R. v. Dhillon (J.S.), 2010 ABCA 28

• Judge: Ritter, Slatter and Rowbotham, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: January 19, 2010
• Citations: 2010 ABCA 28;(2010), 474 A.R. 196 (CA)

R. v. Dhillon (J.S.) (2010), 474 A.R. 196 (CA);

      479 W.A.C. 196

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. FE.003

Her Majesty the Queen (respondent) v. Jason Singh Dhillon (appellant)

(0903-0232-A; 2010 ABCA 28)

Indexed As: R. v. Dhillon (J.S.)

Alberta Court of Appeal

Ritter, Slatter and Rowbotham, JJ.A.

February 1, 2010.

Summary:

The accused and another used fabricated bank cards in an ATM to withdraw money from accounts belonging to others. When police pursued their vehicle, they stopped but the accused, who was driving, drove away when he was asked to produce his documents. The accused pled guilty to one count each of fraudulent possession of credit card information and failure to stop for police. He was sentenced to 18 months' incarceration (15 months for the fraud offence and three months consecutive for failure to stop). The accused appealed from his sentence.

The Alberta Court of Appeal dismissed the appeal.

Editor's note: for the decision regarding an appeal from sentence by this accused's co-accused, see 474 A.R. 190; 479 W.A.C. 190.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The accused and another used fabricated bank cards in an ATM to withdraw money from accounts belonging to others - When police pursued their vehicle, they stopped but the accused, who was driving, drove away when he was asked to produce his documents - The accused pled guilty to one count each of fraudulent possession of credit card information and failure to stop for police - He was sentenced to 18 months' incarceration (15 months for the fraud offence and three months consecutive for failure to stop) - The Alberta Court of Appeal dismissed the accused's appeal - The court rejected the accused's argument that the sentencing judge used the wrong legal test regarding the imposition of a conditional sentence - Review of the sentencing judge's consideration of the availability of a conditional sentence for the accused disclosed that she assessed the accused's criminal record and concluded that he posed too great a risk of re-offending - The accused's record supported that conclusion and, in any event, the test used by the sentencing judge was exactly that mandated in R. v. Proulx (J.K.D.) (2000 S.C.C.) - She did not err in law with respect to the test she used - See paragraphs 13 to 15.

Criminal Law - Topic 5865.2

Sentence - Failure to stop a motor vehicle pursued by police (flight or evading police) - [See Criminal Law - Topic 5899 ].

Criminal Law - Topic 5899

Sentence - Debit and credit card offences (incl. fraud, theft, etc.) - The accused and another used fabricated bank cards in an ATM to withdraw money from accounts belonging to others - When police pursued their vehicle, they stopped but the accused, who was driving, drove away when he was asked to produce his documents - The accused pled guilty to one count each of fraudulent possession of credit card information and failure to stop for police - He was sentenced to 18 months' incarceration (15 months for the fraud offence and three months consecutive for failure to stop) - The Alberta Court of Appeal dismissed the accused's appeal - The court rejected the accused's argument that the sentencing judge had made certain factual errors that impacted the fitness of the sentence - The court found that there was one factual error in the sentencing judge's statement that the accused "was not a minor participant. He helped gather the information. He drove as far as Calgary to help skim the bank accounts." - There was no proof that the accused had been involved in skimming bank cards in Calgary - This did not render the sentence unfit - The sentencing judge rightly considered that the accused was an active participant in at least part of a fairly sophisticated criminal enterprise - Although the accused pled guilty to only one count of possession of credit card data, in settling sentence, the sentencing judge was entitled to examine the context in which the data was possessed, the amount of data involved, and the use being made of the data while it was possessed - The accused was an essential cog in the wheel that turned this criminal enterprise - See paragraphs 16 to 28.

Criminal Law - Topic 6204

Sentencing - Appeals - Variation of sentence - Grounds for refusing to vary sentence - [See Criminal Law - Topic 5899 ].

Cases Noticed:

R. v. Sagoo (I.S.) (2010), 474 A.R. 190; 479 W.A.C. 190; 2010 ABCA 29, refd to. [para. 4].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 11].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 11].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 14].

R. v. Naqvi (I.S.) (2005), 396 A.R. 391; 2005 ABPC 339, refd to. [para. 18].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 21].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 24].

Counsel:

M.J. McGuire, for the respondent;

P.L. Moreau, for the appellant.

This appeal was heard on January 19, 2010, by Ritter, Slatter and Rowbotham, JJ.A., of the Alberta Court of Appeal. On February 1, 2010, the court delivered the following memorandum of judgment.