R. v. Harvey-Langton, 2012 MBPC 64

CITATION: R. v. Harvey-Langton , 2012 MBPC 64 Date: October 3, 2012 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Donald Melnyk, ) for the Crown ) and ) ) ) Benjamin Harvey-Langton ) Vanessa Gama, Accused ) for the Accused ) ) ) Reasons for Decision delivered ) October 3, 2012 ) Devine P.J. INTRODUCTION [ 1 ] Benjamin Harvey-Langton is a 28 year old citizen of England. He is a well-educated, privileged young man who has lived in several countries in the world.

He flew to Canada from Namibia, Africa on August 19, 2011, ostensibly to visit his sister in Montreal and then to take a trip to Churchill, Manitoba with his mother, who would be flying from England for that purpose. The Churchill trip never happened. Instead, Mr. Harvey-Langton was involved in criminal activity in Canada. This is my sentencing decision with respect to the Manitoba charges to which he pleaded guilty.

Charges or potential charges in Ontario and Quebec remain outstanding. [ 2 ] On August 29, 2012 he pleaded guilty to 66 criminal charges involving a sophisticated credit card counterfeiting operation in Winnipeg. It is the largest operation of its kind seen in Manitoba. The sentencing hearing took a day and a half. Several documents were filed by agreement and case books on sentencing were also filed by counsel.

I have reviewed all of that material as well as counsel’s thorough submissions in coming to my decision on sentence. [ 3 ] The Crown proceeded by way of indictment on all the following Criminal Code offences, unless otherwise indicated, to which the offender entered guilty pleas and elected to have heard in this Court: 1) Two counts of using a forged credit card, contrary to s. 342(1)(c)(i), which carries with it a maximum sentence of 10 years; 2) Forty-seven counts of possessing credit card data fraudulently and without colour of right, contrary to s. 342(3)(a), which carries with it a maximum sentence of 10 years; 3) Possessing 1.5 grams of marijuana, contrary to s. 4(1) of the Controlled Drugs and Substances Act , on which the Crown proceeded summarily and which carries with it a maximum penalty of a fine of $1,000 or a sentence of six months, or both; 4) Possessing, using or trafficking in the credit card data of hundreds of people fraudulently and without colour of right by means of personal computers, contrary to s. 342(3)(b), which carries with it a maximum penalty of six months;

5) Obtaining or possessing the identity information of 2,171 people, intending it to be used in indictable offences that included fraud, deceit or falsehood, contrary to s. 402.2(1), which carries with it a maximum sentence of five years; 6) Participated in or contributed to the activity of a criminal organization unlawfully for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence, contrary to s. 467.11(1), which carries with it a maximum sentence of five years, which must be served consecutively to any other sentence imposed on the offender; 7) Possession of 37 grams of marijuana, contrary to s. 4(1) of the Controlled Drugs and Substances Act , which is strictly indictable and which carries with it a maximum penalty of five years less a day; 8) Possession of instruments used to forge credit cards, contrary to s. 342.01(b), which carries with it a maximum penalty of 10 years; 9) Possession of property obtained by crime over $5,000, contrary to s. 354(1)(a), which carries with it a maximum penalty of 10 years; 10) Conspiracy to commit an indictable offence of fraud, contrary to s. 465(1)(c), which in these circumstances carries with it a maximum penalty of 10 years; 11) Five additional counts of using a forged credit card, contrary to s. 342(1)(c)(i), which carries with it a maximum penalty of 10 years; 12) Two counts of fraud under $5,000, contrary to s. 380(1)(b), on which the Crown proceeded summarily, which carries with it a maximum penalty of six months; 13) Unlawful possession of credit card data contrary to s. 342(3)(b), which carries with it a maximum penalty of six months.

CIRCUMSTANCES OF THE OFFENCE [ 4 ] Mr. Harvey-Langton, in concert with his co-accused Kevin Guo and a third male known only through internet communications as “Darky”, were involved in a criminal scheme whereby they purchased stolen credit card numbers and personal identification information from illegal websites. Harvey-Langton met Guo in Montreal in August, 2011 buying comic books and also on the internet. They schemed to manufacture credit cards with the stolen information on them. They acquired the machinery for making credit cards and planned to set up business in Winnipeg.

The plan was to counterfeit credit cards, buy high-end cameras and give them to a fourth individual named “Dope Carder” who would sell the cameras for $800 each. The offender’s take would be $300 on each camera. The only purpose for Harvey-Langton’s involvement was to make enough money to have a lavish lifestyle. Harvey-Langton rented a luxury condominium on Bannatyne Avenue in the Exchange District of Winnipeg, using a counterfeit credit card to pay for it. Guo sent the manufacturing equipment from Montreal to that condominium by courier.

