CITATION: R. v. Jainarayan 2017 ONSC 6086
COURT FILE NO.: CR-16-10000441-0000
DATE: 20171012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MOONESHWAR JAINARAYAN
Defendant
Christopher Ponesse, for the Crown
Elliott Willschick, for the Defendant
HEARD: July 28, 2017
Michael G. Quigley J.
Reasons for Sentence
[1] Between December 18, 2014 and January 15, 2015, the Royal Bank of Canada (“RBC”) suffered a loss of 46 computers from its computer hardware storage room located on the P1 level of its new operations centre located at 88 Queens Quay in Toronto. At the time of the loss, this was a brand-new building, and construction had not completely finished. Nevertheless, it was occupied and the principal tenant was the bank. The building is owned and managed by Oxford Developments. The storage room in which the computer equipment had been located had been used for that sole purpose from the time when RBC first took occupancy of its space in the building in September 2014.
[2] Mooneshwar Jainarayan was charged with seven offences in connection with those missing computers. He was a security guard in that building. He was charged with breaking and entering on December 31, 2014, stealing and being in possession of stolen property having a value of less than $5,000, possession of property derived from the commission of an indictable offence in Canada, namely the computers, a January 9, 2015 charge of breaking and entering, and a charge on the same day of mischief relating to the obstruction of a video camera outside the RBC computer storage room. Finally, he was also charged between January 9 and January 14, 2015 with breaking and entering and committing theft of further computers, and with having stolen property having a value exceeding $5,000. I amended the dates of the last offence on the indictment on the request of Crown counsel since the evidence at trial established that the correct period should have been between December 18, 2014 and January 15, 2015.
[3] The accused re-elected to be tried by me sitting as judge alone. The evidence of the Crown, including the testimony of the investigators and numerous documents, photographs, and video surveillance footage, were entered as exhibits. However, none of the computers have ever been found, and the evidence against the accused was almost entirely circumstantial. The value of the lost computers was just short of $80,000. At the end of the Crown's case, the defence called no evidence.
[4] Given the almost entirely circumstantial nature of the evidence that was present in this case, the question was whether Crown counsel had proven to the criminal standard that the accused, Mooneshwar Jainarayan, alone or perhaps with others, was the perpetrator of these offences.
[5] In a circumstantial case, which relies on inferences drawn from findings of fact, a finding of guilt on any charge can only be made where the inference of guilt is the only reasonable inference that can be drawn from the entirety of the factual evidence that informs the question. I considered the evidence in this case to be overwhelming and taken in its entirety, as a constellation, I was satisfied beyond a reasonable doubt that the only reasonable inference that could be drawn from the entirety of the evidence was the guilt of this accused. The entirety of that evidence left me in no doubt that Mr. Jainarayan was guilty of each of the offences with which he was charged and I convicted him on all counts. My reasons are reported at 2017 ONSC 3440.
Circumstances of the offender
[6] The offender is 26 years of age. he was born in Guyana. He immigrated to Canada in 1994 at the age of four after being sponsored by his aunt. His mother and sister accompanied him while his father remained in Guyana until 1999. His early time in Canada was not positive and he was picked on because of his name and bullied until grade 4. He is one of two children having a sister age 28. They have a good relationship however he claims he is unable to develop a close relationship with her due to her learning disability.
[7] His parents separated in 2007 as a result of his father's alcoholism. There was also violence within the family home and he was subjected to sometimes excessive and inappropriate physical discipline from his father. Nevertheless, the offender describes his relationship with his father as good, but does not see him regularly. He currently resides with his maternal aunt and uncle under the terms of his bail conditions. He wishes to return to residing with his mother and sister in Toronto once these matters have been dealt with. He says that his mother loves him no matter what he does, and remains supportive towards him. He claims they have a very close relationship and that he is grateful for her.
[8] He has been involved in one long-term relationship but it ended due to a misunderstanding and he took the break very hard. It caused him to become bitter and cold. He is currently involved in a new romantic relationship and has known his current partner for seven years as they went to high school together. He does not have any children from his current or past relationships.
[9] The offender has completed grade 12 and received his high school diploma. He got along well in school and no learning disabilities were noted. He attended all classes and received average grades. He was never subjected to disciplinary action while in school. In 2011 he attended a postsecondary credit course in landscaping and design. He has had no further education involvement or vocational training. He had worked in the security field as a security officer for three years prior to this incident. He has been unemployed since 2015 due to these outstanding matters, but claims he can be employed and can earn an income in contracting work. He is presently being financially supported by his aunt and uncle. He has no substance abuse related issues and denied ever experimenting with illicit drugs. He consumes a beer occasionally but evidently has no alcohol consumption issues.
