New & Notable: Maxwell - not so smart after all

Norman Maxwell thought he had a clever scheme. His scheme involved defrauding the Bank of Montreal to the tune of $375,000; he did so through several transactions occurring over the period of about one month. 

Maxwell was charged and ultimately found guilty after trial. The trial judge imposed a sentence of 4 years jail and made two ancillary orders: (i) restitution in the amount of $293,205; and (ii) a fine in lieu of forfeiture in the same amount to be paid within 30 days prior to the appellant’s release from custody, and in default of payment, a further term of imprisonment of four years to be served consecutively to the principal sentence. Maxwell was not happy - he had sought a conditional jail sentence or in the alternative, a sentence in the range of 2 years. He appealed. The Court of Appeal dismissed his appeal: 2014 ONCA 316.

On appeal two issues were raised.

First, Maxwell took issue with the length of sentence. The court rejected this ground of appeal. 

A custodial sentence of four years in our view falls within the range of sentence appropriate for the offence and the offender who committed it. The scheme involved several individual transactions that took place over a period of about a month. The amount of money involved, $375,000, was significant. That the bank manager breached bank procedure in the hope that the appellant’s promise of significant future business does not diminish the appellant’s moral blameworthiness. Nor are we persuaded that the trial judge’s consideration of the significant personal consequences for the manager resulted in the imposition of an unfit custodial sentence.

The reasons of the trial judge reflect consideration and application of the controlling sentencing principles including denunciation, deterrence and, secondarily, rehabilitation. The appellant is a mature adult, with related but dated convictions. At the time of sentencing he continued to solicit funds from others for a highly secretive project that the trial judge was satisfied did not exist [paras 5-6].

Second, Maxwell took issue with the fine in lieu of forfeiture. The court held that the "imposition of a fine in lieu of forfeiture...reflects no error in principle" [para 8]. However, the court did vary the order by allowing 2 years (rather than 30 days) to pay and reduced the imprisonment in default from 4 years consecutive to 3 years.