r v. nihar, 2016 QCCQ 1670

R. c.

Dey 2016 QCCQ 1670 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC CITY OF MONTRÉAL "Criminal and penal division" N° : 500-73-004217-143 DATE : March 21, 2016 ______________________________________________________________________ BEFORE THE HONOURABLE JUSTICE LORI RENÉE WEITZMAN, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutor v. nihar dey Accused ______________________________________________________________________ SENTENCE ______________________________________________________________________ [ 1 ] Nihar Dey pleaded guilty to one count of fraud committed between February 2009 and February 2010.

The total amount of the fraud is $207,841. As specified in the single count of the Information, the accused defrauded 16 financial institutions and/or commercial establishments. He obtained nine credit cards under false pretences, by lying about his annual income. Mr Dey obtained several cash advances and many purchases, including airline tickets and trips. He also used the funds to repay large debts owed to friends for loans made in part to purchase a car, and pay for one of his trips overseas.

The details of the transactions and the credit cards obtained are fully set out in the joint statement of facts tendered in court. [ 2 ] Mr Dey testified. He is 58 years old and he has no criminal record. He lives with his wife and children aged 16 and 20. His wife supports the family financially, although due to a recent surgery she was not able to work for a couple of months. [ 3 ] He explained that he has a gambling problem since approximately “2007, or 2008-2009”. He declared bankruptcy in 2010 and sought therapy for his gambling addiction. He tendered emails from his therapist, Mr Riback.

These emails are dated from March through December 2014. However, the gist of many of these emails indicates that, despite his therapist’s insistence, Mr Dey did not seek any type of employment or volunteer work. Finally, in December 2014, the therapist notes that Mr Dey was working part-time on a volunteer basis. This email indicates that the therapist was pleased with Mr Dey’s work hours and encouraged him to continue. However, no other information is provided regarding any other work (whether paid or as a volunteer) since then.

It must be noted that Mr Dey is limited in the work he can do as he is afflicted with a physical disability since 2010. In 2006 he was operated on for a herniated disc. [ 4 ] In addition to seeing a therapist, Mr Dey also sought help at “Foster” (an addiction center) in March 2015 for his gambling addiction. However, Mr Dey states that he has not been gambling at all since 2010 and continually renews his self-exclusion request at the Montreal casino. The recent report from Foster does not suggest that any further treatment for gambling addiction is required. [ 5 ] The presentence report is by no means glowing.

The probation officer questions the true extent of the responsibility taken by Mr Dey for his actions. He seems to minimize the nature of his offenses and does not really understand that there are victims of these crimes. The probation officer is particularly concerned with the absence of any strategies put in place by Mr Dey to ensure that he does not resort to gambling once again. Mr Dey first declared bankruptcy in 1998, following debts accumulated due to a gambling problem. When his credit rating was restored, and he was eventually able to apply for new credit cards, his gambling began anew.

At present, it is the fact that he has no money to gamble with, and his fears relating to the present court proceedings, which are keeping him from gambling. According to the probation officer, his risk of re-offending is moderate in the long term. [ 6 ] The crown prosecutor suggests that an appropriate sentence would be 18 months of jail time followed by a two-year probation [1] .

This takes into account the large monetary amount in question and the risk of re-offending, as noted in the resentence report. [ 7 ] The defense requests a sentence to be served in the community and suggests that a conditional sentence of two years less a day would be appropriate [2] to meet the sentencing objectives found in the Criminal Code . He notes that Mr Dey is a good person with pro- social values who has shown some effort to take care of his gambling problem, which is at the root of this criminal activity.

Where the presentence report describes Mr Dey as leading an idle life, this must be understood in the context of someone who is unfit for work due to a physical disability. ANALYSIS

[ 8 ] The principles of sentencing are codified in sections 718 and following of the Criminal Code , which provide that the overall goal of sentencing is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society. This goal is met by the imposition of sanctions intended to meet one or more of the following objectives:

a) to denounce unlawful conduct;

b) to deter the offender and others from committing offences;

c) to separate offenders from society when necessary, meaning that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances;

d) to assist in rehabilitating offenders;

e) to provide reparation for harm done to victims or to the community;

f) to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. [ 9 ] The fundamental principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 10 ] A sentence should be similar to sentences imposed on similar offenders for similar offences, taking into account any aggravating or mitigating circumstances relating to the offence or to the offender.

In order to impose a sentence within the acceptable range, it is useful to canvass the principles underscored by appellate courts, as well as examples of sentences imposed for similar offences. [ 11 ] In the case of Levesque in 1992, the Quebec Court of Appeal set out the main factors to consider when sentencing a case of fraud [3] . The factors which apply to the present case are the following: 1. The nature and extent of the fraud, including the amount of financial loss: In this case the total amount of the fraud is significant ($207,841).

It must also be considered that the money fraudulently obtained was used to purchase goods and trips. 2. The degree of planning and premeditation and any fraudulent system put in place: It must be conceded that every case of fraud requires a certain degree of planning. In this case, there is no doubt that the fraud was deliberate and planned out. Mr Dey obtained nine different credit cards, each time filling out a form and falsely declaring an annual income. During the one-year period covered in this charge, he made significant purchases, knowing full well he would have no way of paying for them. 3.

The post-conduct behaviour of the accused including any reimbursement or cooperation with the investigation: There is nothing to indicate any collaboration with the investigation, and it is illusory to think of any refund or reimbursement by Mr Dey. However, he has made efforts to rid himself of his gambling problem. 4. Prior convictions: Mr Dey has no prior convictions. 5. The personal advantages or gain received by the offender: In this matter, the entire amount of over $207,000 was spent by Mr Dey for his personal purchases. 6.

