CITATION: R. v. Kokoouline, 2009 ONCA 253
DATE: 20090320
DOCKET: C48275
COURT OF APPEAL FOR ONTARIO
Doherty, Feldman and Cronk JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Serguei Kokoouline
Appellant
Boris Bytensky, for the appellant
Susan Ficek, for the respondent
Heard and orally released: March 10, 2009
On appeal from the conviction entered by Justice D.J. Halikowski of the Ontario Court of Justice dated October 30, 2007 and the sentence imposed on December 27, 2007.
ENDORSEMENT
The Conviction Appeal
[1] The trial judge approached this case on the basis that the appellant had acted alone. On the evidence, the appellant was not at the gas station at the time some of the credit card information ultimately used in the frauds was misappropriated from the credit card holders. The trial judge found that the appellant had misappropriated that information when he was not physically present at the gas station by using a pinhole camera to capture the “PIN” information from the customers and by a surreptitious modification of the point of sale equipment to capture the encrypted information on the credit cards.
[2] It is unclear from the trial judge’s reasons whether the trial judge appreciated that both a pinhole camera (or video recording device) and the modification of the point of sale equipment were necessary in order to capture the required information. It is certainly arguable that he proceeded on the basis that the camera could capture all the needed information. If he proceeded on that basis, he misapprehended a significant part of the evidence.
[3] We do not have to decide whether in fact the trial judge misapprehended the evidence. We are satisfied that on this record it was unreasonable to conclude that any of the data was misappropriated by modifying the point of sale equipment. In our view, that conclusion is speculation.
[4] The rest of the trial judge’s analysis of the evidence is not open to successful challenge on appeal. Our conclusion that one of his findings was unreasonable affects only the verdicts on the counts relating to the Royal Bank as the appellant was not present on the only day when the Royal Bank credit card was used at the gas station. With respect to the frauds on the other financial institutions, our finding of unreasonableness would reduce the amount of those frauds on some counts but would not justify quashing the convictions. Consequently, the conviction on count 5 and the related possession of credit card data conviction in count 10 must be quashed. The remaining counts stand.
[5] The appellant also raises a legal argument in connection with his convictions on three of the counts (counts 14, 15 and 16). These counts relate to the possession of credit card data at the time of his arrest. Counsel submits that these convictions should be quashed because the evidence established that these cards had been “blocked” by the relevant financial institutions and, therefore, could not be used to successfully defraud those financial institutions.
[6] Section 342(3) of the Criminal Code does not require that the Crown prove that the issuer of the credit card could be successfully defrauded by its use before the Crown can obtain a conviction under that section. In our view, the question of whether the cards could be successfully used would be relevant to a charge of defrauding the financial institutions who issued the cards, but is not relevant to the offence created by s. 342(3). Those convictions stand.
The Proposed Fresh Evidence
[7] The appellant proffered “fresh” evidence on the conviction appeal. The evidence related to an investigation in Brampton, Ontario into charges involving a similar modus operandi to these charges. The appellant was found in possession of credit card data from customers at a Brampton Shell station but was not the employee who obtained the data. Those events were subsequent to the events giving rise to these charges. The appellant submits that the police investigation of the subsequent charges lends credence to the claim advanced by the appellant at this trial that he was the victim of a mistaken identification.
[8] The fresh evidence does not support that contention. If anything, the police investigation of the Brampton charges strongly connects the appellant to participation in very similar charges to those he faced in this case. That connection would not be helpful to the appellant. The fresh evidence could not reasonably have affected the result at trial and cannot be received.
The Sentence Appeal
[9] The appellant also appeals sentence. The trial judge imposed sentences totalling 3½ years. He also gave the appellant credit for 18 months pre-sentence incarceration using the accepted 2 for 1 multiplier. The net effective sentence was 5 years. The Crown accepts, and we agree with this concession, that the sentence was excessive when imposed.
[10] In determining the appropriate sentence, we must also take into account the convictions that have been quashed in this court and that the fraud as proved is for a somewhat smaller amount than found by the trial judge.
[11] There is also some readjustment needed of the credit given for pre-trial incarceration. The trial judge made a slight arithmetic error and gave the appellant a little more credit than he deserved. In our view, the appellant spent 7 months in pre-trial incarceration and deserved a 14 month credit.
[12] Having regard to the 14 month credit for pre-trial incarceration, the circumstances of the offences, the offender’s background and the modifications in the convictions that we have made, we think an appropriate sentence would be 2 years. We would reduce the sentences of 3½ years imposed on several of the counts to 2 years with all sentences to run concurrently. In the result, the appellant has a total sentence of 2 years beginning on the day the sentence was imposed by the trial judge.
Conclusion
[13] The conviction appeal is allowed with respect to counts 5 and 10, the convictions are quashed and acquittals entered. The remaining convictions are affirmed. The 3½ year sentence is varied to 2 years.
“Doherty J.A.”
“K. Feldman J.A.”
“E.A. Cronk J.A.”