R. v. Johal Date:, 2012 BCPC 133

Citation: R. v. Johal Date: 20120314 2012 BCPC 0133 File No: 55427-C4 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HARMIT SINGH JOHAL REASONS ON SENTENCE OF THE HONOURABLE JUDGE P. CHEN Counsel for the Crown: R. Beram Counsel for the Defendant: M. Fox Place of Hearing: Richmond , B.C. Date of Hearing: February 29, 2012 Date of Judgment: March 14, 2012

[ 1 ] The Accused, Harmit Singh Johal has plead guilty to the following charges: Count 1: Harmit Singh Johal on or about the 3 rd day of May 2010, at or near Richmond, in the Province of British Columbia, did commit extortion of George Roberts, contrary to Section 346(1.1) (

b) of the Criminal Code . Count 3: Harmit Singh Johal, from the 1 st day of September, 2009 to the 3 rd day of May, 2010, inclusive, at or near Richmond, in the Province of British Columbia, did by deceit, falsehood or other means, defraud George Roberts of money in the sum of $86,920.83 by making claims upon the funds of George Roberts, contrary to Section 380(1) of the Criminal Code . [ 2 ] Crown has conceded that the amount of the fraud to be considered on this sentencing is $6,000.00. [ 3 ] The facts of this fraud are somewhat unusual.

It is useful, at this point, to review them as they are relevant to provide context for this sentencing. [ 4 ] The Accused lived with his mother in a house across the street from the complainant, George Roberts, a 77-year old retired bachelor. The Accused befriended Mr. Roberts and obtained his confidence. The Accused gradually inveigled himself into Mr. Roberts’ life. The Accused then began making requests for money from Mr. Roberts, initially offering exchanges of goods such as selling a satellite receiver to Mr. Roberts which was never provided.

Eventually, the requests and favours escalated to repeated deliveries of money from Mr. Roberts to the Accused in return for empty promises of repayment. Some of the initial deliveries could be characterized as gifts but the Accused accepts that $6000 were frauds. [ 5 ] Eventually Mr. Roberts tried to pry himself loose from the Accused, but the Accused was persistent. [ 6 ] On May 2, 2010, Mr. Roberts received a phone call from a man who identified himself as a lawyer by the name of Sam Quinnin. Mr. Quinnin demanded $4000 from Mr.

Roberts and stated that if it was not paid, tape recordings would be released incriminating Mr. Roberts in an attempted murder. Mr. Roberts phoned the police to report this incident but the police were not responsive. Later, the Accused showed up at Mr. Roberts’ home. They went to an ATM machine in Ironwood Mall where Mr. Roberts withdrew $200 and gave it to the Accused. Later that night, the Accused again appeared at Mr. Roberts’ home asking to stay the night. The Accused then gave a letter to Mr. Roberts purporting to be from “Sam Quinnin and Associates”.

The first 4 paragraphs of that letter read as follows: “As pertained to Peter Chahal, owner and operator of BLUE LITHIUM and companies. Mr. Chahal is in the process of charging Harmit Johal and George Roberts and Iqbal Sing for their

part in a beating that took place in less than two years. I know KHONA HAWAII Charges would carry a sentence of up to 25 years in prison. Iqbal Singh has passed away and left the sole burden on that on GEORGE ROBERTS and HARMIT SINGH JOHAL. Mr. JOHAL has supplied me a server in which we listened to 23 recordings made through the parties included, 3 in which yourself George Roberts clearly state “Id rather see the son of a bitch dead: The 2 nd one states “his legs should be broken over and over” He needs to be killed so he can not do to us what he has done to others”. These are all quotes left from George Roberts.

This could be very simle and be gone far away from all of us. You need to do your part as I will mine. Mr. Johal deposition will commence on May 2 nd 2010 and has agreed to take the full blame on the matter with Peter Chahal. He will plead guilty to all counts leaving you out of it so you can go on with your life. Mr. Johal considers George Roberts one of his dearest friends and does not want George to go to prison. As my promise to you and from Harmit Johal, I myself will destroy these recordings as In have the only copy. Also Mr. Harmit Johal will never phone or contact you in way shape or form. Mr.

Harmit Johal will be transferred on a shuttle bus carrying other cons to San Quentin Penn.” [ 7 ] The letter went on to demand legal fees of $6,000.00 and a further $4,200.00 for medical attention for the Accused. The letter was signed by “Sam Quinnin” and the Accused. [ 8 ] The next morning, the Accused demanded $14,000.00 from Mr. Roberts. Mr. Roberts tried to rebuff the Accused initially. He later told police that he thought it was “bullshit” as he had not done anything. Later that day, however, Mr. Roberts received a phone call from a “Chahal” who reminded Mr.

