R. v. Manji Date:, 2012 BCPC 203

Citation: R. v. Manji Date: 20120514 2012 BCPC 0203 File Nos: 56061-1 57577-1-T Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KARIM RAJABALLY MANJI ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: I. Hay Counsel for the Defendant: I. Donaldson, Q.C. Place of Hearing: North Vancouver , B.C. Date of Judgment: May 14, 2012

[ 1 ] THE COURT: The defendant has pled guilty to one count of fraud over $5,000 and one count of theft over $5,000. Both involve his having taken substantial amounts of money from two separate employers for which Mr. Manji acted as a financial manager. They are his third and fourth convictions for similar matters. [ 2 ] The Crown seeks a global sentence of three years. Defence says a modest jail sentence in light of certain factors will suffice, including the sequence of court proceedings on the various matters. FACTS [ 3 ] Turning to the facts, in relation to the first of the offences, Mr.

Manji was hired in September 2004 as the manager of administration and finance for a Richmond enterprise that goes by the name of Pacific Avionics and Instruments. He was one of three signatories and had sole responsibility for financial management of the company. [ 4 ] He made himself an unauthorized payroll advance of $2,500 within six weeks of being hired. Over a period of two years, he used company funds to purchase jewellery, used a company credit card for personal purposes, overpaid himself, and wrote himself unauthorized corporate cheques. [ 5 ] The total defalcation to which he admits exceeds $100,000.

Some of the funds were used to pay for metal detection equipment Mr. Manji required for a security position he had for the visit of the Aga Khan. [ 6 ] The company undertook a forensic audit. Mr. Manji initially made excuses, but ultimately gave a statement. There was some concealment and artifice involved in the manner in which he obtained funds from the company. He promised to repay what he took, but he has repaid nothing to date. Some of the money he took went to pay for a cruise he took with his wife.

There may have been some overtime and advances due to him from the company, but they were minor in comparison with what he took. [ 7 ] This offence came to light in 2006 and, of course, his position ended at that time. This matter involving Pacific Avionics was Mr. Manji's first such offence. [ 8 ] He committed his second offence in 2007 in North Vancouver, but it came to court sooner. That employer was High Output Sports. On that matter, he entered a guilty plea and was sentenced by Judge Rodgers of these courts in North Vancouver Provincial Court on April 17, 2008, to a nine-month conditional sentence order.

He had paid restitution of $22,789.82, the amount of the fraud. That money came from another of his employers. [ 9 ] Mr. Manji committed his third employee fraud offence between June 2007 and November 2007 in Vancouver. That matter was dealt with by Judge Bagnall on May 5th, 2010. Mr. Manji was sentenced to six months jail and ordered to pay restitution of $29,000. That has not been paid. [ 10 ] The fourth offence, which is the second before me, occurred between April 1st, 2008, and November 30th, 2008. The employer was Aqua Guard Spill Response Inc., another North Vancouver company.

The fraud is said to be at between $70,000 and $80,000, which includes the amount Mr. Manji paid in restitution in the prior North Vancouver matter or proceedings. He took funds he paid in restitution then, from this new employer after he had pled guilty and while he was awaiting sentence for the theft from his former employer. The remainder of this offence occurred while Mr. Manji was on his conditional sentence order. [ 11 ] Aqua Guard hired Mr. Manji from a Craigslist ad for a short-term contract and then promoted him to full-time as a comptroller.

His work deteriorated and by November 2008 the owners had determined that they were going to look elsewhere. In December, a temp service they contacted put them in touch with High Output Sports who informed them of Mr. Manji's conviction. [ 12 ] Aqua Guard then undertook a review of their books and found improper wire transfers, online payments to Mr. Manji's credit card, and a payment to Brian Jessel for repairs to his car. Mr. Manji was terminated in December 2008. These transactions were similar in nature to those committed in the first of Mr.

Manji's frauds. [ 13 ] In terms of the sequence of events then, I am dealing with the first employee fraud matter from 2004 through 2006 and the fourth such matter occurring over a six-month period in 2008. These two are much higher in established amount than the other two. Victim Impact [ 14 ] Turning to victim impact, Pacific Avionics filed a Victim Impact Statement prepared by corporate counsel. They report an emotional impact as well as a financial one, though the latter has been thankfully reduced for them by insurance. Their reported net loss is $41,000 or so.

