R. v. Mahoney Date:, 2011 BCPC 31

Citation: R. v. Mahoney Date: 20110111 2011 BCPC 0031 File No: 173704-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROXANNE AILEEN MAHONEY ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K.W. BALL Counsel for the Crown: J. Gahunia, L. Fontaine Counsel for the Defendant: P. McMurray Place of Hearing: Surrey , B.C. Dates of Hearing: May 19, November 19, 2010 Date of Judgment: January 11, 2011 [ 1 ] THE COURT : These are Reasons for Sentence in R . v. Roxanne Mahoney .

INTRODUCTION [ 2 ] Roxanne Kathleen Mahoney entered guilty pleas to one count of using a false driver's licence as if it were genuine, contrary to Section 368(1) of the Criminal Code , and a count of possession of identification and cheques of an individual, and cheques belonging to a company, knowing that these items were stolen, contrary to

Section 355 (

b) of the Criminal Code of Canada . [ 3 ] Crown counsel took the position that a fit and proper sentence would be 12 to 15 months in jail, not in the community, taking into account the circumstances of the offence, the circumstances of the offender, and the provisions of the Criminal Code applicable to sentencing.

Crown counsel also submitted that two years probation should follow the term of imprisonment. [ 4 ] While the Crown acknowledges that with a sentence of less than two years the court must consider a community-based sentence, given the circumstances of these offences, and the circumstances and record of the offender for similar offences, the Crown submits that a sentence of incarceration not served in the community is appropriate because of the apparent risk of further offending. [ 5 ] Among the concerns raised by the Crown included a complete lack of independent collateral information in the pre-sentence

report, as well as the proposed residence with a convicted person, Mr. Lacroix. [ 6 ] Defence counsel acknowledged that a jail sentence was a necessary sentence in this case, but submitted that as the accused was not a risk in the community the sentence could be served under a conditional sentence order of less than two years, with stringent conditions, including house arrest and electronic monitoring. It was submitted that she will no longer be living with Mr. Lacroix and her circumstances would be stable. As well, she is attempting to develop a business in renovating former marihuana grow operation residences.

For these reasons defence counsel submits a conditional sentence order is appropriate. [ 7 ] The criminal record of the accused is set out at page 4 of the pre-sentence report. The record begins in 2002 and includes ten offences, including theft, fraud, uttering a forged document, and theft of hydro. The sentences escalate through a fine, suspended sentence, two conditional sentence orders, 30- and 90-day jail sentences, and most recently in 2004, a sentence of time served of six months with nine months consecutive, for a total of 15 months in custody.

That latter sentence was followed by three years of probation. There is a gap in the record of the accused from the end of that last sentence until the offences presently before the court. CIRCUMSTANCES OF THE OFFENCE [ 8 ] On March the 4th, 2009, at 9:20 p.m. Ms. Mahoney entered a Walmart store in Langley, British Columbia. There she was under surveillance by a loss prevention officer in the electronics department, both visually and by closed-circuit television.

She picked out HDMI cables and other items related to high definition television, and then asked a sales representative to move a 46-inch high definition television to a sales cashier. That transaction, including the television, had a price of $1,878.86. [ 9 ] Once at the cashier she told the employees of Walmart she had to go to her car to retrieve a different credit card. She left the store. Moments later she returned to the store and walked directly into the stationery

section where she selected a pen. She paid for the pen at the main cashier and went outside the store to a green minivan she was apparently using which was parked nearby. By closed circuit television the loss prevention staff of Walmart observed Ms. Mahoney signing credit cards at the vehicle. [ 10 ] She then returned to the store and presented two prepaid Visa cards as payment to the store staff. She was requested to provide a driver's licence. She presented a British Columbia driver's licence which had her photograph displayed thereon. The name on the driver's licence did not belong to Ms.

Mahoney but had been stolen earlier from its owner, C.V.W. C.V.W. does not know Ms. Mahoney, and the address on the licence not currently occupied by C.V.W. The purse belonging to C.V.W. with her wallet containing the driver's licence was stolen at the same time as her vehicle was earlier stolen. The purse was not recovered. That theft had previously been reported to the police. [ 11 ] The loss prevention officer inspected the prepaid Visa cards and the driver's licence and was quickly of the opinion that these documents were forgeries.

The Visa cards had stickers applied and the signature pads had been tampered with and scratched away. The driver's licence was a genuine driver's licence, but the photograph of Ms. Mahoney had been inserted into the licence, making it a forgery. [ 12 ] The loss prevention officer asked Ms. Mahoney where she obtained the licence and she told him that she obtained the licence from the Motor Vehicle Branch. The loss prevention officer told Ms. Mahoney she was under arrest and attempted to take physical control of her by the arm.