Roberts of his jeopardy if the money was not produced. When Mr. Roberts told the Accused that he didn’t have that amount, the Accused replied “ you’d better get it or you’re going to jail ”.

[ 9 ] The Accused and Mr. Roberts then went to Mr. Roberts’ bank. The bank tellers, seeing Mr. Roberts’ uncertainty and sensing his emotional state, became suspicious and alerted the manager. The police were called and when they arrived, the Accused was arrested. [ 10 ] Crown seeks a global sentence of 2 years less a day incarceration followed by 2 or 3 years of probation. Crown is opposed to a conditional sentence.

Defence seeks a sentence of 18 to 24 months to be served in the community by way of a conditional sentence. [ 11 ] I have been presented with many case authorities by both Crown and Defence, all of which I have read, but I will refer only to those I have found particularly helpful. I have considered the pre-sentence report, the letters of reference provided on behalf of the Accused, Mr. Roberts’ victim impact statement and, of course, the submissions of counsel. [ 12 ] The mitigating circumstances are as follows: (

a) The Accused has pleaded guilty, saving the taxpayers and society from the cost of a trial and relieving the victim from the inconvenience and embarrassment of having to testify and relive his humiliating experience. (

b) The Accused has a reasonably positive pre-sentence report. The probation officer notes the Accused’s remorse and empathy for the suffering he inflicted on Mr. Roberts. The Accused has been addicted to drugs, including heroin, since age 19. He is now 35. His rehabilitation has been checkered but testing has shown him to be drug free since his second breach in November 2011. The report indicates that the Accused is taking his addiction problem seriously and understands how his addictions have led him to criminality. (

c) The Accused has a close relationship with his sponsor and, while focusing on his own recovery, has found time to assist others at the treatment centre with their recovery. Some of his letters of reference are from other addicts he has helped there. (

d) The Accused has a supportive family who remain committed to helping him in his recovery. [ 13 ] The main aggravating circumstance is that the Accused victimized an elderly and vulnerable senior citizen. [ 14 ] The victim, Mr. Roberts, lived in Manitoba where he worked for the military and later went into the telecommunications business. He retired in his sixties and moved to the West Coast to enjoy his retirement years. He ended up living across the street from the Accused’s mother. He is embarrassed at having been victimized.

His victim impact statement relates the stress that the Accused’s actions have caused him resulting in painful stomach upset and sleeplessness. [ 15 ] The Accused was not in a position of trust with respect to Mr. Roberts, as it is described in S.718.2, as an aggravating factor. However, I find that the Accused did obtain the friendship and trust of Mr. Roberts, an elderly man living alone and apparently isolated. I find also that the friendship and trust cultivated by the Accused made Mr. Roberts even more vulnerable and was instrumental in enabling the Accused to defraud him of his money.

I find, in the actions of the Accused, that there is an element grooming of Mr. Roberts as a victim. These, I also find to be aggravating factors. [ 16 ] It is also aggravating that the frauds were persistent and continued over many months. [ 17 ] In R. v. Pinnock 2007 ONCJ 276 , the accused abused his position as a clerk at a cancer clinic to access confidential health records to exploit, gain entry into homes of, and steal banking instruments from 33 elderly and vulnerable individuals.

While the facts of Pinnock are quite different from those in the case at bar, the court found the victimization of elderly persons to be an aggravating factor. [ 18 ] In R. v. Kralik 2006 BCSC 1322 [2007], the accused defrauded an elderly complainant of $200,000.00 over a 3-year period by charging for unnecessary and uncompleted home repairs. Wedge, J. at the middle of paragraph 24 stated: “In my view, abuse of a frail, isolated, elderly person, particularly an elderly person who was “not as sharp as she once was”, can be considered an aggravating factor. I will not go so far as to say that Mr.

Kralik was in a position of trust. It is enough, in my view, that he deliberately took advantage of Ms. Loftus’ vulnerability, isolation and reduced mental capacity.” [ 19 ] Extortion is a very serious offence, the maximum penalty for which is imprisonment for life. [ 20 ] In the case at bar the extortion involved others who have never been discovered or charged. It was also planned and premeditated. Defence counsel submitted that the extortion was planned by others, but there is no evidence of that. [ 21 ] The police were not responsive to Mr.

Roberts’ request for assistance after the phone call from the person purporting to be the lawyer, Sam Quinnin. The staff at the bank obviously sensed something in Mr. Roberts’ demeanor that alerted them to call the police. I infer that Mr. Roberts ultimately agreed to go to the bank with the Accused because he was fearful: fearful of the situation that he had been suddenly thrust into and fearful of the Accused and his associates. [ 22 ] In R. v.

