R. v. Shankar Date:, 2012 BCPC 5

Citation: R. v. Shankar Date: 20120111 2012 BCPC 0005 File No: 19748-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAI VINESH SHANKAR REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. F. GIARDINI Counsel for the Crown: R. Daniel Fox Counsel for the Defendant: Anthony Robinson Place of Hearing: Vancouver, B.C. Date of Hearing: December 1, 2011 Date of Judgment: January 11, 2012 Introduction [ 1 ] Mr.

Shankar was charged with two offences; namely, that on or about September 30, 2007, he uttered a forged document and that between May 23, 2007, and October 11, 2007, he attempted to defraud the Insurance Corporation of British Columbia ("ICBC") of monies in excess of $5000. The charges arose out of a legitimate claim made by Mr. Shankar to ICBC following a rear end collision on May 24, 2007.

Summary of background facts [ 2 ] Mr. Shankar was found guilty of uttering a forged document and attempting to defraud ICBC of monies in excess of $5000. Reasons for Judgment were issued September 2, 2011. I found that the only reasonable inference to be drawn from the proven facts was that Mr. Shankar knew that a 2006 Notice of Assessment, presented to ICBC to confirm his earnings, was a forged document. I found, that Mr. Shankar was, at a minimum, wilfully blind to the nature of the 2006 Notice of Assessment. I did not accept Mr. Leung's evidence that it was Mr.

Shankar who gave him the 2006 Notice of Assessment. However, I found there was evidence that Mr. Shankar attempted to get ICBC to use or act on the document. I was also satisfied, based on the evidence I accepted, that Mr. Shankar attempted to defraud ICBC by asking ICBC to rely on the 2006 Notice of Assessment which he knew or ought to have known was a forged document Issue on Sentencing

[3] The issue in regard to Mr. Shankar's sentencing is whether the objectives of sentencing require that he serve a term ofimprisonment in "real jail" or whether the objectives of sentencing can be met if his sentence were served in the community under aconditional sentence order. In other words, the Crown and defense counsel agree that a custodial sentence is appropriate in thecircumstances, however, they disagree on whether that sentence should be served in a custodial facility or in the community. Background of the accused [4] Mr. Shankar is 51 years old. He is married and has two adult children. Mr.

Shankar immigrated to Canada from Fiji in 1977 andis now a Canadian citizen. From 1986 to 2000 he was a real estate agent. He is now self-employed. He buys real estate, improves it andmakes money doing so. At trial, evidence was also led that he works for other individuals by managing their real estate holdings. [5] Mr. Shankar has no criminal record. He has been out on bail in the community since the spring of 2008. There have been nobreaches and no other criminal charges.

General principles of sentencing [6] The general principles of sentencing are set out in the Criminal Code: see, s.718, s. 718.1, and s. 718.2.

The fundamental purposeof sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctionsthat have the following objectives: denunciation, specific and general deterrence, the protection of society, rehabilitation, reparation forharm done, and the promotion of a sense of responsibility in the offender. [7] It is a fundamental principle of sentencing that the sentence imposed must be proportionate to the gravity of the offense and thedegree of responsibility of the offender: see, s. 718.1.

In fashioning a fit sentence the court must consider not only aggravating factors butalso mitigating factors. [8] A sentence should be similar to sentences imposed on similar offenders for similar offences, committed in similar circumstances.Furthermore, an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.

Last butnot least, all available sanctions other than imprisonment, that are reasonable in the circumstances, should be considered. [9] The Criminal Code also provides that, in certain circumstances, an offender who is sentenced to a term of imprisonment that isless than two years may serve that sentence in the community. In R. v. Proulx, 2000 SCC 5 , [2000] 1 S. C. R. 61 the SupremeCourt of Canada addressed the approach to be followed in cases where a judge is asked to consider the imposition of a conditionalsentence. First, the judge must make a preliminary determination about the appropriate sentence.

At this preliminary stage the judgeneed not impose a specific term of imprisonment. The judge only needs to address whether: (

a) probationary measures are not appropriate; and (

b) a penitentiary term is not appropriate. Furthermore, at this initial step the judge need only consider the purposes and principles of sentencing set out in ss. 718 to 718.2 of theCode to the extent necessary to narrow the range of sentence for the particular offender before the court. Position of the parties [10] In this case, the Crown and defense counsel, through their submissions, have acknowledged that a term of imprisonment of lessthan two years is appropriate. However, as already noted, they disagree on where that sentence should be served.

