R. v. Lucero Date:, 2017 BCPC 55

Citation: R. v. Lucero Date: 20170103 2017 BCPC 55 File Nos: 63436-1, 63648-1, 63681-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DENIS VENTURA LUCERO ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: L. Ashton Counsel for the Defendant: S. Janicki Place of Hearing: North Vancouver , B.C. Date of Hearing: January 3, 2017

Date of Judgment: January 3, 2017 [ 1 ] THE COURT: These are my reasons on sentence in the matter of Denis Ventura Lucero. Mr. Lucero is before the court having pled guilty on three separate Informations. The first I will deal with is 63436. The Crown proceeded summarily and that is a charge of, by deceit, falsehood, or other fraudulent means, defrauding Walmart of money. The next Information is Count 1 on 63681, again, a

summary proceeding, and it is another count of, by deceit, falsehood, or other fraudulent means, defrauding CIBC of money. Then, finally, on the last Information, 63648, the Crown has elected to proceed by indictment and it again is an allegation that by deceit, falsehood, or other fraudulent means, he defrauded the Scotiabank of money. [ 2 ] The circumstances with respect to Information 63436 are that a civilian reported to the police that someone had obtained a Chevron card in his name and had totalled up purchases somewhere around $1,000.

On April 4th, that same complainant went back to the police and said that someone had obtained a Walmart credit card in his name and, by that point, had rung up one bill for $3,465 and a second bill for $3,554. That Walmart credit card was obtained using a fraudulent passport in that complainant's name, and Mr. Lucero was linked to that offence through calls that he made about the card and also photos on ATMs. [ 3 ] With respect to 63648, an employee at the Scotiabank contacted the police. Three accounts had been opened in the last name of Jacinto with cheques deposited into those accounts.

Those cheques were fraudulent and, of all of the cheques which were in fact cashed, a $1,080 loss is directly attributable to Mr. Lucero. [ 4 ] With respect to 63681, on May 9th, a civilian contacted the police with respect to eight NSF cheques that had been deposited at CIBC. This complainant lives outside of Canada. She reported that she never got her tax refund cheque and it appears it was a deposit of that cheque which opened the account. That cheque was deposited by Mr. Lucero and he immediately withdrew $1,500.

In total, there was $25,000 fraudulently obtained from the bank through that account. [ 5 ] As counsel for Mr. Lucero aptly points out, on 63648, only a $1,080 loss can be directly attributed to Mr. Lucero and, on 63681, only the $1,500 which he immediately withdrew can be directly attributed to Mr. Lucero in terms of his criminal culpability. [ 6 ] What is clear, however, is that Mr.

Lucero is a sophisticated offender who either works on his own, or in concert with others, engaged in sophisticated frauds which involve planning and deliberation, the taking of mail and cheques, and ongoing criminality considering what would be involved in opening all of these accounts and coordinating all of the activities necessary to carry out these frauds. [ 7 ] Mr. Lucero has an unenviable and related criminal history. There have been some brief breaks in his offending. However, in my view, this is an almost unbroken criminal history which shows that Mr.

Lucero has not benefitted from whatever rehabilitative efforts have been made and continues to go out and offend in the same fashion. [ 8 ] His record commences in July of 2007 with a conviction for possession of stolen property and unauthorized use of credit card data. He received a two-month sentence for a first offence, plus probation for two years. During that period of probation, he committed two further offences.

His record is not chronological in terms of offending because, in October of 2008, he dealt with a number of matters that, in fact, predate the July 26, 2007 imposition of that two-month jail sentence. [ 9 ] In August of 2007, so just shortly after that first sentence was imposed, he received a probationary period for nine months. That related to a February 2007 conviction.

In October of 2008, while he was on probation from the very first conviction, a number of earlier convictions were dealt with, being an October 2006 fraud, a January 2007 fraud, a May 2007 fraud, and then two subsequent convictions from January 2008 and April 2008, again, for fraud. On October 8th, 2008, he was convicted of five counts of fraud as well as one count of breach of probation and he received a 13-month jail sentence having served five months in custody.

