R. v. LINDT Date:, 2011 BCPC 113

Citation: R. v. LINDT Date: 20110411 2011 BCPC 0113 File No: 175068-3C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JESKO STEFAN MATHIAS LINDT REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. B. HICKS Counsel for the Crown: L. Winn Counsel for the Defendant: J. Douglas Place of Hearing: Surrey , B.C. Dates of Hearing: Nov. 27, 2009; Mar 1, 24, 25, May 21, June 9, July 8, Sept 28, 29, 2010; Jan 20, 27, 2011 Date of Judgment: April 11, 2011 [ 1 ] THE COURT : Jesko Stefan Lindt has pled guilty to counterfeiting related offences on Information 175068-3C. Mr.

Lindt has pled guilty on Count 1, that between May 4th of 2009 and May 14th of 2009, he made counterfeit Canadian and American currency, contrary to s. 449 of the Criminal Code . On Count 2, that during the same period he had possession of Canadian and American counterfeit currency, contrary to s. 450(b). On Count 3, that during the same period he had possession of instruments adapted or intended to be used to make counterfeit money, contrary to s. 458(d). Each of these offences is prosecuted by indictment and carries maximum sentences of 14 years imprisonment. [ 2 ] In respect of Counts 2 and 3, Mr.

Lindt was jointly charged with Richard Thomas McGaw. Mr. McGaw pled guilty to those two counts and was sentenced by me, based on a joint submission, to 36 months incarceration, less pre-sentence custody credit, totalling 34 months. Sommer Homeniuk was a third accused person on this Information. She pled guilty to four counts of uttering and possessing counterfeit currency and was sentenced as well on an earlier date. All parties entered pleas of guilty during the course of a preliminary inquiry and following re-election to the Provincial Court. [ 3 ] Mr. Lindt is the last person to be sentenced from this group.

He has been out of custody throughout these proceedings. There is no joint submission with respect to an appropriate sentence respecting Mr. Lindt. The Crown seeks a sentence of imprisonment at the

lower end of the range, which the Crown sets at 26 to 60 months for offences of this nature. Mr. Douglas proposes a conditional sentence order in the 18- to 24-month-less-one-day range. [ 4 ] At the time these offences occurred, Mr. Lindt and Ms. Homeniuk were in a relationship. They were living together in a residence at 8646 - 151B Street in Surrey. One of the bedrooms in that home was used as an office, and it was in this room that Mr.

Lindt had assembled the equipment required to produce counterfeit American and Canadian bills. [ 5 ] The Integrated Counterfeit Enforcement Team of the RCMP began an investigation in August of 2008 which led to the charges before the court. Surveillance was conducted. The investigation identified Mr. Lindt, who was a trained photographer with skills in computer graphics, as the person who made the counterfeit currency. Mr. McGaw was seen coming and going from the residence regularly, and was involved in distribution of the counterfeit money. Ms.

Homeniuk, consistent with the charges which she pled guilty to, passed or attempted to pass currency on four occasions that were identified by the police. [ 6 ] On May 7, 2009, Mr. McGaw was observed purchasing three ink cartridges which are required for the printer used to produce passable quality counterfeit notes. He then went to 8646 - 151B Street with the cartridges. On other occasions he was observed purchasing ink cartridges which fit the printer used by Mr. Lindt. Mr.

McGaw was on a recognizance of bail at the time, arising from other counterfeiting-related charges, and a condition of that bail was that he not possess ink cartridges. He was arrested for breach of that bail on May 13, 2009. On that date he was observed leaving the Lindt/Homeniuk home with a package. When arrested he was in a motor vehicle driven by his father. When the vehicle was searched, $77,400 in U.S. counterfeit notes were found. [ 7 ] Based on the serial numbers on those notes and the presence of both Mr. McGaw and Mr.

Lindt ' s fingerprints on the notes, it is established that these counterfeit notes are Mr. Lindt ' s work product. Among the notes seized in the McGaw vehicle are 149 sheets of uncut counterfeit U.S. $100 bills and 89 sheets of counterfeit U.S. $50 notes. Other items necessary to conduct the counterfeiting scheme were found in the vehicle. [ 8 ] On the same date Ms. Homeniuk was surveilled as she rode a bicycle to a Canada Safeway store near the 151B Street residence in Surrey. There she presented a counterfeit $50 note in payment for several items.

