R. v. Jahanrakhshan

2011 BCSC 894 R. v. Jahanrakhshan

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Jahanrakhshan, 2011 BCSC 894 Date: 20110602 Docket: 25452 Registry: Vancouver Regina v. Kamyar Jahanrakhshan Before: The Honourable Madam Justice Morrison Oral Reasons for Sentence Counsel for the Crown: Shelley Hulko Counsel for the Accused: Ian Donaldson, Q.C. Place and Date of Hearing: Vancouver, B.C. May 30, 2011 Place and Date of Judgment: Vancouver, B.C. June 2, 2011 Authorities Considered G.R. Clewley & P.G. McDermott, Sentencing: The Practitioner's Guide, 2009 (Aurora: Canada Law Book) C.C. Ruby & D.L. Martin, Criminal Sentencing Digest, 6th ed. (LexisNexis Canada Inc., 2006) R. v. D.A., 2007 MBCA 65 R. v. Guess, 2000 BCCA 602 R. v. Hall, 2001 BCCA 74 R. v. Taft, 2003 BCCA 104 R. v. Gill, 2002 BCSC 977 R. v. Adebayo, 2007 BCPC 433 R. v. Bourne, 2009 YKTC 133 R. v. Carter, 2004 BCPC 72 R. v. Jones, 2006 BCPC 278 R. v. Gonzalez-Urena, 2011 BCSC 406 R. v. Harris, 2004 BCPC 532 R. v. Mayer, 2006 ABPC 30 R. v. Proulx, [2000] 1 S.C.R. 61 R. v. Bhalru; R. v. Khosa, 2003 BCCA 645 [1] THE COURT: Kamyar Jahanrakhshan was convicted of nine offences under the Criminal Code of Canada on May 16, 2011. There were four counts of personation, two counts of wilfully attempting to obstruct justice, one count of possession of a forged credit card, and two counts of use of a forged credit card. The offences and the evidence leading to

those convictions are set out in my reasons for judgment of May 16, 2011. Submissions for sentencing were made by counsel on May 30, 2011, and sentencing was adjourned until today. [2] Mr. Jahanrakhshan is a 32-year-old single male born in Iran. At the age of 12, he moved to the United States with his family where he obtained American citizenship. He is now a permanent resident of Canada. His family moved from the United States to North Vancouver when the accused was 16. He graduated from high school in North Vancouver in 1997. [3] In 1998, Mr. Jahanrakhshan returned to the U.S. where he worked as a telemarketer in his family's marketing company in Utah. He then returned to North Vancouver in 2000 and has worked for the family travel agency. [4] Since 2003, Mr. Jahanrakhshan has been taking college courses at Capilano College and Langara College. In 2007, he began taking courses at Simon Fraser University. He is close to completing a computer science degree with hopes to graduate in the fall of 2011. [5] The accused has no criminal record in Canada. In June 2004, he was found guilty of theft in the State of Washington and received a sentence of 30 days in jail. He was ordered to fulfil certain other obligations as a result of that sentence. He received a certificate and order of discharge of all legal and financial obligations under that sentence effective March 28, 2006. He is

apparently eligible to apply for a vacation of his record of conviction in Washington State as of this date. I attach minimal significance to this Washington State record for sentencing purposes today. [6] The Crown's position on sentencing is that the appropriate range of sentence is 18 months' to three years' incarceration. Over the period of July 2008 to the end of May 2009, these offences for which Mr. Jahanrakhshan has been found guilty took place. According to the Crown, Mr. Jahanrakhshan had embarked on a well planned and deliberate enterprise, which included trying to register a domain name, "VancouverPolice.ca." He posed as a person by the name of Frank Pohl and led employees at four banks, which were located in Abu Dhabi, England, and Australia, to believe that he was a police officer with either the "Canadian Police" or the RCMP. Through his personations, he obtained documents and information from the banks, plus an actual credit card from the National Bank of Abu Dhabi. This was all at the same time as the RCMP in North Vancouver was investigating offences which resulted in some charges against the accused. [7] By using a fraudulent credit card, Mr. Jahanrakhshan took a vacation with WestJet Vacations and the amount of that was $7,929.09. He also used a forged credit card at a Mercedes Benz dealership. The Crown seeks a restitution order pursuant to s. 738 of the

