In the Provincial Court of Alberta
Citation: R. v. Naqvi, 2005 ABPC 339
Date: 20051118
Docket: 050117050P1
041528589P1
Registry: Calgary
Between:
Her Majesty the Queen
- and -
Imran Safdar Naqvi
Judgment of the Honourable B.C. Stevenson
Assistant Chief Judge
[1] With the introduction of electronic banking, and Canada’s progress toward a “cashless” society, and despite all the encoded safeguards of client assets by financial institutions, the Courts are witnessing a huge growth in sophisticated criminal enterprise generally described as identity theft.
[2] Such an enterprise has brought Imran Safdar Naqvi before the Court today.
[3] The specific criminal actions of Naqvi involved skimming credit and debit bank cards of customers at two gas stations where he was employed.
[4] Naqvi was given a skimming device by a former high school acquaintance. This device (a magnetic card reader device) was used to capture the electronic account data encoded on the magnetic strip of a bank card.
[5] As set out in the Agreed Statement of Facts, when a customer used either a credit or debit card for a purchase, Naqvi swiped the card using the skimmer and then observed the PIN number entered by the purchaser.
[6] Now being in possession of the bank card account data, that information was downloaded on a computer and, using specialized software and a related encoder, uploaded onto a blank bank card. The person possessing the information is then in a position to match the PIN number to the new card. When that is completed, the card can be used at any ATM machine to access that specific account.
[7] In August of 2004, over a period of 12 days, while working at the Real Canadian
Superstore Gas Bar in northwest Calgary, Naqvi skimmed 117 debit and/or credit cards. In December of 2004, over a short period of time, while employed at a Shell gas station in northwest Calgary, he skimmed a further 60 cards and observed as many PIN numbers as he could.
[8] Naqvi sold the information to the high school acquaintance previously mentioned for
$100.00 for each skimmed card realizing, apparently, a criminal profit of $17,700.00.
[9] One hundred and nine (109) of these cards were used by the purchaser of the information and/or his accomplices to access various accounts in an amount of $117,188.00. The clients of the seven financial institutions (who reimbursed the fraudulently accessed accounts) were defrauded of the following amounts:
1. President’s Choice Financial - nine cards compromised for losses of $10,368.42
2. C.I.B.C. - eighteen card compromised for losses of $12,960.00
3. Royal Bank - R.B.C. Financial - sixteen cards compromised for losses of $30,435.84
4. Scotia Bank - sixteen cards compromised for losses of $25,730.10
5. ATB Financial - eight cards compromised for losses of $4,600.00
6. TD Canada Trust - thirty three cards compromised for losses of $30,495.41
7. First Calgary Financial - nine cards compromised for losses of $2,600.00
[10] It is agreed that following apprehension, Naqvi cooperated with the police. During
investigation interviews he emphasized that he only skimmed the cards and obtained PIN
numbers, and he took no part in the actual counterfeiting of or use of the counterfeited cards himself.
[11] The Crown seeks a term of imprisonment of 18 to 24 months.
[12] The Defence asks that any term of imprisonment be served in the community subject to conditions.
ANALYSIS
The Accused
[13] A pre-sentence report was prepared and filed with the Court during submissions.
[14] Highlights of that report are:
1. Naqvi is 23 years of age.
2. Born in Pakistan, he is now a Canadian citizen.
3. He has no criminal record.
4. While accepting responsibility for his criminal conduct, he rationalized his
participation.
5. He continues to have strong support from family members and friends.
6. He comes from a well-to-do family.
7. He resides with his parents, a common practice in Pakistani culture.
8. He has completed Grade 11 in high school and did not complete Grade 12.
9. He is currently a first-year student at S.A.I.T. pursuing a Business Administration diploma. He intends to go on to university.
10. He has money management problems.
11. He does not use alcohol or drugs, nor does he smoke.
12. He is variously described by friends as “polite, hardworking and caring”; “not a party person”; “a really honest and trustworthy person”; “easily influenced by
others”.