However, it has not been sorted out whether that all relates to actions to which Mr. Manji admits. [ 15 ] Aqua Guard also prepared an extensive Victim Impact Statement. They call it a painful loss. They had to lay off five full- time employees, asked the remaining staff to take a 10-percent salary cut and significantly reduced the owners' management fees. They describe undue stress on business owners and the management staff. In addition to the funds that Mr. Manji took from them, they had to pay out considerable amounts for forensic investigation and an interim accounting service. The Offender

[ 16 ] Turning to Mr. Manji as an offender, he is 47. He has no prior criminal record apart from the convictions for the two offences I have already mentioned. The four offences took place over a period of about four years. [ 17 ] They started in 2004 at a time when Mr. Manji was experiencing financial stress. He and his wife had lost their life savings in the business they had started and had creditors demanding to be paid. Mr. Manji stole from Pacific Avionics to help pay the bills. That offence did not result in a charge until 2009.

In the meantime, the other three offences were unfolding. [ 18 ] It seems the rationale for the second was similar to the first and there was a snowball effect. The fourth matter did not come before the courts until early 2011. By that time, Mr. Manji had been sentenced on the second and third offences in time. I have already noted the circumstances related to the timing of the fourth matter. [ 19 ] Mr. Manji expresses shame and remorse. Apart from these dark four years, he has led a constructive lifestyle as a father and husband, active member in the Ismaili community, and frequent volunteer.

He speaks of a supportive and moral upbringing. As a result of his experience before the courts to date, he had been significantly cut off from his former community. He did not tell his wife what he was doing and it has cost him his marriage. He strove to keep up the façade. [ 20 ] When the house of cards came tumbling down and he found himself in jail ultimately, it cost him the respect of his young daughter. He spoke eloquently on the last court date about the effect of that on him and about striving in future to regain her respect. [ 21 ] Mr.

Manji says in the materials that were filed that he wishes he had been caught early on and had been given jail time then because had that occurred, none of the other offences would have happened, he says. He says that he did not realize that the conditional sentence was jail and had not, in fact, initially told his wife about it. He says the jail sentence has had a profound effect on him. Mitigation [ 22 ] In Mr. Manji's favour, it may be said that he has pled guilty on these matters and the victims at the two enterprises will not be required to attend court to testify.

While it is not a particularly early guilty plea and it is clear that the case against him was strong in each case, the guilty pleas may nonetheless be considered as some mitigation because they have saved the justice system considerable time and resources. [ 23 ] As well, Mr. Manji has not reoffended since he served his jail sentence in 2010. The four offences committed by Mr. Manji all occurred, as I have said, within a four-year period and he has had no other experience in the criminal sphere. Aggravating factors [ 24 ] The aggravating factors are the number of similar matters that Mr.

Manji has committed, the amounts involved, and the breach of trust and betrayal of his employers and colleagues at these two businesses. Breach of trust is a statutory aggravating feature under s. 718.2(a)(iii). As well, the use of funds from one of these complainants to pay restitution on the first of his offences is a significant aggravating factor. [ 25 ] Mr. Donaldson, in his able submissions, concedes that these offences occurred over a lengthy time, there were many transactions, the moral culpability is substantial, and that Mr.

Manji was, of course, an employee. [ 26 ] The funds from these offences were used for luxury items in the sense that it was for things that would assist in keeping up appearances, extracurricular activities for the child that the family could not afford, and that sort of thing, in relation to what I have already mentioned. That was in addition also to attempting to repay debts from the loss of the business initially or early on. [ 27 ] There has been no restitution on either of these offences and there is little hope that there will be. [ 28 ] Neither of these offences came to light through Mr.

Manji's own efforts, I note as well, and in one case extensive investigation was required. Legal Principles [ 29 ] Turning to the legal principles, for the fraud, the applicable maximum sentence is 14 years; for the theft, it is 10. [ 30 ] In terms of the principles relevant to the sentencing, specific deterrence or the need for Mr. Manji to be deterred is an obvious factor given that there are four such matters now, but Mr. Donaldson, again in his able submissions for the defence, argues it is a lesser factor in light of the fact that Mr.

Manji has served a jail sentence on another similar matter, the one in 2010, and has not committed any further offences since being released on that. [ 31 ] Mr. Donaldson did make, and as well Mr. Manji made eloquent submissions as to the effect of that particular experience in jail on Mr. Manji and how significantly he says it has deterred him from the desire to involve himself in these kinds of activities in future. [ 32 ] There were some discussions in submissions about whether the step-up principle applies.

That is the principle that someone who reoffends in a similar fashion to a prior conviction should receive a modest increase in sentence the second or subsequent time. Mr. Hay for the Crown takes the position in his able submissions that this principle only applies if rehabilitation is one of the aims of sentencing.