Then Harvey-Langton rented a Ford Mustang GT using a counterfeit credit card and drove to Winnipeg between November 18 and 20, 2011. He checked into the Fairmont Winnipeg hotel on Lombard Avenue, where he used a forged counterfeit credit card to pay for his food and lodging, and later that morning picked Guo up at the airport.

He used a counterfeit credit card to pay the $3.99 parking fee at the airport. [ 5 ] Harvey-Langton and Guo went back to the Fairmont where they spent the first night of their criminal endeavour in Winnipeg. [ 6 ] The next day Harvey-Langton confirmed his on-line booking of the Bannatyne condominium and paid the rental with a forged counterfeit credit card. At noon he picked up the keys to the two-bedroom condominium, which became home base for Harvey-Langton and Guo. They had a place. They had wheels.

They were now in a position to start buying high-end cameras, which was the plan for the scheme in Winnipeg. [ 7 ] All that afternoon and evening Harvey-Langton went on a shopping spree for Canon EOS 60D cameras, ranging in price from roughly $1,500 to $1,700, which he purchased using counterfeit credit cards at several Black’s and Henry’s camera stores throughout Winnipeg. [ 8 ] The next day, on November 22, he and Guo manufactured counterfeit credit cards in the condominium, using the equipment that had been shipped from Montreal and the stolen credit cards obtained from the internet.

Perhaps they were not very good at it, because the next day their attempts to use counterfeit credit cards were not so successful. [ 9 ] That day, on November 23, Harvey-Langton and Guo went to the Don’s Photo at 1839 Main Street to buy another expensive Canon camera. Harvey-Langton attempted to pay for the camera using three different counterfeit credit cards, all of which were declined. Harvey-Langton and Guo left the store and went back to the Henry’s Photo on Kenaston Boulevard. This time Guo was foiled in his attempt to use a forged counterfeit credit card to complete the transaction.

Staff were aware of the pair’s past attempts to make fraudulent purchases, and contacted police. Harvey-Langton and Guo fled before police arrived. [ 10 ] The two were not yet daunted. They went to the Henry’s Photo located at 6 – 1592 Regent Avenue West, where Harvey- Langton had purchased a camera two evenings earlier. At 1:17 p.m. Winnipeg Police officers saw them in the parking lot, operating the rented Mustang. Police stopped them and placed them under arrest for fraud.

In a search of the vehicle incidental to arrest, police located 47 counterfeit credit cards with unauthorized encoded credit card data on the magnetic stripes. Harvey-Langton had on his person the three credit cards that had been declined, along with the receipts showing that the cards were declined. Police also found 1.5 grams of marijuana in the vehicle. [ 11 ] Police obtained warrants and searched the condominium and, subsequently, the computers found there.

They seized equipment that was used to make counterfeit credit cards and computers that contained stolen data and communications between the co-accused and others that revealed more details of their scheme.

The equipment included boxes of hundreds of blank white cards with magnetic stripes, a thermal printer and ribbon cartridge, a foil tipping machine used to add the foil on the embossed letters of the credit cards, a card embosser used to imprint credit card numbers and names on the blank white cards, a card reader/writer device used to program stolen credit card data onto the magnetic stripes of the blank credit cards, and sheets with hologram stickers of the emblems for VISA and

Mastercard. The Crown aptly described the condominium as a “credit card factory”. In addition, the police found credit cards in various states of completion, some with printed images and some with printed images and embossing, and a roll of foil that showed past imprints of seized counterfeit credit cards with the names “Mr. Harvey B” and “Sam Liu”, aliases of the offender and Guo. [ 12 ] Police found 1,738 credit card numbers and personal information data on Harvey-Langton’s computer, including individuals’ names and addresses.

Although most victims were from Canada and the United States, there was at least one person from each of Britain, Turkey, Norway, the British Virgin Islands and Namibia. Similarly, the co-accused Guo had 710 credit card numbers on his computer and personal identity information of 443 people. Harvey-Langton was aware of this and was thereby also a party to any of the fraud offences related to Guo. [ 13 ] In total, Harvey-Langton and Guo possessed 2,447 credit card numbers illegally obtained and 2,438 people’s personal identity information, again illegally obtained.

By far, most of these numbers and personal identifications were found on Harvey-Langton’s computer. The police also found on the offender’s computer BIN Numbers, or Bank Identification Numbers, for credit cards from various financial institutions in Canada. The searches showed that Harvey-Langton accessed the files as early as June, 2011 and as late as November 17, 2011.

The searches also revealed that Harvey-Langton was aware in October and November 2011 that Guo was receiving additional credit card numbers from “Darky”. [ 14 ] The computer searches also uncovered logged internet chats which revealed Harvey-Langton was in communication with an international underworld of credit fraudsters.