The Crown asks forthree months of incarceration, whereas the defense asks for a 3 to 6 month conditional sentence order. [11] The Crown relies on the following cases: R. v. Asgari, 1997 CarswellBC 3069 R. v. Melki, 2006 CarswellBC 2165, 2006 BCPC 409, [2007] B.C.W.L.D. 577 R. v. Mohebtash, 2006 CarswellBC 1478, 2006 BCSC 944 R. v. Mohebtash, 2007 CarswellBC 2313, 2007 BCCA 427 R. v. Mohebtash, 2007 CarswellBC 2548, 379 N.R. 399 R. v. Bodnarchuk, 2008 BCCA 39 R. v. Smith, 2007 BCCA 468 R. v. Eurosport Auto Co. Ltd., 2003 BCCA 281 . [12] The defence relies on the following cases: R. v. Proulx, 2000 SCC 5 R. v.

Burkart, 2006 BCCA 446

R. v. Dickson, 2007 BCCA 561 R. v. Kratky, (BCSC) R. v. Keuris, 2008 BCSC 480 R. v. McIsaac, (BCSC) R. v. Eves, 2002 BCPC 449 . Analysis [13] In the circumstances of this case, I am satisfied that a fit sentence would fall within the provincial range; namely, up to two yearsless one day. Since a fit sentence would fall within the provincial range, I must next consider whether the other prerequisites for aconditional sentence order are met. Those prerequisites are that: (

a) there must be no minimum term of imprisonment, (

b) the court must be satisfied that serving the sentence in the community would not endanger the safety of the community; and (

c) serving the sentence in the community would be consistent with the fundamental purpose and principles of sentencing set outin ss. 718 to 718.2. [14] There is no minimum term of imprisonment for the charges before the court. Therefore, that prerequisite is met. Next, I mustconsider whether allowing Mr. Shankar to serve the sentence in the community would endanger the safety of the community. Is there arisk that Mr. Shankar will reoffend? If so, what is the gravity of the damage that could ensue? Mr. Shankar has no previous criminalrecord.

He has been living in the community, on bail, since the spring of 2008 without incident. These two facts, along with thecircumstances of the offences committed by Mr. Shankar, lead me to conclude he would not endanger the safety of the community if hewere allowed to serve the sentence in the community. [15] Accordingly, the last prerequisite I need to consider is whether a conditional sentence order is consistent with the purposes andprinciples of sentencing. Those principles are set out earlier in these reasons at paragraphs 6 to 8. In R. v.

Thomas 2002 BCPC 113,Kitchen P.C.J. noted: 30 The sentences for fraud offences vary considerably. Where large sums are taken as part of a complicated scheme, particularly bypersons acting in a professional capacity, long penitentiary sentences have been necessary. Examples of this are the sentences of six yearsfor the bank teller in R. v. Spiller, (BC CA), [1969] 4 C.C.C. 211 (B.C.C.A.) and seven years each in the cases of R. v.Berg, [1988] B.C.J. No. 2000, R. v. Manners, [1988] B.C.J. No. 259, and R. v. Sinclair, [1986] B.C.J.

No. 456. 31 Where relatively little is taken impulsively and there is a real prospect for rehabilitation, jail may be avoided altogether, or shorteror conditional sentences may be imposed. The placing of a case in the range between heavy penitentiary sentences and these lessersentences depends on many factors including the amounts taken, prospects for restitution, planning and premeditation, breach of trustaspects, and motive for the offences. [16] The case law is clear that fraud against public institutions and corporations, such as ICBC, is a serious matter and an aggravatingfactor in sentencing: see, R. v.

Melki 2006 BCPC 409, and cases cited therein. In R. v. Datsko, 2009 BCPC 106, Howard P.C.J.undertook a detailed review of legal authorities dealing with fraud cases. In that case, the accused had defrauded her employer of over$700,000 over a 16 month period. Factually, that case is distinguishable from the matter before me; however, Judge Howard's review ofthe law is of assistance. In particular, she cites a number of decisions wherein conditional sentence orders were imposed in cases of large-scale fraud.

