R. v. Johal, 2018 BCPC 360

Citation: R. v. Johal 2018 BCPC 360 Date: 20180926 File No: 227111-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. HARMEET SINGH JOHAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Crown: Ms. Nadia K. Farinelli Counsel for the Defendant: Mr. Jasdeep S. Mattoo Place of Hearing: Surrey , B.C. Date of Hearing: August 14, 2018 Date of Judgment: September 26, 2018 I. INTRODUCTION

[ 1 ] I heard sentencing submissions on August 14, 2018, and these are my reasons for the sentence I am going to impose. [ 2 ] By Information No. 227111-1, Harmeet Singh Johal is charged with two offences, but he has pleaded guilty to Count 1, which reads as follows: Count 1 – Harmeet Singh JOHAL, from the 1 st day of December, 2012 to the 31 st day of October, 2014, inclusive, at or near Surrey, in the Province of British Columbia, committed theft of money, the property of Dick’s Lumber, a Division of RONA Inc., of a value in excess of five thousand dollars ($5,000.00), contrary to

Section 334 (

a) of the Criminal Code . II. CIRCUMSTANCES OF THE OFFENCE [ 3 ] The circumstances of the offence are not disputed and they are as follows: Mr. Johal was an employee of Dick’s Lumber, a Division of RONA Inc. (“Dick’s Lumber”), initially from 2005 to 2009. He then resigned to attend school full-time. In 2011, he was rehired as a counter sales representative. On October 16, 2014, Mr. Derek Foss of Dick’s Lumber discovered that Mr. Johal had been creating product returns, with the amounts credited to his single Master Card account.

An investigation revealed 250 transactions totalling $166,687.57 from about December 28, 2012 to October 14, 2014 that were credited to Mr. Johal’s Master Card account. Mr. Johal was reported to the police and he was arrested on October 17, 2014. [ 4 ] While Mr. Johal declined to provide a statement to the police, he co-operated with their investigation, and agreed to pay back the monies he wrongfully took. On October 20, 2014, he went with his parents and a family friend to Dick’s Lumber and apologized for what he did. Mr.

Johal, with assistance from his family and friend, gave a cheque to Dick’s Lumber for $60,000, and agreed to pay back the balance of the monies owing. However, none of the balance has yet been paid. [ 5 ] Mr. Johal’s Master Card statements for the period in question were filed as an exhibit. These statements show the Dick’s Lumber product returns Mr. Johal made, Mr. Johal’s online sports betting transactions, and his other purchases, which include numerous luxury goods and services. Some of the luxury purchases include items from Louis Vuitton, Gucci and Sun Wing Vacations. III.

CIRCUMSTANCES OF THE OFFENDER [ 6 ] Mr. Arvinder K. Grewal, Canadian Certified Counsellor, who conducted a psychosocial assessment of Mr. Johal, has written a report, dated June 10, 2018, which is also filed as an exhibit. This report contains information akin to a pre-sentence report. Although the Crown objects to certain portions of this report, it does not take issue with respect to Mr. Johal’s background information contained in this report. [ 7 ] The following information is from this report and counsel’s submissions. Mr. Johal is 33 years of age.

He was born and raised in Surrey, British Columbia, and has always lived with, and still lives with, his parents and his younger brother. He has lots of family in British Columbia, both on his father’s and mother’s side. They are a very close-knit family. Their parents are hard-working and are said to have passed on their strong work ethic and positive values to their children. Mr. Johal’s childhood is described as loving and uneventful. [ 8 ] Mr. Johal graduated from high school in 2003, and obtained a forklift licence in 2004. He pursued studies to become a heavy- duty mechanic.

He worked at various labour jobs, and also as a forklift operator. In 2010, he completed an Entry Level Training Trade course, but had difficulty securing an apprenticeship. With his father’s assistance, he landed a part-time job with a mechanic in North Delta. [ 9 ] Mr. Johal loves sports. He plays roller hockey and softball. He hikes and works out at the gym. He has applied to volunteer for the 2019 International Ice Hockey Federation World Junior Hockey Championships. [ 10 ] From about 2008 to 2011, Mr. Johal was in a romantic relationship with a woman, whom he wanted to marry.

However, she was not ready for marriage and their relationship failed. Mr. Johal did not take the break-up well. He was very sad, hurt and depressed. He did not know how to deal with his feelings. He did not seek professional help at that time. His family and friends provided support and suggested that he keep busy to keep his mind off of the break-up. [ 11 ] In late 2012, he lost interest in becoming a heavy-duty mechanic and returned to his former employer, Dick’s Lumber. While he was doing well at Dick’s Lumber, he still felt unsuccessful as all his friends had successful careers but he did not.