He frequented a number of credit card forums and websites dedicated to criminal activity, and messages show that he was sharing credit card data with others. [ 15 ] They also showed him to be in relationships involving the trafficking of credit card data and other criminal activity with which he was not charged, such as using fraudulent credit cards in Namibia, the U.K. and Canada for airline flights, hotels, cars and so on, and attempting to have new identities created for the purpose of being able to move about the globe easily and conduct business.

As early as May 2011 he was discussing movement between various countries and whether a legitimate or fake passport was preferable. [ 16 ] Chats also show that in June, 2011, he was thinking of buying blank credit cards in bulk and purchasing an embosser. A search of his computer uncovered pages and pages of credit card numbers and personal data of people, numbering in the thousands. [ 17 ] The Canadian plan for credit card fraud among Guo, “Darky” and the offender is set out in some detail on one page of chat logs.

Guo’s computer contained emails and chats with “Darky” and others, and the offender was aware of these communications. “Darky” was sending Guo credit card and personal identity information, and Guo was sending “Darky” cash and requesting more data from “Darky” when he and Harvey-Langton were in Winnipeg. [ 18 ] Harvey-Langton’s computer also revealed some of his criminal past. He first came to Canada in 2009 and then went to San Diego where he was arrested for credit card fraud.

Upon his release and deportation from the United States, he returned to the United Kingdom and then returned to Canada for these offences in 2011. [ 19 ] The offender’s computer also contained a list of photography stores in Ontario and Manitoba, including the stores in Winnipeg where he made or attempted to make purchases with fraudulent credit cards. THE OFFENDER Background [ 20 ] Harvey-Langton was born in Nice, France. He moved to England when he was 17 years old. He lived with his mother, step- father and sister. He studied Psychology, receiving an Honour’s degree.

He went to New Zealand and obtained his private pilot’s licence. He went to Germany and studied international business at the Schiller International University in Heidelberg. It was there that he was introduced to the criminal business of credit card fraud. Previous Court History [ 21 ] The offender has a history of similar criminal involvement. He was arrested for offences involving the fraudulent use of a credit card in Germany in 2007 and spent time in custody. Neither counsel could confirm whether the time spent in custody was part of a sentence.

On August 24, 2010 in San Diego, California he was convicted of grand theft contrary to s. 487(

a) of the California Penal Code for misuse of credit card data. He received a sentence of 365 days in jail to be followed by five years of probation and a restitution order of $74,362. He served some of the sentence and then was deported to England. [ 22 ] He was also convicted of possession of marijuana in Hampshire, England, in 2000 for which he received a community service sentence. VICTIM IMPACT STATEMENT [ 23 ] One of the agreed documents was a Victim Impact Statement from the Amex Bank of Canada, completed by its Director of Security, Rick Neals. In the statement, Mr.

Neals outlined the increasing seriousness of credit card fraud internationally and in Canada. There are 68.2 million credit cards in circulation across Canada. In 2011, the Canadian issuers of Visa, Mastercard and American Express reported losses of $436,588,757 due to credit card fraud, a form of “electronic bank robbery” according to Mr. Neal’s statement. Counterfeit activity is the largest type of credit card fraud in Canada.

One of the methods is through computer hacking: Data thieves hack into networks to steal account data or infect the network with malware which is capable of collecting account data as it is being processed by a merchant or processor. The compromised data is then sold by organized crime groups on the Internet “carder forums” and is later used to manufacture a counterfeit credit card. (at 4) [ 24 ] Credit card fraud is not typically committed by sole operators. Mr. Neal’s statement goes on to say,

Counterfeit credit card fraud is not usually perpetrated by one individual acting alone. It is generally committed by highly mobile, organized-crime gangs, who use the funds obtained to finance various other criminal activities, including drug trafficking, firearm purchases, etc. (at 5) CROWN AND DEFENCE SUBMISSIONS [ 25 ] Both the Crown and the defence agreed that the primary sentencing objectives for credit card fraud offences are deterrence and denunciation and the only fit sentence would be a penitentiary term.

The Crown is seeking five years on the fraud and other charges and one year consecutive on the criminal organization charge, for a total sentence of six years, inclusive of the roughly 10 months of pretrial custody. The defence is seeking a sentence of four years on the fraud, some pretrial custody and one month going forward on the drug charges, and nine months on the criminal organization offence, for a total of just over four years and 10 months, inclusive of the pretrial custody.

