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Credit Card Fraud and Identity Theft

My client was charged along with two other accused with being involved in the theft of several thousand credit card numbers, the creation of fake credit cards, the creation of false identification to facilitate the use of the credit cards and the purchase of merchandise using the credit cards.  The Crown asked the judge to sentence my client to 12 months of house arrest, followed by probation.  I asked the judge to grant my client a conditional discharge, which meant no house arrest and would wipe his record clean after three years.  Read the judge’s decision.

[2006] O.J. No. 3904

REASONS FOR SENTENCE

1 S. RAY J. (orally):– All right, so I am ready to give my decision. I have to read quite a bit onto the record so Mr. I.P. can remain seated.

2 I.P. has pled guilty to three criminal offences, Possession of a Credit Card Obtained by Crime, Possessing Credit Card Data, Information on Magnetic Strip of a Credit Card, and Possessing Without Lawful Excuse Eight Blank Credit Cards Intended for Use in Forging Credit Cards, and the Court must decide what his sentence should be.

3 The admitted facts are that on August the 18th, 2005, the police received a call from the Home Depot located at 2375 Steeles Avenue West in Toronto regarding purchases made using fraudulent credit cards and fraudulent identification. Upon investigation they arrested AB and AM.

4 During the course of the investigation, information came to light that led the police to believe that I.P. was also in the possession of fraudulent credit card information and property obtained by crime.

5 Upon executing a search warrant at Mr. P’s home at 49 Falling River Drive in Richmond Hill on August 25th, 2005, police recovered a fraudulent credit card with Desjardin Visa information on the front displaying Card Number 4514090025088339 and, on the rear, information from a Toronto Dominion Visa Card Number 4520858000293740 on the magnetic strip. A Card Reader was also located in his residence and seized.

6 The police subsequently arrested Mr. P while driving a 2004 BMW and found eight blank credit cards in the rear under the mat on the driver’s side of the vehicle which were suitable for use in forging credit cards. No financial losses were suffered due to any of the items found in Mr. P’s possession.

7 Mr. P has an unrelated and dated record containing one entry for driving while the quantity of alcohol in his blood was over the legal limit, for which he was convicted in September 28, 2001.

8 On the charges that are before the Court he spent nine days in pretrial custody. In addition, his stringent bail conditions have been in effect for ten months. They include a curfew from 10:00 p.m. to 6:00 a.m., a monthly reporting condition, a condition not to enter any banking or financial institution, prohibition against any use of computers except under supervision, a restriction on using phones except at home from a landline under supervision, and not to be in any retail store, retail outlet or business except to obtain medicine.

9 He has not been able to reside at home because the bail requires that he reside with his surety. Prior to his arrest he was working in the computer industry as a Web Page Designer and his bail conditions made it difficult for him to continue in this employment.

10 The Crown views these offences as serious because in the Crown’s submission they are part of a well organized and sophisticated planned operation. The possession and use of fraudulent credit cards is prevalent in the community and must be seriously sanctioned by the Court.

11 The Crown seeks a conditional sentence followed by twelve months of probation. The defence asked the Court to consider a conditional discharge and take into account the following:

(1)          That Mr. P is a youthful offender at age 24.

(2)          That his mother, father, and girlfriend have been in court with him and have been involved throughout the process, and are very supportive of him, and there is a plan for him to go back and live at home once he is no longer required to live with his surety. So it seems that parental supervision would be available and they are eager and willing to do it.

(3)          That he is a satisfactory student attending Seneca College.

(4)          That he intends to apply to be a registered Real Estate Broker and that a conviction would adversely affect his application. The Court has been provided with copies of written communication with the Real Estate Counsel of Ontario confirming this. That Mr. P would have had a strong 11(b) argument given disclosure delays even eight months after his arrest.

(5)          The investigating officers could not advise whether computer materials seized had been properly searched and investigated. Needless to say, any evidence retrievable from the computer could not yet be disclosed at that time, and given a strong likelihood of a successful s. 11(b) argument, the guilty plea reflects genuine remorse that merits more than the usual credit that is always required for guilty pleas.

(6)          The guilty plea has saved the State the time and expense of prosecuting the matter.

(7)          The Court cannot assume that Mr. P’s role in these offences was part of a sophisticated and well organized plan, because this alleged aggravating factor has not been admitted by the defence nor has the Crown sought to prove it beyond a reasonable doubt.

(8)          That the bail conditions imposed on Mr. P were very restrictive given that he did not represent a flight risk and that he has never been convicted of failing to appear. Defence submitted that the terms of bail were commensurate with a conditional sentence order.

(9)          That Mr. P spent nine days in pretrial custody.

(10)      The disproportionately negative impact of a conviction on his employment.

(11)      That the admitted facts fall at the low end of the spectrum for these types of offences.

12 The principles that the Court must apply are well known. First, the accused is to receive full credit for the guilty plea even when the Crown would have had a strong case had the matter been contested, and the authority for that is R. v. Santos, (1993) 67 O.A.C. 270, C.A.