He felt he was not moving forward, but rather went backwards by returning to his old job. To distract him from his negative feelings and keep his mind occupied, he watched a lot of sports on The Sports Network. Sports talk helped him engage with his customers at work. One such customer introduced him to sports betting. He was drawn to it by the lure of making lots of money. He equated money with success and confidence. [ 12 ] Gradually the betting turned into deeper gambling, with Mr. Johal reaching for access to more and more money.

That led him to the various fraudulent transactions that are the subject of the offence he is facing. Even though he knew what he was doing was wrong, he could not stop himself until his fraudulent activities were discovered and he was arrested. [ 13 ] Mr. Johal’s family was shocked by Mr. Johal’s behaviour, and the turn of events has had a devastating impact on his parents, particularly on his mother’s health who has since been diagnosed with anxiety and depression. Mr. Johal’s family and his close friends are very supportive of him and are prepared to help him repay the monies owing to Dick’s Lumber. IV.

EFFECT ON THE VICTIM [ 14 ] Mr. Foss, on behalf of Dick’s Lumber, provided a victim impact statement. In it he states Mr. Johal’s fraudulent activities affected Dick’s Lumber Surrey branch’s financial performance drastically to the point of management determining whether a reduction in the number of staff was necessary to offset the negative financial performance. Mr. Foss says if Mr. Johal’s fraudulent activities had remained undiscovered, management would have had to reduce three full-time positions affecting those staff members’ earning potential,

career paths and families. V. PARTIES’ POSITION The Crown [15] The Crown says in the employment context, theft and fraud offences involve breach of trust, and that Mr. Johal breached thetrust his employer placed in him. It says every one of the 250 refund transactions that Mr. Johal carried out was a theft in itself, and thathe committed them deliberately, and they were not spontaneous. The Crown submits that Mr.

Johal lived a life of luxury using themonies he stole. [16] It says the sentencing principles of deterrence and denunciation are the primary considerations in these types of cases, andargued that only a custodial sentence can meet these principles. [17] In Mr. Johal’s case, it seeks 12 months’ imprisonment and the following ancillary orders: (

a) a restitution order under s. 738 of the Criminal Code in the amount of $105,077.07 in favour of Dick’s Lumber, a Division ofRONA; and (

b) a DNA order under s. 487.051(3)(

b) of the Criminal Code, on a secondary designated offence basis. [18] In support of its position, the Crown referred to five cases: R. v. Laskowski, 2015 BCCA 248, R. v. Smith, 2015 BCSC 1267, R.v. N.C.D., 2003 BCSC 537, R. v. Klyne, 2017 BCPC 26, and R. v. McIvor, 1996 ABCA 154. [19] The factual circumstances in Laskowski are similar to those of Mr. Johal. Mr. Laskowski held a frontline sales position with hisemployer. He pleaded guilty to stealing about $20,109 from his employer through fraudulent credit card transactions over a 10-monthperiod.

The Court of Appeal for British Columbia upheld the 16 months’ incarceration the sentencing judge imposed. At para. 21, theCourt of Appeal quoted the sentencing judge with approval: [21] The judge in this case said, correctly in my view, in respect to the primary sentencing factors: [30] It is clear from the case law provided to me that deterrence and denunciation are the primary sentencing factors to be consideredin cases such as this. I concur with Judge Howard as she states at paragraphs 27 and 29 in R. v. Monsalvo as follows: [27]

Section 718.2(a)(iii) is of special importance in the present case. Pursuant to this section, evidence that an offender, incommitting the offence, abused a position of trust in relation to the victim is deemed to be an aggravating circumstance. This sectionapplies to the case before me. [29] The legal authorities are clear and consistent in their approach to sentencing for a fraud offence involving a breach of trust. Specific deterrence and rehabilitation of the accused are often given less weight in these cases. General deterrence and publicdenunciation are of paramount importance.

The gravity of this type of offence is such that imprisonment is generally considered the onlyform of sentence that will adequately address these objectives even when dealing with a first time offender, which the accused is not. See R. v. Bogart, (ON CA), [2002] O.J. No. 3039 at para. 31 (Ont. C.A.) citing from R. v. Gray (1995), (ON CA), 76 O.A.C. 387 at pp. 398-99, (Ont. C.A.) There are few crimes where the aspect of deterrence is more significant. It is not a crime of impulse and is of a type that is normallycommitted by a person who is knowledgeable and should be aware of the consequences.

That awareness comes from sentences given toothers. [20] What was different in Mr. Laskowski’s case was that he had prior convictions for similar offences, and he committed thesubject offence while an earlier serious charge was progressing through the justice system and while he was serving his conditionalsentence. These, the court noted, were highly aggravating factors. In Mr. Johal’s case, this is his first offence. The Crown agrees thatMr. Laskowski’s criminal record is a distinguishing factor. [21] In Smith, Ms.

