R. v. Kienapple, 2011 QCCA 1892

Unofficial English Translation R. c. Laroche 2011 QCCA 1892COURT OF APPEAL CANADAPROVINCE OF QUEBECREGISTRY OF QUEBEC No.: 200-10-001842-058(200-01-092260-045) DATE: OCTOBER 11, 2011 CORAM: THE HONOURABLE LOUIS ROCHETTE, J.A. PAUL VÉZINA, J.A. RICHARD WAGNER, J.A. HER MAJESTY THE QUEENPETITIONER - Prosecutrixv. LAURENT LAROCHERESPONDENT - Accused JUDGMENT [1] Both parties appeal from the sentence; the Crown, in this record, and the respondent, in the related record no. 200-10-001830-053.

They are designated hereafter as the “prosecution” and the “offender”. [2] At the end of a long jury trial, the verdict was the following, reiterated in the sentence: [translation] [72] Laurent Laroche was therefore convicted of 38 counts of possession of stolen goods, 7 counts of forgery, 123 counts of uttering aforged document and 128 counts of fraud. [73] Even so, taking into account the rule against collateral attack,8 and considering that there is a sufficient factual and legal nexusbetween the counts of forgery and several counts of uttering a forged document and some acts of fraud, because forgery and uttering aforged document must be seen as the dishonest means used by Laurent Laroche to carry out the fraud, each of the following counts should be stayed, as our Court of Appeal recently reiterated,9 provided that the verdicts on the other charges of uttering a forgeddocument and fraud become final.

The counts (accepted as such by the parties) are as follows: 2-6-10-14-18-22-26-28-34-36-38-40-41-49-50-53-54-57-59-61-63-65-67-69- 71-73-74-80-82-84-86-88-92-94-96-98-100-102-104-107- 109-[111][[1]]-114-116- 118-119-121-124-126-128-129-132-134-136-137-139-142-144-149-151-152-154-156-157-160-162-164-166-168-170-172-174-176-180-182-184-186-188-189-192-196-198-200-202-210-212-214-216-217-220-222-224-226-227-231-235-236-239-240-243-246-247-250-252-254-256-258-259-263-265-266-268-275-276-279-280-286-289-290-292 and also counts 1-5-9-13-17-21 and291. ______ 8 R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729. 9 Chagnon v.

R., 2005 QCCA 335. [3] The sentence imposed on November 25 is as follows: [translation] [74] Concerning the other counts that led to convictions, bearing in mind everything previously set forth and considering that theobjectives of denunciation and deterrence must be given priority, I find that, in each case, the appropriate sentence is the following: Concerning the counts of uttering a forged document and fraud

Count no. 4 Fraud A $6,000 fine or, in default of payment of the fine, 15 days’ imprisonment Count no. 8 Fraud A $6,000 fine or, in default of payment of the fine, 15 days’ imprisonment Count… [And so on and so forth, in identical fashion, for each of the other counts of fraud and uttering a forged document.] [75] The sentences of imprisonment imposed in default of payment of the fine on each count are consecutive to one another and are also consecutive to the prison sentence on count no. 3. [76] The time allowed to pay the fine in respect of each count is 30 days.

Concerning each charge of possession of stolen goods , I believe the appropriate sentence is the following: Count no. 3 Possession of stolen goods 6 years’ imprisonment Count no. 7 Possession of stolen goods 6 years’ imprisonment to be served concurrently with the sentence imposed in count no. 3 Count… [And so on and so forth, in identical fashion, for each of the other counts of possession of stolen goods.] [ 4 ] The offender summarized the matter in the following terms: [ translation ] 50. In

