R. v. Thobani Date:, 2013 BCPC 372

Citation: R. v. Thobani Date: 20131101 2013 BCPC 0372 File No: 192146-4-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NADEEM ZULFIKARALI THOBANI ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: P. Barclay Counsel for the Defendant: D. Jevning Place of Hearing: Surrey , B.C.

Dates of Hearing: October 18, 24, 2013 Date of Judgment: November 1, 2013 [ 1 ] THE COURT : Nadeem Thobani is before the court to be sentenced following his pleas of guilty on Information 192146-4-C to a number of offences. They are the following. On Count 2, Mr. Thobani has pled guilty that on or about the 19th of December, 2011, at or near Vancouver, British Columbia, by deceit, falsehood or other fraudulent means, he defrauded MasterCard and/or The Apple Store of merchandise, a value not in excess of $5,000, contrary to s. 380(1) (

b) of the Criminal Code . That is an offence which carries a maximum sentence of two years imprisonment. [ 2 ] On Count 6 on the Information, Mr. Thobani has pled guilty that on the 20th of December, 2011, at Abbotsford, by deceit, falsehood or other fraudulent means, he defrauded MasterCard and/or Anmol Appliances of merchandise of a value not in excess of $5,000, contrary to the same

section of the Criminal Code . [ 3 ] On Count 8, Mr. Thobani has pled guilty that on or about the 20th of December, 2011, at or near Langley, British Columbia, by deceit, falsehood or other fraudulent means, he defrauded VISA and/or Tidy Tanks Ltd. of merchandise of a value not in excess of $5,000, contrary to the same subsection. [ 4 ] On Count 10, Mr.

Thobani has pled guilty that on or about the 23rd of December, 2011, at Surrey, British Columbia, without lawful justification or excuse, he possessed items, being a computer and/or a laser printer and/or hard drives and/or computer storage devices and/or magnetic strip reader/writers and/or a hand-held magnetic strip reader/writer, and/or a skimmer that he knew were adapted or intended for use in forging or falsifying credit cards, contrary to s. 342.01(1) of the Criminal Code , which carries a maximum penalty of ten years imprisonment. [ 5 ] On Count 12, Mr.

Thobani has pled guilty that on the 22nd of December, 2011, at Surrey, he did knowingly obtain or possess another person's identity information in circumstances giving rise to a reasonable inference that the information was intended to be used to commit an indictable offence that includes fraud, deceit or falsehood as an element of that offence, contrary to s. 402.2(1) of the Criminal Code , which carries a maximum penalty of five years imprisonment. [ 6 ] Count 13, he has pled guilty to the offence that on the 22nd of December, 2011, at Surrey, without lawful excuse, he possessed an identity document that relates or purports to relate, in whole or in part, to another person, contrary to s. 56.1 of the Criminal Code , an offence which carries a maximum penalty of five years. [ 7 ] On Count 14, Mr.

Thobani has pled guilty that on the 22nd of December, 2011, at Surrey, he did unlawfully possess a controlled substance, cocaine, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , and he has also pled guilty on Count 16, that on that same date, at Surrey, British Columbia, he did unlawfully possess a controlled substance, MDA, contrary to s. 4(1) of the Controlled Drugs and Substances Act. [ 8 ] The Crown says the global sentencing range is two years less one day up to five years imprisonment.

The Crown proposes specific sentences for each count, which would result in a global sentence of two years less one day, a position reflecting the seriousness of these offences, tempered by the principle of proportionality. The Crown proposes a two-year probation order to follow and ancillary orders. [ 9 ] Mr. Jevning, on behalf of this offender, proposes a global sentence of 18 months, to be served on conditional sentence order, reflecting what he says are Mr. Thobani's positive rehabilitative prospects.

The Crown opposes a conditional sentence order. [ 10 ] Trevor Kennedy and Kevin Kerfoot are co-accused on several counts and have been sentenced following guilty pleas. Mr. Kennedy pled guilty to defrauding The Apple Store on December 19th, 2011, of a value under $5,000, which is Count 2, and on Count 4, attempting to defraud The Mac Station, a computer store, on December 19th, 2011, and on Count 6, defrauding the Anmol store of a value under $5,000 on December 20th. He received a nine-month conditional sentence order on a joint submission.

The Crown says his role was limited and his rehabilitative prospects were positive. [ 11 ] Mr. Kerfoot pled guilty to Counts 2 and 6 and Count 8, the fraud under $5,000 on December 20th, 2011, at Tidy Tanks. The sentence was suspended and he was placed on probation. [ 12 ] Based on information received, the police conducted surveillance of Mr. Thobani. In respect of Count 2, on December 19th, 2011, they observed Messrs. Thobani, Kennedy and Kerfoot attend The Apple Store in Vancouver. Mr.