Smith, during the course of her employment as an exhibit custodian, stole about $116,012 from the RCMP –Mission Detachment, principally to finance her chronic gambling habit. She pleaded guilty to the offence of breach of trust by a publicofficer contrary to s. 122 of the Criminal Code. She was sentenced to 18 months’ incarceration.

The court reviewed a number ofauthorities, including McIvor, pointing out from McIvor “that an addiction to or an obsession with gambling is neither an exceptionalcircumstance justifying the imposition of a non-custodial sentence nor a mitigating factor warranting a sentence of less than what wouldotherwise be fit and proper.” The aggravating factors included a lengthy and costly police investigation and a substantial risk ofcompromising criminal prosecutions and the integrity of the police. The victim impact in this case was far more egregious. [22] In N.C.D., Mr.

N.D., who was the chief financial officer of a hospital (a senior position of trust), pleaded guilty to theft of$173,159 of public healthcare funds. He was sentenced to three years’ imprisonment as the circumstances were considerably moreegregious in his case. The court noted that a significant prison term was appropriate considering the seriousness of the crime and the factthat it was unlikely that the hospital would recover any of the monies Mr. N.D. stole from it. [23] In Klyne, Ms. Klyne, who was the Senior Pension and Benefits Coordinator of a credit union, stole approximately $282,000from a pension plan.

She was sentenced to 18 months’ imprisonment. Among other issues, Ms. Klyne had a gambling problem. Theoffence involved a breach of trust and considerable planning and deliberation. Some of the mitigating factors in this case were similar toMr. Johal’s in that there was an early guilty plea and Ms. Klyne had no criminal record. The Defence

[ 24 ] The defence seeks a suspended sentence and a three-year probation order. It agrees that a restitution order is appropriate in this case and does not oppose the DNA order the Crown seeks. [ 25 ] In support of its position, the defence referred to seven cases: R. v. Rondeau , 2017 BCPC 120 , R. v. Marks , 2016 BCCA 4880 , R. v. Offman , 2017 BCPC 70 , R. v. Lee , 2018 BCPC 46 , R. v. Carillo , 2015 BCCA 192 , R. v. Voong , 2015 BCCA 285 , and R. v.

Van Der Walt , 2017 BCSC 557 . [ 26 ] The defence essentially adopts the court’s comments in Rondeau , at para. 61 , in that “a suspended sentence can conceivably be more onerous than a sentence involving immediate imprisonment.” [ 27 ] In Rondeau , Mr. Rondeau was an account manager with a financial institution who, through a series of fraudulent transactions, advanced to himself the sum of $101,279.99 from his employer and failed to repay it. The court noted that Mr. Rondeau, as an account manager, was in a position of trust and he held that position for a considerable period of time.

He orchestrated a plan whereby he fraudulently obtained and operated five credit cards, four lines of credit and a few personal loans. The court concluded that rather than a custodial sentence, a suspended sentence with certain probationary conditions for a period of three years was the fit and proper sentence for Mr. Rondeau. Mr. Rondeau had no prior criminal record and by the time of sentencing, he had taken significant steps towards his rehabilitation. [ 28 ] Similarly, the defence submits that Mr.

Johal has no prior criminal record; since his arrest, almost four years have passed, and he has not reoffended; he co-operated with the police in their investigation; he apologized to his employer and agreed to pay full restitution; he has been diligently working towards his rehabilitation; on his own accord, he has sought professional counselling; he has been employed for the past three years and is doing well at his job, including taking a leadership position; he has the support of his family, friends and current employer; and he has already paid part of the restitution and is willing and able to pay the balance.

These, the defence submits, are exceptional circumstances justifying a suspended sentence. [ 29 ] The defence submits that a three-year suspended sentence with strict conditions can satisfy the sentencing principles of deterrence and denunciation as discussed in Voong and other cases. The Crown submits, however, that it is inappropriate to apply the analysis in Voong , which was a drug trafficking case, to breach of trust cases. [ 30 ] The defence argues that most of the offenders in the cases that the Crown referred to held senior positions of trust, whereas in Mr.

Johal’s case, he only held a front-line position and was in a position of opportunity and not a position of trust; therefore, it would be inappropriate to apply the sentence in those cases to Mr. Johal’s case. [ 31 ] The defence submits that even in a case such as Carillo (a drug trafficking case) where public safety was a huge concern, the Court of Appeal upheld the two-year suspended sentence. The defence says there is no such public safety concern in Mr.

Johal’s case. [ 32 ] The defence also submits that even in the breach of trust cases the Crown relies on, ability to pay restitution is considered a relevant factor in sentencing. However, the Crown submits that it would be creating new law and setting a dangerous precedent if the court were to say that an offender should not be incarcerated because otherwise the offender would not be able to work and pay restitution.