summary, concerning the sentences imposed by the judgment of November 25, 2005, and the varied judgment of November 29, 2005: • [The offender] was given a penitentiary sentence of six (6) years on 38 counts of possession of stolen goods (list para. 76 at 18 to 20 of the judgment); • [The offender] was fined a total of $786,000 for 131 counts of fraud or uttering a forged document (list para. 74 at 12 to 18 of the judgment); • The judge ordered a conditional stay of proceedings on 127 charges of uttering a forged document, forgery or fraud (list para. 73 at 11 of the judgment). [ 5 ] The offender submits eight grounds in support of his appeal; the principal ground is that the sentence is unreasonable: [ translation ] 1) The sentence is clearly unreasonable and is only punitive in nature, the judge having imposed a sentence that is even harsher than that proposed by the Attorney General, which itself was outside the standards of case law; 2) The trial judge erred in fact and in law by imposing a sentence that in no way reflects the objective and subjective seriousness of the offences charged; 3) The trial judge erred in law by completely ignoring the evidence adduced for sentencing…; 4) The trial judge erred by emphasizing solely the deterrence factor; [ 6 ] He also specifies the factors that, in his opinion, were minimized or ignored by the judge: [ translation ] 3) …factors, such as the lack of a criminal record, the rehabilitation of the petitioner and the time elapsed since the offences were committed; [ 7 ] He also cites the principle that sentences should be similar to other sentences imposed in similar circumstances : [2] [ translation ] 5) The sentence at issue is clearly outside the standards of similar sentences for similar offences and is outside the acceptable limits; [ 8 ] As for the fine, the offender considers it excessive and would like more time to pay it.

He writes:

[ translation ] 6) The trial judge erred by imposing an unprecedented fine that is needlessly punitive without relying on the evidence or the appellant’s ability to pay; … 149) Regardless of the fine, the appellant would like to be allowed a reasonable time to pay it. [ 9 ] The last two grounds are of lesser importance: [ translation ] 7) The trial judge erred in fact and in law by failing to consider the possibility of imposing a conditional sentence; 8) The trial judge erred in law by failing to consider the pre-sentencing custody served by the appellant. [ 10 ] The prosecution, for its part, seeks an order against the offender that he [ translation ] “pay the victim surcharge”. [3] [ 11 ] It argues that the judge could not exempt the offender from the victim surcharge as he did not apply for one. [4] Moreover, the trial judge gave no reasons for his decision. [5] The judgment is succinct: [ translation ] [77] There will be no surcharge; [ 12 ] For the reasons set out hereunder, intervention is warranted because the sentence is inappropriate.

The fine is heavy but justified, provided that more time is allowed for payment. Incarceration is necessary but the term must be shortened.

As for the surcharge, the prosecution is correct, but it is more a matter of drafting than a matter of substance. * * * [ 13 ] A preliminary comment is called for. [ 14 ] The changes to the convictions by the partial allowance of the appeal from them do not really change the situation considered as a whole. [ 15 ] As for the overturned convictions, on 28 counts of fraud, the proceeding was already suspended by application of Kienapple ; the sentences were imposed only for the co-occurrent counts of uttering a forged document. [ 16 ] As for the six counts of possession of stolen goods that were overturned, 32 still remain.

This element carries little weight but is nevertheless favourable to the offender. * * * [ 17 ] The sentence is careful. It first states the general principles that must guide the sentencing judge. [ 18 ] It is relevant to cite the trial judge’s initial comment: [ translation ] [4] Sentencing is not an easy thing. I can even state, as many judges before me have recognized, that it is one of the most difficult exercises in law.

Many interests are compared and the needs of society and those of the accused may also intersect. – which constitutes one of the foundations of the deference owed on appeal to his decision according to the well-known rule: [6] Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Parliament explicitly vested sentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code .

As s. 717(1) reads: 717.

(1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts the person who commits the offence. [Emphasis in original] [ 19 ] The judge then summarized the matter as follows: [ translation ] [15] The evidence adduced at trial 2 convinced me that Laurent Laroche created a sophisticated, refined and effective structure that

enabled him to use stolen vehicles and vehicle parts, by submitting to the SAAQ, with false invoices, false photographs and false or misleading applications for certification, road vehicles that normally could not have been recycled and sold to the public. ______ 2 The jurors were sworn on September 13, 2004, and were able to give their verdicts on November 3, 2005.

More than 190 witnesses were heard and more than 3,500 documents were filed. 116 days of hearing were required. [16] The well-calculated efficacy of his modus operandi enabled him to “launder” a very large number of automobiles and their parts, which had previously been stolen. … [19] The offender sometimes submitted certification applications containing false, untrue or incomplete information concerning certification, and at other times submitted false invoices concerning the purchase of seriously damaged vehicles, the purchase of vehicles used for reconstruction or their components.

He also submitted photographs that in no way represented the seriously damaged vehicles.

