R. v. Hosein, 2014 ONCJ 316

R. v. Hosein

Between:

Her Majesty the Queen

Ms. L. Spencer for the Crown

— And —

Amral Hosein

Mr. A. Shidlowski for the defendant

Justice T. Lipson

Reasons for Sentence

[1] Guilty Plea and Sentencing

1On January 23, 2014 Mr. Hosein pleaded guilty to a charge of personation with intent and fraud over 5000. He appears today for sentencing.

Circumstances of the Offences

2The parties filed the following agreed statement of facts:

Participants

Clifford RAJKUMAR is in the business of providing private mortgages and loans. Generally his clients are unable to secure less expensive financing from traditional sources of funding, like banks. Prior to this fraudulent mortgage transaction, he had successfully completed four private mortgage transactions with Sharina IMRAN-KHAN. In hindsight, RAJKUMAR believes that IMRAN-KHAN may have been grooming him for this fraudulent mortgage transaction.

Iqbal HOSEIN is the accused's brother. He was the legal owner of the property at 1096 Bathurst Street, Toronto and he owned the property without any mortgages on title.

Sharina IMRAN-KHAN was working as a mortgage broker. She has been arrested in relation to this offence and is currently before the courts. She has worked with Clifford RAJKUMAR previously to arrange private mortgages for her clients. She knows Iqbal HOSEIN from business dealings prior to the current fraudulent mortgage.

Shirley Joyce HENRY is a lawyer who represented Sharina IMRAN-KHAN throughout this fraudulent mortgage transaction. Jeff LEVY is a lawyer who represented Clifford RAJKUMAR throughout this fraudulent mortgage transaction.

Facts

On July 31, 2012 Sharina IMRAN-KHAN sent an email to Clifford RAJKUMAR asking if he was interested in taking out a mortgage on a property at 1096 Bathurst Street, Toronto for the owner, Iqbal HOSEIN. IMRAN-KHAN claimed that Iqbal HOSEIN wanted to borrow $350,000.00 to do renovations on his property for the purpose of renting it out. Sharina IMRAN-KHAN forwarded an Application for Mortgage Financing on Lender Direct Capital Corporation's letterhead and also forwarded a Credit Bureau report for Iqbal HOSEIN. From the information obtained from Sharina IMRAN-KHAN, RAJKUMAR was under the belief that the borrower had a good credit rating and the property had value to secure the mortgage.

On August 1, 2012 Sharina IMRAN-KHAN forwarded to RAJKUMAR a Mortgage Commitment and Loan Agreement that she had prepared and that purported to be signed by Iqbal HOSEIN.

On August 2, 2012 RAJKUMAR visited the property at 1096 Bathurst Street, Toronto as part of his due diligence in order to inspect the property prior to agreeing to issue a mortgage on this real estate. At the inspection, he was initially met by Sharina IMRAN-KHAN who began to show him the property. The accused who presented himself as his brother (Iqbal HOSEIN), arrived a short time later and met both RAJKUMAR and Sharina IMRAN-KHAN inside the property. During the meeting at the Bathurst Street property, Sharina IMRAN-KHAN discussed the renovations that were going to be undertaken, which for the most part involved the floors and drywall. It had been represented to RAJKUMAR that a dentist had rented the Bathurst Street property for October 1, 2012 and as a result, time was of the essence.

After this inspection, RAJKUMAR was satisfied that the renovations proposed could be completed within the 30-45 day timeline. RAJKUMAR was assured that the renovations would be undertaken with seasoned professionals and a well known Toronto interior designer. RAJKUMAR was satisfied the property could reasonably secure the mortgage and he agreed to the loan of $350,000.00 to finance the purported renovations to the real estate.

Sharina IMRAN-KHAN subsequently provided RAJKUMAR with lawyer, Shirley Joyce HENRY's information, identifying her as the lawyer who would be handling the mortgage transaction from the borrower's end. RAJKUMAR met with Shirley Joyce HENRY who provided RAJKUMAR with a photocopy of an Ontario Driver's License and a Social Insurance Card, all identification in the name of Iqbal HOSEIN and (now known) to have been modified to bear a photograph of the accused.