In total, just short of a two-year-less-a-day sentence. [ 10 ] Approximately a year after that sentence was imposed, so while he was still serving that sentence or almost immediately upon its conclusion, he committed another fraud on November 23rd, 2009. He was dealt with on that matter, March 23rd, 2010. He received a jail sentence of 23 months. He received, it appears, credit for one month less a day and that may have netted out at the 23-month sentence.

Within the period of that sentence, on June 23rd, 2011, he again offended, this time using a forged document and committing a fraud, and received a conditional sentence of 12 months. Then within the period of that conditional sentence, he offended again with an identity theft on May 30th, 2012. That was dealt with May 16th, 2013, and he received a two-year jail sentence which again netted out at a provincial sentence because it appears he received 37 days' credit. [ 11 ] In May of 2015, some sometime toward the end of that latter sentence, an earlier fraud was dealt with.

The offence date was January 20th, 2013, so it occurred between the identity theft of May 30th, 2012, and the imposition of the sentence on May 16th, 2013. [ 12 ] In this matter, Mr. Lucero began offending again just a year or so after finishing a federal sentence for similar offences. So it would appear that since 2007, so for nearly 10 years now, Mr. Lucero has, while serving sentences or very shortly after the conclusion of sentences for similar offences, gone back to exactly the same conduct in the community. [ 13 ] There is a presentence report that has been prepared. Mr. Lucero is now 36.

He came to Canada with his family when he was 13 years of age. Like many who come from the Philippines, his family was fractured with his mother living and working in one place and him living with an aunt and uncle, before moving to Canada with his brother, and then living with extended family here. He is apparently estranged from his family save and except for his mother who he reports as being supportive and who confirmed her support for her son. [ 14 ] He had a long-term common-law relationship during the years of his offending, commenced in 2005.

There are three children, 11, seven, and four, and he and his common-law separated approximately a year ago. His common-law partner could not be contacted by the presentence report preparer.

[ 15 ] He now reports that he has a girlfriend, a Ms. Villa-Nueva. They have been together since June of 2016. He has been in custody since August 10th of 2016. He reports that she is pregnant with their child and they intend to live together upon his release. This is a very short relationship which has resulted in a pregnancy and I cannot conclude that there is any weight that can be put on Ms. Villa- Nueva being any influence in Mr. Lucero's life in the future. In any event, I gather she will have the baby and they intend to move to Alberta where Mr. Lucero says he wants to get a fresh start.

The report does indicate that she is an otherwise prosocial individual. [ 16 ] Mr. Lucero has a Grade 12 education. He participated in the welding program at BCIT while on parole. Otherwise, his work has been sporadic, and looks like it has primarily been in unskilled labour. He has significant debts of $20,000. [ 17 ] He admits to having a gambling addiction and a methamphetamine addiction and attributes his criminal behaviour to those addictions. He also reports having negative peers who influence his choice to continue to use substances.

He has been to treatment on two occasions, once to the Maple Ridge Treatment Centre and once to Kinghaven. He completed both while on parole, but then eventually relapsed. [ 18 ] As Ms. Houston, the probation officer who prepared the report, notes at page 5 under her "Summary and Proposed Interventions" [as read in]: Denis has been entrenched in a criminal lifestyle for over 10 years and so far even lengthy terms of custody have not acted as a deterrent.

He has shown little regard for conditions of community supervision as is evident in his parole being revoked on three occasions and committing new offences while on probation. These offences have impacted numerous individuals and organizations and caused a loss of several thousand dollars with little hope of reimbursement. [ 19 ] The amounts that Mr. Lucero has been held responsible for in this matter are not particularly significant. [ 20 ] However, we have, with respect to 634 -- sorry, can I just pause here? There is not any issue that he is responsible for the $8,000 on 63436? That is what the Crown alleged.