It was also noted that many parts described in the reconstruction applications were never used or, what is worse, in the case of the Toyota Tacoma vehicles, the same parts appear to have been used two, three or even four times. … [27] Given all the evidence that was adduced, I do not hesitate to conclude, and I do so beyond a reasonable doubt, that the business operated by the accused constituted an active and effective business for “laundering” stolen vehicle parts and vehicles throughout the period from March of 1997 to July of 2000. [ 20 ] The judge then reiterated the parties’ suggestions: [ translation ] [29] The prosecution suggests that a sentence of five years’ imprisonment as well as the forfeiture of an amount of $1,600,000 would properly serve the ends of justice. … [32] The offender proposes a sentence that is just as global, indiscriminately of the nature and number of the verdicts. [33] He thus suggests that an adequate sentence that would serve the ends of justice just as well is a term of imprisonment to be served in the community, along with a $100,000 fine. [ 21 ] The judge then set out his [ translation ] “considerations on the sentence” to be imposed. [ 22 ] Concerning the objective seriousness of the crimes, he reiterated the maximum sentence of 10 years: [ translation ] [36] The offences of forgery and uttering a forged document, fraud and possession of stolen property are all liable to a maximum sentence of 10 years’ imprisonment. [ 23 ] He then made a comparison that, with all due respect, is very tenuous and therefore not very convincing: [ translation ] [39] It is useful to recall, concerning the objective seriousness of the crimes, that the maximum sentence provided (10 years) is the same as that which may be imposed on offenders guilty of assault with bodily harm (

section 267 of the Criminal Code ), sexual assault (

section 271 of the Criminal Code ) and criminal negligence causing bodily harm. Such crimes are also liable to 10 years’ imprisonment. [ 24 ] Crimes of personal violence and economic crimes fall into two different categories and such comparisons may be unsound and ultimately inappropriate. [ 25 ] An absence of violence generally rules out the need “to separate offenders from society, where necessary”. [7] [ 26 ] Similarly, once a fraudster is discovered, the risk that he will take advantage of new victims is reduced considerably.

Here, out of necessity, the offender cannot reoffend; he no longer has an operating licence or even an automotive business, the convictions having done away with them. [ 27 ] In this sense, the offender is correct to write that: [ translation ] 63. Imprisonment as a means of deterrence must generally be reserved for dangerous offenders who have committed serious crimes, usually violent crimes or drug trafficking. 64.

The objective of deterrence in respect of possession of stolen property rarely justifies a sentence of imprisonment let alone a penitentiary sentence of six (6) years, especially for an offender without a criminal record. Deterrence in matters of fraud emphasizes imprisonment in the case of considerable financial losses for the victims and breach of trust.

Cf. R. v. Coffin , [2006] J.Q. 3136 (C.A.) [ 28 ] This was somewhat confirmed by the judge himself, who, after pointing out the astronomical social costs related to car theft, concluded his comments on the seriousness of the crimes by pointing out that the sentence had to be considered [ translation ] “from the standpoint of denunciation”. [ 29 ] The next

section of the judgment concerns the [ translation ] “Personal characteristics of the offender and special circumstances of the matter”. [ 30 ] The offender is 55 years old, married and the father of two adult children. He operated a business that sold and repaired automobiles for a number of years. [ 31 ] The judgment then gives several details about the offender’s assets and income, which demonstrate his ability to pay the fine imposed.

Because we are not intervening on this point, it is enough to note that the offender’s business was prosperous and that he enriched himself through possession of stolen property and fraud, as the judge pointed out: [ translation ] [58] All the operations took place solely out of greed: here, we are in the presence of an intelligent man who had extensive experience in the automobile industry but who voluntarily chose possession of stolen property and fraud as a means of enriching himself. [59] Even though it is impossible to determine the exact monetary benefit that the offender derived from such crimes, a simple analysis of the income tax returns filed in respect of all the immovable property acquired, free from encumbrances, convinced us that the one goes hand in hand with the other. [ 32 ] The judge again took note of the lack of a criminal record and the lack of loss on the part of the victims: [ translation ] [55] The offender has no criminal record, which is a mitigating factor.

I also believe that the fact that the purchasers who were victims of the fraud were not dispossessed can also be seen as a mitigating factor. [ 33 ] The judge ended his comments by emphasizing the lack of apology or remorse: [ translation ] [60] Laurent Laroche apologized to no one and expressed no remorse. [ 34 ] In the next

section of the judgment, concerning [ translation ] “the real impact of the sentence on the offender”, the judge first revisited this very lack of remorse: [ translation ] [61] Laurent Laroche expressed no regret or remorse. I would even go so far as to think that his only preoccupation was his having been exposed.