Criminal Code for the amount owing to WestJet, $7,929.09. [8] Crown counsel, Ms. Hulko, cited a number of cases where sentences ranged from nine months to four years. The cases differed with regard to the type of charges, the age, background, and sophistication of the offenders, their records, and the degree of success, if any, as it pertained to charges of attempting to obstruct justice. [9] In R. v. D.A., a grandmother told her granddaughter not to tell anyone of the sexual abuse on the child by the child's father, threatening that her father would go to jail. The court imposed a sentence of two years less a day, to be served conditionally. [10] The two cases, R. v. Guess and R. v. Gill, have no relationship to the facts involving the charges against this accused, but in the judgment of Low J.A. in R. v. Guess, the remarks of Justice Paris, the sentencing trial judge, were laid out in some detail in paragraphs 3 and 4 of the Court of Appeal judgment. Those remarks centred on the integrity of the judicial system and the necessity to protect the judicial process from those who would attempt in any way to corrupt it. [11] In R. v. Hall, the accused had been found guilty of aggravated assault, assault with a weapon, possession of a weapon for a purpose dangerous to the public peace, and attempting to obstruct justice. The case involved swarming of an innocent victim and the

threatening of a witness who had been involved in the swarming. The accused received a sentence of 18 months and an additional three months consecutive on the offence of attempting to obstruct justice. At paragraph 12 of her decision in that case, Madam Justice Saunders stated, in part: "Obstruction of justice or attempting to obstruct justice strikes at our system of a lawful society. The message must be clear that this type of interference with the community system for handling criminal offences will not be tolerated." [12] The fact situation in R. v. Taft is considerably different from the facts that are before me on this case. In that case, the accused pleaded guilty to 23 offences which included five counts of personation, three of fraud, three counts of uttering a forged document, seven counts of forgery, one count of possession of stolen property, one count of forging a passport, two counts of possession of a forged passport, plus one count of obstructing a peace officer. The accused in R. v. Taft was given the equivalent of a 27-month sentence plus 15 months' imprisonment for the guilty plea on the count of attempting to obstruct justice and four counts of uttering a forged document. The court found that the accused was attempting to manipulate the courts. [13] An accused with a considerable history and multiple charges involving identity theft was given the equivalent

of a four-year sentence by Judge Dohm in B.C. Provincial Court in R. v. Adebayo. Crown counsel referred to paragraph 8 of that decision which states: Persons like the accused who partake in identity theft offences have made a conscious decision to opt out of all the systems the rest of society must operate in. These people must have some level of intelligence and an understanding of how all the systems work. They have weighed the costs and decided to take significant steps to partake in these offences. Society needs protection from these individuals and their schemes. Denunciation and general deterrence are paramount considerations in determining the appropriate sentence for identity theft criminals. Crown counsel draws a parallel between that case and the case before the court today. [14] In R. v. Bourne, the accused managed to mislead the court by presenting as evidence a forged prescription for Tylenol 4, to the effect that he was sentenced for possession of only 13 tablets, rather than 43 tablets as he should have been. His attempt to mislead the court was successful. As the court stated in paragraph 9 on the subsequent charge, "It was a fraud that worked." The accused received a 15-month sentence of imprisonment for the obstruction charge. [15] Another attempt to mislead the court occurred in R. v. Carter, where the accused presented three forged letters of reference to

the court purportedly from two Corrections officers at the Fraser Pretrial Institute. However, those officers had no knowledge of such letters and the sentencing judge in North Vancouver Provincial Court had no knowledge that the letters were forged. The sentencing judge relied heavily upon those letters, eloquent as they were. A six-month conditional sentence was followed by a year's probation at that time, with the judge noting that the accused had done well in prison. The accused then came before Judge Auxier in Provincial Court on the subsequent charge of using forged documents and one count of attempting to obstruct justice, those charges having arisen from the previous sentencing. Judge Auxier imposed a sentence equivalent to two years and four months' imprisonment. [16] Obstruction of justice was also dealt with in R. v. Jones, where an accused misrepresented to the court that the complainant was out of the country and unable to appear as a witness. This was not true. A sentence of nine months was imposed for the obstruction of justice in that case. [17] A 15-month sentence to be served in the community by means of a conditional sentence was given in R. v. Gonzalez-Urena. The accused had intercepted mail to obtain the victim's credit card and, in two days, ran up charges of $71,500 in a casino. [18] The accused in R. v. Harris was sentenced for use of a credit card and