Thus, the Crown is seeking an additional five years and two months, while the defence is seeking an additional four years. [ 26 ] The Crown stressed the enormity and sophistication of this criminal operation. The defence emphasized that the offender was a small player in the operation and that he has pleaded guilty at essentially the earliest opportunity. THE PURPOSE AND OBJECTIVES OF SENTENCING [ 27 ] The purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. [ 28 ]

Section 718 of the Criminal Code states that this purpose is achieved by imposing sentences that denounce unlawful conduct, deter persons from committing offences, separate offenders from society where necessary, assist in rehabilitation, provide reparation, and promote a sense of responsibility in offenders.

These sentencing objectives are also paramount in sentencings on drug offences, as indicated in s. 10 of the Controlled Drugs and Substances Act . [ 29 ] Courts have emphasized that the prominent objectives in sentencing cases involving credit card fraud are denunciation and deterrence, because these crimes are a direct attack on the economy and the way that individuals in Canada conduct their business. ( R. v. Kanagaratnam , 2011 MBPC 72 at paras. 86 – 89 , citing several other cases) [ 30 ] Denunciation is also called for when the crime is as prevalent as credit card fraud today.

According to the information provided by the Director of Security for Amex Bank in this case, there are 68.2 million credit cards in circulation in Canada, more than two cards for every person. Credit card issuers experienced almost half a billion dollars in losses last year in Canada, and spent that amount of money again in fraud management, according to the Victim Impact Statement. [ 31 ] Specific deterrence is also a relevant objective in this case. Although the offender was arrested in San Diego, he was not deterred.

This sentence must be significant enough for him to be deterred from a life of crime in the future. [ 32 ] This crime has features that call for the offender to be separated from society.

It is clear from reviewing the agreed exhibits in this case that the training, opportunity to “meet” criminal colleagues, information exchange, the buying and selling of “dumps” (illegally- obtained credit card data), information on how to defeat credit card companies’ latest crime prevention techniques, obtaining credit card data, setting up operations abroad or across the country, and planning of specific criminal plans, such as the Winnipeg scheme, were all conducted over the internet. The offender was well on his way to plugging into this scheme, or something similar, when he was still in Namibia.

Credit card fraud preparations and activities can be conducted anywhere. Except jail. Thus, it is important that this type of offender is separated from society, to ensure he does not have access to the internet to conduct criminal business. PROPORTIONALITY: A FUNDAMENTAL PRINCIPLE (s. 718.1) [ 33 ] The sentence I impose must reflect the gravity of the offence and the degree of the offender’s moral culpability. [ 34 ] In this case I have no hesitation in stating that this was a very serious offence.

Although the actual financial losses were small and all property has been recovered, the potential losses were of a magnitude not before seen in Manitoba. The credit card numbers and personal identity information of over 4,000 people were fraudulently obtained and used to create counterfeit credit cards. [ 35 ] The offender’s moral culpability is very high. This was the Winnipeg part of a scheme that for the offender had been in the works for some time, his planning of this type of activity having gone on for years. This

chapter of what appears to be part of a lifestyle for Harvey-Langton was planned in Namibia, England, and Montreal over the internet. It was a purposeful offence conducted after a great deal of research and planning. Harvey-Langton was not merely a party to Guo’s higher culpability. The computer data seized from Harvey-Langton’s computer contradicts such a claim, showing that he was far more than a pawn using stolen credit cards to buy and sell expensive cameras in Winnipeg in November, 2011.

The computer data seized from his computer shows that he was very involved in several aspects of fraudulent credit card activity, that his involvement was international in scope and that it had been going on for months or years: • He was not only obtaining, but also sharing, stolen credit card data over the internet. • He was known in the fraudulent credit card business as a “dumps” buyer. • He purchased a card embosser from China on May 30, 2011 over the internet. • He was in communication with people who were finding additional illegal carding sites and new ways of fraudulently obtaining credit card data, such as a new way of IP straining. • He was visiting illicit internet websites with names such as “Little Snitch Program”, “Kurupt” and “carder.pro”. • He was in the process of purchasing a new identity complete with a false passport, perhaps Finnish, “as it opens more doors to a

new identity in the EU outside of Finland,” and other personal identification cards. • He was not remorseful for nor deterred by his past offences in Germany, Italy and the U.S. When he was communicating with a vendor selling new identities, he explained the problem of his current passport disallowing him to travel to those three countries and also to France and Switzerland, stating that he needed a passport that would allow him to get into those countries (thus the Finnish passport).

On June 21, 2011 he wrote to a former criminal colleague that he was “reminiscing of the old times in San Diego.” • In August 2011 he was in Namibia. He then flew from Windhoek, Namibia on August 15, 2011, to Johannesburg, then departed Johannesburg to London, England on August 16, 2011 and then departed from London to Montreal. He had to “cancel” Angola and get to Canada instead. All the flights and hotels (all high-end) were booked using fraudulent credit cards. There was some trouble with the credit cards to pay for flights, in August – before he came to Canada.