Boulos 2004 CarswellOnt. 8964 , the accused, a 30-year old female prostitute, became aware that a regular client, a male in his mid-70’s, had sexually abused her daughter, demanded $4000 from the client in exchange for an agreement not to contact the police. After that was paid, the accused demanded a further $2000 which she said was for her daughter’s father who had found out what happened. At that point, the client went to the police. The accused had only one offence on her record prior to the extortion but in the 3

years between the laying of charges and the sentencing, she had amassed a substantial number of convictions for crimes involving dishonesty and non-compliance with court orders, making her a poor candidate, in the court’s view, for a conditional sentence. She was sentenced to 6 months incarceration. [ 23 ] In R. v. Vonhiltgen 2007 BCSC 601 , the extortion involved a threat of immediate physical harm and was carried out to enforce the payment of a $200,000.00 drug debt. Mr. Vonhiltgen had no prior criminal history, had supportive family and letters of reference showing support from the community.

He had expressed remorse and had engaged in activities helping youth to overcome drug problems. The court found that a conditional sentence would not have adequately addressed the paramount sentencing goals of deterrence and denunciation, and sentenced Mr. Vonhiltgen to 9 months imprisonment. [ 24 ] The only case presented in which a conditional sentence was imposed for extortion was the case of R. v. Rode , 2007 ABCA 393 , 422 A.R. 95. In Rode , the accused repeatedly assaulted the 17-year old complainant, forced him into a car, drove him out of town and beat him further.

They threatened the complainant with death if he did not find money for repayment of a drug debt. The accused were 20 years old at the time of the offences. In the two years between the offences and the sentencing, the young accused had acknowledged their culpability, addressed their drug addictions and negative influences and generally turned their lives around. They had completed drug and alcohol treatment programs with sustained period of abstinence, had upgraded their education and had been completely compliant with bail conditions.

The Court of Appeal dismissed the crown’s appeal and upheld the conditional sentences of 2 years less a day, 9 months of which had been already served by the time the appeal was heard. [ 25 ] The Accused is 35 years old and has prior convictions for drunk driving in 2005 and for assaulting a police officer and breach of probation in 2010. He has struggled with drug and alcohol abuse his entire adult life. He has breached his conditions of bail twice since his arrest on these charges. He appears to be doing better since his second breach last November and has the support of his family.

He, to his credit, has taken it upon himself to assist others in their recovery. [ 26 ] These frauds and this extortion, in the case at bar, were perpetrated on an elderly man in his 70’s, retired, single and living alone. Elderly people are a growing segment of our society. I have considered the mitigating factors and the Accused’s recent progress towards his own rehabilitation.

It is my hope that the Accused now recognizes how important these steps towards sobriety and away from criminality are, for his own sake, and that they will continue. [ 27 ] However, in my view, there is another, higher, imperative and that is the interest that society has in assuring, as best it can, the protection of elderly persons such as Mr.

Roberts, in other cases. [ 28 ] After considering the authorities, the circumstances of this offence, the circumstances of the Accused and the mitigating and aggravating factors, it is my view that a conditional sentence would not adequately address the principles of denunciation and deterrence. However, in light of the mitigating factors, the guilty plea, the Accused’s efforts towards his own rehabilitation (which I accept as sincere), and the authorities presented, I am of the view that a fit sentence would be one of 9 months. [ 29 ] Mr. Johal, please stand.

I sentence you to global term, with respect to both counts, of 9 months in a provincial correctional institute. This will be followed by a term of probation of 2 years. The terms of the probation order are as follows: 1. keep the peace and be of good behaviour, 2. appear before the court when required to do so by the court, 3. report to a Probation officer at Suite 210, 7577 Elmbridge Way, Richmond, B.C.

V6X 4J2, within 72 hours of your release from custody and thereafter when required by the Probation officer, and in the manner directed by the Probation officer, 4. remain within the Province of British Columbia, unless written permission to go outside of the province is obtained from the Probation officer, 5. provide your residential address to the Probation officer and not change that address without the prior written consent of the Probation officer, 6. abstain absolutely from the possession or consumption of any drugs or substances prohibited under the Controlled Drugs and Substances Act, save and except as prescribed by a medical doctor and then only according to the dosage prescribed, 7. attend, participate and complete to the satisfaction of your Probation officer, such treatment, counselling and programs as you may be directed to by your Probation officer,

8. have no contact, directly or indirectly with George Roberts, 9. do not attend at any residence of George Roberts. _________________ P. CHEN, P.C.J.