R. v. Flynn Date:, 2012 BCPC 313

Citation: R. v. Flynn Date: 20120803 2012 BCPC 0313 File No: 225958-1-T File No: 225959-7-CT File No: 225959-13-CBT Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MATHIEU CURTIS ROBERT FLYNN EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. F. PALMER Counsel for the Crown: L. Winn Counsel for the Defendant: B. Anderson Place of Hearing: Vancouver , B.C. Date of Judgment: August 3, 2012

[ 1 ] THE COURT: Mathieu Flynn is before the court for sentencing on two Informations. Last Friday, he entered a guilty plea on all six counts contained in each Information. [ 2 ] The first offences charged on Information 225959-7-CT occurred between the 16th of January and the 13th of August, 2010, in Vancouver and Coquitlam, British Columbia.

Four of the six charges relate to counterfeit Canadian currency: making, possessing, and uttering counterfeit currency, possessing instruments and materials for the purpose of making counterfeit money, a theft of an Epson computer ink cartridge, and a charge of possession of instruments or materials for forging or falsifying credit cards. Mr. Flynn was arrested and released on bail. [ 3 ] Some 15 months later, Mr. Flynn was arrested on the second set of charges, Information 225958-1-T, in Richmond, British Columbia.

These charges, making and possessing counterfeit Canadian currency, possessing instruments and materials for the purpose of making counterfeit currency and also for the purpose of falsifying credit cards, and charges of unlawful possession of credit card data and identification cards, arose between November 30th and December 12th, 2011. [ 4 ] Virtually, the entire day last Friday, the 27th of July, 2012, was dedicated to a recitation of the circumstances of these offences, a discussion of the law, of Mr. Flynn's background. Counsel presented a binder of materials, letters of support for Mr.

Flynn, and I do not intend in the course of these reasons to reiterate much of what was said in that proceeding. [ 5 ] Mr. Flynn has been in custody since his arrest in December 2011. He has not since his arrest sought his release on bail. [ 6 ] Prior to his arrest in 2010, Mr. Flynn was not known to the police. After that time, he did on May 25, 2011, plead guilty to a charge of assault with a weapon that arose out of a shoplifting incident involving a friend of his in Richmond, British Columbia. Mr. Flynn was sentenced to 21 days in custody and a period of probation.

He was still on that probation order when he was arrested in December 2011. [ 7 ] Crown and defence proceeded on an agreed statement of facts for sentencing which is Exhibit 4 in this proceeding. The exhibit contains Reports to Crown Counsel on both investigations, executive summaries of both investigations, logs of surveillance conducted on Mr. Flynn between March and August 2010 in Vancouver where Mr.

Flynn was utilizing a rental space for the counterfeiting process and in Coquitlam where he resided and possessed counterfeit money, as well as exhibit flowcharts with respect to all seizures made in both investigations. [ 8 ] On Information 225959-7-CT, the total seizure of counterfeit Canadian currency was $184,830. On the later charges, the total seizure amounted to $1,148,700. [ 9 ] In submissions supported by a book of authorities, 17 cases on counterfeiting charges, the Crown argued that a global sentence of four years was appropriate with credit on a one-for-one basis for the time that Mr.

Flynn has spent in custody since his arrest last December. [ 10 ] The Crown suggested that the range for the earlier charges, considering Mr. Flynn is a first-time offender, would be two to two and a half years. The range for the later charges would be three to seven years consecutive. [ 11 ] Crown counsel acknowledged both the mitigating and aggravating factors to be addressed in determining the appropriate sentences on these Informations. In mitigation, the court must consider both Mr. Flynn's lack of prior criminal record and his intention from the outset to resolve these charges by way of guilty plea.

Trials on these charges would be complex, lengthy, and expensive. [ 12 ] The aggravating factor applying to both Informations is, of course, the damage this crime does to specific victims and to the community generally by creating distrust in the currency and causing great expense to Canadian taxpayers. The Bank of Canada must always be developing new security measures for paper currency to thwart those whose greed motivates them to steal from all of us through the mechanism of counterfeit currency. [ 13 ] With respect to the later charges, the other aggravating factors to be considered are the fact that Mr.

Flynn was on bail for the earlier related charges and on probation for the assault-with-weapon conviction. [ 14 ] Counterfeiting currency is a serious crime. It requires deliberation, planning, significant resources, and skill. It is not a crime of passion or impulse. [ 15 ] Defence counsel acknowledged that the Crown had put all the relevant case law before the court. Mr. Anderson made submissions with respect to only four of those cases in support of his position that the fit sentence for Mr.