The note was identified by the clerk as counterfeit and not accepted. Ms. Homeniuk then left. As she did so, it appears that she became aware that the police were conducting surveillance. She was followed to her home by the police and pursued into the residence where she was arrested, along with Mr. Lindt who was present in the residence at the time. Several counterfeit U.S. notes were found on Ms. Homeniuk's person. [ 9 ] On May 14, 2009, a search warrant was executed at the residence.

A counterfeit currency operation of some sophistication was discovered in the residence which included computer equipment, printing equipment, paper utilized to print the notes, glitter paper, cutting tools, heat transfer foil and ink cartridges. Also discovered in the residence were $129,450 in counterfeit Canadian $100 and $50 notes, and $18,800 in counterfeit $50 U.S. notes. Taking account of the U.S. counterfeit notes in the vehicle where Mr.

McGaw was arrested, $96,200 in U.S. counterfeit currency can be attributed to this operation, in addition to the $129,400 Canadian counterfeit notes discovered in the residence. [ 10 ] Ms. Homeniuk also pled guilty to counts arising from surveillance conducted by the RCMP of her activities on May 12 and 13 of 2009. She successfully passed a $50 U.S. note to purchase items and obtain genuine cash at Joe's Farm Market, and she did the same thing at Studio Trends Hair and Tanning on May 13 before her arrest.

The serial number on the note passed at Studio Trends matches the serial number on certain of the bills seized from the McGaw vehicle, and serial numbers on notes seized at the residence matched those on notes in the McGaw vehicle. [ 11 ] On January 27, this year, 2011, I sentenced Ms. Homeniuk on the four counts of possession and uttering counterfeit notes at these businesses. She was placed on a three-month conditional sentence order with house arrest conditions, followed by a 15-month probation order.

This reflected her circumstances and her relatively minor role in the operation. [ 12 ] The fingerprints, as I indicated, of Mr. Lindt and Mr. McGaw, were present on notes found in the residence. Templates for the notes were found on a computer hard drive in the residence, including the water marks. The Crown describes this seizure of counterfeit currency as one of the largest in recent times. At the sentencing of Mr.

Lindt, the Crown provided a report from the National Anti- Counterfeiting Bureau which tracked the appearance of $50 and $100 Canadian bank notes carrying the same identifiable, unique characteristics as the notes produced by Mr. Lindt. [ 13 ] Approximately 8,200 transactions occurred between August of 2008 and November 30 of 2010. When the value of these counterfeit transactions is totalled, the loss within the Canadian economy totalled $763,000. The Crown provides this information to assist the court in understanding the significance of counterfeiting offences. It is not alleged that Mr.

Lindt produced the bills covered in this report, but they did come from templates with the same origin as the templates he used. [ 14 ] Mr. Lindt says he was only involved in this business for a short time, having been approached by someone who recognized his graphic skills. He says he was set up by Mr. McGaw who, I note, had a past criminal history in counterfeiting. [ 15 ] A victim impact statement has been filed by way of affidavit of Farid Salji who is a currency analyst with the Bank of Canada. He monitors developments relating to currency and counterfeiting.

In addressing its responsibility to promote the economic and financial welfare of the country, the Bank of Canada is responsible for issuing quality bank notes which are readily accepted and secure against counterfeiting. With the arrival of higher-quality computers and printers, the number of counterfeit notes passed annually in Canada has increased significantly. Achieving consistently low levels of counterfeiting is critical to maintaining confidence in the currency. Widespread counterfeiting has the potential to significantly impact the Canadian economy. [ 16 ] In his affidavit, Mr.

Salji points out, by way of example, the implications for the currency if large-scale counterfeiting occurs in a particular area and the resulting reluctance of merchants to accept bank notes in order to ensure that they are not left without proper payment. Mr. Salji pointed out that businesses operating on narrow margins, like grocers, for example, stand to lose significantly when counterfeit notes are passed, and ultimately the consumer will pay higher costs as a result. Mr. Salji also stated that the Bank of Canada and policing agencies devote significant resources to respond to the growth in counterfeiting.

