R. v. Subhag Date:, 2011 BCPC 473

Citation: R. v. Subhag Date: 20111114 2011 BCPC 0473 File Nos: 173471-1,185945-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RAM PRAKASH SUBHAG ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P.D. GULBRANSEN Counsel for the Crown: K. Marks Counsel for the Defendant: M. Ranspot Place of Hearing: Surrey , B.C. Date of Hearing: November 8, 2011 Date of Judgment: November 14, 2011 [ 1 ] THE COURT : Ram Subhag stole about $245,000 from the bank accounts of two men by fraudulently impersonating them

using false identification. That is, he succeeded in committing these offences assisted by documents caused or created through what is colloquially called “identity theft.” In fact, he actually tried to steal even more money, but was thwarted in two other attempts to get money. [ 2 ] Now, the Crown submits that a fit sentence in this case would be a consecutive sentence of one year each; that is, in totality a fit sentence would be two years, of course, less any time served.

The defence agrees that the court must impose a prison sentence, but submits that, first of all, the sentence should be significantly less than the two years suggested by the Crown and, secondly, suggests or submits that Mr. Subhag should receive a conditional sentence. [ 3 ] Briefly, these are the circumstances of the offence. [ 4 ] Between December 6th, 2007 and December 19th, 2007, the accused took $118,400 from the line of credit account at the Royal Bank of a man named Gurcharan Grewal.

The accused possessed information in Grewal's name, thus enabling him to get a RBC bank card in Grewal's name. [ 5 ] On December 10th, 2007, the accused went to the RBC Guildford branch in Surrey. He obtained a bank draft in the amount of $83,600 drawn on Mr. Grewal's account, his line of credit. He attempted to cash this at a currency exchange, but an employee refused to do so because he was suspicious of the identification presented by the accused. [ 6 ] Mr. Subhag returned to the bank and obtained a second draft for the same amount payable to a different exchange company.

That company did cash the draft. [ 7 ] On December 13th, 2007, the accused went to a RBC branch in Vancouver and obtained a bank draft for $24,000, which he cashed at a place called J&M Coin & Jewellery. [ 8 ] Subhag also made two unsuccessful attempts to withdraw funds from Grewal's account. On December 7th, he tried to withdraw $6,000 at the Surrey Fleetwood RBC branch, but he was turned down by a clerk who was suspicious of the ID produced. On December 12th, 2007, the accused tried to get a bank draft for $107,000 at the Guildford branch of the RBC. He left the bank when a wary clerk dealing with Mr.

Subhag asked for the assistance of a manager. [ 9 ] On the second transaction, the second set of thefts, between May 29th and June 4th, 2008, Mr. Subhag took $125,111.24 from the RBC account of a man named Raj Kumar. Using false identification, he obtained a bank card in Kumar's name. He proceeded to withdraw funds at ATM machines in the amount of about $15,000. He also made about $24,800 worth of purchases using point of sale technology, and he obtained and cashed a bank draft in the amount of $85,234 drawn on Kumar's line of credit. [ 10 ] The transactions at the banks were all caught on videotape. Mr.

Subhag was eventually identified by persons who knew him and who examined these images. Nonetheless, it is clear that it took some significant time before the police actually gathered sufficient evidence so that charges could be sworn against him. For example, the charge arising from 2007 was not sworn until March 11th, 2009, and the Information charging the 2008 offences was sworn on December 17th, 2010. [ 11 ] The accused originally had bail for these offences, but his bail was revoked on October 3rd, 2011 after he had failed to appear for a sentencing date.

He also spent about two weeks in custody prior to that in a different set of circumstances. [ 12 ] The circumstances of the accused are briefly as follows. Mr. Subhag is 54 years old. He is divorced and has no children. His usual employment is as a truck driver or a mechanic. He has an offer of a job as a truck driver if he is released from custody. He has a criminal record for unrelated offences. That is, on December 14th, 2000, he was convicted of assault causing bodily harm. He got a four-month conditional sentence.

On December 7th, 2006, he was convicted of breach of recognizance, assaulting a peace officer, and assault. The sentence he got was one day plus 15 months probation. The significance of that is that he must have been on probation when he committed the offences in 2007. [ 13 ] Through his counsel, Mr. Subhag indicates that when he committed these thefts he was drinking heavily. His common-law spouse said that he is now not consuming liquor to a dangerous extent any longer. He has a longstanding heart condition for which he must take medication costing him approximately $400 to $500 per month. [ 14 ] Mr.

Subhag also says that he was not what I would call the operating mind behind the thefts. He says that he became involved with some dangerous criminals who actually committed theft of the relevant identity documents and information which were used to create the false identification used by the accused. He also says that these persons threatened to harm him if he did not carry out these offences. He further says that he was paid a total of $50,000 from these proceeds. His bosses, if I can put it that way, got the balance, which would be about $190,000. [ 15 ] Mr. Subhag has not paid any restitution.