That, the Crown says, places primary emphasis on restitution rather than general deterrence and denunciation which are paramount in breach of trust cases. [ 33 ] The Crown submits that Rondeau has been wrongly decided. The defence disagrees. I note that it has not been appealed. [ 34 ] While I appreciate the parties’ arguments, the factors they refer to cannot be considered in isolation. As the courts have repeatedly said, and as I discuss below, sentencing is an inherently subjective and individual process.

The nature of the offence (be it drug trafficking or breach of trust – that is, the unlawful conduct) and restitution (reparation for harm done to victims) are only two of many factors a court must take into account in crafting a just and fit sentence. Just because the nature of the offence is different does not render inapplicable the analysis of when a suspended sentence may be appropriate (as discussed in Voong , Rondeau and other cases). Also, as I reference below, there may not be a single appropriate sentence for a similar offender and a similar crime. Sentencing is a difficult balancing exercise. VI.

PURPOSE AND PRINCIPLES OF SENTENCING [ 35 ]

Section 718 of the Criminal Code states that “[t]he fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community. [ 36 ]

Section 718.1 sets out the fundamental principle in sentencing. It states that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [ 37 ]

Section 718.2 sets out other sentencing principles that a sentencing judge must take into account in imposing a sentence. It

states, in part, as follows: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and without limiting the generality of the foregoing, . . . (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; . . . (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, . . . VII. APPLICATION OF SENTENCING PRINCIPLES TO THE CASE AT HAND [38] Theft over $5,000 is an indictable offence, carrying a maximum sentence of 10 years’ imprisonment. There is no prescribedminimum punishment of imprisonment.

A conditional sentence order is not available after November 21, 2012. [39] The Crown submits that the range of custodial sentence for such an offence is between 18 and 36 months. [40] In the recent decision in R. v. Dragani, 2018 BCCA 225, the Court of Appeal for British Columbia commented on sentencingranges. Dragani involved two offenders who were convicted of breaking and entering into a residence, robbery, unlawful confinement,and assault causing bodily harm in an event described as a “home invasion”.

While the offences and the circumstances in that case weredifferent, the court’s comments on the sentencing ranges are salient. At para. 79, the court said that “the system of establishing ranges isimperfect, and because sentencing is an inherently subjective and individual process, ranges are only suggestions or guidelines” (citingR. v. Bernier, 2003 BCCA 134, at para. 74). At para. 80, it referred to its recent affirmation that ranges are “merely guidelines” and not“straightjackets” (citing R. v.

Smith, 2017 BCCA 112, at para. 35). [41] Also worth noting are the Court of Appeal’s comments in Carrillo, at paras. 31 and 32. It said “deciding a fit sentence is not ascience; there may not be a ‘single appropriate sentence for a similar offender and a similar crime’ (citing R. v. C.A.M., (SCC), [1996] 1 S.C.R. 500, at para. 92).” [42] The Court of Appeal in Dragani, at para. 74, said: . . . a judge can order a sentence outside the range as long as it is in accordance with the principles and objectives of sentencing: asentence outside the range is not necessarily unfit: R. v.

Nasogaluak, 2010 SCC 6 at para. 44; Lacasse at paras. 57-61. Where there is anarguable case of exceptional circumstances, two inquiries are commonly emphasized: (1) has the offender concretely demonstrated thathe or she has turned his or her life around since his or her arrest, and (2) would the fundamental purpose of sentencing as set out in s. 718of the Criminal Code be better served by a custodial or non-custodial sentence: Burnett [2017 MBCA 122] at para. 30. [43] In Voong, there is a helpful discussion of what may be regarded as “exceptional circumstances”.

The Court of Appeal at para.59 said: Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towardsrehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of theoffences, as opposed to harm done to the offender as a result of being caught. This is a non-exhaustive list . . .

There must be somethingthat would lead a sentencing judge to conclude that the offender had truly turned his or her life around . . . it will be the rare case wherethe standard of exceptional circumstances is met. [44] At para. 45, the Court of Appeal in Voong cautioned that the exceptional circumstances must engage principles of sentencing toa degree sufficient to overcome the application of the main principles of deterrence and denunciation to deviate from the normal range. [45] The defence in Mr.

Johal’s case is urging me to suspend sentence altogether and only order a lengthy probation. [46] In Voong, the Court of Appeal discussed the effect of a suspended sentence at paras. 19 and 20: [19] Where no minimum sentence is required, the Criminal Code permits a court to suspend the passing of a sentence, rather thanimpose a sentence (s. 731(1)(a)), and to place a person on probation for a maximum of three years (s. 732.2(2)(b)). If an offender who ison probation is convicted of an offence, the suspension of the sentence may be revoked and the offender may be brought back before thecourt for sentencing.

At that point, the judge may impose any sentence that could have been imposed at the time the sentence wassuspended (s. 732.2(5)(d)). [20] If probation is ordered, the judge must impose certain mandatory conditions found in s. 732.1(2) and may also impose optionalconditions (s. 732.1(3)(a)-(g.2)). Under s. 732.1(3)(h), the Court may also impose any other “reasonable condition … for protectingsociety and for facilitating the offender’s successful reintegration into the community”. [47] While a probation order primarily has a rehabilitative objective, as the defence points out, it can have a deterrent effect.