Flynn, taking into account his youth, lack of prior record, relatively early guilty plea and complete acceptance of responsibility for all charges should be in the range of two to three years. [ 16 ] Mr. Anderson also submitted that the court should give Mr. Flynn enhanced credit for the time he has already served on the basis of Mr. Flynn's affidavit describing the conditions at the North Fraser Pretrial Centre while he has been held there. [ 17 ] The cases on range of sentence referenced by defence counsel are R. v. Mihalkov located at tab 15 of the book of authorities, R. v. Todorov at tab 12, R. v.

Lindt found at tab 5 of the book of authorities, and R. v. Grozell which is located at tab 11. The book of authorities cites all of the cases and the citations for the cases. [ 18 ] Mr. Anderson argued that the circumstances in Mihalkov are far more serious than the circumstances of the offences to which Mr. Flynn has pled guilty. Mr. Justice Harris of the Ontario Court of Justice was sentencing Mr. Mihalkov on 15 counts after he had committed the accused to stand trial following a preliminary inquiry. Mr. Mihalkov re-elected back to the Court of Justice with the consent of the Crown.

[ 19 ] The 15 counts included four counts of conspiracy to counterfeit two different denominations of Canadian currency, both $20 and $10 notes, breach of a recognizance and 10 counts of possession of social insurance and credit cards. Mr. Mihalkov had no prior criminal record, had support in the community, and considerable computer skills. [ 20 ] After reviewing the available case law, much of which is included in the Crown's book of authority here, Justice Harris decided that the range for sentence for Mr. Mihalkov was more than three years and less than five.

The fit sentence was then determined to be one of four years. Mr. Mihalkov was given 30 months credit for 15 months time served. [ 21 ] This case dates back to a time before the Safe Streets and Communities Act and the restriction on credit for anything other than one-to-one for time served, generally. The sentence on the conspiracy counts was 18 months with a two-month consecutive term for the charge of breach of recognizance. [ 22 ] In Todorov , the court was dealing with one of Mr. Mihalkov's co-conspirators. Mr.

Todorov was found guilty of possession of counterfeit money, possession of instruments used in making counterfeit money, possession of a dye capable of making the impression of a stamp, to wit, a cast aluminum dye with the number 20 on a raised square, and possession of a fraudulent Metro pass. The court found the operation the accused was involved in to be highly sophisticated and abundantly remunerative. [ 23 ] The accused was described by the sentencing judge as a party to a large-scale operation, but with a role lesser than that of Mr. Mihalkov. Mr. Todorov was considered, really, as a delivery person.

The Crown sought a sentence in the range of three to three and a half years. Mr. Todorov was given one month credit for two weeks served and was sentenced to 32 months imprisonment. [ 24 ] In Lindt , Judge Hicks of this court dealt with a number of accused persons on charges relating to the making, possession of and uttering of counterfeit money. The first of these accused, Mr. McGaw, had pled guilty and was sentenced on the basis of a joint submission of counsel. He pled guilty to two of the three charges that Mr. Lindt pled guilty to. Mr.

McGaw was sentenced, after pre- sentence custody credit for two months, to 34 months in custody. [ 25 ] What was significant was that Mr. McGaw had a prior criminal record for related offences. In the situation of Mr. Lindt, Crown counsel was not coming before the court with a joint submission. The Crown argued that the range for Mr. Lindt was between 26 and 60 months. Counsel for Mr.

Lindt was suggesting to the court a sentence in the range of 18 to 24 months to be served by way of a conditional sentence order. [ 26 ] After an extensive review of applicable case law, the seriousness of the offences committed by Mr.

Lindt, his personal history, his relatively minor unrelated criminal record, and the very positive steps he had taken towards his own rehabilitation in the two years that had elapsed between the offences and the sentencing, Judge Hicks determined that specific deterrence was not an issue and that both general deterrence and denunciation could be achieved with a sentence of two years less a day served by way of a conditional sentence order. [ 27 ] In Grozell , Judge Caryer, also of this court, was sentencing the accused for a number of offences occurring over a span of time in various places in British Columbia.

The first offence Mr. Grozell pled guilty to was impersonating his own brother. He also pled guilty to counts of making and possessing counterfeit Canadian and American currency, unlawful possession of mailbox keys, credit card data, and identification data. [ 28 ] Judge Caryer determined that a fit sentence was one in excess of three years. After crediting Mr. Grozell one year for time spent in custody which was at a greater than one-to-one basis, Judge Caryer sentenced Mr.

Grozell to a further 26 months as a global sentence on the remaining counts. [ 29 ] The case law is replete with acknowledgements of the harm counterfeiting causes. [ 30 ] The affidavit of Mr. Salji from the Bank of Canada, which is Exhibit 2 in this proceeding, speaks to the prevalence of counterfeiting offences here in Canada and around the world, the impact this crime has on individuals and businesses, and the impact on the Canadian taxpayer. Counterfeiting is a sophisticated crime. It requires a significant amount of technology and the assistance of persons with computer and graphic art skills.