[10] In front of the probation officer who prepared the Pre-Sentence Report, the offender continued to maintain his innocence and indicated that the incidents before the court have caused his life to go downhill. Neither was the offender cooperative during the interview process with police and Detective Constable Christopher Chung noted to the probation officer that the offender “has not admitted any guilt or shown any remorse for the incident even though there was overwhelming evidence against him." The officer's view was that the offender did not take the charges seriously and he recommends a custodial sentence, that the offender pay restitution and that he be banned from security employment.
[11] The probation officer's assessment of the offender indicates that he did not appear to express any remorse for his behaviour and failed to accept responsibility for his role or participation in these defences. In light of those factors, should he begin to address those areas of concern and accept responsibility, his chances of being successful in completing a period of community supervision in the future may increase.
Position of the parties
[12] Crown counsel seeks a sentence of between six and eight months of imprisonment and two years of probation. As well, Crown counsel seeks restitution of the $79,145 value of the stolen computers, a DNA order as a secondary designated offence, and terms that the offender not attend at 88 Queens Quay West for any reason, that he not obtain employment now or in the future as a security guard, that he obtain counseling as recommended by his probation officer, and that he provide all necessary releases to permit his compliance to be monitored.
[13] Counsel for the offender seeks a suspended sentence, combined with a lengthy period of probation and a restitution order for the full amount of the bank’s loss.
Sentencing Factors
[14] Section 718 of the Criminal Code states the fundamental purposes of sentencing and lists its underlying objectives. They are to contribute to respect for the law and the maintenance of a just, peaceful and safe society by the imposition of just and appropriate sanctions. Among the specific objectives listed in section 718 of the Criminal Code, there are several that are relevant here. They are to denounce unlawful conduct, and to deter the offender and others from committing offences. Section 718.1 of the Code requires that the sentence be proportionate to the offence and the degree of the offender’s responsibility.
[15] In a case such as this, general deterrence to others is paramount, but specific deterrence of this offender is also important. Given his absence of any criminal antecedents and the circumstances he presented, however, rehabilitation must also play an important role.
[16] More importantly here, where a six-eight month jail sentence is sought by the Crown, it is important that this is a first time offender who would otherwise have qualified for a conditional sentence but for the change in law mandated by the last government. However, s. 742.1 of the Code now precludes this offender from being sentenced to a conditional sentence for these offences. That is no longer a sentence that can legally be imposed, regardless of the fact that this is a first time youthful offender. Nevertheless, Parliament has also mandated that an offender is not to be deprived of his liberty if less restrictive sanctions may be appropriate in the circumstances of the case. All available sanctions that are reasonable in the circumstances, other than imprisonment, must generally be considered for all offenders.
Reasons
[17] Crown counsel puts forward a number of decisions of provincial courts, the Superior Court, and two Court of Appeal decisions, in support of the sentence he seeks: R. v. Hart, [2008] O.J. No. 6056 (O.C.J.), R. v. Hogg, [2007] A.J. No. 1111 (A.P.C.), R. v. Mason, [2017] O.J. No. 1113 (S.C.J.), R. v. Rego, [2010] O.J. No. 2625 (S.C.J.), R. v. Suhr, 2002 CanLII 13476 (ON CA), [2002] O.J. No. 4315 (C.A.), R. v. Fleet, [1977] O.J. No. 4553 (C.A.), R. v. Collati, [2003] O.J. No. 5353 (S.C.J.) and R. v. Takeshita, [2013] O.J. No. 1122 (S.C.J.).
[18] In Hart, a conditional discharge was imposed following a joint submission where three computers had been stolen, and at a time when a conditional discharge could still be imposed. In Hogg, the offender stole a number of computers and was sentenced to 6 months imprisonment and three years of probation. In Mason, the offender was sentenced to four months imprisonment. The court emphasized that deterrence and denunciation were paramount considerations. The offender was also subjected to a $20,000 restitution order. In Rego, Richetti J. sentenced an offender to six months for a theft that turned into a robbery involving $500,000. The offender there accepted responsibility and was remorseful, but the sentencing judge reduced the sentence because of good rehabilitation prospects, and emphasized the importance of rehabilitation in case like this. In Suhr, the offender pleaded guilty to having stolen 100,000 telephones. He paid back some of the loss. He was sentenced to six months imprisonment and 18 months of probation, subjected to a restitution order and ordered to perform 240 hours of community service. In Fleet, a sentence of six months was imposed for a theft of $7,000.
[19] There are several mitigating factors here, but also several that are aggravating. Relative to mitigation, it is important that the offender here has no criminal record and is a youthful offender. However, it is aggravating that these crimes were calculated and committed from a position of trust as a security guard. Although no victim impact statement was filed, there were actually two victims in this matter: the RBC whose computers were stolen and the security company who trusted this offender as a security guard but was deceived in doing so. The offender thought he could get away with these thefts but he was caught, yet even when caught he would not acknowledge these offences in the face of overwhelming circumstantial evidence. Further, there has been no restitution made, although I acknowledge that would have been difficult for him since he has not been working since he was arrested for these crimes.