It is the distinctive feature of people who, like him, excel at manipulation.… [ 35 ] Here the judge summarized the factors he used for sentencing: • the lack of remorse (quotation above); • the imperative of general deterrence: [ translation ] [61] … We are concerned here with crimes for which deterrence and denunciation must constitute the overriding objectives.… [63] Only a sentence of imprisonment and large fines will make it possible to achieve the objectives of denunciation and deterrence, which must take precedence given the special and exceptional circumstances of the matter. • the unique context of the matter: [ translation ] [61] … This becomes even truer in the unique context of this matter in which the offender operated a fraudulent business in an especially well-orchestrated manner.

He obtained stolen vehicles and vehicle parts, transformed them and, using false invoices and falsified applications for certification, submitted vehicles to the SAAQ to obtain their certification. His business was a “fence” and defrauded many good-faith purchasers. [66] The situation of Laurent Laroche is so specific and different from those submitted to me that the parity sought is hardly feasible. … • planning and premeditation: [ translation ]

[64] Given the specific nature of the acts committed and their number, the premeditation that they involved, the greed underlying them and their impact on society, I believe that a sentence of less than two years would in no way meet the sentencing principles and objectives. [ 36 ] Those are the factors he used; here are the factors he ruled out. [ 37 ] He ruled out that of rehabilitation, considering it to have been achieved: [ translation ] [62] Rehabilitation is a secondary factor in this case because the offender appears to have already retrained and to be working in another field. [ 38 ] He referred to the objective of considering a less restrictive sentence [8] than a long period of deprivation of liberty, but ruled it out: [ translation ] [66] … I am also aware that some provisions of

Part XXIII of the Criminal Code suggest that we resort to imprisonment less frequently, but I am also of the view that, given the offender’s personality, the nature of the crimes and their number, and the scourge that theft and possession of stolen motor vehicles represent, only a long term of imprisonment will make it possible to achieve the objectives sought.

Public confidence depends on it. [ 39 ] Lastly, he believes that the objective of a sentence similar to other sentences imposed in similar circumstances is impossible: [ translation ] [65] Counsel submitted several decisions from various courts where in some a conditional sentence was ordered, while in others it was imprisonment, and in yet others mere fines were imposed along with a probation order. [66] The situation of Laurent Laroche is so specific and different from those submitted to me that the parity that is sought is hardly feasible.… ANALYSIS [ 40 ] We agree with the judge that the fit sentence had to combine a fine and imprisonment. [ translation ] The fine of $786,000, without surcharge [ 41 ] The fine is clearly heavy, but it is not excessive. [ 42 ] A significant portion of the trial, concerning charges involving the proceeds of crime – of which the offender was acquitted –, considered the balance sheets and income of the offender’s businesses.

Accountants testified. [ 43 ] The judge was able to gain an idea of the magnitude of the illegal profits generated by the offender’s crimes and, at the same time, of his ability to pay a heavy fine – hence the following observation: [ translation ] [59] Even though it is impossible to determine the exact monetary benefit that the offender derived from such crimes, a simple analysis of the income tax returns filed in respect of all the immovable property acquired, free from encumbrances, convinced us that the one goes hand in hand with the other. [ 44 ] The judge also considered the offender’s ability to pay: [ translation ] [34] In my view, such a suggestion [a $100,000 fine] constitutes implicit recognition of Laurent Laroche’s financial ability to pay a large fine. [ 45 ] The point was not really challenged by the offender, who writes: [ translation ] 147.

The appellant does not deny that the value of his patrimony would allow him to pay his fine, but certainly not within one month. [ 46 ] The fine will therefore be confirmed.

[ 47 ] The time has come to consider the prosecution’s appeal concerning the victim surcharge (s. 737 Cr. C. ), which the judge ruled out: [ translation ] [77] There will be no surcharge; [ 48 ] The judge should have given his reasons for this decision, as the Code stipulates (s. 737(6) Cr. C. ). But the reason is obvious; the judge considered the fine of $786,000 sufficiently high, without adding 15%, [9] namely $120,000 more, which would have brought it to over $900,000. [ 49 ] The prosecution is correct, however, to point out that the fine and the surcharge do not go into the same public funds.

The fine is paid into a general fund, whereas the surcharge is used for various programs to assist and support victims of crime. [ 50 ] There is no reason to interfere with the judge’s decision to set the total at $786,000.