It is a crime of greed, carefully and patiently executed to maximize profit. [ 31 ] In the cases before the court, it is significant in the set of the first charges that the product made by Mr.

Flynn was recovered, albeit in small amounts, in a variety of locations which can only be understood as the effect of distribution. [ 32 ] I am mindful of the purpose and the principles of sentencing as set out in s. 718 of the Criminal Code as well as the additional principles that the sentence must be proportional to the moral blameworthiness of the offender, that the harshest sentences are reserved for the worst offender in the worst set of circumstances, and that multiple sentences must be calibrated so that the totality of sentence is not unduly harsh. [ 33 ] I am mindful of Mr.

Flynn's personal circumstances, the disadvantages of his upbringing in the context of his mother's unsuccessful marriages, abandonment by his stepfather, and the resultant severance of his relationship with his half-brother, going into care at the age of 12, and the neglect and abuse that occurred in that system, the death of his mother when he was only 15. In spite of all of that, Mr.

Flynn was able to take on independent living at the age of 17, find lawful employment, join the Teamsters Union and earn a good wage until injury to one of his rotator cuffs interrupted that employment. [ 34 ] When his benefits ran out, Mr. Flynn became involved in the first set of charges. Through counsel, I was advised that he was approached because of his considerable skills as a graphic artist. It is extremely unfortunate that Mr. Flynn did not work harder at finding lawful employment utilizing those skills.

Perhaps it was a function of his immaturity that when he was no longer able to reside with his surety after having been released on the first Information, that Mr. Flynn decided to return to counterfeiting in the latter part of 2011 as a way to sustain himself. [ 35 ] A global sentence as proposed by Crown counsel is not, in all of the circumstances of these two cases, appropriate. The gap in

time and the fact that Mr. Flynn was in the community on bail for the 2010 offences when he committed the later offences in November and December of 2011 dictates, in my view, the imposition of consecutive sentences. [ 36 ] I have considered the submission for enhanced credit for time served and, having read both Mr. Flynn's affidavit and that of Mr. Cable [phonetic], the assistant deputy warden of the North Fraser Pretrial Centre, which is Exhibit 8 in this proceeding, I have decided that there is no basis for enhanced credit. Mr.

Flynn will receive a total of 268 days credit for the time he has spent in custody over the history of these two files. [ 37 ] On Information 225959-7-CT, having considered all of the circumstances of the offence as alleged by Crown counsel, the submissions of counsel, the submissions of Mr. Anderson on behalf of Mr. Flynn with respect to the quality of the counterfeit money and the viability of it, I am satisfied that the appropriate sentence in this case would be 18 months. That would be a total of 547 days.

Subtracting the 268 days credit for time served, the balance of sentence remaining is 279 days custody. [ 38 ] The victim fine surcharge is waived on Information 225959-7-CT. [ 39 ] On Information 225958-1-T, the Crown had submitted that a sentence in the range of three years up to seven years would be appropriate. [ 40 ] I find that a sentence in that range would exceed the Crown's proposal of a four-year global sentence and would be unduly harsh given Mr. Flynn's age, prospects for rehabilitation and full acceptance of responsibility for his roles in these offences.

I am also taking into account the fact that Mr. Flynn could not, due to circumstances beyond his control, deal with these matters as early as he would have chosen. [ 41 ] Defence counsel submitted that a sentence in the range of two to three years would be appropriate. I am of the view that a global sentence in the range of three and a half years is appropriate. [ 42 ] Therefore, the sentence on Information 225958-1-T is a two-year sentence consecutive to the sentence on 225959-7-CT. [ 43 ] The victim fine surcharge is waived on that Information, as well. [ 44 ] Did the Crown submit, Ms.

Winn, that this was a primary designated offence? [ 45 ] MS. WINN: Oh, it is secondary and discretionary, Your Honour. [ 46 ] THE COURT: It is secondary. Given the absence of any prior record and given Mr. Flynn's age, I am exercising my discretion against that application. I think that takes care of all the issues. [ 47 ] MS. WINN: Yes, and then, of course, the Crown is also seeking forfeiture of offence-related property. [ 48 ] THE COURT: Yes. [ 49 ] MS. WINN: There is no issue with respect to the counterfeiting instruments. Rather, the only outstanding issue is the Range Rover.

We propose to adjourn for a fix date a forfeiture hearing. [DISCUSSION RE FORFEITURE AND FIX DATE] [ 50 ] THE COURT: All right, Tuesday, September 4th, nine o'clock, 2012, courtroom 307. [ 51 ] MR. ANDERSON: Thank you. [ 52 ] THE COURT: Do you want Mr. Flynn appearing by video then? [ 53 ] MR. ANDERSON: Yes. [ 54 ] THE COURT: All right, video appearance, then, for that fix date for Mr. Flynn. [REASONS FOR SENTENCE CONCLUDED]