He was communicating with someone who assured him that he and “Darky” would help him out. • He received a message from the UPS store on July 19, 2011 regarding a shipment to Lebanon. • Communications once within Canada in September 2011 show he was in Montreal, northern Quebec, then in Ontario, using false credit cards again for cars, flights and hotels. He characterized his criminal activity as “working really hard”, complaining that he hadn’t gone out in over two months and was completely wasted. • He is currently subject to criminal investigations and/or charges in Ontario and Quebec.

The Winnipeg investigation led to information relevant to those investigations, such as lists of malls and photography stores in Ontario and a search for the “best lawyer Montreal fraud credit card”. • His calendar entry for October 5, 2011, showed he was “doing Darky’s shit”. • A conversation between he and co-accused Guo characterized the Winnipeg hit as part of a larger plan to invest for ATM fraud. APPROACH TO SENTENCING MULTIPLE OFFENCES [ 36 ] The proper approach in sentencing for multiple offences was recently reiterated by Justice Steel in R. v.

P.K. , 2012 MBCA 69 at paragraph 33 : So, in the case of multiple offences we now ask sentencing judges to: 1) First determine whether any or all of the sentences are to be served concurrently or consecutively or a combination of both. 2) If treated as concurrent, then, although all circumstances of the offender and the offence must be taken into account in arriving at a sentence, the final sentence for multiple concurrent offences should, absent exceptional circumstances, be higher than the sentence that the judge would have awarded that offender for one count of that offence.

This has come to be known as the "no free ride principle." 3) If treated as consecutive offences, after assigning a sentence to each offence, the judge must take one last look at the total cumulative length of the sentence with a view to determining whether the total sentence is so high as to be a "crushing punishment" on this offender. This is often referred to as the totality principle. It must be remembered that the totality principle considerations under s. 718.2 (

c) of the Criminal Code apply only when consecutive sentences are imposed. When a judge sentences an accused to concurrent sentences, no such considerations arise. 4) If the judge is of the view that the overall sentence is too high, it is within their discretion to reduce the sentence by using a variety of techniques. One of those techniques is to make some of the multiple offences concurrent to each other.

This use of the concurrency principle is for the sole purpose of reducing an excessive sentence as a result of that "last look." [ 37 ] The issue of whether a sentence should be concurrent or consecutive was explained by Justice MacInnes in R. v. Wozny , 2010 MBCA 115 at paragraphs 45 and 46 : … This question and the decision does not relate to the overall length of sentence. Rather, they pertain to the nature and circumstances of the criminal activity under consideration and the connectedness of two or more offences to each other.

As Steel J.A. wrote in Maroti (at para. 22): First, the courts use a multitude of phrases to express the same concept.

See, for example, Ruby et al. [ Sentencing , 7th ed. (Markham: LexisNexis Canada Inc., 2008)], at para. 14.10 - " 'a break in the transaction'; 'really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent'; 'one multi-faceted course of criminal conduct'; 'one transaction'; 'part of the same transaction or endeavour'; 'closely linked together'; 'one continuous criminal act'; 'one single enterprise'; 'single criminal adventure'; and 'reasonably close nexus' ".

Although different courts have at different times used each of these phrases, I believe that they were all attempting to answer the same question - Is the connection between two offences sufficiently close to order the sentences imposed to be served concurrently as opposed to consecutively? While this is often not a simple issue to decide, the general rule is that if the offences are sufficiently interrelated to form part of one single, continuous criminal transaction, a concurrent sentence is called for. However, if the offences are separate and distinct, then a consecutive sentence is to be imposed.

Many of the aforementioned cases ( Grant , Golden , Draper , and Maroti ) make this clear. But this is only the general or basic rule. [ 38 ] All the credit card fraud charges are interrelated and interdependent in this case. The offender was involved in “one multi- faceted course of criminal conduct”. Accordingly, the sentence for all the credit card fraud charges will be concurrent. The criminal organization offence, s. 467.11(1), is statutorily required to be consecutive. The possession of marijuana charges will also be consecutive.

Similarity to other sentences [ 39 ] The sentencing principle of parity requires that I consider the sentences imposed for similar offences. The Crown provided several cases, referred to by both counsel in argument. None of the cases filed involved the same magnitude of fraud. [ 40 ] In Kanagaratnam , supra , there were 32 charges, compared to the 66 charges in this case. The offences involved attaching devices to ATMs to obtain credit card or debit card data. Approximately 190 cards were harvested, as compared to the credit card numbers and personal identity information running into the thousands in this case.