It is evident from his affidavit that

maintaining the integrity of the Canadian bank note against rampant degradation and its ready acceptance is a significant concern for the Bank of Canada. The prevalence of and easy access to American currency in Canada and its generally ready acceptance in this country justifies similar concerns in respect to American currency. [ 17 ] This places in some context the significance of counterfeiting offences committed in Canada and in this community.

As a result, the courts have recognized the importance of deterrence, both general and specific, and denunciation as significant sentencing principles in addressing counterfeiting offences. [ 18 ] In R. v. Lee (1993), 22 BCCA 27, the Court of Appeal in this province upheld a nine-month sentence of incarceration in respect of a 30-year-old first offender who had 24 $100 counterfeit notes in his possession and passed 11 or 12 of those notes.

At paragraph 6 in upholding the sentence, the Chief Justice stated the following: Counterfeiting is an offence for which in my view deterrence is a far more important factor than it is for many other offences. It requires pre-meditation and planning and is driven entirely by greed. [ 19 ] Similar views were expressed by the court in a case called R. v. Christophersen in 2002 in Alberta.

In sentencing an offender on a variety of offences, including possession of counterfeit money, and possession of instruments suitable for counterfeiting, the court in that case placed the impact of counterfeiting offences on the economy locally and beyond in context. The court pointed out that printers and others in leading roles generally will be sentenced more severely than those who merely distribute counterfeit currency. A two-year sentence was imposed for the counterfeiting offences in that case. [ 20 ] In determining a fit sentence in respect to Mr.

Lindt, I have in mind the objectives and principles of sentencing set out in s. 718 to 718.2 of the Criminal Code . Those objectives, in addition to deterrence and denunciation, include consideration of rehabilitation and restorative principles. I must impose a sentence which is proportionate to the gravity of the offence and the degree of responsibility of the offender. I must consider aggravating and mitigating factors. All available sanctions, other than imprisonment, that are reasonable in the circumstances must be considered.

An offender should not be deprived of liberty if less restrictive sanctions are appropriate. [ 21 ] These considerations emphasize that sentencing is an individual process which acknowledges the significant need to deter people from committing counterfeiting offences while balancing the particular circumstances of the offence and the offender. [ 22 ] Mr. Lindt is 50 years of age. He came to Canada at the age of 14. He is a landed immigrant and continues to hold a German passport. His mother lives in North Vancouver and I understand has significant health issues. His father passed away in January of this year.

In addition to his one-year-old son with Ms. Homeniuk, Mr. Lindt is the father of three daughters from earlier relationships, aged 17 to 26. None of those daughters currently reside with him. Mr. Lindt had a relatively stable upbringing. He completed grade 12 and a photography program at Humber College in Ontario. He has taught himself computer graphics. He is currently employed by AAA Photography and is well-regarded in that employment. [ 23 ] Mr. Lindt was a crack cocaine user which continued until shortly after these offences occurred.

He says his crack use stopped when he stopped associating with certain people who supplied him. [ 24 ] Mr. Lindt has a prior court history: He was placed on probation following a conditional discharge for fraud in 2002; he was fined $500 and placed on probation in 1998 for an assault causing bodily harm. In the pre-sentence report, Mr. Lindt stated that he committed the current offences as a means of making money. He suggested his drug use was a factor, but Mr. Douglas, on his behalf at this sentencing hearing, has stated that Mr.

Lindt refuses to use this as an excuse for his participation in these offences. [ 25 ] Mr. Lindt sought legitimate employment in his field of photography while these proceedings were before the court. About a year ago I varied his bail conditions to allow him to begin working with his current employer, AAA Photography. That company's business involves sports team photography; the business is long-established. It is now looking to expand into the high school graduation market and has established an ambitious product selection for potential clients. Mr.

Lindt has played a significant role in organizing this initiative for his employer. The owner of the company has written two letters expressing his support for Mr. Lindt and the positive contribution he is making to their business. [ 26 ] Mr. Douglas has filed several letters of support from people who have known Mr. Lindt and his family well since childhood. It is evident from these letters that Mr. Lindt's involvement in this activity was entirely a surprise to those who have known him well. Those letters also reveal Mr.