Again,the defence points to the Court of Appeal’s discussion in Voong regarding the deterrent effect of probation. The court at paras. 37 to 43

said as follows: [37] A probation order has primarily a rehabilitative objective, however, as the statutory terms refer to the purposes of “protectingsociety” and “reintegration into the community”, it is not limited to this objective. [38] What is required for the imposition of an optional condition in a probation order is a “nexus between the offender, the protectionof the community and his reintegration into the community” (R. v. Shoker, 2006 SCC 44 at para. 13). [39] A suspended sentence has been found to have a deterrent effect in some cases.

Because a breach of the probation order can resultin a revocation and sentencing on the original offence, it has been referred to as the “Sword of Damocles” hanging over the offender’shead. For example, in R. v. Saunders, [1993] B.C.J. No. 2887 (C.A.) at para. 11, Southin J.A. said: Deterrence is an important part of the public interest but there are other ways of deterring some sorts of crime than putting someone inprison who has no criminal record as this appellant did not.

The learned trial judge did not turn her mind to whether the deterrencewhich is important might be effected by certain terms of a discharge or a suspended sentence such as a lengthy period of communityservice. [40] This Court, in Oates, recently confirmed that Saunders stands for the proposition that deterrence might be effected with asuspended sentence (Oates at para. 16). [41] In Shoker, at para. 15, the Court concluded that supervised probation is a restraint on the probationer’s freedom. [42] Other Courts have confirmed the deterrent effect of a suspended sentence and a probation order in certain circumstances.

See,for example, R. v. George (1992), (NS CA), 112 N.S.R. (2d) 183 (C.A.) at 187 (and a number of cases following,including R. v. Martin, 1996 NSCA 207 , (NS CA), 154 N.S.R. (2d) 268 (C.A.); R. v. R.T.M., 1996 NSCA156 , (NS CA), 151 N.S.R. (2d) 235 (C.A.)) and R. c. Savenco (1988), 26 Q.A.C. 291 (C.A.). [43] The statutory phrase “protection of the public” now found in the Criminal Code gives a broad discretion to sentencing judges toimpose conditions (see Shoker at para. 3). The public is protected when a former criminal is rehabilitated and deterred from committingmore crimes (see R. v.

Grady (1971), (NS CA), 5 N.S.R. (2d) 264 at 266). It is also protected when other offendersare deterred by the sentence imposed. Thus, imposing conditions for the protection of the community may have a deterrent anddenunciatory effect in addition to a rehabilitative effect. Put another way, a condition need not be punitive in nature in order to achievedeterrence or denunciation. In D.E.S.M. (and affirmed in R. v. Sidhu (1998), (BC CA), 129 C.C.C. (3d) 26(B.C.C.A.)), this Court concluded that “home confinement” was an appropriate term of a probation order for the purpose of themaintenance of rehabilitation.

The court concluded, at p. 381: It should not be thought that home confinement, if we may call it that, should readily be substituted for regular imprisonment. Such adisposition is suitable, in our judgment, only where very special circumstances are present such as where the accused demonstrates thathe has rehabilitated himself prior to arrest, where he is not a danger to anyone, where others are dependent upon him, and where there areno factors that make it necessary in the public interest that punishment should be by conventional imprisonment. [Emphasis added.] Aggravating Circumstances [48] In Mr.

Johal’s case, the aggravating circumstances are that he violated the trust his employer placed in him.

Section 718.2(a)(iii) states that abuse of a position of trust or authority in relation to the victim is to be considered as an aggravating circumstance. Eventhough Mr. Johal was not in a senior position of trust, as an employee, among other duties, he had a duty to be honest in his dealings withhis employer and not to abuse the property of his employer. He knowingly, for selfish reasons, carried out a large number of fraudulenttransactions over a long period of time, amassing a large amount of money for his lavish lifestyle. Mitigating Circumstances [49] Mr. Johal is reasonably young. He is 33 years of age.

This is his first offence. I am satisfied that he has expressed genuineremorse, as he, immediately after being found out, acknowledged the harm he did to his employer, apologized to his employer, repaid aportion of the monies he stole, and promised to repay the balance. He has cooperated with the police’s investigation, and produced allthe relevant documentation. The investigation took a fairly long time, and he was only charged about three and a half years later inMarch, 2018. He has pleaded guilty to one of the two charges at the earliest opportunity, saving prosecution effort and costs. [50] Mr.

