nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2011 SKQB 134 Date: 2011 03 31 Docket: N.J. 34 of 2010 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and MICHAEL JOHN CHUDYK Counsel: Dana J. Brûlé for the Crown Saul L. Schachter for the accused JUDGMENT GEREIN J. March 31, 2011 [1] The accused was presented with an indictment containing five counts. At the arraignment the Crown stayed counts and 3. The accused then pled guilty to these three counts: COUNT 2 THAT HE, the said MICHAEL CHUDYK between the 25th day of November, A. D. 2006 and the 1st day of February, A. D. 2007 at or near Regina, in the Province of Saskatchewan, did fraudulently and without colour of right, use credit card data that would enable a person to use a credit card or to obtain the services provided by the issuer of a credit card to credit card users contrary to Section 342(3) of the Criminal Code. COUNT 4 THAT HE, the said MICHAEL CHUDYK between the 16th day of February, A. D. 2006 and the 19th day of August, A. D. 2007 at or near Regina, in the Province of Saskatchewan, did by deceit, falsehood or other fraudulent means, defraud Saskatchewan Telecommunications of services and goods, of a value exceeding five thousand dollars, contrary to Section 380(1)(a) of the Criminal Code. COUNT 5 THAT HE, the said MICHAEL CHUDYK between the 16th day of February, A.D. 2006 and the 19th day of August, A. D. 2007 at or near Regina, in the Province of Saskatchewan, did fraudulently personate various persons, living or dead, with an intent to gain advantage for himself or another person, contrary to Section 403(a) of the Criminal Code. [2] At the time of sentencing the accused had been in custody on the subject charges for two years and eleven months. It was decided that a fit global sentence would be eight years and six months. Credit of four years and nine months was given for the time spent in custody. In the result, the following sentences were imposed: COUNT 2 Incarceration for two years and three months. COUNT 4 Incarceration for one year and six months, consecutive to the preceding sentence. COUNT 5 Incarceration for two years, concurrent with the preceding sentences. Payment of the surcharge was waived as the accused had no income and would not have any for some time. What follows are the reasons for the sentence imposed. [3] In this case the conduct of the accused is most unusual, even bizarre, as it occurred while the accused was in prison. It extended over 18 months; involved many separate acts; and required participation by several individuals with the accused as the co-ordinator. There were two schemes which were somewhat complex in their execution, but which can be identified quite simply as follows. [4] Commencing in February, 2006, the accused opened 52 false accounts with SaskTel. They were opened in fictitious names, 23 of which were obtained from obituaries. The accused then used the telephone accounts to obtain the services of SaskTel. This included upwards of 835 telephone calls, some of which were one to two hours in duration. When the bills were sent throughout Saskatchewan for the services rendered, there was no person responsible to pay them. As result, SaskTel suffered loss of $25,915.44. [5] The second scheme involved credit cards. Accomplices outside the prison provided to the accused particulars of various credit cards. He would then access telephone account to order goods to be delivered to third party and purported to make payment by way of the fraudulent credit cards, using the particulars earlier provided. variety of goods were purchased, including furniture, appliances and three vehicles. The credit card companies absorbed their clients’ losses which amounted to $22,695.18. Thus, the total loss from the two schemes was $48,610.61. It would have been greater but for the fact that some of the larger items were recovered. THE ACCUSED [6] The accused is 47 years of age with an education of grade 12 equivalent. He is the father of three boys whom he has not seen for long time. No employment history was presented. This is not surprising since he has spent most of the last 30 years in jail. [7] At the sentencing hearing, the accused apologized for what he had done. must admit that am skeptical about his sincerity. He advised that he personally received no financial benefit. This is probably so, but the reality is that he inflicted huge financial losses, to say nothing of police investigation involving 15 police officers who expended almost one and one-half years of working hours. He further advised that he is afflicted with cancer and when released from prison, he hopes to reside with his family in Edmonton. He stated that he was willing to make restitution, but view that as unrealistic. [8] The accused has an incredible criminal record. It is lengthy and continuous, commencing in 1979 and running to the present. There are 121 convictions, 39 being for property offences, 50 being for fraud and several for non-compliance with court orders. The longest sentence was in 1994 when he was incarcerated for 27 months. In 2003, he was incarcerated for 18 months. It appears that in 2007, he was sentenced to time served which was 56 months. Most frequently, his sentences were to months followed by probation. Over the years, he has not displayed any desire to reform. [9] In determining what is fit sentence, the following sections of the Criminal Code must be kept in mind: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.1 sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 court that imposes sentence shall also take into consideration the following principles: (a) sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender... ... (b) sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [10] Crown counsel referred me to these cases: R. v. Beyer (1997), 1997 CanLII 22969 (MB CA), 118 Man. R. (2d) 103 (C.A.); R. v. Armstrong, 2005 BCPC 690 (CanLII) (B.C. Prov. Crt.), [2005] B.C.J. No. 3049 (QL) and R. v. Solowan, 2008 SCC 62 (CanLII), [2008] S.C.R. 309. Defence counsel referred me to these cases: R. v. Ursel (1997), 1997 CanLII 12512 (BC CA), 117 C.C.C. (3d) 289 (B.C.C.A.); R. v. Drake 2007 BCCA 204 (CanLII), 244 B.C.A.C. 108 (B.C.C.A.); R. v. Malinowksi, 2007 SKCA 33 (CanLII), 293 Sask. R. 172 (C.A.); R. v. Meger 2009 SKCA 47 (CanLII), 324 Sask. R. 267 (C.A.) and R. v. Kelter 2010 BCCA 252 (CanLII), [2010] B.C.J. No. 1124 (QL). [11] The two that were most helpful were R. v. Beyer and R. v. Armstrong for the circumstances of the offences and the accused most closely matched those