DATE: 20061006

DOCKET: C44590

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – SOTIRIOS PHRONIMADIS (Appellant)

BEFORE:

CRONK, LANG and MacFARLAND JJ.A.

COUNSEL:

Alan D. Gold

for the appellant

Tracy Stapleton

for the respondent

HEARD & RELEASED ORALLY:

October 3, 2006

On appeal from the sentence imposed by Justice Bonnie L. Croll of the Superior Court of Justice dated December 13, 2005.

E N D O R S E M E N T

[1] We agree with the appellant’s contention that the recent decision of this court in R. v. Downes (2006), 2006 3957 (ON CA), 205 C.C.C. (3d) 488, which was not available to the sentencing judge in this case, requires that some mitigation benefit on sentencing be afforded to the appellant on account of the restrictive conditions of his 31 months spent on bail under pre-sentence house arrest. Based on her reasons, we cannot be certain that appropriate consideration was given by the sentencing judge to this factor in this case.

[2] However, we do not accept that a formulaic approach to sentencing credit for a lengthy period of pre-sentence house arrest is envisaged by Downes. To the contrary, in our view, Downes recognizes that the credit to be given, if any, must be case specific.

[3] On the facts of this case, we conclude that the lengthy period of the appellant’s pre-sentence house arrest and the particular conditions that governed it throughout warrant a credit of eight months on the sentence to be imposed for the New Brunswick offences. Taking the other relevant mitigating factors into account as identified by the sentencing judge, including the appellant’s guilty pleas and the significance of R. v. Kuriya, 2003 NBCA 63, [2003] N.B.J. No. 336 (C.A.), this results in an overall sentence for the New Brunswick offences of nine months.

[4] We see no error in the sentencing judge’s rejection of a conditional sentence in this case. In our view, a custodial sentence is warranted given the nature of the admitted frauds, the involvement of this offender in those frauds, and the importance in cases such as this of the need to give effect to general deterrence in accordance with the principles outlined in R. v. Bogart (2002), 2002 41073 (ON CA), 167 C.C.C. (3d) 390 (Ont. C.A.), application for leave to appeal dismissed [2002] S.C.C.A. No. 398 and related cases.

[5] In the result, leave to appeal sentence is granted, the sentence appeal is allowed and the appellant’s sentence is reduced from 20 months to 12 months incarceration. In all other respects, the appeal from sentence is dismissed.

“E.A. Cronk J.A.”

“S. E. Lang J.A.”

“J. MacFarland J.A.”