Prosecutors have done an abrupt about-face on what they feel is a fit sentence for a former nanny who bilked a Manitoba judge's grieving widow out of more than $165,000.
Months ago, the Crown joined with Kelly Zaborowicz's lawyer to recommend she get a community-based sentence for the crime of theft over $5,000 -- a punishment that would see her kept out of jail for stealing from Susan Wortzman, the wife of late Court of Queen's Bench Justice John Scurfield.
But a not-so-glowing Manitoba Corrections pre-sentencing report, coupled with a judge's qualms over whether a conditional sentence meets the ends of justice in the breach-of-trust case, has the Crown now seeking up to two years of jail for Zaborowicz, a 43-year-old first offender.
Zaborowicz returned to court Monday to continue her sentencing hearing. The case has been on hold since last fall to allow provincial court Judge Larry Allen to receive additional background information about her as well as for lawyers to argue he should sanction the plea deal they had arrived at.
'The jail that she lives in every day is going to be just as bad as a real jail cell. Has she been a model of a perfect citizen? Clearly not. That's why we're here'
But the Crown signalled a major change of heart Monday, citing a "not especially favourable" pre-sentencing report that found Zaborowicz to be a "medium" risk to reoffend despite having no criminal history.
The report contained "inconsistencies," such as whether the stolen money was used, in part, to help a struggling relative as Zaborowicz said it was, the Crown said.
Prosecutor Shaun Sass suggested the original plea deal was made in consideration that any such report would come back positive. That said, it was Allen who ultimately requested the report, not the lawyers involved in the case.
Justice Scurfield died in November 2009 after being diagnosed with cancer in 2008, the year Zaborowicz went to work for his family as a housekeeper and nanny to his son.
Between September 2008 and September 2011, Zaborowicz forged 192 of Wortzman's cheques worth $165,673, with the majority deposited in her personal bank account, the Crown previously said.
Some were also used to pay off balances on a credit card in Wortzman's name Zaborowicz stole. As well, some cheques were cashed after she left her position, court heard. The ill-gotten funds were used to buy furniture, jewelry and other items. The Crown asserts she took advantage of the family in their darkest hour.
Sass noted how Zaborowicz cashed cheques in the days just before and after Scurfield's death. Co-prosecutor Carrie Ritchot emphasized to Allen past sentencing decisions exist to support jail terms in some cases where breaches of trust occur.
The victim wasn't a corporation that has insurance to help recoup losses, she said. "It's a family that's actually affected by this," Ritchot said.
Defence lawyer Darren Sawchuk said he was notified just before court Monday the Crown's position had changed.
He urged Allen to allow Zaborowicz to serve her sentence at home, saying it was better for everyone she be allowed to keep working and making restitution to Wortzman as much as possible.
He called the Crown's change of mind about the joint sentence recommendation "curious," because all facts about the thefts were known at the time the plea deal was agreed to.
The pre-sentencing report the Crown is relying on to back away from the plea deal isn't negative, Sawchuk said, describing it as "realistic, and quite bleak and sad."
"The jail that she lives in every day is going to be just as bad as a real jail cell," he said. "Has she been a model of a perfect citizen? Clearly not. That's why we're here."
In front of several family members present in support, Zaborowicz was seen in tears many times during the hearing.
She again apologized to Wortzman, who flew in from Ontario to be there. "I can only say I'm sorry to everyone," Zaborowicz said.
Allen reserved his decision to later this year.