Johal also recognizes that his wrongdoings have harmed his close-knit family. As Mr. Johal’s cousin writes in his supportletter submitted to the court that the “shame that this ordeal has caused our family, most notably [Mr. Johal’s] hardworking parents, hasbeen unbearable” to Mr. Johal. Mr. Johal wants to make amends for the pain he has caused to those close to him. In particular, he wantsto gain back his parents’ trust. He has not reoffended. In fact, he has taken active steps on his own accord to change his life in a positiveway.

He is receiving counselling to address stressors in his life. [51] From the date of his arrest on October 14, 2014, he was keen to find gainful employment and repay the monies he stole. Hestarted as a temporary worker with Canada Post during the 2014 Christmas season. He kept applying for and received various positions(initially temporary and then part-time positions) with Canada Post during 2015 and 2016. Then due to his good work and a positivereference from one of his supervisors at Canada Post, he landed a full-time position in November, 2016. He has worked at Canada Postsince then.

He makes reasonably good income now, and since he still lives with his parents, he is able to pay at least $1,500 per monthtowards restitution to Dick’s Lumber. His ambition at Canada Post is to move up the ladder to a supervisory position. [52] Mr. Johal’s Superintendent (of Shift#1 Letter Mail) has provided a letter of support in which he confirms that Mr. Johal is apermanent employee of Canada Post and that “[h]e is highly self-motivated and well capable of achieving any goals he sets his mind to.

. . . [Mr. Johal] shows good leadership opportunities with our peer mentoring program.” [53] Other support letters provided on behalf of Mr. Johal describe him as a “kind, patient individual who values his friends, family,and career, and [who] has strong aspirations to lead a healthy lifestyle” and the situation Mr. Johal finds himself in now regarding thecriminal matter before the court is “very uncharacteristic of Mr. Johal” and that “he expresses his remorse . . . often and wishes he couldgo back and change what was done.” A similar sentiment is expressed by Mr. Johal’s cousin when he states, “I’ve known Mr.

Johal allof my life. . . . Mr. Johal has been a law-abiding citizen throughout my years of knowing him. I truly believe that the offence committedby Mr. Johal was out of character and a one-off incident that occurred during a not so pleasant period of time in his personal life.” [54] Mr. Johal has strong support from his family, friends and his current employer. There is no concern that Mr. Johal poses anyrisk to the community. Mr. Johal’s counsellor states that Mr. Johal does not have a gambling dependence but that his past gamblingbehaviour can be described as only an abuse. He says his impression is that Mr.

Johal “is not a habitual criminal and has never beeninvolved in anything illegal before or after his one illegal activity.” [55] I agree with the defence and find that the circumstances of Mr. Johal are exceptional as described by the Court of Appeal inVoong. Mr. Johal has taken significant and objectively identifiable steps towards changing his life in a positive way by focusing on hisemployment, including taking a leadership role in training and helping new employees with their orientation to their jobs, not engaging inany illegal activities, and volunteering with many sports-related organizations.

He is also enrolled in counselling to help him keep on theright track. [56] I am not concerned that Mr. Johal will return to his brief past negative lifestyle, as he has made significant progress from thetime of his arrest to the date of sentencing, a span of almost four years, which is a considerably long period of time that he has lived withthese legal issues hanging over his head. He also has a strong support system in terms of his family, friends, current employer, and hiscounsellor. What is reassuring is his personal resolve and commitment to forge forward on the right path. [57] While I applaud Mr.

Johal’s strong desire to make amends to his parents who have supported him all his life, and his concernfor their deteriorating health due to his wrongdoings, I have not given any weight to the counsellor’s opinion in his report about thepossible negative impact of any custodial sentence on Mr. Johal’s parents. [58] It is not surprising that any caring parents would be devastated by their child’s criminal behaviour and its consequences. However, that should not be the reason for departing from imposing a custodial sentence.

As the courts in Laskowski and Smith noted,any custodial sentence would likely cause a hardship to the offender’s family, but that should motivate the offender upon release tomaintain honest dealings with others for the benefit of both the offender and the offender’s family. [59] In Mr. Johal’s case, the reason I am about to take the sentence outside the normal or usual range is not because of any negativeimpact a custodial sentence may have on Mr. Johal’s parents, but because I have found that exceptional circumstances exist in Mr.Johal’s case.

However, before I do that, I must ensure that these exceptional circumstances engage the principles of sentencing to adegree sufficient to overcome the application of the main sentencing objectives of general deterrence and denunciation in this case. [60] Deterrence and denunciation can be accomplished in a number of ways. Obviously, through incarceration. In Voong, the Courtof Appeal, at para. 61, said a suspended sentence can achieve a deterrent and denunciatory effect. It went on to refer to its decision in R.v.

Chang, 2002 BCCA 644, wherein it said “the fact of being arrested, tried and convicted,” can meet the objectives of deterrence anddenunciation. It said “[in] other words, the stigma of being a convicted drug trafficker and the consequences of that conviction – forexample, restricted ability to travel outside of Canada and exclusion from many forms of employment – may also play a deterrent effect.” [61] The sentencing judge in Dragani, at para. 34, referred to R. v. D.E.S.M., [1993] B.C.J. No. 702 (QL), (BCCA), which was a historical sex assault case.

