R. v. Ireland

2007 BCCA 387 R. v. Ireland

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Ireland, 2007 BCCA 387 Date: 20070717 Docket: CA035045 Between: Regina Respondent And Jesse James Ireland Appellant Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Lowry The Honourable Madam Justice Kirkpatrick Oral Reasons for Judgment S.G.R. MacMillan Counsel for the Appellant A. Budlovsky, Q.C. Counsel for the (Crown) Respondent Place and Date: Vancouver, British Columbia 17 July 2007 [1] KIRKPATRICK, J.A.: The appellant, Jesse James Ireland, seeks leave to appeal and, if leave is granted, appeals from an 18-month jail sentence imposed in Provincial Court on 19 April 2007. [2] The appellant pleaded guilty to 11 of 15 fraud charges committed between 3 November 2005 and July 2006. At the time of his sentencing, the appellant had been charged and had pleaded guilty to similar offences in Medicine Hat and Calgary, Alberta. He was arrested in Medicine Hat on 20 October 2006 for: possession of items adopted and intended to be used to commit forgery (s. 369(b) of the Criminal Code, R.S.C. 1985, c. C-46 (the "Code")); impersonating (s. 403 of the Code); and fraud (s. 380(1)(b). He was remanded in custody. On 15 March 2007, he pleaded guilty to those charges and was sentenced to one day of imprisonment and $2,085 restitution. On 26 March 2007, the appellant pleaded guilty and was sentenced in Calgary to one

day imprisonment for seven offences: resisting a police officer; failing to appear; obtaining food by fraud; and forgery. [3] The time spent in custody on the Alberta charges is a focal point on this appeal. The appellant contends that the sentence imposed in British Columbia (12 months plus six months pre-trial custody served in Alberta) is harsh and excessive. The appellant contended at his sentencing hearing and at the hearing of the appeal that he should be sentenced to time served. [4] The 11 charges to which the appellant pleaded guilty related to fraudulent acts in which the appellant opened bank accounts in the names of others whose respective identifies had been stolen and then unlawfully negotiated bogus cheques; opened an account in his own name using a blank cheque from another institution in which he had no interest; presented forged cheques; and rented a car using a forged driver's licence after which he caused an accident (failure to recover the rental car resulted in a loss to the rental company of between $5,000 and $20,000); and impersonated one of the persons whose identity had been stolen and set about cashing cheques, obtaining services and acquiring loans in that person's name. [5] The total loss to the financial institutions and others was said by Crown counsel to be $94,000. There was some dispute at the sentencing hearing as to the precise loss to the

rental car company, but the defence conceded that the loss was between $80,000 to $100,000. [6] The Crown's position on sentence was that a global sentence of two years less a day "minus the six months on the double-time basis" for time served in custody would be fit. That meant a one year further jail sentence. The Crown emphasized the extensive number of frauds that involved identity theft, which, in the Crown's submission, called for specific and general deterrence. [7] The defence argued that the appropriate sentence was the time served of six months, on the basis that the appellant was then 20 years old and had no criminal record, other than the offences in Alberta that post-dated the offences at bar. [8] The defence contended that the appellant's need for specific and general deterrence had been already addressed by his time spent in custody. In the defence's submission, the appellant had "fallen prey to temptation" and the money he had obtained by fraudulent means had been spent on "self-indulgent living". The defence submitted that the crimes did not involve breach of trust and that there were no vulnerable complainants who had been defrauded of their savings. The defence conceded that one of the victims of identity theft had suffered hardship but contended that it was unclear whether all of the hardship was attributable to the appellant. [9] The sentencing judge

concluded that the offences "had the air of being a very sophisticated operation carried out over a long period of time". The sentencing judge emphasized both the harm done to the credit rating of one of the identity theft victims and the fact that the institutional financial losses ultimately affected all citizens. He sentenced the appellant to 18 months in jail, but gave him credit for six months served while awaiting the disposition of the charges in Alberta. [10] The sentencing judge was given scant information as to the appellant's background and antecedents. There was the obvious mitigating factor of the guilty pleas, the appellant's relative youth, and the absence of a criminal record. However, the sophisticated fraudulent scheme, committed over a long period, with substantial personal harm to the victim of the identity theft, and the financial losses to institutions were obvious aggravating factors that called for specific and general deterrence. As the Alberta Court of Appeal noted in R. v. Bradley (2004), 357 A.R. 234, 2004 ABCA 362 at para. 9: identity theft has serious implications, not only for the victims being defrauded but for the victims' being impersonated. [11] In the instant case, the appellant's fraud was largely made possible by reason of his use of others' stolen identities. It is evident that the crimes were committed solely to support the appellant's

"self-indulgent living". Further, after the offences committed in British Columbia, the appellant moved to Alberta where he continued his fraudulent schemes. [12] In my opinion, the sentencing judge did not err in imposing an 18 month sentence. He gave credit for six months of pre-trial custody, apparently on the basis that the appellant was given credit for 30 days of pre-trial custody in respect of the Medicine Hat charges and 45 days in respect of the Calgary charges, leaving approximately three and one-half months of time left to be credited. In the circumstances of this sophisticated, long-term fraud that resulted in significant loss, I do not consider the sentence imposed to be unfit. [13] I would allow leave to appeal, but dismiss the appeal. [14] SAUNDERS, J.A.: I agree. [15] LOWRY, J.A.: I agree. [16] SAUNDERS, J.A.: The appeal is dismissed. "The Honourable Madam Justice Kirkpatrick"