She physically resisted his attempts to take physical control over her by kicking at him, and he was required to take her to the ground in a physical struggle. She was handcuffed on the ground. She then begged the loss prevention officer not to call the police. [ 13 ] After being given a Charter warning and the police evidence warning, she directed the loss prevention officer to her own driver's licence contained in her purse. Police were called. A search incident to arrest located identification in the name of the accused, as well as five blank cheques which were not in her name.

Two of these cheques were Bank of Montreal cheques in which Meadowridge Tire Ltd. was the payor. [ 14 ] The business premises of Meadowridge Tire Ltd. were the subject of a break and enter. The chequebook containing the cheques found on the accused was stolen in that break and enter. The accused had never been an employee of that company and had no business relationship with that company which could have resulted in a cheque written to her. This is the crime referred to in the amended Count 3. [ 15 ] Also referred to in that Count 3, a third cheque found in the possession of Ms.

Mahoney displayed D.G. as the payor and was a cheque issued on an account at the Royal Bank of Canada. D.G.'s personal wallet containing all of her identification, including social insurance card, credit cards, and membership identification cards was stolen from her place of work in June 2008, and that identification was never recovered. While the name and the address on the Royal Bank cheque correctly identified D.G., she had never opened nor held any accounts at the Royal Bank of Canada. D.G. did not give anyone permission to open or operate a bank account in her name at the Royal Bank of Canada, or elsewhere.

D.G. did not know Ms. Mahoney. Some of the stolen identification belonging to D.G. was found on the person of Ms. Mahoney when she was searched by the police at Walmart. CIRCUMSTANCES OF THE OFFENDER [ 16 ] In the pre-sentence report dated November 16th, 2010, which was filed herein, Ms. Mahoney's background and history is set forth. Her early years were marked by separated parents and stepparents, all involved with alcohol and drugs. She had a 14-year relationship with Wayne Roach. They had two children together, who are now both adults. After separating from Mr. Roach, Ms.

Mahoney had several relationships, most recently with Mr. Lacroix. Mr. Lacroix spent some time in jail for fraud and theft offences. Their relationship was renewed after his release from prison. [ 17 ] While the pre-sentence report states she is continuing her relationship with him, her counsel advised that he will be living with his parents after December 1st, 2010. While Ms. Mahoney reports a close relationship with her daughter, who lives in Grand Prairie, Alberta, the daughter is apparently unaware of her mother's current legal problems.

Her son is currently held in the North Fraser Pretrial Correctional Facility. Due to her current legal status she is not permitted to visit her son.

[ 18 ] The report writer notes: Roxanne provided the name of one community collateral for the writer to contact, but, unfortunately, that individual did not return the writer's telephone call. For this reason, all of the information in this report could not be confirmed, other than what could be extracted from current and previous case file notes. [ 19 ] As noted by Crown counsel, there is some difficulty accepting the factual statements made in this case at face value. Ms. Mahoney reported she worked in the accounting field for 25 to 30 years in businesses, including her own business.

She apparently completed grade 11 and some grade 12 courses, but has no specific training in the accounting field. [ 20 ] Assuming she started working in some capacity when she was 17 or 18 years old, she would not have completed 25 years of employment until 2003. Her criminal record begins in 2002, and as noted above, she served a 15-month sentence in 2004. This is clearly careless reporting of history. Further, Ms.

Mahoney has not been able to provide a single collateral reference for a career said to have spanned two-and-a-half decades. [ 21 ] Her financial position from 2002 to 2004 was so poor she was not in a position to have regular contact with her children. Whatever her work situation at that time, it was not a sufficiently remunerative position to provide for contact with her children. The report states: She could not afford to fly her children to B.C. for a visit, nor could she afford to fly herself to Alberta.

When someone she knew suggested she use a credit card on a fraudulent basis to obtain travel, she attempted to do so. [ 22 ] The report further states: Roxanne reports she no longer associates with individuals who provide identification and other such items for fraudulent purposes. Clearly she had contact with such persons as late as March 4th, 2009 when the offences for which she has pled guilty occurred. She continued a relationship with Mr. Lacroix. There is no means by which to test the reliability or veracity of this statement of Ms. Mahoney. MITIGATING CIRCUMSTANCES [ 23 ] Ms.

