes, you will cooperate with the directions of your Supervisor in order to be assessed for the Program.  You must obey all the rules and regulations of the Electronic Monitoring Program.

12)  You shall perform fifty hours of Community Work Service at the direction of your Supervisor on or before June 30, 2011.

13)  Do not possess or consume any alcohol, intoxicants, or drugs as defined by the Controlled Drugs and Substances Act save as authorized by law.

14)  Having consented, you must attend for such treatment as directed by your Supervisor, including for substance abuse and/or psychological or psychiatric disorders.

15)  Having consented, you must attend all scheduled medical appointments and take all medication prescribed to you.

16)  Having consented, you must tell your Supervisor and your treating physician to provide each other with their name, address, and phone number and to advise each other if you breach any terms of this Order.

17)  Having consented, if you breach any term of this Order you must begin reporting immediately to your Supervisor when their office is open.

18)  Do not possess any credit cards, bank cards, or cheques, nor any identification, in any name other than Kathleen Della Cassettari.

19)  You are not to take employment where you would have responsibility for money or books of account.

[46]      In addition, I sentence Ms. Cassettari to be on probation for a period of three years following the Conditional Sentence Order with the following conditions:

1)     Keep the peace and be of good behaviour.

2)     Appear before the Court when required to do so by the Court.

3)     Notify the Court or the Probation Officer in advance of any change of name or address, and promptly notify the Court or the Probation Officer of any change of employment or occupation.

4)     Report in person to a Probation Officer at 275 East Cordova Street, Vancouver, B.C. with 72-hours of the completion of your Conditional Sentence Order, and thereafter when and where directed by a Probation Officer or correctional officer.

5)     Reside where directed by your Probation Officer.

6)     You are to have no contact directly or indirectly with Dr. James Grisdale or any person known by you to be a member of his family or of his office staff.

7)     You must not attend at any premises known by you to be the residence or workplace of Dr. James Grisdale or any member of his family.

8)     Do not possess or consume any alcohol, intoxicants, or drugs as defined by the Controlled Drugs and Substances Act save as authorized by law.

9)     Having consented, you must attend for such treatment as directed by your Probation Officer, including for substance abuse and/or psychological or psychiatric disorders.

10)  Having consented, you must attend all scheduled medical appointments and take all medication prescribed to you.

11)  Having consented, you must tell your Probation Officer and your treating physician to provide each other with their name, address, and phone number and to advise each other if you breach any terms of this Order.

12)  Having consented, if you breach any term of this Order you must begin reporting immediately to your Probation Officer when their office is open.

13)  Do not possess any credit cards, bank cards, or cheques, nor any identification, in any name other than Kathleen Della Cassettari.

14)  You are not to take employment where you would have responsibility for money or books of account.

[47]      I am waiving the Victim Fine Surcharge; Cassettari has limited means, restitution has largely been effected, and the offenses were motivated by financial problems.  I have considered whether a D.N.A. Order is appropriate and concluded that because there is no previous criminal record, because this particular offence did not involve D.N.A. investigation, and because similar offenses seldom involve investigation with D.N.A. evidence, the order will not be made.

By The Court