The only prospect of him paying any restitution would be by paying some periodic amounts from his wages when he is employed again. [ 16 ] Mr. Subhag denies any involvement in the making of false identification or that he obtained any information relating to the accounts of the persons who were the victims here. That is, he denies taking any

part in researching that or finding it out surreptitiously, et cetera. He indicates through his counsel that his only involvement in this respect would be that he was directed to pick up some mail at the post office which was mail sent to Mr. Kumar. [ 17 ] I do agree that it is probable that the accused was involved with other persons who organized and orchestrated these offences. I believe that it is unlikely that Mr. Subhag had access to the information about the victims' accounts, nor that he had the ability or opportunity to obtain the necessary personal information about them to allow false identification to be made. Nonetheless, his

part in this scheme was critical, and I point out that his actions in taking such large sums of money are both brazen and persistent. It may be that he did not keep most of the proceeds, but even if he obtained "only $50,000" it was certainly tax-free, unrecorded income. Perhaps his cohorts were gangsters, I do not really know, but his assertion that he was threatened I think is vague and not explained in any detail

really such that I am sceptical of that claim. However, and I think the Crown has not really disputed this, has not disputed Mr. Subhag's claim that he used the money that he got basically for living expenses except for a $10,000 gift to his sister. It does seem that there is no evidence that Mr. Subhag lived a lavish lifestyle or make extravagant purchases with that money. [ 18 ] Mr. Subhag was able to commit these offences because he and others were part of a fairly sophisticated identity theft scheme. [ 19 ] Identity theft is a very serious threat to the public.

For example, unlike the not so distant past, banking is a much more anonymous function where in the, as I say, not so distant past deposits were made and withdrawals were made in person by the account holder at the local branch. Now withdrawals can be made from banks anywhere in Canada and it makes it much more difficult to have secure procedures where the person coming to the bank may not be known at all to the person helping them get money out, even though it is the actual person who has the account, it is the actual account.

The other anomaly of the high tech age is that there may be more secure systems, some ways to protect the security of people electronically accessing their accounts, but if criminals get behind that security by using identity theft it is a lot easier to steal money; so that is another reason why I say that committing thefts by using identity theft is a very serious matter. [ 20 ] Another point to make I think is, it is very difficult to solve or arrest the guilty parties in cases like this.

It is quite quickly that one discovers that some theft has taken place from an account, but getting from there to find out who did it and who is this person, where is this person, what are the circumstances in which they got access to this account are quite difficult. That is illustrated by the time it took the police in this particular case to find the culprit.

As well, as I think is obvious in this case, it is often very difficult to find all the parties involved and successfully prosecute them because of the nature of the anonymity of the withdrawal process, the difficulty in connecting perhaps the person who actually did the physical withdrawals to other persons who put him up to it or assisted him.

Those are all reasons why identity theft and related crimes, that is crimes committed through stealing people's identity, are quite a serious threat to the public order. [ 21 ] Now, what is a fit sentence here? [ 22 ] As I said before, there is no real disagreement that the paramount factors here are deterrence and denunciation. The cases that both parties have given me on theft and fraud cases involving large sums of money have all imposed prison sentences, generally up to about two years less a day or two years.

In some cases the judges have imposed conditional sentences; in other cases they have imposed incarceration. I point out that even in aggravating circumstances such as a breach of trust, the courts have nonetheless in some cases imposed conditional sentences.

So, even with the existence of aggravating factors and the need to impose a deterrent sentence, conditional sentences have been considered appropriate in some of those cases. [ 23 ] In this case, of course, like every other case, I must consider the individual circumstances of the case, the individual circumstances of the accused, and apply the general principles of sentencing to those circumstances, including assessing such things as the level of moral culpability of the accused, his prior record, his prospects for rehabilitation, and weighing those against the goals of deterrence and denunciation. [ 24 ] As a general comment, the cases given to me by counsel do not show a rigid range of sentence.

What courts have found in the past as illustrated by the cases given to me by counsel is to impose sentences that range between nine months, I think one of the cases was three years, but basically between nine months and two years is the level of sentence imposed for people who have stolen large sums of money. Now, the more lenient sentences have been passed out to people who are clearly remorseful, first time offenders, with difficult personal problems such as mental illnesses like depression or bipolar or tragic personal circumstances.

Such persons have often made restitution or are in the process of actually making complete or substantial restitution, and, as I say, conditional sentences have been imposed in those circumstances even though an aggravating circumstance such as a breach of trust has been committed.

Harsher sentences, or sentences involving incarceration, have been imposed roughly in circumstances on accused who have a record, who have no real personal difficulties, who have not made any restitution, but even in some of those cases though, even if there has been a breach of trust conditional sentences have still been imposed, but it is less likely to occur in the circumstances I have just related to. So, the

summary seems to suggest that the sentencing regime in this area is flexible and much depends on the personal circumstances of the accused, but as Mr. Ranspot very carefully pointed out, conditional sentences have been imposed even in egregious circumstances. [ 25 ] In this case the first question I think I should ask then is: Would a conditional sentence be appropriate in this case? [ 26 ] I have agreed with Mr. Marks that the sentence should be two years. Well, I think to be fair it could be two years less a day such that a conditional sentence could be appropriate.