Lindt as a significant support to his elderly mother, and both parents while his father was alive, and to his children. [ 27 ] Mr. Lindt has written a letter to the court in which he accepts responsibility for his conduct and expresses remorse. He has spoken to the same effect before me here this afternoon. He notes that having to confront his conduct in this way has helped him put his life on a positive path.

He is now making child support payments as a result of his legitimate employment. [ 28 ] The imposition of a conditional sentence order in cases of making counterfeit money and possession of the instruments used for that purpose is discussed in three of the cases provided by the Crown, and in one additional case referred to in another of those cases. [ 29 ] The Ontario Court of Appeal substituted conditional sentence orders in R. v. Dunn, [1998] OJ 807 and in R. v. Ijam, [2007] OCA 597 for conventional jail sentences of 30 and 21 months respectively.

In Dunn , a relatively small amount of U.S. currency of amateur quality was involved. Ijam was a case which involved a much more sophisticated counterfeiting operation of high-quality notes. Both cases involved youthful first offenders who had made significant changes in their lives prior to sentencing, and had strong family and other support. In both cases, the Court of Appeal concluded that specific deterrence was not an issue, and general deterrence and denunciation, although requiring a strong presence, could be addressed in a conditional sentence order. [ 30 ] In R. v.

Grozell , [2004] BCJ 2794 , a decision of the British Columbia Provincial Court in 2004, and R. v. Toderor (Ont. Sup. Ct. of Justice, Toronto Dec. 19, 2006), conditional sentence orders were denied and conventional jail sentences were imposed. In Grozell , the accused was sentenced on possession, uttering and making counterfeit currency to an effective 31-month conventional jail sentence.

The offences occurred in Saskatchewan and British Columbia, there was a link to a criminal organization, the accused was before the court on the Saskatchewan charges when he came to British Columbia and committed offences here. He had a prior fraud conviction. He took a lead role in the operation which was viewed more severely than distribution. [ 31 ] In the Toderor decision, the 32-month sentence of conventional jail imposed related to an individual who played a significant role in a large-scale, sophisticated counterfeiting operation involving high-quality product.

The offender was 20 at the time of the offence, and 23 and employed when sentenced. In rejecting a conditional sentence order as totally inappropriate, the court said exceptional circumstances must be present in order to justify a nominal jail sentence. I note that this decision pre-dates the Ontario Court of Appeal decision in Ijam . The court in the Toderor decision in my view provides little analysis of the factors viewed as important by the Court of Appeal in Ijam when dealing with a youthful offender. [ 32 ] In considering an appropriate sentence for Mr.

Lindt, I take account of the relatively large amount of counterfeit currency, that it was Mr. Lindt who provided the computer graphic skills to the operation which made it possible to produce notes which were of a quality accepted by local businesses; that both Canadian and American bills were being generated. I note the extensive computer and printer type equipment which was seized from his residence. I note a large quantity of American bills made by Mr. Lindt was seized in Mr. McGaw's vehicle. There is no explanation as to their destination. [ 33 ] Based on the affidavit provided by Mr.

Salji, it is reasonable to conclude that the volume of notes seized by police, which is attributed to this operation, would have a significant impact if introduced into the local economy. [ 34 ] I have reviewed the cases provided by the Crown. Invariably those cases repeat and reinforce the significant impact a counterfeiting enterprise can have in the local economy and beyond.

Those cases point out the need to address general and specific deterrence and denunciation in order to address the danger these enterprises create to the integrity of the Canadian and American currency. [ 35 ] The Crown is proposing a sentence in the lower end of a range extending from 26-month to five-year sentence. For the most part, the cases provided by the Crown involve operations of varying levels of sophistication involving offenders with past records, often for counterfeiting offences. R. v.