Kennedy presented a MasterCard in the name of Tyler Shaw in payment for a MacBook computer and an iPad, valued in total at $2700. They were then surveilled to a Mac Station store in Vancouver where an attempt was made to purchase another MacBook. That transaction was not approved. They returned to Mr. Thobani's residence. [ 13 ] The surveillance continued on December 20th. Mr. Kerfoot rented a truck. In respect to Count 6, they attended Anmol Appliances in Abbotsford. Using a fraudulent MasterCard, Mr. Kennedy purchased a wall oven. Mr. Thobani was present.

They delivered the oven to a contractor, who paid $1850 cash. [ 14 ] They then went to Tidy Tanks in Langley, where Mr. Kerfoot used a fraudulent VISA card to purchase two large diesel fuel tanks, which they then delivered to Mr. Kerfoot's sister. The tanks were valued at $1750. Those are the circumstances respecting Count 8. The tanks and the oven were recovered. [ 15 ] On December 22nd, 2011, police executed a search warrant at Mr. Thobani's home. In respect of Count 10, police seized equipment intended for use in making false credit cards and identity documents.

That equipment included computers, a printer, hard drives and storage devices, a magnetic strip reader/writer, a hand-held magnetic strip reader/writer and a skimmer. In respect of Counts

12 and 13, police located at least 6,000 credit card numbers, including the numbers used in the frauds which have been pled to and the fraudulent credit cards used in transactions before this court carried out on December 19th and 20th and observed by police. Those cards were in the names of two other individuals and in Mr. Kennedy's name. Fifty fraudulent credit cards, false identity cards and credit cards with Mr. Thobani's picture, but in another name, were located. Mr. Kennedy's photo appeared on a B.C. driver's licence in the name of the person whose card was used in the first fraud covered by Count 2.

A quantity of blank cards and stolen identity documents were located. [ 16 ] In respect of Count 14, 55 grams of packaged cocaine were located. Scales were found with cocaine residue. Cocaine residue was found baked to the inside bottom of a jar. [ 17 ] In respect of Count 16, a very small amount of MDA, amounting to about one-tenth of a gram, was located. Also located was a small amount of counterfeit U.S. currency. [ 18 ] Found on the computer were manuals and programs to support this kind of fraudulent activity and templates for various identity cards, including B.C.

ID cards, CareCards, licences and employee ID documents. [ 19 ] The Crown says that I should find Mr. Thobani to be the directing mind behind a sophisticated and well-organized identity theft and fraud enterprise. The Crown points to the extensive materials and equipment found in his residence and the fact that in just two days, frauds totalling about $7200 were detected. The Crown says the circumstances demonstrate Mr.

Thobani oversaw the fraudulent activity and notes that he received the fraudulent cards back from the co-accused following the transactions, and they were found in his residence when searched. [ 20 ] The defence says Mr. Thobani was not the directing mind. Although fraudulent activity was carried out from his residence, Mr. Thobani did not receive the proceeds of the frauds committed by others. A third party, using a spare bedroom in the residence to work from, was the controlling mind, he says.

Counsel points out that an embosser and a stamper are two pieces of equipment required to finish the card-making process, and he says, consistent with Mr. Thobani's assertion, neither was found on the premises during the search. It is asserted that Mr. Thobani's role in producing the fraudulent cards was to write the required information onto the cards using computers so it could be read, but the third party had to finish the process with the other equipment. [ 21 ] The Crown has drawn my attention to a statement given by Mr. Thobani's wife to police following her arrest several days after her husband's.

At the time of her arrest, she was in possession of a portable skimmer and a thumb drive containing over 100 credit card numbers, including the numbers of the three fraudulent cards used in the transactions before the court. The Crown referred to a number of passages in her statement and says an analysis of that statement and her reticence in providing information about the identity of the third person she identifies only as "Scott" should make this court hesitant to find Mr.

Thobani's role to be significantly mitigated. [ 22 ] The defence assertion that a third party had a guiding role cannot be disproven by the Crown. The statement given by Mr. Thobani's wife must be weighed, bearing in mind she is not before this court and her statement is untested on cross-examination. Further, Mr. Jevning points out that she made repeated references to her desire to speak with counsel and she has a right to remain silent. [ 23 ] I conclude that although there is an assertion by the accused that another person was the directing mind, the evidence before me on this sentencing is that Mr.

Thobani nevertheless had a substantial and significant role to play in this enterprise beyond the role of the two co-accused earlier sentenced. Those two persons were implicated in carrying out specific fraudulent transactions. Mr. Thobani's role involved participation in creating the documentation through which fraudulent transactions on a substantial scale could be carried out.