And the question I have to ask then is: Would releasing this man on a conditional sentence endanger the community? [ 27 ] There are a number of factors in my view which show that it would. First of all, is there a significant probability that this man may commit a crime? That is what ‘protect the community’ means. It does not mean someone would suffer physical harm. It means would the community suffer harm by a crime being committed and what kind of crime.

In particular, one has to remember that he asserts that he committed this crime with the people he once associated with who are, in his description, gangsters. [ 28 ] So, first of all, he was on probation when he committed the offence in 2007 - a very serious offence. Secondly, he failed to appear on these charges for his sentence and had to be detained in custody to ensure his attendance to court. Thirdly, he has one conviction on his record for breach of recognizance. Fourthly, it is still unclear to me why he even got involved with the kind of people that he did and why he committed these offences.

I mean, he committed the offences because he needed money, I do not think anyone doubts that, but the point is he does not seem to have come to understand why he committed such a serious offence.

Not really knowing why he did it, not being able to come up with some at least credible explanation for committing the crime, he may not have one, I am not saying he has to have one, but that suggests to me that that lack of insight, that lack of knowledge into why he turned to this life of crime also makes it much more likely that he would commit offences if released. [ 29 ] So, in my view, it would endanger the public to release him on a conditional sentence. However, I have got to consider the other issue as well, if I am wrong in that.

In any event, in my view, a conditional sentence would not be consistent with the goals and principles of sentencing.

[ 30 ] Deterrence, both general and specific, are pressing needs here. This brazen theft, which was part of a moderately sophisticated but very successful scheme has to be denounced and similar schemes or people who do similar things have to be deterred. As I said, this kind of crime is a serious threat to the privacy, particularly the financial security of individuals, and by the use of identity theft, a significant threat to the proper function of the banking system as well. That is, the banks have to further look at how do they protect their customers from this kind of thing?

What kind of security measures do they have to put in, and so forth. I also point out again that this kind of crime can be committed almost anonymously. It is very difficult to detect and to solve, so that is a crime that other people might be motivated to commit because it is hard to solve. All of those reasons in my view suggest that a strong deterrent, denunciatory message must be given out. [ 31 ] I would say circumstances where someone uses a false identity obtained in the way it was obtained in this case, to loot somebody's bank account, displayed someone with a very high moral culpability.

It is a very callous attitude towards the finances of another person. I would also say that this kind of serious invasion of a person's private affairs is quite analogous to what might happen when a home is broken into. It is a violation of a very private part of a person's life. One can imagine the effect on the victims here. But it is a serious invasion of privacy that has to be deterred and denounced. [ 32 ] This means that there is a really strong need for the court to impose a denunciatory sentence, and it is particularly pressing in this case.

A conditional sentence, thus, would not be consistent with these governing principles, so I find that a conditional sentence is not available in this case. [ 33 ] Now, I agree with Mr. Marks that a fit sentence here would be in totality two years. In my view though, the nature of the offences, especially in the 2007 offences, is such that each sentence should attract a higher sentence than one year, but they should be concurrent.

So, my view is that a fit sentence in this case would be concurrent two year sentences less the time served. [ 34 ] So, just so I can get this straight for the record, on Information -- sorry, gentlemen, I am having trouble with my eyes and seeing things. 1734271, is that right? Have I got that number right? [ 35 ] MR. MARKS: 173471, yes. [ 36 ] THE COURT: 7 -- is that the multiple count Information? [ 37 ] MR. MARKS: Yes, Your Honour. [ 38 ] THE COURT: Yes. I'm sorry, I left the Information I had at home. So the counts that he pled to were again? [ 39 ] MR.

MARKS: Count 6, Count 8, Count 10, Count 12. [ 40 ] THE COURT: Okay. Now, Count 6 and 8, are those the attempts? [ 41 ] MR. MARKS: Count 6 is the attempt and Count number 12 is the attempt. [ 42 ] THE COURT: Okay. The two attempt counts, Counts 6 and 12, I would have imposed sentences of one year concurrent, and the other two are -- sorry, 8 and 10? [ 43 ] MR. MARKS: 8 and 10, yes. [ 44 ] THE COURT: 8 and 10, I would have imposed sentences of two years, all concurrent.

That is the sentence I would have imposed. [ 45 ] Taking into account what I have agreed in the legislation called Truth in Sentencing Act I think there is no reason why he should not receive double time credit. I will assess his time served in custody as being two months and double that to four months. So, the sentence on the two actual theft counts will be less four months, they will be a total of 20 months, and the sentence on the attempt counts will be four months from a year, that is eight months.

Those are all concurrent. [ 46 ] On the other Information, I would have imposed a sentence of two years, but he will be given credit for having served two months. I do that because the Information was sworn after the proclamation of the Truth in Sentencing Act and I see no reason why this man should not get -- should get credit for any more than the time served on a one to one basis, so the sentence there is 22 months.

Those are all concurrent sentences. [ 47 ] I have made the restitution order. [ 48 ] I direct that DNA samples be taken pursuant to s. 487.051, so on all, both Informations, it is a discretionary order, and I direct there be no victim fine surcharge. (REASONS FOR SENTENCE CONCLUDED)