Spanogle (2006), BCPC 0127, a 53-year-old offender with a lengthy record, was involved in an unsophisticated operation and was sentenced to two years. [ 36 ] R. v. Wallden (2007), BCPC 122, involved a well-educated 49-year-old man with a past record. A subsequent conviction for counterfeiting made specific deterrence a continuing issue in his case. He received an effective 22-month jail sentence with probation. [ 37 ] The offences before this court are serious criminal offences committed at a sophisticated level in order to make money.

In these circumstances, a sentence that is a strong statement of denunciation and deterrence must be imposed. The issue here is whether the mitigating factors and the application of sentencing principles which require I consider the circumstances of the offence and the offender, rehabilitative and restorative values, and all of the other appropriate options, short of incarceration, support a conditional sentence order, or whether conventional jail is called for. [ 38 ] Mr. Lindt is not a youthful first offender, but his record is relatively minor and dated.

The fraud offence, I am told, involved the passing of a prescription. I note he is not in the same situation as Mr. McGaw who had an extensive criminal record including a past counterfeiting-related conviction. The pre-sentence report for Mr. Lindt is generally positive. He is now fully employed as a photographer and well regarded by his employer. He has the support of family and friends. Mr. Lindt says that he has been clean of cocaine since shortly after these charges were laid in May of 2009. Although he has not taken any counselling, he has complied fully with his bail obligations. [ 39 ] Although Mr.

Lindt's criminal record is relatively minor and dated, he does not come before the court, as I have indicated, as a youthful first offender. [ 40 ] This is an offence which involves significant planning, sophisticated computer and printing equipment which has to be acquired and over time maintained with the proper ink cartridges and other paraphernalia of a counterfeiting operation capable of turning out large quantities of passable counterfeit currency. It requires the involvement of a skilled person to produce that product, and Mr. Lindt brought those skills. This is an offence in which a person like Mr.

Lindt must make a commitment of time, skill and resources in order for the operation to be successful. It is an offence of greed. Mr. Lindt acknowledged that he undertook this operation to make money. Although he may attempt to explain that in one fashion or another, the fact of the matter is that he did make money from this offence. [ 41 ] He had the skill to make a legitimate living but he chose to apply his skills to illicit criminal conduct instead which preys on the community as a whole.

His success in this criminal activity would be at the expense of others in the community, including small business operators. He is a mature, educated adult who made conscious choices to participate in criminal activity, rather than earning a living legitimately. In respect of this offence, he carries a significant level of moral blameworthiness. [ 42 ] I have also considered in the balance the progress that he has made since coming before the courts on these charges and which underpin the argument that he serve his sentence under community supervision. [ 43 ] These offences occurred about two years ago.

In the meantime, Mr. Lindt has taken control of his life in a positive way with legitimate employment in his field of training, and considering his efforts to overcome cocaine and the support that he has in the community, I do not consider his specific deterrence to be a significant sentencing issue. He has complied fully with his bail requirements. I conclude that he is not a risk in the community. His prior record, as I have indicated, is minor. [ 44 ] With this in mind, and all of the considerations properly balanced, in my view, denunciation and general deterrence can be achieved while allowing Mr.

Lindt to continue a positive path by way of community supervision. There will be a conditional sentence order. [ 45 ] Mr. Lindt, could you stand up, please? I am going to place you on a conditional sentence order for a period of two years less one

day. The conditions are that you are to keep the peace and be of good behaviour. You must report to a conditional sentence supervisor before 12 noon tomorrow, which is April the 12th, 2011, and thereafter as directed by the supervisor. You will reside where directed by the supervisor; you are not to change that address without the prior written approval of the supervisor. [ 46 ] You are going to be bound by a house arrest condition for a period of 18 months.

The conditions are that you are not to be outside of your place of residence, except for the following purpose, during that 18 month period: To attend court when required to do so; to attend to your legal counsel; to attend to your supervisor; to attend to your employment pursuant to a

schedule provided to your supervisor on the letterhead of your employer setting out your working hours and all contact information in order for the supervisor to be able to readily reach your employer and your personal work supervisor; to attend to any assessment, treatment or counselling that may be directed by the supervisor; to attend to community work service as directed by the supervisor; to attend to any medical or dental appointment pursuant to a notice provided to your supervisor in advance of the appointment date setting out the date and time of the appointment. [ 47 ] On either one of Saturday or Sunday of each week between the hours of 9:00 a.m. and 11:00 a.m. you may be away from your residence for the purpose of attending to any banking or other similar personal business.