Proulx, and cases which follow it, make it clear that no offences are excluded from the conditional sentencing regime exceptthose with a minimum term of imprisonment. Furthermore, there should be no presumption in favour of or against a conditional sentencefor specific offences. [17] I now turn to the consideration of the aggravating and mitigating factors in this case. The aggravating factors are; (

a) Mr. Shankar attempted to defraud a Crown Corporation that provides universal auto insurance to British Columbia motorists. Itrelies on the honesty of claimants to conduct its insurance business. As noted in R. v. Eurosport Auto Co. 2003 BCCA 281, the ICBCinsurance plan must of necessity rely on the honesty and integrity of the persons who participate in it. (

b) He knowingly and intentionally relied on a forged Canada Revenue Agency document to establish his wage loss. (

c) Although this was a single incident, the events leading to it took place over a period of time. This was not a spur of the moment act. (

d) The wage loss he claimed was based on three months wage loss. At one point, he told ICBC to calculate the wage loss at $5000 permonth. The amount of wage loss he attempted to claim is not at the high end of the scale but neither is it insignificant. The mitigating factors are: (

a) The accused has no criminal record. (

b) He is of previous good character. (

c) He has been on bail since the spring of 2008 with no breaches.

(

d) There is no suggestion that he has been involved in any other criminal activity since the charges leading to the conviction in this case. (

e) He has the continuing support of his wife and family. [ 18 ] In Proulx the Supreme Court of Canada said that a conditional sentence can meet the objectives of denunciation and deterrence. The imposition of a conditional sentence, with appropriate conditions, is not necessarily less onerous than a period of “real jail”. The specific circumstances of this case distinguish it from other cases I have been referred to where a custodial sentence was imposed. In this case, the evidence I accepted did not establish that Mr. Shankar himself had forged the 2006 Notice of Assessment or that he had provided it to Mr.

Leung, the accountant. In all of the circumstances, I am satisfied that the principles of sentencing can be met through the imposition of a conditional sentence order. Accordingly, I impose a jail sentence of 10 months for both the attempted fraud and uttering a forged document. That sentence will be served in the community pursuant to a conditional sentence order. A copy of that order will be attached as an Appendix to these reasons once the conditions are finalized. ________________________________ The Honourable Judge M. F.

Giardini Provincial Court of British Columbia APPENDIX A CSO CONDITIONS FOR JAI VINESH SHANKAR You are to: (

a) Keep the peace and be of good behaviour; (

b) Appear before the court when required to do so; (

c) Report to a supervisor in person by 4:00 p.m. January 11, 2012, at 275 E. Cordova Street, Vancouver B.C. and thereafter as directed by the supervisor; (

d) Remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court; (

e) Notify the court or the supervisor in advance of any change of name, address, employment or occupation; (

f) You are to reside at 5033 Earles Street, Vancouver, B.C. and you are not to change that address without the prior written approval of the supervisor; (

g) During the first 4 months of the sentence you must remain inside your residence, or on its grounds at all hours except when: i. performing your community service hours, or travelling directly to and from that community service work; ii. attending counselling sessions as directed by the supervisor, or when travelling directly to and from such sessions; iii. working at your employment, or travelling directly to and from that employment; iv. attending at your supervisors office for scheduled appointments v. attending court as required; provided these absences have been pre-arranged with the supervisor; (

h) During the first 4 months of the sentence you may also be absent from your residence i. between the hours of 9:30 a.m. and 12:30 p.m. one day per week, as pre-arranged with the supervisor, for the purposes of attending to banking, grocery shopping and other personal matters (for example, exercise); ii. when attending to genuine medical emergencies involving yourself or your immediate family in which case your must notify your supervisor as soon as possible thereafter and provide proof of the medical emergency as requested by the supervisor. (

i) During months 5 to 7, inclusive, of this sentence, you must not be outside of your residence between the hours of 10 p.m. and 6 a.m. daily except for genuine medical emergencies involving yourself or your immediate family in which case your must notify your supervisor as soon as possible thereafter and provide proof of the medical emergency as requested by the supervisor;

(

j) For the last 3 months of your sentence, you will not be subject to any curfew; (

k) During the first 7 months of this order, you are to promptly present yourself to the front door of your residence at the request of a peace officer, supervisor or probation officer who is attending to confirm your compliance with the house arrest and curfew conditions; (

l) You are to take such counselling as may be directed by the supervisor; (

m) You must complete 40 hours of community work service as directed by your supervisor. Those hours must be completed by no later than 30 days before the end of this conditional sentence order; (

n) You are not to consume any alcohol or any substances listed in the Controlled Drugs and Substances Act or the Food and Drug Act unless you are in possession of a lawful prescription for the same issued by a licensed physician.