The underlying motive for the crime: In this matter, other than greed, it is not clear that there was any other underlying motive for the crime, although Mr Dey’s situation was certainly exacerbated by his gambling addiction. [ 12 ] It should be noted that the case of Lévesque involved charges which predated the increase of the maximum penalty for fraud from 10 to 14 years. In Levesque , the Quebec Court of Appeal endorsed the joint recommendation of the parties and imposed a jail term of two years less a day.

The accused had a previous conviction for fraud, dating back over 10 years, for which he had received a suspended sentence. It is underscored by the Quebec Court of Appeal that the sentence thus imposed, for an isolated incident of fraud of $270,000 perpetrated as a last resort attempt to save a faltering business, was particularly lenient. [ 13 ] As for a review of similar cases, the Court refers to the following five decisions submitted by the prosecution [4] : - A sentence of 18 months with a two-year probation was imposed in the case of R. c.

Jilani in 2005 in circumstances where 29 credit cards were fraudulently obtained and used over a five-month period, for a total of $249,000. The judge considered the mitigating factors such as the guilty plea, the absence of a criminal record, and the fact that the accused had four children, one of whom was handicapped, but found the presentence report to be negative, and questioned the sincerity of the accused regarding the motive of the crime. - In R. v. Balka , in 2009, a sentence of 22 months with two-year probation was imposed in a case of fraud in the amount of $387,000.

The case involved the fraudulent use of 25 credit cards over a two-month period. The accused acted with others in an organised scheme. The risk of reoffending was present. The accused had an unrelated conviction for assault dating back over 15 years. The judge considered as a mitigating factor the delay of nine years between the commission of the offence and the conviction. - In R. c. Ali Shamas , in 2009, a 57-year old without prior convictions received a sentence of 18 months in jail, followed by a two-year probation. He pleaded guilty to a fraud of $174,000.

The judge found his remorse to be superficial and noted a continued risk of

reoffending. - In R. c. Fatemi , in 2010, the accused pleaded guilty to a fraud of almost $94,000, committed by obtaining several credit cards under false pretences. He had no prior convictions. The judge imposed a sentence of 14 months and a two-year probation, emphasising the need to send a clear message to the public to deter others from similarly offending. - In R. c. Reda Jawad , in 2010, the accused was a compulsive gambler who had since sought therapy for his addiction. He had obtained credit cards under false pretences, and the total amount of the fraud was $102,800.

The money was spent to support his family as well as his gambling addiction. The judge underscored the importance of a deterrent sentence, and imposed 14 months in jail and a two-year probation. The judge notes that had it not been for the long delay of six years between the commission of the offence and the charge, the sentence would have been a penitentiary term.

In this case, the fraud was committed in 2002, prior to the amendments, and as such, the maximum sentence was one of 10 years. [ 14 ] It should be noted that in each of these five decisions, the sentencing judge held that a conditional sentence was inappropriate in the circumstances, owing to the need to impose a sufficiently deterrent sentence. Indeed, since 2012, the Criminal Code no longer allows for the possibility of imposing conditional sentences in such matters.

Although in the present case, dating back to 2009-2010, a conditional sentence is available, it cannot be imposed where doing so would conflict with the sentencing goals set out in

section 718 and following. Particularly in matters of fraud, where a true cost-benefit analysis is generally undertaken by those planning fraudulent schemes, harsh penalties are warranted in order to deter this type of criminal behaviour. [ 15 ] In the case of Mr Dey, although he had a gambling problem, the large amount in question here was spent, not on gambling, but on obtaining goods and trips overseas. Certainly, the added gambling addiction only exacerbated his financial troubles.

The Court considers an important mitigating factor to be the fact that at 58 years old, Mr Dey has no criminal record and otherwise maintains pro- social values. He has made efforts to rid himself of his gambling addiction. Nevertheless, the risk of reoffending is present. [ 16 ] Although Mr Dey seems to view this as a victimless crime, such is not the case. The defence argues that the financial institutions are in part to blame, as they encourage individuals to apply for credit and entice them with easy access to funds they cannot afford.

The fact that credit may be obtained too easily is not a mitigating factor on sentence. Banks may be faulted for overly encouraging the use of credit cards, but that does not excuse, or mitigate Mr Dey’s actions. [ 17 ] Where fraudulent means are used to acquire credit or goods, the courts must send a clear message that such activity will be punished, in order to ensure that the cost-benefit analysis considered when embarking on a fraudulent scheme is never perceived as being “worth the risk”.

Otherwise, our justice system is failing the public at large, who will in the long run end up paying for the losses incurred by fraud perpetrated on financial institutions. [ 18 ] Recently, in R. v. Bertholot, 2016 MBCA 25 , the Manitoba Court of Appeal confirmed a 15-month jail term for a youthful first offender who pled guilty to 9 counts of stolen credit card data.

A conditional sentence was held to be inconsistent with the principles of denunciation and general deterrence in view of the gravity of the offences and the degree of the accused’s responsibility. [ 19 ] Similarly in the present case, the Court finds that a conditional sentence is inappropriate in the circumstances as it fails to adequately meet the goals of deterrence, both specific and general. [ 20 ] Considering all of the factors referred to, specifically underscoring the amount of the fraud, but also Mr Dey’s particular circumstances, including the guilty plea, absence of a criminal record, and his efforts to rehabilitate himself.

THE COURT IMPOSES 18 months in jail, followed by two years on probation. __________________________________ LORI RENÉE WEITZMAN, J.C.Q. M e Samuel Monfette-Tessier Attorney of the Public Prosecution Service of Canada M e Simon Gosselin Attorney of the accused Date of hearing: February 23, 2016