The Court of Appeal in that case, at para. 20, said: There is no suggestion that the accused is a danger to anyone so he need not be isolated in order to protect the public. By convictinghim, society has already stigmatized him as a person who has committed a serious offence, and has denounced his offence. Quiterecently, the Supreme Court of Canada has expressed itself quite strongly on the importance of stigma as a consequence of criminalproceedings.

The court has been saying what most lawyers and criminologists have known all along, that a public charge, trial andconviction for a serious offence brands a person for life, constitutes serious punishment, and is an important part of the way societybrings offenders to account for their misconduct. [62] In Mr. Johal’s case, while I do not disagree with the Crown that some custodial sentence is appropriate to meet the objectives ofdeterrence and denunciation, given the exceptional circumstances I have found in Mr.

Johal’s case, I do not think a lengthy custodialsentence is in keeping with the principles set out in ss. 718.2(

d) and (

e) which state that an offender should not be deprived of liberty, ifless restrictive sanctions may be appropriate in the circumstances, and all available sanctions, other than imprisonment, that arereasonable in the circumstances and consistent with the harm done to victims or to the community should be considered. VIII. SENTENCE [63] Having considered the circumstances of the offence and the offender Mr.

Johal, the impact on his victim, Dick’s Lumberincluding its employees, the submissions and case authorities of the Crown and the defence, and the sentencing purpose, objectives andprinciples, I conclude that a term of imprisonment of 90 days, followed by a three-year probation order with strict conditions to be a justsanction for Mr. Johal. I also conclude that it is appropriate for Mr. Johal to intermittently serve the sentence I am imposing today. Appropriateness of Serving the Sentence Intermittently [64] I have carefully considered the appropriateness of Mr.

Johal serving his sentence intermittently. “Intermittent sentences strike a legislative balance between the denunciatory and deterrent functions of “real jail time” and therehabilitative functions of preserving the offender’s employment, family relationships and responsibilities, and obligations to the

community.” ( R. v. Middleton , 2009 SCC 21 , at paras. 45-47 , cited in R. v. Peebles , 2010 MBCA 47 , at para. 39 ) [ 65 ] As I said earlier, Mr. Johal has carried on with his life in a positive manner since the date of his arrest, almost four years ago. This is a good indicator that, going forward, he can be a law-abiding and contributing member of society. He is committed to making reparation to his victim. Society will not benefit from incarcerating him for a lengthy period and prevent him from fulfilling his obligations to his family and community, including his victim and his current employer.

The intermittent sentence will allow him to serve real jail time for the crime he committed, while preserving his employment, family relationships and responsibilities, and obligations to the community. Intermittent Sentence [ 66 ] Mr. Johal, you are sentenced to 90 days’ imprisonment. You must serve this sentence intermittently from Friday at 6:00 p.m. to Sunday at 6:00 p.m. on consecutive weeks starting on Friday, September 28, 2018. You will be taken into custody today for processing, and then will be released.

You must then present yourself at the Surrey RCMP Detachment by 6:00 p.m. on Friday, September 28, 2018. [ 67 ] At all times when you are not in custody on this order, and until your jail sentence has been served in full, you are on probation with the following conditions: (

a) You must keep the peace and be of good behavior. (

b) You must appear before the court when required to do so by the court. (

c) You must report in person to a probation officer at #102 - 14245 56 Avenue, Surrey, BC, by 3:00 p.m. tomorrow, September 27, 2018, and after that you must report as directed by the probation officer. (

d) You must notify the court or the probation officer in advance of any change of name, address or phone number, and within three business days notify the court or the probation officer of any change of employment or occupation. (

e) On each occasion when a part of the intermittent jail sentence is to be served, you must arrive at the place where the sentence is to be served on time and in an entirely sober condition without any alcohol, intoxicating substance or drugs in your body, except in accordance with a medical prescription. (

f) You must obey a curfew by being inside your residence between the hours of 10:00 a.m. and 8:00 p.m., each day. (

g) You must present yourself immediately at the door to your residence or answer the phone when any peace officer or probation officer attends at your residence or calls to check your compliance with the curfew condition of this order. (

h) You may be away from your residence during the curfew hours with the written permission of your probation officer. Such permission is to be given only for compelling reasons. You must carry the written permission when you are outside your residence during the curfew hours. (

i) You may also be away from your residence during the curfew hours in the event of a medical emergency for yourself or for one of your parents, and then only while at a health care facility, or when travelling directly to, or returning directly from the facility. You must report the medical emergency to the probation officer on the first business day following that emergency. If requested, you must provide your probation officer with written confirmation that you went to the facility, signed by a representative of the health care facility to which you went. (