No other conclusion can be reached but that he had a substantial part to play in making this sophisticated and organized scheme possible. [ 24 ] In recent years, Parliament has increased penalties and put in place specific offences such as those described in ss. 342.01, 402.2, and 56.1 to address the growing concern in the community for criminal conduct which is often referred to as "identity theft," and which can lead to terrible consequences for victims, most particularly those whose documents and credit cards are stolen and co-opted or compromised, but also the merchants and credit providers who are targeted in the fraudulent transactions.

Superior courts in this province have recognized the seriousness of these offences and their implications in the community. This is reflected in the approval expressed by the Court of Appeal in this province with comments of judges of this court when sentencing in cases of this kind. [ 25 ] In R. v. McNeil 2006 BCCA 375 , the Court of Appeal referred to the following passage from the sentencing reasons of Judge Antifaev, and at paragraph 12 of Judge Antifaev's reasons, the following was quoted and referred to by the Court of Appeal.

Judge Antifaev said the following: This is, unfortunately, the kind of behaviour that, if it is not met sternly by the court, is going to result in the public having a complete lack of faith in its mail system and a complete lack of faith in the validity of the driver's licencing system and a lack or a lessening of faith by people in the financial field regarding the validity of documents that we all take for granted, that we all rely on every day. I am referring to identification, bank cards, credit cards and documents of that nature.

These are crimes that go to the root of how people live in our society and unless these crimes are checked in a serious way, unless the courts and others deal very seriously with these types of offences, which frankly are identity theft offences, it will lead to a lessening of the whole social fabric that we all rely on. [ 26 ] The Court of Appeal, in that case, then referred to similar concerns expressed by sentencing judges of this court in R. v. Tonks 2003 BCPC 475 , R. v. Dueck 2003 BCPC 538 , R. v. M.W.F. 2005 BCPC 679 , and R. v. Walowina 2006 BCPC 154 . [ 27 ] In R. v.

Laflam, August 7, 2012 BCSC, (Voith, J.) Mr. Justice Voith referred to the following passage from the decision of Judge Dohm of this court in a case called R. v. Adebayo 2007 BCPC 433 . He quoted from paragraphs 6 and 7 of Judge Dohm's reasons. Judge Dohm stated the following:

(6) Identity theft offences are very serious. They are becoming far too prevalent in our society, particularly given the technological era we now live in. They are difficult to detect, investigate and prosecute, particularly when the victims are from other countries, as was the case here. Parliament has recently increased the maximum sentence for fraud and has indicated it will be introducing legislation to deal

with these types of offences more effectively.

(7) Identity theft offences have serious and lasting repercussions, both financially and emotionally, on completely innocent victims. The victim impact statements attest to that fact.

Besides the financial losses often associated with identity theft, the victims must also spend significant amounts of time and money taking steps to prevent further violations of their identities, and there always remains the concern of when the next violation will occur. [ 28 ] Superior courts in this province have spoken frequently about the scourge of drug trafficking on our communities and the terrible effect the drugs themselves have on those who use them and in the process become addicted, as well as the significant negative effects of the criminal activity which surrounds that trade.

Trafficking in substances such as cocaine is highly lucrative and so it attracts the interests of criminal organizations. Offences of violence, possession and use of firearms and other weapons, home invasions and violence and intimidation often accompany drug trafficking activity. Innocent people are at risk. It is an activity which often preys on the vulnerable and it tears at the social fabric of the community. [ 29 ] In the present case, there is no evidence as to the particulars of the trafficking activity beyond Mr. Thobani's admission that he possessed the cocaine for the purpose of trafficking.

I cannot say whether he was a street-level dealer, a conduit in a drug-trafficking scheme, or a significant player or member of a network. There is no evidence of a dial-a-dope operation, which is often an aggravating feature in these cases.

His possession of this cocaine for the purpose of trafficking, however, identifies him as a person with a role to play in a serious criminal activity which has a substantial negative impact on the community. [ 30 ] Identity theft and the related frauds carried out in an organized, planned and deliberate manner, as well as drug-trafficking related offences, call for sentences which make a strong statement denouncing the activity and which act to deter the individual offender and others who would be tempted by the money to be made in these activities. [ 31 ] Also to be balanced are the particular circumstances of this offender.

The weight to be given to rehabilitative and restorative objectives must be considered. I must consider aggravating and mitigating features and factors. The sentence should be similar to those imposed in similar circumstances. The sentences I impose must not, in their totality, be too long or harsh. I must consider Mr. Thobani's sentence relative to those imposed on his co-accused. He should not be deprived of his liberty if less-restrictive sanctions are appropriate. All available sanctions short of imprisonment which are reasonable should be considered. I must consider Mr.