in this case before me. In Beyer, the global sentence was nine years and in Armstrong, it was eight years. The other cases are distinguishable on their facts. [12] The accused has been on remand for two years and eleven months. It has been the common practice in this jurisdiction to credit custody on remand at double time. See R. v. McArthur, 2010 SKCA 90 (CanLII), 359 Sask. R. 144 (C.A.); R. v. Hathway 2008 SKQB 480 (CanLII), 327 Sask. R. 129 (Q.B.) and R. v. E.E.D. 2007 SKCA 99 (CanLII), 204 Sask. R. 192 (C.A.). In the presenting case, the Crown suggests credit of one for one; whereas the defence suggests credit of two for one for the full remand time. reject both. [13] The period of time in the years 2008 and 2009 that the accused spent on remand were brought about because of the time constraints which necessarily are a part of the process. That time amounted to 1,336 days and cannot be attributed to the accused. For that period, he should receive a credit of double time. [14] There was further remand time of 393 days in the years 2010 and 2011. However, that delay was largely the doing of the accused. Accordingly, the credit should be one for one, or put otherwise, the time actually served on remand. In the result, there should be a credit of four years and nine months and the global sentence should be reduced accordingly. The discretion to grant the credit remains with me despite s. 719(3) and (4) of the Criminal Code because the offences were committed and the charges brought before enactment of the section. ANALYSIS [15] The gravity of the offences is very high because of a number of aggravating circumstances. The most obvious one is the dollar value of the goods and services realized and the total deprivation inflicted. Yet there are several other things to be taken into account. [16] There clearly was pre-meditation and careful planning in advance. Several other people were implicated in the criminal enterprise. The two schemes were pursued over a lengthy period of time and involved scores of transactions. There were many individuals and businesses subjected to embarrassment and anxiety. [17] Then there is the place from which the crimes originated. The accused was imprisoned, but this had no effect on him. Pursuit of the nefarious activities demonstrated real arrogance on the part of the accused and real disdain for the administration of justice. [18] The criminal record of the accused confirms the deplorable state of his attitude. For all of his adult life, he appears to have supported himself through crime. It is not surprising that Crown counsel suggests rehabilitation is not relevant. However, do not agree. [19] There are cases where there is little hope of rehabilitation and reform and looking at this case objectively, it is one of them. However, one must not abandon all hope, although it may be minimal. In any event, one of the objectives of sentencing, as stated in the Criminal Code, is rehabilitation. While keep that in mind, it has low priority. [20] I am also mindful that the accused pleaded guilty. While it was long time in coming, it has avoided lengthy trial and the attendant expense. What is even more important, it has eliminated the necessity that many people testify and go through the consequent discomfort. For that, the accused deserves credit. [21] The subject of parity creates something of problem. The circumstances of the misconduct as coupled with those of the accused are unique. As result, there is not large body of cases to serve as comparables. However, the general principles of sentencing remain and did have the assistance of the two cases cited above. [22] have concluded that there should be consecutive sentences. However, that has not brought about combined sentence which is unduly long or harsh taking into account all of the circumstances. [23] In the end, it is denunciation and deterrence, both of the accused and others, which must be emphasized and obtain a priority. Any other approach would being the administration of justice into disrepute. [24] Upon consideration of all the circumstances of both the offences and the accused, and for the reasons stated, it was concluded that the disposition outlined at the outset was fit and appropriate. J. W. F. GEREIN
The accused plead guilty to one count of using credit card data to fraudulently obtain services contrary to s. 342(3) of the Criminal Code, one count of fraud over $5,000 contrary to s. 380(1) of the Criminal Code for defrauding Sasktel of telephone services and one count of fraudulently personating various persons with intent to gain advantage for himself contrary to s. 403(a) of the Criminal Code. The accused was incarcerated at the time that he committed the offences. The accused opened 52 false accounts with Sasktel, at times using names he obtained from obituaries and at other times using fictious names. He then used the accounts to obtain telephone services. The total loss to Sasktel was $25,915.44. The second scheme involved obtaining credit card information from people outside the prison, ordering goods via telephone to be delivered to third party and using the fraudulent credit cards to pay for the items. The total loss to the credit card companies was $22,695.18. The accused was 47 years old and had spent much of the last 30 years in jail. He had 121 prior convictions on his record, mostly for fraud, property related offences and non-compliance with court orders. In addition to the financial losses, huge amount of resources were expended to investigate the accused's activities. He plead guilty. HELD: A fit sentence in global terms for these offences would be 8 years and 6 months. The accused was given credit for 4 years and 9 months for the time he spent in custody. The accused was sentenced to 2 years and 3 months for the s. 342(3) offence, 1 year and 6 months consecutive for the offence under s. 380(1) and 2 years concurrent for the personation offence under s. 403(a). The Court gave the accused double credit for remand time that was the result of system delays, but imposed 1:1 credit for the 393 days of remand time that were attributable to the accused. The Court held that the high dollar value involved, the pre-meditation and planning involved, the lengthy period of time over which the accused committed the offences, the number of transactions involved and the fact that the accused committed these offences from prison were aggravating factors. In mitigation, the accused offered a guilty plea. The primary factors to be emphasized were denunciation and deterrence.