Ontario Court Justice Romuald Kwolek opted Tuesday to suspend sentence and to place Nicole Gyde on probation, with numerous restrictive conditions, for the maximum period of three years permitted under Canadian law.
The 45-year-old Sault Ste. Marie woman pleaded guilty to fraud over $5,000 at an earlier court appearance.
She admitted taking $49,800 from Northern Credit Union, where she worked for 17 years.
The offence involved transferring funds from her employer to her boyfriend's account. The transactions occurred between April 2015 and February 2016.
The Crown was seeking two months behind bars, while the defence had proposed a suspended sentence for the offence.
Both lawyers agreed that a standalone restitution order for $12,000 to be paid to the credit union should also be issued and Kwolek made that order.
When he imposed the sentence, Kwolek said he was taking into consideration that Gyde already has repaid $20,000 to her former employer, which he described as a "significant amount."
The judge said the first-time offender abused a position of trust, stole the funds over a period of time, and her actions were not a momentary lapse of judgment — all aggravating factors.
Kwolek cited her plea of guilt, the repayment of the $20,000, and her full co-operation with police as mitigating factors, also noting she has had been able to find another job with an employer who thinks highly of her.
Gyde resides in the relatively small community of Sault Ste. Marie, and has faced a fallout of embarrassment and ridicule and will continue to suffer this, he said.
General deterrence is the most important factor in sentencing a person, even a first offender, for breach of trust of an employer, Kwolek said.
But sentencing is an individualized process that depends on the circumstances, the offender and the weight given to the factors, he said.
The judge indicated that imprisonment is the sanction of last resort and the sentence must be similar to those given to similar offenders for similar offences.
He noted the shortfall to the credit union, with the restitution already made, is $12,000 — much less money than in other cases that have occurred locally.
During the first 12 months of her probation, Gyde will have a daily 7 p.m. to 7 a.m. curfew, which Kwolek told her is punishment, and to further restrict her freedom she can have no alcohol during that time.
She must also do 240 hours of community service — the maximum number hours the judge can order — during the first 18 months.
"It is appropriate for you to give back to the community you harmed," Kwolek told her.
Gyde must also provide a DNA sample for the national database and pay a $200 victim surcharge.
Prior to sentencing, she told the judge that she feels remorse for everything she has done.
"Myself and my family have paid for it in embarrassment and humiliation. I'll never be able to recover that for them," she said, fighting back tears.
She said she knows that she did it to herself, but if she could go back in time she would have done something else to deal with her financial difficulties.
Defence counsel Wayne Chorney asked Kwolek to suspend sentence and place his client on probation with strict conditions, for two, or even three years, suggesting the judge could be creative in crafting the sentence.
"You have the ability to allow her to escape entering jail, which has worried her to death for months and months," he said, adding "I don't know how much more that would do to what she has done to herself."
Assistant Crown attorney Marie-Eve Talbot called for 60 days custody, arguing that only a period of incarceration would reflect the sentencing principles of denunciation and deterrence for such a breach of trust.
The "considerable amount of transactions" occurred over a period of 10 months and involved a significant amount of money, she said.
"She was caught as opposed to voluntarily terminating her criminal activity."
The prosecution and defence said Gyde should be ordered to pay $12,000 restitution to the credit union — the deductible amount not covered by the institution's insurance.
Chorney told the court his client's motive for the theft was "not pure greed."
Gyde, who supports a daughter and grandchildren, was "seriously falling behind In her financial life."
Placing a roof over their heads "took a financial toll, hence the fraud," he said.
She was not gambling nor playing the stock market, "merely trying to get by."
Chorney referred to the "very good" pre-sentence report, and a comment made by Gyde to the writer that he described as compelling for not considering incarceration in this case.
His client stated that she is spending a lot of time, because of embarrassment, living as a prisoner in her home.
"I'm paying the price every day," she told the report's author, indicating she was willing to do community service and probation for the rest of her life. 'I am afraid of what jail will do to me."
"This woman is truly remorseful for what happened, has punished herself psychologically," Chorney said, calling it more than the specific deterrence needed to prevent her from doing this again
He noted Gyde's current employer is aware of what she did, but describes her as the best employee he has had in years.
Talbot agreed the pre-sentence report shows the woman and her supportive family, who described her actions as completely out of character, have suffered consequences as a result of this offence.
As well, it indicates she now has a good full-time job with a supportive employer, who stated it would be a hardship for his business if she was incarcerated, but indicated she would have the work after completing the sentence, the Crown said.
Talbot cited a number of aggravating factors — the theft by a long-time employee who had been given considerable trust, the number of transactions, and the amount of money stolen.
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