



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bhatti, 2016 ONCA 769

DATE: 20161018

DOCKET: C62574

Cronk, Juriansz and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nashaid Iqbal Bhatti

Appellant

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 appellants 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 judges 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. Mahmoods sentence and of the
    evidence before him regarding the appellants 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 appellants 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 appellants
    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. Mahmoods guilty plea and sentencing proceedings,  neither
    counsel sought an adjournment of the appellants sentencing hearing in order to
    lead evidence regarding those proceedings and both counsel made submissions
    concerning the application of the parity principle in the appellants case.

[13]

The sentencing judge took account of the parity principle in light of
    the information available to him about Mr. Mahmoods sentence and gave this
    principle effect when crafting a fit sentence for the appellant. Indeed,
    expressly on the basis of Mr. Mahmoods 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. Mahmoods 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. Mahmoods case accorded Mr. Mahmood mitigation
    credit on sentencing because he had made restitution prior to trial.  In
    contrast, the sentencing judge in the appellants case placed little weight on
    the fact that the appellant had failed to make any restitution.  This enured to
    the appellants 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
    appellants attack on the sufficiency of the sentencing judges 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.