The pre-sentence report indicated that the offender was a willing participant, minimized the crime and was a medium risk to reoffend. Mitigating factors however were that he had no record. He was a 27 year old Sri Lankan refugee who left that country to avoid being drafted by various rebel militias. Since arriving in Canada, he had always been at school or worked to help support his family. He had a supportive fiancée. He was at the bottom of the criminal pyramid, his role being limited to that of a party. He had no training in computers.

He was remorseful and had made some rehabilitative efforts since his arrest. He received a sentence of two years less a day, minus his time in custody. [ 41 ] In R. v. Li and Feng , October 24, 2001, MBPC, the offenders used counterfeit credit cards to buy high-end items for resale. The monetary loss was $136,000. There was no connection to a criminal organization. Their motivation was greed. Both were first-time offenders. Li cared for a wife who suffered from mental illness, while Feng cared for his father who was suffering from cancer.

They both received a sentence of 18 months in jail. [ 42 ] Similar to the case at bar, in R. v. Letta , 2004 CarswellMan 541 (P.C.) , a large factor in sentencing was the magnitude of the potential risk of financial loss. The offender had no record. He entered guilty pleas, but only after three and one-half weeks of an expensive and logistically complicated preliminary hearing. He was sentenced to, effectively, three years and two months. [ 43 ] In the twenty year old case of R. v. Ly , [1992] N.J.

No. 354 (N.L.C.A.) , the offender was charged with 22 offences involving possession and use of counterfeit credit cards and possession of property obtained by crime. The offences were being conducted for a criminal organization. The Court of Appeal noted that this type of crime was growing in Canada. Ly had a related record, having previously received an 11-month sentence on a fraud. He was sentenced to four years plus four months pre-sentence custody. [ 44 ] In a similarly dated case of R. v. Vuong , [1995] A.J. No. 363 (Alta.

P.C.) , the offender was sentenced for possession of 19 counterfeit cards which he had neither manufactured nor used. He was 21 years of age, with a previous conviction for impaired driving, he had been working and had spent three weeks in pre-sentence custody. He was sentenced to 18 months on a joint recommendation . [ 45 ] In R. v. Bradley , 2004 ABCA 363 , the offender was sentenced on 15 counts of credit card fraud. Credit cards were stolen from the post office before reaching card holders.

He had a record for fraud-related activity in the U.S. in excess of $90,000 for which he had been sentenced to three years and he had been deported from the U.S. The Court of Appeal upheld the sentence of four and a half years, even though the sentencing judge had wrongly placed emphasis on his involvement with organized crime when there was no evidence or admission of same. [ 46 ] In another Alberta Court of Appeal decision, R. v.

Mayer , 2006 ABCA 149 , the offender was sentenced on 28 counts of using forged debit cards which was part of a large debit card skimming, counterfeiting and fraud operation in Calgary. The offender was one of a group who went to Calgary from Montreal for the sole purpose of stealing debit card data from people, transferring that data onto blank cards and using the cards to loot card owners and banks of money in excess of $1M. His involvement led to direct losses of $45,000. Mayer was a first-time offender. He received an effective sentence of 18 months. [ 47 ] In R. v.

Bhander , 2007 ABPC 142 , the offender was charged with possessing devices for counterfeiting credit cards and possessing counterfeit credit cards, traveller’s cheques and illegal credit card data. He had no criminal record and was a 24 year old college student with good grades, a history of regular employment, and was the primary care-giver for an ailing mother. He had been on bail for 18 months and was diligently reporting, letters of reference showed that the crime was out of character for him and he had great family and community support.

The Court noted however that he had not ceased his criminal activity on his own volition. He was stopped only when arrested. Notwithstanding the mitigating circumstances in his case, he was sentenced to two years. [ 48 ] In R. v. Okubadejo, [2008] O.J. No. 5416 (SCJ) , the offender was sentenced on six charges involving an identity theft lab where credit cards and personal identity cards were made, as well as possession of credit card data and three counts of possession of a forged credit card.

Similar to the case at bar, the Court noted that there was no actual loss, but “the potential loss from this identity theft lab was staggering.” (at para. 14) The offender had always been employed, volunteered at his church, but minimized the offence and claimed he was set up. He had a 2002 conviction for forgery and one count of possession of a forged credit card for which he received a $500 fine on each charge and one year of probation. He was sentenced to three and one-half years. [ 49 ] In R. v. Beauchamp , 2010 ONSC 1973 , several offenders were convicted of credit card offences.

They operated a company that sold equipment used to manufacture fraudulent credit cards - skimmers, software to transfer stolen data, blank cards, printers, embossers, tippers and the foil, much of the equipment similar to that seized in this case. [ 50 ] The offences were committed for the benefit of a criminal organization. [ 51 ] After a five-month trial, the co-accused Cattral was found to be the mastermind of the operation. The trial judge sentenced him on the basis that the equipment is at the top of the credit card fraud hierarchy.