j) Before seeking, obtaining or continuing any employment, or becoming a volunteer in any capacity that involves having authority over any real property, money or valuable security, of another person or entity, you must forthwith inform the employer or entity, in writing, about this conviction and provide a copy to your probation officer. (

k) You must not attend or engage in gambling of any kind, either directly or indirectly, through any means, including online. For greater clarity, you must not open or maintain, either directly or indirectly, any account, online or otherwise, for the purpose of gambling, including betting. Probation Order [ 68 ] Upon completion of your intermittent sentence, you must comply with the conditions of a probation order for a term of three years. The conditions of the order are as follows: (

a) You must keep the peace and be of good behaviour. (

b) You must appear before the court when required to do so by the court. (

c) You must report in person to a probation officer at #102 - 14245 56 Avenue Surrey, BC, within two business days of the end of your intermittent sentence unless you have obtained, prior to the end of your intermittent sentence, written permission from the probation officer to report within a different time frame. After that you must report as directed by the probation officer. (

d) You must notify the court or the probation officer in advance of any change of name, address or phone number, and within three business days notify the court or the probation officer of any change of employment or occupation. (

e) For the first 15 months of this order, you must obey a curfew by being inside your residence between the hours of 10:00 a.m. and 8:00 p.m., each day. (

f) You must present yourself immediately at the door to your residence or answer the phone when any peace officer or probation

officer attends at your residence or calls to check your compliance with the curfew condition of this order. (

g) You may be away from your residence during the curfew hours with the written permission of your probation officer. Such permission is to be given only for compelling reasons. You must carry the written permission when you are outside your residence during the curfew hours. (

h) You may also be away from your residence during the curfew hours in the event of a medical emergency for yourself or for one of your parents, and then only while at a health care facility, or when travelling directly to, or returning directly from the facility. You must report the medical emergency to the probation officer on the first business day following that emergency. If requested, you must provide your probation officer with written confirmation that you went to the facility, signed by a representative of the health care facility to which you went. (

i) Before seeking, obtaining or continuing any employment, or becoming a volunteer in any capacity that involves having authority over any real property, money or valuable security, of another person or entity, you must forthwith inform the employer or entity, in writing, about this conviction and provide a copy to your probation officer. (

j) You must not attend or engage in gambling of any kind, either directly or indirectly, through any means, including online. For greater clarity, you must not open or maintain, either directly or indirectly, any account, online or otherwise, for the purpose of gambling, including betting. (

k) You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the probation officer, which may include counselling for gamblers. (

l) You must complete 40 hours of community work under the direction of the probation officer within the first 30 months of this order. (

m) Your community work service must not be related to sports or sports organizations. IX. ANCILLARY ORDERS Restitution Order [ 69 ] The Crown seeks a restitution order under s. 738 of the Criminal Code . The defence agrees that such an order is appropriate in this case and says that Mr. Johal is able to pay at least $1,500 per month. The defence also says that there is a possibility that Mr. Johal’s family may assist Mr. Johal in making a lump sum payment towards the balance outstanding to Dick’s Lumber. [ 70 ] Therefore, Mr.

Johal, pursuant to ss. 738 and 739.2 of the Criminal Code , I order you to pay restitution in the amount of $105,077.07 to Dick’s Lumber in instalments of at least $1,500 per month commencing October 1, 2018. If you are able, you may pay any additional amounts at any time until the full amount is paid. DNA Order [ 71 ] The Crown also seeks a DNA order under s. 487.051(3) (

b) of the Criminal Code . Count 1 on Information 227111-1, to which Mr. Johal has pleaded guilty, is a secondary designated offence. Before making this order, the factors I must consider in Mr. Johal’s case are his criminal record, if any, the nature of the offence, the circumstances surrounding its commission and the impact such an order would have on Mr. Johal’s privacy and the security of his person. [ 72 ] Defence did not make any submissions with respect to this order. Mr. Johal has no criminal record. Given an adult offender’s diminished expectation of privacy following conviction, I find that in Mr.

Johal’s case, the intrusion to his privacy and the security of his person is minimal. In light of the nature of his offence and the circumstances surrounding its commission, I conclude that it is in the best interests of the administration of justice to make this order. [ 73 ] Therefore, Mr. Johal, pursuant to s. 487.051(3) (

b) of the Criminal Code , I make an order in Form 5.04 authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA National Databank. The samples will be taken from you while you are in jail and you must submit to the taking of the samples. X. VICTIMS OF CRIME ACT SURCHARGE [ 74 ] Mr. Johal, you must pay a victim surcharge of $200.00 to the Clerk of the Court by November 26, 2018. XI. CONCLUSION [ 75 ] That concludes my reasons for sentence. Thank you. ____________________________ The Honourable Judge V. Chettiar Provincial Court of British Columbia