[15] The report’s author assesses Naqvi as a suitable candidate for community supervision.
SENTENCING POSITION OF THE CROWN
[16] As mentioned earlier, the Crown seeks a custodial sentence of 18 to 24 months in an institution.
[17] In 1996, the Parliament of Canada enacted new provisions of the Criminal Code to specifically deal with the purposes of sentencing, as well as the principles of sentencing. In many ways those provisions, as they have been interpreted by the Supreme Court of Canada, specifically in R. v. Proulx (2000) 140 C.C.C. (3d) 449, and in other rulings, have altered the traditional landscape of criminal dispositions.
[18] Sections 718, 718.1 and 718.2 are as follows:
“718 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a 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 a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
718.2 (in part) A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, . . .
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, . . .
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, . . .shall be deemed to be aggravating circumstances;
(b) a 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.”
PREDOMINANT SENTENCING PRINCIPLES
[19] I agree with both counsel that general deterrence and public denunciation (s. 718(a) and (b)) in circumstances of this kind must be paramount considerations.
AGGRAVATING AND MITIGATING FACTORS (s. 718.2(a))
[20] Aggravating Factors
(a) The accused at all times, at both locations, was in a position of trust.
(b) The criminal enterprise was sophisticated.
(c) It was a group activity and enterprise.
(d) Its commission put the reputation of the businesses and business owners/operators at extreme risk.
(e) The accused didn’t stop of his own volition.
(f) It was not a “one-shot” deal; the crime was committed again and again over a
five-month period at different locations.
(g) The offence of credit card and debit card skimming is prevalent and growing in Alberta and Canada, resulting in huge losses to financial institutions; losses that are eventually passed on to their customers.
(h) The victims were highly vulnerable.
(I) The offence is difficult to prevent and also difficult to detect and investigate.
[21] Mitigating Factors
(a) The youth of the accused.
(b) His cooperation with the police.
(c) His early guilty plea.
(d) His share of the criminal profits compared to others involved.
[22] The Crown submits that the objectives of sentencing set out in s. 718 in these
circumstances, taking into account the relevant aggravating and mitigating aspects involved, will not be met by a conditional sentence pursuant to 742.1.
[23] Counsel for the accused, while agreeing with the length of sentence proposed, seeks a ruling that the sentence be allowed to be served in the community.
[24] He draws a comparison of the accused in this case to the accused persons in R. v. Coman (2004) ABPC 18 and a related case of R. v. Christea (Unreported) Alberta Provincial Court, Docket #040221186P10101-07 (Mandamin, P.C.J.).
[25] In Coman the accused received a conditional sentence of 15 months (however, following 4 ½ months pre-trial custody) and in Christea , Judge Mandamin sentenced the accused to seven months imprisonment (after 7 months and 20 days pre-trial custody). The circumstances in those cases involved nine individuals from Ontario who arrived in Alberta and engaged in a skimming operation of a similar nature to the one before the Court. Coman and Christea were two of those individuals. Their criminal activity extended over a five-day period in September of 2003.
[26] The actual loss to financial institutions through the use of counterfeit cards by the group totalled $38,147.99.
[27] Defence counsel, in addressing the accused’s degree of involvement, describes his client as “not really part of a group enterprise” and at a “low level” of involvement.
[28] He further describes the accused as a gas jockey earning a minimum wage who got an offer from a high school chum.
[29] Insofar as “moral blameworthiness” attributable to the accused, Defence counsel submits that he was an “independent contractor” who, albeit in a criminal way, simply obtained information for a gang enterprise.
[30] He referred to the positive pre-sentence report and the fact that even though the accused ran away to Pakistan, he returned to Canada to “face the music”.
[31] For all these reasons, Defence counsel submits that the purpose and principles of
sentencing, set out in s. 718, s. 718.1 and s. 718.2 could be met by a s. 742.1 conditional
sentence.