Cattral had a related record from 1999 and 2000 for possession of stolen property and unauthorized possession of a credit card, for which he received small fines, and unauthorized use of credit card data for which he received a 12-month conditional sentence. He had young children and a supportive family. He had finished his PhD in computer science during the trial. He was sentenced to a total of seven years - four years for the frauds and three years for the criminal organization offence. The trial judge emphasized the huge potential for loss.

The co-accused Brunet was sentenced to four years – two years for the frauds, including three counts of selling devices, and two years for the criminal organization offence. She was 40 years old, married, with a degree in psychology, good family support, owned her own home and she had been compliant with bail terms for five and a half years. The pre-sentence report indicated however that she did not accept responsibility for the offence.

Mitigating and aggravating circumstances Aggravating circumstances [ 52 ] The following aggravating circumstances in this case increase the sentence I would otherwise give to Mr. Harvey-Langton. • All of the credit card offences evidence a high level of sophistication and organization. • Although there was little financial loss in this case, it was only because the police caught the offenders at the outset. There was a huge potential for loss. The sheer volume of illegally-obtained credit card data and personal identity information in the offenders’ possession was staggering.

There were 2,447 credit card numbers ready to be stamped onto credit cards that the offender was in the process of manufacturing when he was arrested. The personal identity information of 2,438 people was going to be attached to other counterfeit credit cards. Guo was in the process of obtaining more numbers from “Darky” when they were caught. Police seized 450 blank credit cards ready for counterfeiting, as well as the machinery to counterfeit. • The offender did not stop on his own.

He and Guo were in the process of going from store to store when the police stopped them in the parking lot of one of the photography store hits. • The motive was purely financial gain and greed. During the sentencing hearing, his counsel advised that the offender always hoped to be wealthy and successful and that it was almost an addiction with him to have a luxe lifestyle. • The prevalence and seriousness of credit card fraud makes this crime all the more aggravating.

This is the largest and most sophisticated credit card fraud operation that has been uncovered in Manitoba. • The criminal activity was done for the benefit of a criminal organization, which requires a consecutive sentence. • The offender has a criminal record and a history of doing this type of criminal activity since at least 2001, and he is only 28 years old. • He has never had a job. As he told police, he just “does fraud”. • It appears that his criminal activities relating to credit card fraud and identity theft have continued unabated over the past several years, except for periods when he was incarcerated.

He refers to his San Diego criminal activity in his communications with others as he was preparing for the next crime, which brought him to Winnipeg. He was unrepentant. His last stint in jail obviously did not have a deterrent effect, nor did the price tag on the restitution owed. • At the time he committed these offences, the offender was technically on a period of probation from the San Diego. Mitigating circumstances [ 53 ] The following mitigating circumstances will decrease the sentence I would otherwise impose: • The offender has pleaded guilty at the earliest opportunity.

Since his current lawyer came on the record Mr. Harvey-Langton has indicated his intention to plead guilty. This plea comes before a preliminary hearing was scheduled. The state has been spared the expense of what would have been a lengthy preliminary hearing and then trial.

I note that the trial in Beauchamp , supra, was five months long. • Since he has been in custody the offender has made restitution for the condominium rental in Winnipeg, has been paying restitution for the matters he is charged with in Montreal, and has retained a lawyer in Montreal to deal with his charges in Quebec and Ontario. • The offender has expressed remorse, especially focussing on the pain and embarrassment that have been caused to his mother and sister. [ 54 ] The defence argues that I should also reduce the sentence I would otherwise impose because of the immigration consequences to the offender, that is, that Mr.

Harvey-Langton will be deported due to the seriousness of the charges and the length of the sentence. Section 36(1) of the Immigration and Refugee Protection Act provides that a foreign national who is convicted of an indictable offence in Canada whose maximum sentence is at least 10 years, is inadmissible in Canada. When the sentence is two years or more, s. 64(2) of the Immigration and Refugee Protection Act precludes an appeal from a deportation order. In support of her position, the defence filed three cases, including the Manitoba Court of Appeal decision of Arganda , 2011 MBCA 54 .

In that case, the offender had been a permanent resident of Canada for nine years. That case, and the cases which it cites, involved the unique situation of offenders who were sentenced to two years by judges who had not taken into account that they would not be able to appeal from deportation orders as a result of the two-year sentences. In those cases, courts stated that sentencing judges should have turned their minds to two years less a day which would provide an appeal to the deportation orders. This is not the offender’s situation.