On August 9, 2012 RAJKUMAR's lawyer, Jeff LEVY of PORCO, LEVY, ZAVET LLP, forwarded $323,733.75 to HENRY in trust. According to the mortgage contract, HENRY was to release $200,000.00 to the accused, through IMRAN-KHAN. The remaining monies were to be released on September 10, 2012 after RAJKUMAR had inspected the property and found the progress of the renovations was acceptable.

On August 9, 2012 Sharina IMRAN-KHAN called RAJKUMAR advising that she needed her broker's fee urgently and she requested that RAJKUMAR make a cheque payable in her name in the amount of $7,000 immediately, representing 2% of the principal balance. RAJKUMAR complied with this request and paid Sharina IMRAN-KHAN $7,000 as part of the mortgage advance.

On Wednesday, August 29, 2012 RAJKUMAR attended 1096 Bathurst Street to inspect the property and to check on the progress of the renovations. The true Iqbal HOSEIN was at the property. He identified himself as Iqbal HOSEIN and told RAJKUMAR that he had not taken out a mortgage on his property. There were no renovations being done. Iqbal HOSEIN told RAJKUMAR that he knew Sharina IMRAN-KHAN – he had previously used her services to try to rent out his property.

On August 29, 2012 RAJKUMAR attended 53 Division, Toronto Police Service, to file a report complaining about this fraud. While at the police station, he received a phone call from Iqbal HOSEIN advising him that he had just spoken to his brother, the accused Amral HOSEIN, who had admitted to impersonating him to take out the mortgage. Iqbal HOSEIN also contacted police on August 29, 2012.

Attempts to Get the Money Back

While at the Bathurst Street property, Iqbal HOSEIN contacted Sharina IMRAN-KHAN by cell phone to demand what was going on. He handed the phone to RAJKUMAR who spoke with Sharina IMRAN-KHAN. IMRAN-KHAN assured RAJKUMAR that there had been a "mistake" and that she would sort out the matter. Later that day (August 29, 2012) RAJKUMAR contacted Sharina IMRAN-KHAN again who assured RAJKUMAR that she would make sure he got his money back, including the $7,000 paid in fees to IMRAN-KHAN.

Repeated communications between Sharina IMRAN-KHAN and Shirley Joyce HENRY never resulted in any money being paid back to RAJKUMAR.

Bank Records Show

Sharina IMRAN-KHAN held a Bank of Montreal chequing account #3969 3049-533. This account was held solely in her name. A review of the statement for the period ending August 7, 2012 shows the account to be solely in her control with an address of 166 Nature Haven Cres., Pickering, ON L1X 0A5. At the end of the statement period, the account balance was $-13.63.

Sharina IMRAN-KHAN added "Iqbal HOSEIN" to the account on August 7, 2012. The accused has admitted that he attended the bank to be added to the account and used false identification prepared for him by Sharina IMRAN-KHAN to present himself to the banker as his brother, Iqbal HOSEIN. The address on the account remained constant (166 Nature Haven Cres., Pickering, ON). The closing balance for this statement is $0.00.

During the month, on August 9, 2012 the deposit of the two cheques from the fraudulent mortgage scheme were deposited into the account by Sharina IMRAN-KHAN. The money was then rapidly dissipated so that only $24,087.12 was left in the account by August 10, 2012. Of the dissipation, a bank draft in the amount of $10,000 was issued to Amral HOSEIN, the accused. The remaining monies were spent and transferred to the benefit of Sharina IMRAN-KHAN. On August 10, 2012 a cheque in the amount of $7,000 with a memo "Fees" from RAJKUMAR was deposited by Sharina IMRAN-KHAN. The account was completely depleted to the benefit of Sharina IMRAN-KHAN and had a $0.00 balance on August 31, 2012.

The Arrest of the Accused and His Cooperation with the Investigation

On October 25, 2012, the accused turned himself into 53 Division for arrest.