Thobani's moral culpability and impose a sentence which is proportionate to the gravity of the offence and the degree of responsibility of this offender. [ 32 ] In the event I consider a global sentence of less than two years' imprisonment is appropriate, bearing in mind no minimum sentences of imprisonment apply to any of the offences pled to, I must consider whether Mr. Thobani can serve that sentence in the community under strict conditions set out in a conditional sentence order.

I must be satisfied his presence in the community, subject to conditions, would not endanger the safety of the community and that such an outcome is consistent with the purpose and principles of sentencing. [ 33 ] The Supreme Court of Canada has recognized that in appropriate circumstances, despite the seriousness of the case, a conditional sentence order can provide the required strong statement of deterrence and denunciation.

The argument is strongest when the specific deterrence of the offender is well in hand, he has taken positive steps to address underlying issues which have led to his offending conduct, and he has strong family and community support. Steady employment and compliance with bail conditions may further strengthen the argument. If a court can be satisfied that these restorative and rehabilitative considerations deserve a strong enough voice when considered in light of the need for a strong statement of general deterrence and denunciation, a conditional sentence order may be appropriate. [ 34 ] Mr.

Jevning has provided examples of significant frauds which have led to conditional sentence orders. Internal fraud of an employer where the offender held a position of trust are particularly hard to detect and prove, and are aggravated by the employee's position. Conditional sentence orders were imposed in cases such as R. v. Moore 2006 BCPC 423 (Auxier, PCJ), R. v. Cassettair , [2010] BCPC 139 (Kitchen, PCJ), R. v. Inglis, [2002] BCPC 242 (Brecknell, PCJ). He provided examples from other provinces, including R. v. Quinlan, [1999] NJ 73 (Nfld. C.A.) and R. v. Kirk, [2004] OJ No. 8442 (Ont.

C.A.) [ 35 ] The Crown says none of these cases involve the kind of sophisticated and organized and planned type of criminal activity reflected in the offences to which Mr. Thobani has pled. It is the substantial concern created by the effect, both immediate and long term, of identity theft which the Crown says sets Mr. Thobani's actions apart, and as noted in earlier references, requires a deterrent message which only conventional jail can send.

I note that all the cases put forward by the Crown supporting conventional jail sentences involved offenders with past generally related records or who had committed further offences while on bail. [ 36 ] Conditional sentence orders have been imposed in appropriate circumstances for offences of possession for the purpose of trafficking. Similar factors will be influential in the outcome.

Although such activity is of such concern that relatively young first offenders have been sentenced to conventional jail, the particular circumstances of the offence and the offender must be considered and weighed in each case. [ 37 ] Mr. Thobani is 34 years of age. He was 32 at the time the offences were committed. He completed high school through the GED program. He then obtained a diploma in E Commerce. Although no letter was provided, he states he is employed with IVES Training Group. He is an assistant to the materials manager and has prospects of advancement to a manager's position.

I note in several of the letters of support filed on his behalf, his motivation on the job to advance and the satisfaction with his work circumstances are referred to. [ 38 ] Mr. Thobani was married in 2011. In submissions, and in several of the letters filed, reference was made to the support his spouse provides, and her positive influence on his continued rehabilitation. Balanced against this, the Crown says, was what may be interpreted as her reticence in providing information particularly about the involvement of the person said to be the real directing mind,

and the fact that she was found in possession of a thumb drive containing illicit credit card information and a skimming. It is hard to assess the significance of these concerns, bearing in mind the Crown intends not to proceed on outstanding charges against Ms. Thobani following her husband's sentencing, and the circumstances under which the statements were made to police, and I do not place great reliance on those considerations. [ 39 ] Several of the letters refer to struggles Mr. Thobani may have had in earlier years; however, no details are provided and he has no record of criminal convictions.

He was discharged on three prior occasions. There is no suggestion of drug or other addiction issues. Mr. Thobani's motive for involvement of all of these offences is profit. [ 40 ] Mr. Thobani played a significant role in an organized, well-planned and deliberate identity theft scheme.

Although the offences cover just two days during which surveillance occurred and the date on which the warrant was executed, it is clear that substantial time and effort was required to gather the equipment, search the internet and review materials supporting an endeavour of this kind; obtaining illicit credit card information and obtaining stolen documents, gathering the blank cards and other paraphernalia of a sophisticated scheme. This was not a one-off endeavour, but an illicit ongoing concern.