Mahoney has a current business in cleaning and landscaping. No indication was given as to the number of clients or size of this business. She is trying to establish a business venture in the renovation of homes, particularly homes damaged by the presence of marihuana grow operations. Again, no collateral references were provided in support of this information. [ 24 ] The accused expressed remorse for these offences. Taken at face value, this is a mitigating circumstance on sentence, as is the time gap since her last conviction in 2004.

The accused also spent one night in jail at the time of her arrest on the current offences. [ 25 ] Ms. Mahoney did enter a guilty plea, but this occurred after the first trial date, which was adjourned. At that time all the Crown witnesses were present. The plea was entered on the second trial date. In the case at bar, the evidence of the conduct of the accused was recorded on closed-circuit television.

Given the credit cards, fraudulent cheques, stolen identification, and altered driver's licence which were found on the accused when she was searched incidental to arrest, the evidence against her was overwhelming. AGGRAVATING CIRCUMSTANCES [ 26 ] Offences in the nature of fraud and identity theft are matters of great concern in this community. Such offences cost businesses and individuals enormous sums on an annual basis. The case at bar involves at least three stolen identities.

The fact that the attempted crimes at Walmart were detected by its staff, and those crimes were not as a result successful, does not diminish the gravity of the offences, nor their moral culpability. [ 27 ] This is particularly true in the case of a person with a significant criminal record who has served jail time for previous offences of a similar nature. She had spent some time and effort obtaining documents belonging to others, possessed the stolen driver's licence of another with her photograph fraudulently inserted therein, and attempted to pass herself off as that person using that forged document.

There was a significant level of planning and premeditation in these offences. For instance, a bank account had been created in the name of an innocent person, D.G., using her stolen identification. There could be no innocent purpose for creating such an account and it is clearly a kind of identity theft. Ms. Mahoney possessed some of this identification at the time of her arrest. [ 28 ] Ms. Mahoney had a number of opportunities to withdraw from the crime after she first entered the store. When she left the store to get a "credit card" she could have simply started her car and driven away.

Instead, she took steps to return to the store, purchase a pen to complete acts of forgery, and then she returned to the store where she attempted to complete her planned fraud. [ 29 ] Counsel argued that this was an unsophisticated attempt at fraud. While the attempted fraud was not at the highest level of sophistication, the fraud was relatively easy to detect given the vigilant and well-organized loss prevention program at the store. That notwithstanding, the accused had every intention of being a successful forger.

When caught she lied about the source of the driver's licence in the name of C.V.W. and was resistive to initial attempts to take her into custody. SENTENCING PRINCIPLES [ 30 ] The principles of sentencing are set out in Sections 718 , 718.1 and 718.2 of the Criminal Code . Those principles include denunciation, deterrence, both specific and general, protection of the public, and rehabilitation of the offender. [ 31 ] As submitted by Mr. McMurray in his able submissions, the court is instructed in R. v. Proulx , [2001] S.C.R. 61 at paragraphs

66 to 68, that both general deterrence and denunciation can be accomplished in appropriate cases by the imposition of a conditional sentence order. That said, specific deterrence was not accomplished with this accused when, after serving two conditional sentence orders in her past, the last sentence she received, coupled with two consecutive sentences for very similar offences into a 15-month period of incarceration. If specific deterrence had occurred in the case of this accused, the current offences would not have happened.

But for the mitigating circumstances in this case, weak and unsupported though they may be, the court could certainly consider the concept of a step-up in sentence in this case well beyond 16 months. [ 32 ] The decision in R. v. Proulx cited above (see paragraphs 69, 70, and 75) also cites the risk of reoffending as one factor in considering whether a conditional sentence is appropriate in a given case. Specifically addressing

Section 742.1 of the Criminal Code , I am not satisfied that serving her sentence in the community would not endanger the safety of the community. In considering the safety of the community, I must consider the risk of the offender to reoffend, as well as the damage that could ensue. [ 33 ] Ms. Mahoney is a repeat offender whose last conviction for very similar offences was in 2004. She has received the benefit of conditional sentence orders twice in the past and that has not deterred her from reoffending. Although Ms.

Mahoney is not a violent offender, identity theft is a serious offence, creating significant damage and cost to the business community and individual members of the community. [ 34 ] In any event, the imposition of a conditional sentence would not be consistent with the fundamental purpose and principles of sentence. Identity theft, particularly with a repeat offender, requires a sentence that meets the principles of denunciation, general deterrence, as well as specific deterrence. Although a conditional sentence order can meet these principles through the imposition of punitive conditions, given Ms.