received a sentence of 13 months. The court wanted to send a message on the seriousness of identity theft. [19] The final authority relied upon by the Crown was R. v. Mayer. This involved the accused, one of many in a large group, using a fake credit card. He pled guilty to 28 charges of using forged credit cards and debit cards, plus one charge of breach of recognizance. He received a sentence of 18 months' incarceration. At paragraph 69 of the case, Judge Semenuk of the Alberta Provincial Court pointed out the costs involved in investigating this type of criminal activity; that it is difficult, time-consuming, as well as financially costly. That is one of the aggravating circumstances of such a case. The Crown submits that this pertains to the case before the court today. [20] The position of the defence is that this is an appropriate case for a conditional sentence, that a jail sentence would be disproportionate to the gravity of the offences involved, and the degree of responsibility of the accused, given the difference in the situation of the accused to sentences in the other cases that have been put before the court. The defence submits that there is no need for the protection of the public to impose a jail sentence on Mr. Jahanrakhshan. [21] Counsel for the defence, Mr. Donaldson, submits that Mr. Jahanrakhshan has learned much from this experience, from being arrested

and charged and that he has conducted no inappropriate or unlawful conduct since his arrest on these charges in June 2009. That Mr. Jahanrakhshan has felt the emotional strain and stress of his public arrest, and the extensive and detailed media attention to his case. The accused is deeply concerned over the impact that the media coverage has had on his family. [22] As a result of these charges and the degree of attention on him and his family, Mr. Jahanrakhshan has withdrawn socially to a considerable extent. He hopes to put legal matters behind him and lead a normal life, ultimately creating a home for himself and raising children with a partner. [23] The accused has close ties with his family and community and he hopes to work hard in building his own career in the computer science field as a software programmer. Mr. Jahanrakhshan has been out on bail since his arrest on very strict conditions which included reporting weekly. He has been unable to see his family who live outside Canada. There have been no breaches of his bail. Counsel submits that Mr. Jahanrakhshan has shown that he is a person who would be an appropriate candidate for a sentence to be served within the community rather than in jail. [24] Counsel relies on R. v. Proulx and R. v. Bhalru and Khosa. In both cases, conditional sentences were deemed appropriate. R. v. Proulx set out the factors to be considered

on whether a conditional sentence is appropriate. [25] The principles of sentencing are well known and set out in ss. 718 and 718.2. In addition, Parliament has sent the message that there are certain cases where a conditional sentence should be used to reduce the reliance on incarceration and to increase the chance of rehabilitation. That is s. 742.1 of the Criminal Code. [26] If it were not for the two counts of wilfully attempting to obstruct justice, I would agree with counsel for the accused that this would be an appropriate case for a conditional sentence. However, the charges involving obstruction of justice are troubling and those charges do indeed strike at the heart of the justice system. [27] On Count 6, in late May 2009, the accused left a voicemail for Sasha Slevec, an employee at the St. George Bank in Australia, and that message was that there was no need for the bank to take any further action, as the accused attempted by that voicemail and the communications to get certain information and documents from the bank. The accused's call to Mr. Slevec was too late, as Mr. Slevec had already sent the affidavits in question to the RCMP in North Vancouver. I found that the actions of the accused did amount to a wilful attempt to obstruct justice by providing false information to the St. George Bank. I also found it was a clumsy and poorly executed attempt, and a few

days too late. So it was not successful, unlike the success of some of the accused in the cases cited by the Crown, and that is a factor that I have taken into consideration. [28] On Count 14, the other charge of wilfully attempting to obstruct justice, the events occurred between July 1, 2008 and September 24, 2008 when Mr. Jahanrakhshan was seeking information that had not been made available to him following his first arrest in July 2008. Mr. Jahanrakhshan went a step further, in getting the bank to send him the actual card to which he had no right and a credit card that would or could have been a possible piece of evidence in a future charge against him. This was the more serious situation than that in the obstruction charge in Count 6. [29] I do not believe that a conditional sentence, one to be served in the community for its entirety, is appropriate given the facts of this case, and given those two charges of wilfully attempting to obstruct justice. I am concerned by the length of time over which the accused carried out these offences, by the energy and resourcefulness that he put into his activities, although the outcomes were not anywhere near as successful as he might have hoped, or as accused in other cases cited had achieved. However, such activities by Mr. Jahanrakhshan, in attempting to obstruct justice, do strike at the heart of our judicial system. As pointed

out in R. v. Mayer, investigating this type of criminal activity involves considerable difficulty and time on the part of investigating officers, which is costly not only to the victims but also to the justice system. [30] The principles of denunciation and deterrence are better served, in my view, in this instance by a term in prison, particularly to meet the principle of deterrence both general and individual, followed by a lengthy term of probation. If Mr. Jahanrakhshan breaches the probation order that I am imposing in any way, he would then be brought back before the court on any new charges plus the additional charge or charges of breach of probation. [31] Counsel for Mr. Jahanrakhshan has said that his client wishes to lead a good life. I accept that and I hope that he follows through with such intentions. Mr. Jahanrakhshan is a bright and energetic young man. A lengthy term in prison would not assist this accused or the community, given the circumstances of this case and given the possibility of rehabilitation that I believe is possible and probable. But some deterrence and denunciation are necessary. [32] The rehabilitation of Mr. Jahanrakhshan, as I have said, I believe is probable and obviously desirable for him and the community. A lengthy term in prison would be contrary to that end. Keeping in mind the principles of sentencing, it is my view that it is appropriate