[20] More importantly, it was aggravating that the offender initially had no insight into his conduct, had no acceptance of responsibility for his actions, and as the PSR demonstrates, showed no remorse for his conduct. In fairness to the offender, however, that at least has now changed as he acknowledged his responsibility to me at the sentencing hearing, and expressed his genuine remorse for his conduct. While it may be akin to a “death-bed repentance”, probably incited by his counsel’s earnest advice that acceptance of personal responsibility, regardless of whether others may have been involved, is critical to any consideration of leniency by the court. While I will acknowledge some skepticism of an expression of remorse so late in the day, I do nevertheless accept Mr. Jainarayan’s statement of remorse to me and his acceptance of responsibility. He may not have previously understood that only by his acceptance of his conduct and its criminality can the court have any hope of his prospects of rehabilitation.
[21] Against this background, I have reached the conclusion that it would serve no meaningful public purpose to incarcerate this offender. In my view, a period of incarceration is more likely to cause him to associate with others in custody and possibly, given his youth and obvious impressionability, take him on the wrong path, rather than permitting him to choose to take the right path towards lawful conduct, acknowledgement of his wrongs, and moving forward in a positive direction towards rehabilitation.
[22] I accept that as a youthful offender, Mr. Jainarayan may have made a very big mistake. He may have thought he was smarter than everyone else, and could pull this caper off without being caught. That was a big mistake on his part. He can be given a lesser sentence in circumstances where he shows prospects of rehabilitation and the promise of restitution, where he will be subjected to state supervision for the maximum permissible time, and where he can be required to perform lengthy and meaningful community service to not only remind him of the reasons he has not been deprived of his liberty on this first occasion of unlawful conduct, but also to learn from insight that experience will hopefully provide, that while he has been given a break on this occasion, he will not receive another.
[23] Mr. Jainarayan, you will please now stand.
[24] Notwithstanding the reasonable and thoughtful submissions of Crown counsel and his reasonable request that you be incarcerated for a period of six to eight months for these offences, I intend to give you a break. Perhaps it is appropriate at Thanksgiving, which we have just celebrated, that this sentence will convey to you the thanks you owe to the leniency and sometime understanding of our justice system, very different from that of our neighbours to the south where you would certainly be jailed for these offences.
[25] If I were permitted to sentence you to a conditional sentence, I would do so, but that is no longer open to me. So I have instead determined to grant you a suspended sentence, but with stringent and unescapable terms. My principal reason for doing so is to permit you to work, not only to support yourself and to learn to become a productive and law abiding citizen, but equally if not more importantly here, to require you to make full restitution for the economic loss cause by your criminal conduct.
[26] I grant you a suspended sentence under s. 731.1 of the Code, but that will be accompanied by three years of probation. Further, you will be subject to a full and free-standing restitution order under s. 738 of the Code requiring you to repay the entire loss sustained by the RBC in the sum of $79,145 within the three year term of your probation. Should you have not made full restitution within that stipulated time frame that order will continue to be outstanding and enforceable against you by RBC under s. 741(1) as a judgment until paid. The Crown will provide notice to RBC of their entitlement to enforce this order against you under s. 741.1 of the Code. Finally, and in addition, you will perform 250 hours of community service as your probation officer shall direct.
[27] In addition to the foregoing terms, as my conditions of granting you this suspended sentence, you will be subject to the statutory terms set out in s. 742.3(1) as part of your probation including,
(a) keep the peace and be of good behaviour;
(b) appear before the court when required to do so by the court;
(c) report to a supervisor within two working days, and thereafter, when required by the supervisor and in the manner directed by the supervisor;
(d) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and
(e) notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.
[28] The terms of this probation are to be adhered to strictly, and you are to carry a copy of your probation terms with you at all times when outside of your home.
[29] Mooneshwar Jainarayan, you need to understand that this is as lenient a sentence as our law permits me to impose upon you in discharging my duties as a sentencing judge, but notwithstanding your crime, you have otherwise evidently lived a lawful and law abiding life, and so I impose this sentence in the hope that you will understand the seriousness of the crimes you committed, but that you will never again run afoul of our laws and be seen in these courts again.
[30] You should understand that the next time, should there be a next time, you will not fare so well. In that regard, I order that your CPIC record is to make specific mention of the citation of these reasons for sentence and my order that if you are ever charged and convicted of another criminal offence in the future, these reasons for sentence are to be brought to the attention of the sentencing judge at that time. However, I am sincerely hopeful that such an event will never arise and I remain confident you will not disappoint my trust in you, but understand that you may not receive such leniency in the future should you break the trust I have expressed in you today.
Michael G. Quigley J.
Released: October 12, 2017
CITATION: R. v. Jainarayan 2017 ONSC 6086
COURT FILE NO.: CR-16-10000441-0000
DATE: 20171012
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MOONESHWAR JAINARAYAN
Defendant
REASONS FOR SENTENCE
Michael G. Quigley J.
Released: October 12, 2017