It is appropriate, however, to reword the conviction by separating the fine and the surcharge. [ 51 ] The conclusion of the judgment will therefore specify that the Court: [ translation ] At paragraph 74, AMENDS each of the $6,000 fines to substitute the amount of $5,200 to which the surcharge will be added; [ 52 ] As for the time given for the payment of this large amount, the judge set it at 30 days: [ translation ] [76] The time allowed to pay the fine in respect of each count is 30 days. [ 53 ] The time limit appears to be quite short for such a large amount, especially as the offender’s assets consist of immovable properties, of which one or more will have to be sold.

To oblige him to sell at a discount because of an excessively short time limit would impose an additional and possibly substantial fine on him. [ 54 ] Even so, to ensure that the offender is not unduly slow in discharging his obligation, the time limit will be spread over time; [ 55 ] The time limit of 30 days will be replaced by the following conclusion: ORDERS Laurent Laroche to pay the total of the fine and the surcharge by reason of: • 25% within 30 days of the judgment; • an additional 25% in the three following months; • an additional 25% in the three following months; and • 25% in the three following months. and the entire balance of the fine and the surcharge will become due immediately if a payment is not made on time.

Six years’ imprisonment [ 56 ] Here we come to the extremely important factor of general deterrence, which is one of the sentencing objectives, namely “to deter ... other persons from committing [such] offences”. [ 57 ] We agree with the judge that a term of imprisonment is necessary in addition to the fine. [ 58 ] Despite the large amount of the fine, it corresponds, in short, only to the estimated profit, perhaps a little more or a little less, that the offender derived from his illegal business. Someone who pays a ticket does so from his duly earned after-tax income, and it hurts.

In this case, the fine does not really impoverish the offender because he is only giving back what he wrongfully took. [ 59 ] To deter anyone from imitating him, more is required than the threat of making the profit illegal; the fear of prison must be added. The judge was correct to write: [ translation ] [63] Only a term of imprisonment and heavy fines will make it possible to achieve the objectives of denunciation and deterrence, which, given the specific and exceptional circumstances of the matter, take precedence. [ 60 ] The essential point is the term of imprisonment.

The six years imposed by the judge – the prosecution suggested only five – is excessive. [ 61 ] The judge placed too much emphasis on the lack of apologies and on general deterrence.

[62] In addition, the factors ruled out, including the rehabilitation of the offender and the principle that sentences should be similar toother sentences imposed in similar circumstances, were ruled out too extremely. [63] An accused testifying apologetically and with remorse is related to the objective of promoting the offender’s sense ofresponsibility,[10] the first stage of his rehabilitation. [64] In this case, the context was not very conducive to the presentation of apologies and the expression of remorse. [65] The first reason is that he who excuses himself accuses himself.

A convicted person who intends to appeal and who believes inhis grounds is in the almost impossible situation of offering apologies for a crime he asserts he did not commit. [66] Moreover, in this case the victims are distant. It is insured persons in general who must pay higher premiums because of thenumerous car thefts. [67] There are no immediate victims. Those who purchased a vehicle from the offender and then had it seized were subsequentlycompensated by him. The others were able to keep their vehicles.

The judge pointed this out: [translation] [55] … I also believe that the fact that the purchasers who were victims of the fraud were not dispossessed can also be seen as amitigating factor. [68] To offer heartfelt apologies to distant and anonymous victims is not easy, given their concrete uselessness. [69] Moreover, inviting a fraudster to apologize is almost an invitation to reoffend, especially as the judge pointed out that theoffender [translation] “excel[s] at manipulation.”[11] If he had apologized, how could we have believed him without being deceived?

Itseems that it was preferable for him to keep quiet. [70] Ultimately, offering an apology is tied to rehabilitation. The lack of apology in this case is not a determining factor because theaccused’s rehabilitation is a given. The crimes took place 11 years ago. Since then, the offender has gone into another line of work andhas not been involved with the courts for any reason whatsoever. [71] It is noteworthy that, according to case law, lack of remorse or apology does not constitute an aggravating factor, although theopposite may be considered a mitigating factor.