I do not have any note that you contested that amount, Ms. Janicki? [ 21 ] MS. JANICKI: If I could just have a moment, Your Honour. So, from my read, Your Honour, Mr. Lucero is tied to these transactions by him phoning the credit card company as well as some stills. The amount of the withdrawals from these stills I am sorry to report I cannot quantify. It is indicated in the Report to Crown Counsel that there are certainly a number of transactions made and only but a few can be drawn to him and I am sorry, Your Honour -- [ 22 ] THE COURT: Okay. [ 23 ] MS.

JANICKI: -- I do not have a number to quantify exactly what can be traced to him, but it is a fraction of what -- of the total amount alleged. [ 24 ] THE COURT: Anything you want to say about that issue? [ 25 ] MS. ASHTON: If I could just have a moment, please.

I am -- I am a little bit -- sorry, Your Honour, I am just a little bit taken aback by that, but I think, whatever the total is, is less important than the level of sophistication and the criminal history and the number of offences repeated over a short time. [ 26 ] THE COURT: All right. [ 27 ] In any event, the amounts that have been alleged today are over $10,000 as they connect more or less directly to Mr. Lucero. However, the losses in total are much, much greater. In particular, with respect to Information 63681 where the loss to the bank was well over $25,000. And as I noted earlier, this indicates that Mr.

Lucero is involved either directly himself or with others in sophisticated repetitive offences involving fraud. [ 28 ] In mitigation, Mr. Lucero has entered guilty pleas and there is an explanation for his offending in that he is suffering from both a gambling addiction and substance abuse addiction, in particular, with respect to methamphetamine. [ 29 ] There are likely good prospects for Mr.

Lucero's rehabilitation in that he is clearly able to conduct himself in a manner in which he presents as intelligent and trustworthy to many people in the community because, without that, he would not be able to commit the frauds that he does. [ 30 ] He has a Grade 12 education and I do expect that if he chose to, he could have a very productive career not committing crime. At this stage, Mr. Lucero is now 36. He is a mature man. He has continued to offend.

The sentences he has received in the past have not served to deter him and I cannot find at this stage that his rehabilitation should be given significant weight in sentencing or at least not as significant as the principles of protection of the public and specific deterrence of him. [ 31 ] Mr. Lucero has had the benefit of conditional sentences in the community as well as lengthy periods of probation. He has been through treatment. He continues to choose to return to the same crimes for which he has served sentences before.

Although I am sentencing him for relatively small amounts, I am sentencing him for very serious conduct relating to those relatively small amounts. [ 32 ] He received a two-year sentence on a related conviction on his last occasion.

In my view, that sentence should be increased given that I have found the protection of the public and specific deterrence are principles that must be given significant weight in this matter as well as, of course, general deterrence and denunciation. [ 33 ] The Crown has suggested that the court consider the maximum sentence on Information 63436 of six months, the maximum sentence of six months on Information 63681, but that those be served concurrently, and that the court impose the maximum available sentence on Information 63648 consecutive to the sentences previously imposed less time served of 221 days.

[ 34 ] Counsel for Mr. Lucero suggests that an 18-month sentence plus one-year probation less the time served would be appropriate. Sorry, what is that in months, 221 days? That is seven -- [ 35 ] MS. ASHTON: It is 7.3 months. [ 36 ] THE COURT: 7.3 months. [ 37 ] So the Crown's position would then net out to a sentence of -- oh, right, six -- 30 minus seven is 23 months plus probation and the defence submission would net out at a sentence of approximately 11 months plus one-year probation. [ 38 ] It is difficult to understand what could continue to motivate Mr.

Lucero to commit these crimes given that he has repeatedly served various jail sentences. One can only hope that this time will be the trick. That perhaps his new relationship and child will make the difference for him and he will stop conducting himself in this fashion. [ 39 ] In all the circumstances, I agree with the Crown's position. In fact, I think it is a very lenient and reasonable position in the circumstances. These are very serious offences which undermine our ability to conduct ourselves as a society.