He is not facing a sentence on the cusp of two years. [ 55 ] Nor do I think his sentence should be reduced for the pragmatic considerations found in R. v. Critton , 2002 CarswellOnt 2199 (Ont. S.C.J.) .

In that case, Justice Hill surmised that deportation might be a relevant consideration in sentencing where (at para. 86): 1) The risk of incomplete rehabilitation on release from custody is not a risk imposed upon the Canadian people; 2) The inmate may serve harder time because his family are resident in a different country; and 3) Canadians are spared the expense of continued incarceration if the accused is deported. The defence provided the figure of $117,895/year representing the cost of incarceration of a federal inmate.

[ 56 ] I disagree. The method by which this offender operates is not dependent on being physically in Canada. He obtains, sells and uses the credit card numbers and personal identity information of Canadians whether or not he is on Canadian soil. [ 57 ] Many inmates in Canada do not have family in this country, or if there are family members in Canada, they may be prevented from having frequent contact due to geography and resources. I think of many aboriginal men who are incarcerated at Stony Mountain Institution whose family live in fly-in communities in northern Manitoba.

A trip from England may not cost any more and be more realistic for this offender’s mother who may have more resources than the mothers living in remote communities in northern Manitoba. Moreover, Mr. Harvey-Langton has a sister in Montreal and he may be successful in transferring to a facility closer to her.

The government may be amenable to this, especially since he is still facing charges in Ontario and Quebec. [ 58 ] I contrast the cost of housing an inmate in prison with the cost of this type of fraud to financial institutions and potentially small businesses and individuals in Canada when credit card data is fraudulently used. The crime is international in nature and does not depend on Mr. Harvey-Langton’s physical presence. As the material seized from the computers demonstrates, he was fraudulently using credit cards, obtaining credit card numbers, etc., etc., from Namibia, England, Montreal and Ontario.

Deporting him early would simply unleash him again. [ 59 ] I do not believe that the pragmatic considerations relied on in the two Ontario cases filed are present in this particular case. Accordingly, I have not reduced sentence on the basis that Mr. Harvey-Langton will be facing certain deportation at the end of his incarceration.

SENTENCE [ 60 ] In light of the operative sentencing objectives of deterrence, denunciation and separating the offender from society in this case, the magnitude and seriousness of this offence and the offender’s high moral culpability, as well as the aggravating features I explained above and the mitigating circumstances that Mr. Harvey-Langton has spared the state the expense of a lengthy preliminary hearing and trial and has made some steps in accepting responsibility and making restitution, I am sentencing Mr.

Harvey-Langton as follows: [ 61 ] For conspiracy to commit fraud, contrary to s. 465(1)(c), the 49 counts of fraudulently possessing credit card data, contrary to s. 342(3)(a), obtaining or possessing the identity information of 2,171 people intending it to be used in indictable offences that included fraud, contrary to s. 402.2(1), and possession of instruments used to forge credit cards, contrary to s. 342.01(b), I am sentencing him to five years concurrently on each of the offences. [ 62 ] For the seven counts of using a forged credit card, contrary to s. 342(1)(c)(i), I am sentencing him to two years concurrent to the above offences. [ 63 ] For the possession of property obtained by crime over $5,000, contrary to s. 354(1)(a), I am sentencing him to one year concurrent to the above offences. [ 64 ] For the two counts of fraud under $5,000, contrary to s. 380(1)(b), on which the Crown proceeded summarily, I am sentencing him to six months on each count, concurrent to the above offences. [ 65 ] All the related credit card offences therefore will carry a total sentence of five years. [ 66 ] For the two possession of marijuana charges, contrary to s. 4(1) of the Controlled Drugs and Substances Act , I am sentencing him to one day on the first count and 29 days consecutive on the second count.

While that would normally be a consecutive sentence, I will make it concurrent in this case, consistent with Justice Steel’s suggestion of a “last look”, as this sentence should not exceed five years. [ 67 ] For unlawfully enhancing the ability of a criminal organization to facilitate or commit an indictable offence, by participating in or contributing to the activity of a criminal organization, contrary to s. 467.11(1), I am sentencing him to one year to be served consecutively to the five-year sentence on all other offences, for a total of six years. [ 68 ] The offender has been in custody on these charges since November 23, 2011, so a credit of 10 months and 11 days will be given for that time and subtracted from the overall time to be served. [ 69 ] Given the lengthy term of imprisonment imposed, costs and victim surcharge will be waived. [ 70 ] An order of forfeiture of the items seized with respect to the charge of possess instruments for forging or falsifying credit cards is made pursuant to s. 342.01(2) of the Criminal Code .

An order of forfeiture of the drugs seized is made pursuant to s. 27(

b) of the Controlled Drugs and Substances Act . Original signed by Judge C. Devine P.J.