On October 1, 2013 the accused attended 53 Division and provided a videotaped statement to the officer-in-charge of the investigation, PC Roxanne Doye, badge 8722. During this statement the accused explained that:

• He was approached by IMRAN-KHAN to personate his brother for the purpose of obtaining money for IMRAN-KHAN.
• IMRAN-KHAN told him that she needed the money in order to complete renovations on a property that she owned with her husband, Barnabas KHAN, a banquet hall.
• IMRAN-KHAN arranged for the lawyer, HENRY, to be involved in the transaction.
• IMRAN-KHAN prepared the false identification documents.
• IMRAN-KHAN made arrangements for the accused to be added onto her Bank of Montreal account.
• The accused attended at the Bank of Montreal and using the false documents provided to him, personated his brother in order that he be added to the Bank of Montreal account.
• The accused received a bank draft from Sharina IMRAN-KHAN in the amount of $10,000.
• The $10,000 payment was used to provide a car for use by IMRAN-KHAN and Sherry SAMM, an associate of Sharina IMRAN-KHAN, on the instructions of IMRAN-KHAN.
• The accused was expecting, as a benefit of his participation in this scheme, to be permitted to use IMRAN-KHAN's banquet hall for a card tournament, which would have been a financial benefit to the accused.
• The accused did not think his brother would be adversely affected by this fraud and that the money would be repaid to RAJKUMAR without detection.

Losses Suffered

Through Shirley Joyce HENRY, RAJKUMAR independently purchased title insurance on the mortgage monies from Chicago Title Insurance. Chicago Title Insurance paid RAJKUMAR $332,031.41 on November 6, 2012. CHICAGO TITLE INSURANCE has sustained a loss of $332,031.41 in this fraud.

Personal Circumstances of the Offender

3Mr. Hosein is 61 years of age. He is a Canadian citizen with no prior criminal record. He has a 22 year old son and 24 year old daughter. He is a valued employee of Service Master Inc. which provides customers with janitorial and cleaning services. Mr. Hosein has been employed there for 16 years and is currently an area manager. According to a character letter from the company president, filed as exhibit 2, the accused is a diligent and dependable employee who works very long hours. Mr. Hosein disclosed his crime to Mr. Rees.

4Mr. Hosein is also a member and participant of the Weston Islamic Benevolent Society where he is involved in both religious and charitable activities. A letter from the Centre's president Mohammed Farouk, filed as exhibit 3, describes Mr. Hossein as a well-respected contributing member of this organization.

5A medical report authored by Mr. Hosein's physician, filed as exhibit 4, discloses a number of ongoing and chronic health issues including diabetes, hypertension, osteoarthritis and degenerative disc disease.

Mitigating and Aggravating Factors

6There are several mitigating factors. Mr. Hosein entered an early guilty plea. He is genuinely remorseful. He disclosed this crime to his employer and his co-religionists at the Islamic Centre. He derived a personal benefit from his crime of $3000 and has made restitution. Mr. Hossein has cooperated with the Crown and investigators. He provided a sworn videotaped statement concerning the fraud and is prepared to testify against the main perpetrator, Ms. Imran-Khan. He had done this without any assurances of leniency from the Crown. Indeed, the prosecution is asking for a substantial reformatory sentence. Mr. Hosein's role and his reward for participating in this scheme was relatively minor compared to Ms. Imran-Khan who is the acknowledged architect and prime mover of the fraud.

7There are aggravating factors as well. This was a serious fraud involving a $330,000 loss to the victim. The accused, while not the directing mind, played an important role by personating his brother during the inspection of the property by Mr. Rajkumar. He provided his photograph for the fraudulent paperwork for the transaction. The offence cannot be characterized as a breach of trust in the traditional sense because Mr. Hosein did not owe any fiduciary duty to the victim nor Iqbal Hosein. This crime however did amount to a very serious betrayal by the accused of his brother.

Positions of the Parties

8The Crown seeks a custodial sentence of 12 months with 12 months of probation. Ms. Spencer submits that this was a serious fraud involving a substantial loss. Even conceding the accused's relatively minor role in its commission, she submits that his personation of his brother in the preparation of identification documents and his interaction with the borrower was part and parcel of the "elaborate theatre" of deceit practiced in this case. Ms. Spencer fairly acknowledged the remorse of the accused, his early plea and cooperation in the investigation and prosecution of Ms. Imran-Khan. However, it was submitted that a conditional sentence in this case would not adequately address the principle sentencing objectives of denunciation and general deterrence.