It is hard to believe, but we do still conduct virtually all of our affairs on the basis of trust. [ 40 ] So if you will stand, Mr. Lucero. [ 41 ] On Information 63436, Count 1, there will be a six-month sentence. On Information 63681, there will be a six-month sentence to be served concurrently to that imposed on 63436. On Information 63648, there will be a two-year sentence less credit for 221 days. The record will reflect 147 days' actual time served. [ 42 ] All right, thank you.

You can be seated. [ 43 ] Following those sentences, you will be placed on probation for a period of two years. [ 44 ] The terms of that probation will be that you will keep the peace and be of good behaviour, and appear before the court when required to do so by the court. [ 45 ] You must report within 72 hours of your release from custody to a probation officer at the North Shore Community Corrections Office at 100, 233 West 1st Street in North Vancouver and report thereafter as and when directed. [ 46 ] You must reside where directed by your probation officer and not change that address without the prior written permission of your probation officer. [ 47 ] In these circumstances, Mr.

Lucero, and given your long-term addiction, your efforts at treatment, and the fact that your relapses lead to further criminal behaviour, I am going to order that you abstain absolutely from the possession or consumption of alcohol or any drugs or substances scheduled in the Controlled Drugs and Substances Act save and except according to a medical prescription and then only according to the dosage prescribed. [ 48 ] You are not to participate in any games of chance in or outside of any licenced casinos. [ 49 ] You must provide proof of -- is it called a self-ban from the casino?

Anybody know what they actually refer to it as? [ 50 ] MS.

ASHTON: I think it is self-exclusion. [ 51 ] THE COURT: Self-exclusion, thank you. [ 52 ] You will provide proof of self-exclusion from all B.C. casinos to your probation officers within seven days of your first reporting. [ 53 ] You are not to be found in any casino anywhere in Canada. [ 54 ] You will attend for, accept, and complete to the satisfaction of your probation officer any counselling to include, but not limited to, substance abuse management counselling or gambling counselling. [ 55 ] You are not to be found in possession of any identification, bankcards, credit cards, passports, or any other documentation except in your own name. [ 56 ] All right.

Are there any other terms or conditions, Ms. Ashton? [ 57 ] MS. ASHTON: I do not know whether Your Honour had a residing condition just with respect to his -- [ 58 ] THE COURT: I think I had the reside-as-directed. [ 59 ] MS. ASHTON: Oh, thank you, I must have missed it, then. Thank you. [ 60 ] THE COURT: Madam Clerk, I do have a reside-as-directed? [ 61 ] THE CLERK: Yes, you did, Your Honour. [ 62 ] THE COURT: Yes, okay. All right.

[ 63 ] The victim fine surcharge? [ 64 ] MS. JANICKI: He is impecunious. He has been incarcerated for the last six months. [ 65 ] THE COURT: Yes, all right, I will find that he does not have the ability to pay the victim fine surcharge on any of the Informations, make it payable forthwith, impose one day on each count concurrent one to the other and concurrent with the sentences just imposed. [ 66 ] MS. JANICKI: Thank you, Your Honour. [ 67 ] MS. ASHTON: I am sorry, Your Honour, it just dawned on me that I think that some of these counts attract a DNA order. [ 68 ] THE COURT: Which ones? [ 69 ] MS.

ASHTON: If I can just have a moment to check on that because I will be asking that -- [ 70 ] THE COURT: DNA on, it says, it is a secondary count, DNA. [ 71 ] MS. ASHTON: Yes, and given his history, then, Your Honour, I am asking Your Honour to impose a DNA order. [ 72 ] THE COURT: I suspect he has already had that order, but I will make an order that, on each of the counts, he provide his DNA on secondary-ground basis, and that will be done in custody, sir. [OTHER MATTER SPOKEN TO] [ 73 ] THE CLERK: And, Ms. Ashton, in regards to the other count? [ 74 ] MS.

ASHTON: Stay of proceedings. [ 75 ] THE CLERK: Thank you. The Honourable Judge J. Challenger Provincial Court of British Columbia