It resulted in frauds totalling $7200 in just two days, with the potential to earn large sums for those involved over time. [ 41 ] Beyond his involvement in this substantial fraudulent scheme, Mr. Thobani played an unspecified role in trafficking cocaine by having 55 grams packaged in his home. Scales with residue were also located. [ 42 ] Mr. Thobani is relatively young. He has pled guilty. He has positive support and is making progress with his rehabilitation. He expresses his remorse and wishes to now live in the community and make a positive contribution.

I can say his rehabilitation and his personal circumstances are well in hand. He has no prior history of convictions, but in respect of these offences, he carries a high degree of moral culpability. The offences are all serious and he has a significant role. It is not possible to parse out each individual offence. It is the whole picture of his role in this organized fraudulent ring, I conclude a much more substantial role than his co-accused, and his possession of cocaine for trafficking purposes. His motive was financial gain.

There is no suggestion he was involved under duress or that he would have withdrawn had the police not arrived. [ 43 ] In all of the circumstances, despite the weight to be given to rehabilitation and restorative considerations, the strong message of general deterrence and denunciation for cases of this kind requires a conventional jail sentence be imposed. [ 44 ] Mr.

Thobani, if you could stand now, please? [ 45 ] On Counts 2, 6 and 8, those are the offences of fraud using credit cards, I impose, concurrent on each count, a six-month jail sentence. [ 46 ] On Count 10, possession of computer and other equipment for use in falsifying credit cards, I impose a one-year concurrent jail sentence. [ 47 ] On Count 12, possession of identity information of another person for use in committing fraud, I impose a one-year concurrent sentence. [ 48 ] On Count 13, possession of identity documents of another person, I impose a four-month concurrent sentence. [ 49 ] On Count 14, possession for the purpose of trafficking in cocaine, I impose a six-month concurrent sentence. [ 50 ] On Count 16, possession of MDA, I impose a one-month concurrent sentence. [ 51 ] Thereafter there will be a probation order.

The Crown has proposed terms for that order and I am prepared to impose those terms. I will give Mr. Jevning an opportunity to comment on them in a moment. [ 52 ] I will impose the forfeiture order, of course, which I earlier signed. The victim surcharges are waived. [ 53 ] There will be a DNA databank order in respect of the trafficking offence to be supplied during the course of your incarceration, and there is a s. 109 ten-year firearms prohibition order. [ 54 ] The proposed conditions which the Crown has recommended on the probation order I will just review, and Mr.

Jevning, do you want an opportunity to look at them before I impose those conditions? [ 55 ] MR. JEVNING: Mr. Barclay has just given them to me, and as you recite, I will read. That will be sufficient. [ 56 ] THE COURT: All right. The conditions of the probation order, Mr. Thobani, are the following: [ 57 ] You will keep the peace and be of good behaviour. You will report in person no later than 48 hours after your release to the probation office at unit 100, 13545 - 64th Avenue, Surrey, British Columbia, and thereafter as and when directed.

You will reside as directed by your probation officer, and you will not change that address without the prior written permission of your probation officer. [ 58 ] You will not communicate, nor will you have contact, directly or indirectly, with Kevin Kerfoot or Trevor Kennedy. [ 59 ] You are not to have in your possession any identification, debit cards, credit cards, cheques or other negotiable instruments in any name other than your own.

You are not to have any credit card numbers other than ones that have been lawfully issued to you. [ 60 ] You are not to possess any skimmers or other device capable of reading, copying or writing credit card numbers. You are not to possess any stampers or embossers. You are not to possess any blank cards suitable for creating debit cards, credit cards or identification. You are not to possess any electronic template suitable for creating debit cards, credit cards or identification.

[ 61 ] You may only possess one computer or like device, and you must provide the passwords for that computer to your probation officer. You are to permit peace officers or your probation officer to enter your residence for the sole purpose of accessing computers and other such devices in your residence to ensure compliance with this order. (SUBMISSIONS BY COUNSEL) [ 62 ] THE COURT: I am not going to include either of those conditions, 11 and 12, in the order. It is clear, from the reasons that I have given, that my focus in this case is general deterrence and denunciation. The circumstances here reflect that Mr.

Thobani has made substantial steps in terms of his rehabilitation and I do not see the need to include these final two conditions. (Reference to conditions 11 and 12 is to the conditions in paragraph 61 above. They were not imposed.) [ 63 ] Mr. Thobani, you are in the custody of the sheriff. [ 64 ] THE CLERK: Your Honour, one-year probation? [ 65 ] MR. BARCLAY: Yes, sorry, the length of probation? [ 66 ] THE COURT: It was an 18-month order. (REASONS FOR SENTENCE CONCLUDED)