[ 33 ] In my view, in any event, this is not a case where the step-up principle has any relevance. The sequence of events is such that we are not talking about what is necessary to deter the offender, nor are we talking necessarily about how best to achieve his rehabilitation. [ 34 ] The primary principles are deterrence to others, denunciation, totality, parity -- that is, similar sentences for similar offenders - - and the paramount principle that the punishment should match the crime and promote respect for the law.

Case Law [ 35 ] Turning to the case law, cases involving similar offences and offenders set out the applicable range of sentence based on the similarity or parity principle. The cases cited here were R. v. Stewart , R. v. N.C.D. , R. v. Nguyen , R. v. Coxall , and R. v. Dickson . [ 36 ] Apart from Nguyen and Dickson , they set a range, really, of between one year and three years for similar offences. All, or most in any event, however, involved offences against a single employer. Analysis [ 37 ] In my view, Mr.

Manji cannot appropriately, certainly, be treated as a first offender here for the first offence in light of all that has occurred since then and what we now know about him as an offender. At least again, not in the sense that we would be considering whether a conditional sentence order was appropriate. He has had the benefit of that consideration in the second matter before Judge Rodgers and, as it turns out, a conditional sentence order was not sufficient to deter Mr.

Manji and, with hindsight, it was likely inappropriate. [ 38 ] The matter dealt with before Judge Bagnall arguably did achieve the desired effect, although in my view, it may be too early to tell. [ 39 ] However, I am of the view that the sentence today must reflect the seriousness of these two matters, the fact that there are two of them and also the fact that Mr. Manji is a prior offender. Also, I say he should not be dealt with more harshly because of the timing of the charges and the manner in which they came before me. [ 40 ] I will consider what may have been the result had Mr.

Manji been sentenced in 2010 to all three of the offences at the same time; and it is appropriate, in my view, in these unusual circumstances, for me to impose a sentence that would not exceed the global sentence he may have received at that time. [ 41 ] Some consideration should be given to the fact that he will be recommitted to custody whereas had the investigations proceeded more expeditiously he could have served continuous time and perhaps been done by now.

It is likely much harder on him as an offender to contemplate returning to jail, as he has indicated certainly in his remarks, and harder for him, for instance, than it would have been had he been brought before the courts in a more timely way, and that is a factor that I do intend to take into consideration in imposing the sentence I impose today. [ 42 ] The sentence requested by the Crown in this matter, in my view though, is well within the range of appropriate sentences for offences of this kind even, if there were only two of them.

In relation to the fourth offence, which is the second I am dealing with, it must be borne in mind that Mr. Manji was actually before the court when it was being committed and used funds from it to pay restitution, essentially buying himself a conditional sentence order, and I am quite sure that fact as well may have made a difference to Judge Bagnall had it been before her when she imposed the sentence she did, which was a six-month sentence. [ 43 ] I will have you stand up now, please, Mr.

Manji. [ 44 ] In all the circumstances, I have determined that the sentence on the first of these offences must be a one-year sentence of imprisonment. The sentence on the second of them will be 18 months consecutive. That will be the sentence. [ 45 ] Did you ask for ancillary orders? [ 46 ] You can sit now if you like, Mr. Manji, for the moment. [ 47 ] MR. HAY: I did not, thank you. [ 48 ] THE COURT: Okay, there is a victim fine surcharge applicable on both and I am going to waive it in the circumstances. Mr. Manji's attention should be toward any attempts at restitution that he is able to make.

Are you seeking a s. 738 order? [ 49 ] MR. HAY: Your Honour, I am concerned about the DNA order. I believe fraud and theft fall within that and I would make that request. [ 50 ] THE COURT: That would be an ancillary order, though, would it not? [ 51 ] MR. HAY: Yes, I am sorry. [ 52 ] THE COURT: 487.051 – [ 53 ] MR. HAY: It just occurred to me.

[ 54 ] THE COURT: Just a second. Do you know if it mandatory, Mr. Donaldson? Well, nonetheless, even if it is secondary, will you have submissions? [ 55 ] MR. DONALDSON: No. [ 56 ] THE COURT: No. Thank you. I think it is appropriate given the number of -- well, in fact, there were two offences, that there be a DNA sample taken while Mr. Manji is in custody and it will be applicable to both offences and I believe it is probably primary, but I will sort that out with you in due course, Madam Registrar. Thank you. [ 57 ] MR. HAY: Thank you, Your Honour. [ 58 ] THE COURT: Thank you. Good luck to you, Mr. Manji. [REASONS FOR SENTENCE CONCLUDED]