13 In Mr. P’s case his guilty plea demonstrates genuine remorse given that there was a good likelihood that his 11(b) Application would have been successful.

14 Furthermore, the fact that there is a five year-old entry for driving while the quantity of alcohol in his blood was over the legal limit does not preclude the Court’s consideration of a conditional discharge, although as the defence candidly admits, this would be unusual.

15 Section 730 of the Criminal Code allows the Court discretion to grant a conditional discharge if it would be in the best interest of an accused and not contrary to the public interest.

16 The Ontario and British Columbia Courts of Appeal set out guidelines for the imposition of a conditional discharge in two decisions. R. v. Sanchez-Pino, (1973) 11 C.C.C. (2d) 53 O.C.A., and R. v. Fallowfield, (1973) 13 C.C.C. (2d) 450 B.C.A., and the first guideline would presuppose the accused is a person of good character without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions.

17 The second condition requires consideration of the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a similar offence. The public interest in the deterrence of others, while it must be given due weight, does not preclude the judicious use of the discharge provisions.

18 I agree with the defence submission that the accused has not admitted being part of a sophisticated and well organized plan, nor has the Crown sought a Gardiner Hearing to prove this fact beyond a reasonable doubt. While any crime is serious, the admitted facts do place these crimes at the low end of the spectrum, and I appreciate that there were other more serious allegations but those are not part of the admitted facts that I am restricted to considering. It is significant that only possession and not use are admitted or proved.

19 This is an appropriate case in which Mr. P should get credit for the nine days he spent in pretrial custody on a two for one basis. So he has already spent the equivalent of eighteen days in pretrial custody.

20 I am persuaded that Mr. P’s bail conditions were restrictive enough to merit consideration as a mitigating factor in sentencing. Although he was not subject to house arrest as the accused was in the case of R. v. Downes, relied on by the defence, the bail conditions of Mr. P were sufficiently restrictive to interfere with the continuation of his employment.

21 The Downes case is cited at 205 C.C.C. (3d) 488, and in that case the Ontario Court of Appeal decided that the amount of credit to be given is within the discretion of the trial Judge and there is no formula that the Judge is required to apply. The amount of credit will depend upon a number of factors including the impact on the offender’s liberty, the ability of the offender to carry on normal relationships, employment, and activity.

22 In Mr. P’s case the conditions impacted on his liberty by interfering with his ability to live at home and carry on normal personal relationships and activities as well as interfering with his ability to continue his employment.

23 I am persuaded that the equivalent of eighteen days pretrial custody plus conditions of release that significantly interfered with Mr. P’s liberty by interfering with his ability to live at home and carry on normal personal relationships and activities, as well as interfering with his ability to continue his employment is sufficient to satisfy the need for denunciation, individual deterrence, and general deterrence.

24 I am satisfied that his experience would be sufficient to discourage others who may be like-minded to commit a similar offence, and it is not necessary or in the public interest to impose a conviction in order to deter them.

25 Furthermore, imposing a conviction would have significant adverse repercussions on the career that Mr. P has chosen, and his promising future. It is not in the public interest to thwart his rehabilitation prospects at such a young age.

26 For all of these reasons I have been persuaded to exercise my discretion to grant a conditional discharge. Mr. P will serve a probationary period of one year, during which time he will comply with the statutory conditions of probation. He will report immediately to the probation office and thereafter as directed.

27 He will abstain from contacting, associating, or communicating directly or indirectly with A.B and A.M.

28 He will not possess any identification, credit cards, or financial instruments not in his own name.

29 He will make reasonable efforts to complete his education or seek and obtain employment or both, and he will perform fifty hours of community service, providing written proof of compliance. The community service will be completed at a rate of not less than ten hours per month once the community service placement has been made.

30 I appreciate that Mr. P has been, has really received his punishment from society, most of it already prior to sentencing.

31 The purpose of the community service is to reinforce, periodically, the message that I hope that he has learned and to secure his good conduct in the future.

32 So that is the sentence. It is, of course, concurrent on all three counts. And how much time does your client need to pay the victim fine surcharge?

33 MR. BERKES: What precisely is the …

34 THE COURT: Well the Crown elected by indictment so that is a hundred dollars per offence, so that is three hundred dollars altogether.

35 MR. BERKES: Can we have ninety days, please?

36 THE COURT: Ninety days to pay the victim fine surcharge. I am required by law to remind you – you should stand up now because I want to make sure that, I am pretty sure you have been able to hear me, but I want to make sure you specially hear this part, I am required by law to remind you that should you breach a term or condition of your probation you may be charged with a separate criminal offence punishable by a fine, or imprisonment, or both.

37 You have to stay at the courthouse until all of your papers have been reviewed with you, you acknowledge that you understand your sentencing terms and conditions, and all of your papers are signed. Okay.

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