that Mr. Jahanrakhshan, on Counts 6 and 14, serve a term in prison of six months concurrently, to be followed by a probation order of three years. [33] This will place Mr. Jahanrakhshan under the supervision of the state for three and a half years, where a probation officer will be in a position to ensure Mr. Jahanrakhshan lives up to the terms of his probation for a period of three years following his release from prison. [34] The terms of probation will be that he keep the peace and be of good behaviour. That he report to a probation officer once a month; in person immediately upon his release from prison, and thereafter once a month, in person. That he notify his probation officer in advance of any change of address, schooling, or employment. [35] It is also a term of the probation that Mr. Jahanrakhshan pay restitution to WestJet Vacations in the amount of $7,929.09, to be paid before the term of the probation order expires. [36] On Counts 1, 5, 11, and 13, those involving personation, Mr. Jahanrakhshan is sentenced to three months in prison, to be served concurrently with Counts 6 and 14. [37] On Counts 17, 18, and 19, possession and use of a forged credit card, Mr. Jahanrakhshan is sentenced to two months in prison, to be served concurrently with the other charges. [38] I will now ask counsel if there are considerations that they wish to address with regard to any terms

of probation. [SUBMISSIONS RE CONDITIONS OF PROBATION ORDER] [39] THE COURT: There will be further terms on the probation order. First of all, it will be a condition that the accused will not use any names or possess any identification in names other than Kamyar Jahanrakhshan, Andy Jahanrakhshan, Andrew Jahanrakhshan, Andrew Rakhshan, or Andy Rakhshan, or Kamyar Rakhshan. [40] A further condition is that he will not receive any mail, courier packages, or deliveries addressed to any names, other than those names that I have just listed in the previous condition, with exception that he may receive - that is to be at his home address. If there are to be deliveries at any other address, it would first have to be approved by his probation officer. [41] A further condition is that Mr. Jahanrakhshan will not possess any credit cards, credit card data, debit cards, or debit card data from any foreign issued banks unless there is written approval by his probation officer; that he may possess a credit card or debit card in his own name from any accredited financial institutions in the Province of British Columbia. [42] A further condition is there will be no contact directly or indirectly with the Bank of Western Australia, the St. George Bank, Barclays Bank, or the National Bank of Abu Dhabi. [43] A further condition is Mr. Jahanrakhshan shall not possess any personal or financial

information in written or electronic format such as social insurance numbers, driver's licence numbers, bank account numbers, or dates of birth for any person except himself or Jennifer Macek or any children that he may subsequently have during the period of probation. [44] Finally, it will be a condition that the accused shall not possess any equipment or material including scanners, card laminators, magnetic strip encoders, embossers, or plastic blanks that could be used in the production or alteration of credit cards or debit cards. [45] I think that covers the five. [46] MR. DONALDSON: I only say this. I am not seeking to have you revisit anything, but maybe just making sure that I understood. In the third condition that you just went through, as I heard the court's remarks, they were, "Not possess a credit card or debit card from a foreign issued bank unless he has written approval by a probation officer; that he may possess such credit card or debit card in his own name", and then you said, "From an accredited financial institution in British Columbia" and - [47] THE COURT: No, he may possess - [48] MR. DONALDSON: - and what I understood you to be saying was that, "In his own names other than from an accredited" - I am just trying to make sure that it - [49] THE COURT: I should have put it the other way around. I should have said - [50] MR. DONALDSON: I am - [51] THE

COURT: - first of all, he can - and it would be better drafted to say that he can possess a credit card or debit card from any financial institution within the Province of British Columbia - [52] MR. DONALDSON: Thank you. [53] THE COURT: - but he cannot from any foreign owned financial institution unless there is prior written approval from his probation officer. [54] MR. DONALDSON: Thank you very much. Then I understand what you were saying and I was just worried it was going to be written up in a way that was inherently contradictory. I was trying to avoid you having to come back to try and settle what you intended to tell us. [55] THE COURT: All right. If it is put - the domestic banks put first, it might make more sense. All right. Mr. Jahanrakhshan, do you understand the terms of probation? [56] THE ACCUSED: Yes, I do. [57] THE COURT: Okay, I wish you luck. I hope you do have those intentions that Mr. Donaldson said that you do and that you have a good future ahead of you. Good luck. "Morrison J."