[32] I return to the Supreme Court of Canada reasons in R. v. Proulx (supra) , as well as the Alberta Court of Appeal decision of R. v. McTighe (2005) ABCA30 and in particular to their comments on denunciation and deterrence (page 6):
“In R. v. Proulx, supra , the Supreme Court of Canada acknowledged that a conditional sentence order may achieve a measure of deterrence and denunciation, but also acknowledged that these sentencing objectives may be more fully realized by a sentence of actual incarceration. With respect to denunciation, Lamer C. J. C. said:
[106] ... As a general matter, the more serious the offence and the greater the
need for denunciation, the longer and more onerous the conditional sentence
should be. However, there may be certain circumstances in which the need for
denunciation is so pressing that incarceration will be the only suitable way
in which to express society's condemnation of the offender's conduct.
With respect to the ability of a conditional sentence to achieve the goal of deterrence, he said:
[107] Incarceration, which is ordinarily a harsher sanction, may provide more
deterrence than a conditional sentence. . . . [ T] here may be circumstances in
which the need for deterrence will warrant incarceration. This will depend in
part on whether the offence is one in which the effects of incarceration are
likely to have a real deterrent effect, as well as on the circumstances of the
community in which the offences were committed.
[114] Where punitive objectives such as denunciation and deterrence are
particularly pressing, such as cases in which there are aggravating circumstances,
incarceration will generally be the preferable sanction. This
may be so notwithstanding the fact that restorative goals might be achieved
by a conditional sentence. Conversely, a conditional sentence may provide
sufficient denunciation and deterrence, even in cases in which restorative
objectives are of diminished importance, depending on the nature of the
conditions imposed, the duration of the conditional sentence, and the
circumstances of the offender and the community in which the conditional
sentence is to be served.
In R. v. Hamilton ( 2004), 186 C. C. C. ( 3d) 129, the Ontario Court of Appeal
recognized that, where deterrence and denunciation are of special importance,
incarceration remains the most powerful and effective expression of those
objectives:
[112] ... No doubt, conditional sentences with appropriate punitive terms can
provide denunciation and general deterrence. Imprisonment, however, remains the
most forceful and effective expression of those objectives.”
[33] I agree with, and am bound by, those sentiments.
[34] In the present case the accused played an integral role in the perpetration of the crime. He was no innocent dupe.
[35] To describe him as a minor participant is akin to describing a bank robber as a low level participant, and the driver of the getaway vehicle as the primary offender. Without the gathering of information by the accused, and its distribution to his criminal acquaintance, the criminal enterprise that resulted from his participation would not have been possible.
[36] Here, the loss was almost four times higher than in the Coman / Christea cases. His moral blameworthiness is palpable and certain.
[37] I am not satisfied that the purposes and principles of sentencing would be satisfied by a conditional sentence.
[38] I sentence the accused to a term of 18 months to be served in an institution.
[39] As mentioned earlier, the accused apparently profited by his criminal activity by
$17,700.00. He should not benefit from those ill-gotten gains. The immediate victims are the seven financial institutions. The longer-term victims through bank charges and interest rate increases are those who use these institutions for their commercial activities. Each institution’s losses are listed earlier in these reasons.
[40] Pursuant to Section 738 of the Criminal Code , I order the accused to make restitution up to the amount of $17,700.00 of his criminal proceeds to these institutions in amounts proportionate to their losses, as follows:
1. President’s Choice Financial - $1,600.00
2. C.I.B.C. - $$1,950.00
3. Royal Bank - R.B.C. Financial - $4,600.00
4. Scotia Bank - $3,900.00
5. ATB Financial - $700.00
6. TD Canada Trust - $4,650.00
7. First Calgary Financial - $350.00
[41] In view of the Section 738 orders there will be no victim fine surcharge.
Heard on the 18 th day of November, 2005.
Dated at the City of Calgary, Alberta this 18 th day of November, 2005.
B.C. Stevenson
A Judge of the Provincial Court of Alberta
Appearances:
Jane McClellan
for the Crown
Charles Stewart
for the Accused