That was the conclusion of Doyon J.A. of this Court, who studied the matter in Gavin v.R.:[12] [translation] [26] According to most commentators and the prevailing case law of this Court, lack of remorse in itself does not constitute anaggravating factor justifying a harsher sentence: see, inter alia, Allan Manson, The Law of Sentencing, supra at 160; Eugene E.Ewaschuck, Criminal Pleadings and Practice in Canada, 2d ed., vol. 2 (Aurora, Ont.: Canada Law Book) at 18:0270; R. v. Paré, 1998R.J.Q. 85 (Que. C.A.); see also R. v. Beaudry, [2005] J.Q. No. 15283 (Que. C.A.); R. v. D.I.D.B., [2006] Q.J. No. 459 (Que.

C.A.); R. v.Lépine, 2007 QCCA 70 , [2007] J.Q. No. 282 (Que. C.A.); R. v. Peterson, [2007] J.Q. No. 2819 (Que. C.A.); R. v. Aprile,[2007] J.Q. No. 8070 (Que. C.A.). Other appellate courts have expressed similar opinions: see in particular R. v. Muhammad (2004),2004 BCCA 396 , 187 C.C.C. (3d) 14 (B.C.C.A.); R. v. Vu (2003), 2003 BCCA 339 , 176 C.C.C. (3d) 568 (B.C.C.A.);R. v. Pavich, (ON CA), 138 O.A.C. 349; R. v. Henwood, [2002] O.J. No. 1031 (Ont. C.A.); R. v. Goar, [2005] O.J.No. 2547 (Ont. C.A.); R. v. LaBrie, (NS CA), 87 N.S.R. (2d) 181 (N.S.C.A.); R. v.

Upson (2001), 2001 NSCA 89, 44 C.R. (5th) 313 (N.S.C.A.); R. v. Cormier (1999), (NB CA), 140 C.C.C. (3d) 87 (N.B.C.A..); R. v.Clarke (2001), 2001 NFCA 35 , 158 C.C.C. (3d) 60 (N.F.C.A.). It should nevertheless be pointed out that other judgments haveconcluded differently: R. v. Ermine, 2002 SKCA 36; R. v. Iron, 2005 SKCA 84; R. v. E.S., [2000] J.Q. No. 2 (Que. C.A.); R. v. Lucien,J.E. 2000-219 (C.A.); R. v. Lemieux, (QC CA), [1997] R.J.Q. 1222 (Que.

C.A.). … [29] It is therefore clear that, while lack of remorse has been found to be an aggravating circumstance in some judgments, theprevailing tendency is to see it as a neutral element in no way giving rise to a harsher sentence than what would otherwise beappropriate.... Cited by the Court with approval in Sidhu v.

R.[13] [72] It is somewhat paradoxical that the judge ruled out the rehabilitation factor: [translation] [62] Rehabilitation is a secondary factor in this case because the offender appears to have already retrained and to be working inanother field. while stressing the lack of apology and remorse: [translation] [60] Laurent Laroche offered no apology to anyone and showed no remorse.

[61] Laurent Laroche therefore expressed no regret or remorse. … [73] An offender’s rehabilitation and above all his sense of responsibility are important objectives of sentencing. This is theindividualization aspect of the sentence, versus the second, which involves protection of society. In this case, the first aspect has beenmet and the sentence must reflect it. [74] As for the goal that sentences should be similar to other sentences imposed in similar circumstances, the judge considers itimpractical.

This opinion is not shared. [75] There have recently been a number of economic crimes for which the sentences were less harsh. [76] The judge himself cited a judgment involving stolen vehicle parts when discussing the subjective seriousness of the offender’scrimes: [translation] [40] Concerning the subjective seriousness of the actions committed, I believe that it is enough to reiterate the principle that our appellate court set out in Bégin:4 The factors relevant to sentencing were in fact considered by the trial judge. These are objectively serious crimes for which themaximum sentence is 10 years.

The crimes are also subjectively serious. The respondents demonstrated a definite degree of organization.They gave no indication of rehabilitation. This is a case in which deterrence is very important because of the frequency of this type ofcrime and the impact that it has on society: higher insurance premiums, creation of preventive organizations, cost of police and judicialinvestigations, cost of storing seized property and experts’ fees. _____ 4 R. v. Bégin, [1996] A.Q. (Quicklaw) no. 2734, at para. 6 (C.A.

Que.). [77] While noting that in that matter the offenders [translation] “gave no indication of rehabilitation”, as stated in the excerpt above,the Court increased the fine to $50,000 and confirmed incarceration – for a term of nine months. [78] The offender referred to a similar matter involving 36 vehicles for which the sentence, rendered in 1996, was $100,000 withoutimprisonment. The sentence is referred to in a 2004 decision of the Court[14] when the same offender was again convicted in anothermatter involving stolen vehicles. [79] This argument is double-edged.