9Mr. Shidlowski, on behalf of Mr. Hosein, submits that a conditional sentence in the 9-12 month range plus probation of 12 months be imposed. He submits that given the mitigating factors present in this case, specific deterrence is not at issue. He submits that a lengthy conditional sentence can address the objectives of denunciation and general deterrence in the circumstances of this case. Counsel points out that his client was not indispensable to the commission of the fraud. Ms. Imran Khan could have enlisted anyone to play the role of Iqbal Hosein, the legitimate owner of the residence. His client never intended to harm his brother having been led to believe by his co-accused that the money would be paid back to the lender. The accused has been on interim release since 2012 without incident.

Analysis

10Counsel agree that Mr. Hossein is eligible to receive a conditional sentence. The offences were committed prior to recent amendments to the Criminal Code limiting the availability of conditional sentences in fraud cases such as this. Counsel also agree that Mr. Hosein is not a danger to the community. The parties agree that a sentence in the reformatory range of two years less a day or less would be appropriate.

11The contentious issue with respect to the imposition of a conditional sentence is whether such a sentence would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 to 718.2.

12Several cases were submitted by counsel advocating their respective positions. Obviously the gravity of the offence is clearly relevant. The role of the accused is another important factor. In R. v. Proulx, [2000] 1 SCR 6, the seminal case on conditional sentences, the Supreme Court of Canada recognized that a conditional sentence can provide a significant amount of denunciation particularly where onerous conditions are imposed and the term of the sentence is longer than would have been imposed as a jail sentence. Generally, the more serious the offence, the longer and the more onerous the conditional sentence should be. A conditional sentence can provide a significant amount of denunciation if sufficiently punitive conditions are imposed. The court cautioned judges to be wary of placing too much weight on deterrence when choosing between a conditional sentence and incarceration. Nevertheless, there may be circumstances in which the need for deterrence will require incarceration.

13In the circumstances of this particular offender and taking into account the role that he played in the offence, I am satisfied that a conditional sentence with onerous terms can satisfy the ends of justice in this case. An appropriately crafted conditional sentence can provide sufficient denunciation and deterrence without being disproportionately lenient. Such an order must be lengthy with restrictive terms followed by a lengthy period of probation. Mr. Hosein played a relatively minor role in the commission of the fraud. His profit for participating was $3000 and he has made restitution. Mr. Hosein has been cooperative with investigators and is prepared to testify in any future proceedings against Ms. Imran Khan. It is common ground that the accused is genuinely remorseful. I have taken into account the accused's significant medical issues which would make incarceration particularly onerous. I have also taken into account the good character evidence submitted by his employer and the President of the Weston Islamic Community Centre.

Sentence

14Mr. Hosein will be sentenced to 15 months to be served in the community with the following terms and conditions:

• Keep the peace and be of good behaviour
• Appear before the court as and when required
• Report to a supervisor within two working days of today and thereafter when required by the supervisor and in the manner directed by the supervisor
• For the first 9 months of that order, he will be confined at all times to his residence except for the purposes of employment, attendance for medical or dental appointments, religious services, appointments with the supervisor and such other purposes as directed and approved by the supervisor. He will be permitted out of his residence to conduct personal errands every Saturday from noon to 4:00 pm. For the last six months of his conditional sentence, he will be bound by a curfew seven days a week from 9 pm to 6 a.m. except for the purpose of employment.
• Abstain from the consumption of any alcohol and substances prohibited by law
• Not be in the company of or in association with anyone known to have a criminal record
• Maintain gainful employment
• Obtain counselling if directed by his supervisor and sign any necessary releases
• No contact or communication with Clifford Rajkumar and Sharina Imran-Khan
• Remain in the Province of Ontario throughout his conditional sentence unless he has permission to travel outside of the province from his supervisor
• When outside the home carry a copy of the conditional sentence order and produce it on request for identification to any peace officer

15Following the completion of the conditional sentence, he is placed on probation for 2 years with the following terms:

• Report to a probation officer within 48 hours of the commencement of his probation order
• Perform 120 hours of community service to be completed within the first 18 months of the commencement of this probation order to the satisfaction of his probation officer
• No contact with Clifford Rajkumar and Sharina Imran-Khan
• Remain in the Province of Ontario throughout probation unless he receives the permission to leave the province from his probation officer
• Take counselling as recommended by his probation officer and sign any necessary releases

There will also be a DNA order made.