Mahoney's background and the nature of the offences committed, this is one of those cases where incarceration is needed to meet those sentencing principles set out in

Section 718 of the Criminal Code . [ 35 ] Counsel did not provide the court with case authority on the issue of when a conditional sentence order would not be an appropriate sentence. I have read the decision of the British Columbia Court of Appeal in R. v. Mohebtash , 2007 BCCA 427 , where an accused attempted to obtain a mortgage using fraudulent documents. The mitigating circumstances included that the appellant had a limited criminal record and suffered with poor health. While the amount involved in the case at bar is much smaller than that in the Mohebtash case the identity theft is similar.

Unlike Mohebtash , Ms. Mahoney has a significant record for like offences and a prior sentence of incarceration. She has continued to reoffend. [ 36 ] The issue on the appeal was whether a conditional sentence was appropriate in the circumstances of that case as the trial judge found that the need for general deterrence took precedence over other sentencing considerations and gave a custodial sentence.

The Court of Appeal concluded that the trial judge did not err in failing to impose a conditional sentence, noting that "deterrence is clearly an important principle to consider in sentencing for this kind of offence." [ 37 ] In the case at bar, repeated similar offences by this accused make it clear that there is a significant risk of repetition in the future of this accused. In this case, specific and general deterrence, in my view, particularly in the case of a repeat offender, must be given precedence. CONCLUSION [ 38 ] Counsel agreed that a custodial sentence was appropriate in this case.

The difference between counsel was whether that sentence could be served in the community. The range of sentence referred to in the submission of Crown counsel was 12 to 15 months of real jail, followed by two years of probation. Defence counsel submitted that a slightly longer sentence could be served as a conditional sentence. [ 39 ] I have taken into account the carefully considered submissions of counsel. I reject the use of a conditional sentence for the reasons which I have stated above.

Considering the gravity of the offences in light of the record of the accused, with the aggravating and mitigating circumstances, including a guilty plea, as well as the authorities cited above, taken together with the submissions of counsel, I am satisfied that the fit and proper sentence for this accused in this case is a 12-month sentence in jail, not by conditional sentence order. The sentence will commence today. [ 40 ] This sentence will be followed by two years of probation with statutory terms.

I will hear from counsel before the terms of the probation order are finalized. (PROCEEDINGS) [ 41 ] THE COURT: The terms of the probation order will be as follows: It will be for a period of two years. She will keep the peace and be of good behaviour. Appear before the court when required to do so by the court.

Notify the court or probation officer in advance of any change of name or address, and promptly notify the court or probation officer of any change of employment or occupation. [ 42 ] She will report immediately upon her release, in any event, within 24 hours to a probation officer at 100 – 13545 64th Avenue in Surrey, British Columbia, and thereafter as and when directed. She will reside where directed by the probation officer and not change that residence without the prior written permission of the probation officer. [ 43 ] She will not attend at any Walmart store located in the Province of British Columbia.

She will not possess or have access to any identification, credit cards, cheques, credit card information, or bank documents, except those that are in her own name and for her own account. [ 44 ] She will attend, participate and successfully complete such counselling as directed by the probation officer, which may include, but is not limited to, psychological assessment, life skills, and related core programs.

She is prohibited from owning, possessing or carrying any weapons as defined by the Criminal Code of Canada , or any knives, except for preparing and consuming food. [ 45 ] She is to seek and maintain employment and/or attend an educational or vocational institute as directed by the probation officer,

and at the request of the probation officer she is to produce information concerning current employment, as well as the efforts she has made to seek employment, including the names and addresses of any employer, or any application to an employer for work. [ 46 ] I accept Mr. McMurray's submission that alcohol and drugs have not been an issue in this case. I am going to make an order that she provide a sample of her DNA forthwith while in custody. As counsel indicated, it is a secondary offence.

In the circumstances I am of the view it is appropriate, and I am prepared to recommend that she serve her time, subject, obviously, to the approval of the Corrections Branch, at the Alouette Correctional Centre for Women so that she may take advantage of the programming that is available there. [ 47 ] Is there anything I have left out or that needs to be added to the order? Mr. McMurray, anything? [ 48 ] MR. McMURRAY: I don't believe so. [ 49 ] THE COURT: Ms. Fontaine? [ 50 ] THE CLERK: I believe that covers everything, Your Honour.

A victim fine surcharge? [ 51 ] THE COURT: I am going to waive the surcharge in the circumstances. (REASONS FOR SENTENCE CONCLUDED)