Indeed, a far less harsh sentence was involved but, in addition to the fact that recidivismoccurred, it happens that the person convicted was the offender’s own brother, and obviously that sentence did not have a deterrent effecton his conduct. This demonstrates the need for a prison sentence. [80] The offender writes in his factum that six years is excessive: [translation] 69. A penitentiary sentence of six (6) years for 38 thefts of car parts for an offender who has no criminal record surely violates theprinciple of proportionality, which is now considered a constitutional value that the courts must apply.

See: R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500, at paras. 40–41. [81] Without agreeing with his way of expressing it, there is some right in what he says. [82] Is deterrence greater and more effective with a sentence of six years rather than a lesser sentence? This matter could bediscussed at length.

The Supreme Court itself expressed some doubt about this matter: [107] … The empirical evidence suggests that the deterrent effect of incarceration is uncertain. ...[15] The doubt was again expressed a few years later: [3] While general deterrence as a goal of sentencing is generally well understood, there is much controversy on whether it works ornot. …[16] [83] The solution to the problem does not lie so much in the answer to this question as it does in the fact that the judge erred byfocusing on the objective of deterrence at the expense of the other factors to be weighed. [84] The prosecution countered with Hernandez, in which the offender correctly criticized the comparative value: [translation] 124.

Before the trial judge, the respondent cited Hernandez v. R., [2004] J.Q. no. 11286 (C.A.). 125. In that matter, the Court of Appeal maintained a sentence of five years against Mr. Hernandez for a series of thefts and possession ofstolen vehicles. 126. A reading of this judgment and of the trial judgment [2000] J.Q. 5638 should convince one that this matter has to be distinguished.

127. The Court pointed out in paragraph 6 that the accused had a long criminal record going back to 1981 and that a sophisticated network of theft and possession of stolen vehicles was involved. The appellant is not charged with theft. 128. At trial, it transpired that almost all the vehicles found were new or had very little mileage (para. 3). The accused was involved in stealing and disguising vehicles (para. 4). Twenty vehicles, with a value ranging from $40,000 to $50,000, were involved. There was also a tractor and a trailer. 129. Mr. Hernandez had a long criminal record, which was detailed in paragraph 46.

He had previously been sentenced to three prison terms for similar matters, including a sentence of two years. 130. There is no resemblance between the facts of our case and that decision. And yet the trial judge went on to impose a sentence that is even harsher than that one and harsher than the sentence sought by the respondent. 131.

This clearly shows the excessive and unreasonable nature of the sentence. [ 85 ] To summarize, we accept the following: • the heavy fine imposed on the offender, who, moreover, lost his business; • the time indicating his rehabilitation; • the absence of uncompensated victims; • the lack of a criminal record; • the need for a prison sentence that will serve as a deterrent; and • the comparative judgments concerning significant fraud. [ 86 ] A sentence of three and a half years (42 months) would reconcile all these factors and constitutes a loss of freedom that will give pause to anyone tempted to imitate the offender. [ 87 ] The seventh ground of appeal concerns the imposing of a conditional sentence.

In this case, the possibility is ruled out, given the term of the imprisonment (s. 742.1 Cr. C. ). [17] [ 88 ] The eighth ground concerns pre-sentencing custody. There is no reason to disregard the normal rule followed at the time. Accordingly, the term will be reduced by two months. [ 89 ] The conclusions concerning the offender’s appeal are found in the disposition of the judgment rendered the same day in the related matter no. 200-10-001830-053.

FOR THESE REASONS, THE COURT : [ 90 ] ALLOWS the motion for leave to appeal the sentences imposed; [ 91 ] ALLOWS the prosecution’s appeal; [ 92 ] STRIKES OUT paragraph 77 of the judgment a quo so that the offender must pay the surcharge. LOUIS ROCHETTE, J.A. PAUL VÉZINA, J.A. RICHARD WAGNER, J.A. Mtres Christian Fournier and Vicky Anik Pilote CRIMINAL AND PENAL PROSECUTING ATTORNEYS For the petitioner Mtre Christian Desrosiers DESROSIERS, JONCAS, MASSICOTTE For the respondent Date of hearing: April 11 to 13, 2011