You may be away from your residence when travelling directly to or from any of these commitments. You may be away from your residence when you have the prior written approval of your supervisor, in which case you are to carry that with you and produce it on request of a peace officer or supervisor. Those are the conditions of the house arrest. [ 48 ] For the balance of the conditional sentence order you will be bound by a curfew.

You are not to be outside of your place of residence between the hours of ten o'clock in the evening and six o'clock in the morning, seven days a week, unless you have the prior written approval of your supervisor, in which case you are to carry that with you and produce it on request of a peace officer or supervisor. [ 49 ] You are to attend at the door of your residence or by telephone to confirm compliance with these house arrest and curfew conditions. [ 50 ] You are to attend, participate in and complete to the satisfaction of the supervisor, any assessment, treatment or counselling that may be directed by the supervisor. [ 51 ] Before the 31st of January 2012, you are to complete 50 hours of community work service to the satisfaction of the supervisor and the community work service officer. [ 52 ] You must abstain absolutely from the possession or consumption of alcohol or any non-prescription drug or any substance controlled under the Controlled Drugs and Substances Act unless you have a medical prescription for that substance issued in your name by a qualified medical practitioner. [ 53 ] You are not to possess any equipment which may be used to make counterfeit currency, except a personal computer and related equipment utilized in your employment as a photographer.

You are to provide access upon request to a peace officer to your worksite, or to your home, for the purpose of investigating your computer equipment in order to ensure compliance with this condition. [ 54 ] Subject to any submissions by counsel, those will be the conditions that apply on the conditional sentence order. [ 55 ] You will also, following the completion of the conditional sentence order, be bound by a probation order for a period of one year. The conditions are that you keep the peace and be of good behaviour.

You must report forthwith following the completion of the conditional sentence order to a probation officer, and thereafter as directed by the probation officer. [ 56 ] You will reside where directed by the probation officer; you are not to change that residence without the prior written permission of the probation officer. [ 57 ] You are to attend, participate in and complete, to the satisfaction of the probation officer, any assessment, treatment or counselling that may be directed by the probation officer. [ 58 ] Those are the conditions that will apply on the probation order. [ 59 ] There will be a forfeiture order as sought by the Crown. [ 60 ] This, I believe, is a DNA databank offence, am I correct? [ 61 ] MS.

WINN: Yes, secondary -- [ 62 ] THE COURT: It is a secondary offence -- [ 63 ] MS. WINN: Discretionary. [ 64 ] THE COURT: Do you have any -- no submission? [ 65 ] MR. DOUGLAS: No, Your Honour. [ 66 ] THE COURT: I am going to direct you to supply a sample of your DNA to the National DNA Databank.

You are to attend at the Surrey detachment of the RCMP on any Wednesday or Thursday between the hours of ten o'clock in the morning and two o'clock in the afternoon, provided that you must attend and complete the process of supplying the sample before two o'clock in the afternoon on Thursday, April the 28th, 2011, so there will be a couple of weeks for you to arrange your

schedule to allow you to attend for that purpose.

[ 67 ] The victim fine surcharges apply. Time to pay on the surcharges? [ 68 ] MR. DOUGLAS: I am going to suggest two months. [ 69 ] MS. WINN: Would Your Honour consider no contact with Richard McGaw? [ 70 ] THE COURT: I will consider that, and there is no submission -- [ 71 ] MR. DOUGLAS: No submission. [ 72 ] THE COURT: There will be an order that will appear on both the conditional sentence order and the probation order that you are to have no contact, directly or indirectly with Richard Thomas McGaw. [ 73 ] And the surcharges will be due and payable on or before the 30th of June 2011. [ 74 ] MS.

WINN: Thank you, Your Honour. [ 75 ] MR. DOUGLAS: I'll direct him to the registry. [ 76 ] THE COURT: Thank you. [ 77 ] THE ACCUSED: Thank you, Your Honour. (REASONS FOR SENTENCE CONCLUDED)