Court of Appeal for Ontario

Citation: R. v. Bhatti, 2016 ONCA 769

Date: 2016-10-18

Docket: C62574

Before: Cronk, Juriansz and Brown JJ.A.

Between:

Her Majesty the Queen Respondent

and

Nashaid Iqbal Bhatti Appellant

Counsel: Michael K. Wendl, for the appellant Megan Stephens, for the respondent

Heard: October 14, 2016

On appeal from the sentence imposed on July 27, 2016 by Justice George S. Gage of the Ontario Court of Justice.

By the Court:

A. Introduction

[1] On July 27, 2016, the appellant pled guilty to one count each of conspiracy to commit fraud over $5,000 and uttering a forged document. The charges arose from the appellant’s participation, from mid-2012 to late 2015, in a scheme involving the use of fraudulent pieces of identification bearing the names and birthdates of non-existent persons to obtain credit from financial institutions and to rent various leasehold premises. The appellant was sentenced to a total of nine months in jail, concurrent, and was ordered to provide a DNA sample.

[2] Another participant in the fraudulent scheme, Tahir Mahmood, was tried and sentenced in separate proceedings. He pled guilty to conspiracy to commit fraud over $5,000 and conspiracy to procure identity documents. He was sentenced to a 90-day intermittent custodial term, concurrent, in addition to 18 days pre-trial custody.

[3] The appellant seeks leave to appeal and, if leave be granted, appeals from his sentence.

B. Issues

[4] The appellant raises one issue on appeal. Invoking the parity principle of sentencing, he argues that the sentencing judge erred by failing to provide sufficient reasons for the disparity in the sentence imposed on the appellant and that imposed on his co-accused, Tahir Mahmood.

C. Discussion

[5] At the conclusion of oral argument, the court granted leave to appeal sentence and dismissed the sentence appeal, for reasons to follow. These are those reasons.

[6] The principle of parity in sentencing is codified in s. 718.2(b) of the Criminal Code, R.S.C. 1985, c. C-46. That section reads: “A sentence shall be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” As this court recently reiterated in R. v. Beauchamp, 2015 ONCA 260, at para. 276, the parity principle is intended “to preserve fairness by avoiding disparate sentences where similar facts relating to the offence and offender would suggest like sentences” (citation omitted). However, as the Beauchamp court emphasized, this does not mean that equal or identical sentences are required for similar offenders or similar offences. Rather, the rule against unreasonable disparity in sentencing requires understandable sentences, when examined together: Beauchamp, at para. 277.

[7] Based on the disparity between his sentence and that imposed on Mr. Mahmood, the appellant argues that the sentencing judge erred in law by departing from the parity principle without giving reasons. He maintains that, given his circumstances and those of Mr. Mahmood, and on proper application of the parity principle, a custodial term of four months in jail is a fit sentence in this case.

[8] We disagree.

[9] The sentencing judge’s reasons confirm that he was aware of the sentence imposed on Mr. Mahmood and that he was alert to the importance of the parity principle. He took specific account of Mr. Mahmood’s sentence and of the evidence before him regarding the appellant’s circumstances and the circumstances of his offences. Having done so, the sentencing judge concluded that a nine month custodial term was an appropriate sentence. This was his call to make.

[10] The appellant, wisely, does not contend that the sentence imposed is unfit. It is not. The sentencing judge noted the appellant’s lengthy involvement in the fraudulent scheme over an extended period of time, the scope of the conspiracy to which he pled guilty, the nature of the appellant’s specific fraudulent activities, and the fact that the appellant was motivated by greed. The admitted facts at trial also established that the appellant was a knowing participant in the fraudulent scheme and that he facilitated its implementation by driving others, specifically, Mr. Mahmood, to targeted financial institutions and providing fictitious identification and specific instructions.

[11] On these facts, the sentence imposed on the appellant was entirely appropriate. If anything, it was lenient in all the circumstances. As the sentencing judge put it, at p. 2 of his reasons: “[I]n my view, a nine-month sentence for these offences, concurrent, is a minimal expression of deterrence and denunciation and the appropriate disposition.”

[12] That Mr. Mahmood received a lesser sentence for his involvement in the fraudulent scheme does not automatically entitle the appellant to the benefit of the lower sentence received by his co-accused: Beauchamp, at paras. 279-280. Although the sentencing judge did not have the benefit of full details regarding Mr. Mahmood’s guilty plea and sentencing proceedings, neither counsel sought an adjournment of the appellant’s sentencing hearing in order to lead evidence regarding those proceedings and both counsel made submissions concerning the application of the parity principle in the appellant’s case.

[13] The sentencing judge took account of the parity principle in light of the information available to him about Mr. Mahmood’s sentence and gave this principle effect when crafting a fit sentence for the appellant. Indeed, expressly on the basis of Mr. Mahmood’s lesser sentence, he imposed a sentence on the appellant at the lower end of the nine to twelve months’ custodial range urged by the Crown.

[14] We note that the record before this court confirms that there were material differences between Mr. Mahmood’s circumstances and those of the appellant. Unlike the appellant, Mr. Mahmood made full restitution for his offences and had undertaken rehabilitative programming at the Salvation Army prior to sentencing.

[15] The sentencing judge in Mr. Mahmood’s case accorded Mr. Mahmood mitigation credit on sentencing because he had made restitution prior to trial. In contrast, the sentencing judge in the appellant’s case placed little weight on the fact that the appellant had failed to make any restitution. This enured to the appellant’s benefit. If his failure to make restitution had been taken into account by the sentencing judge, it could only have served to increase his sentence.

[16] It follows from the comments set out above that we reject the appellant’s attack on the sufficiency of the sentencing judge’s reasons. When those reasons are read in the context of the record, as they must be, it is apparent why the sentencing judge decided as he did. The sufficiency of reasons standard, therefore, is met in this case.

D. Disposition

[17] For these reasons, leave to appeal sentence is granted and the sentence appeal is dismissed.

Released:

“OCT 18 2016” “E.A. Cronk J.A.”

“RGJ” “R.G. Juriansz J.A.”

“David Brown J.A.”