COURT OF APPEAL FOR ONTARIO
Sharpe, Simmons and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Michael Lord
Appellant
Counsel:
Keith E. Wright, for the appellant
Alexander Hrybinsky, for the respondent
Heard: September 27, 2012
On appeal from the sentence imposed on April 28, 2010 by Justice C. Mocha of the Ontario Court of Justice, sitting without a jury.
APPEAL BOOK ENDORSEMENT
1In our view, given the serious nature of this fraud on an elderly individual and the appalling record of the appellant for offences of dishonesty, the custodial sentence imposed by the trial judge of 18 months was entirely fit.
2However, there is fresh evidence to which the Crown has consented that prevents very unusual features.
3First, the appellant has made reasonable efforts to overcome his alcoholism, a condition that appears to have been a strong factor in his criminality. He has now been alcohol free for 6 ½ years.
4Second, the appellant has made very significant efforts towards full restitution. Much of that has occurred post-sentence. He now has repaid the victim all but approximately $35,000, and a significant part of that has been paid in the past year.
5Third, the victim of the fraud was represented by counsel before us. She indicates that the victim is now chiefly concerned with restitution and supports our terms for a conditional sentence that will require the appellant to make full restitution through regular monthly payments.
6In our view, the fresh evidence before us brings this case with the very unusual circumstances in R. v. Smolyar (2003).
7Although the appellant’s conduct merits a significant custodial sentence, circumstances have evolved in a way that it would best serve the overall administration of justice to craft a sentence that will have significant consequences for the appellant but allow and require him to make full restitution.
8Accordingly, leave to appeal is granted, the sentence is allowed and a conditional sentence of 2 years less a day and probation of 3 years on the terms proposed by counsel and appended to this endorsement is imposed.
APPENDIX
Regina v. Michael Lord
File No. C52043
A. Conditional Sentence Order (2 years less 1 day)
(i) Statutory Conditions (Section 742.3(1))
(ii) Additional Conditions (Section 742.3)
During the first eight months, remain within his residence (or condominium building) at all times, except as permitted in Condition #4;
During the 9th to 16th month, remain within his residence (or condominium building) each Monday through Friday, except as permitted in Condition #4, and from 11:00 P.M. until 6:00 A.M. each Saturday evening and Sunday evening;
During the 17th to 24th month, remain within his residence (or condominium building) from 11:00 P.M. to 6:00 A.M. every day;
The exceptions to Conditions #1 and #2 are:
(a) for employment, and travelling to and from same;
(b) for scheduled medical and dental appointments, and medical and dental emergencies, and travelling to and from same;
(c) from 1:00 P.M. until 5:00 P.M. on Saturdays, for the purpose of attending to personal errands (Condition #1 only);
(d) for scheduled appointments with conditional sentence supervisor, and travelling to and from same;
(e) for scheduled appointments with counsel, and travelling to and from same;
(f) for attending court as required and travelling to and from same;
(g) for attending meetings of Alcoholics Anonymous, or meetings with counsellor, and travelling directly to and from same;
(h) on any other occasion, with the prior written permission of the Supervisor;
Attend meetings of Alcoholics Anonymous, at least once per week, and more often if so directed by Supervisor;
Attend such counselling as is deemed necessary by Supervisor;
Not associate or communicate, either directly or indirectly, with Prescott Duff, except through counsel or through Supervisor;
Pay to Prescott Duff, on the 15th day of each month, the sum of $1,000.00, until the balance referred to in the Minutes of Settlement, dated September 26, 2011, has been paid; and
Abstain from the consumption of alcohol or any other intoxicating substance.
B. Probation Order (3 years)
(i) Statutory Conditions (Section 732.1(2))
(ii) Additional Conditions (Section 732.1(3))
Attend meetings of Alcoholics Anonymous, at least once per week, and more often if so directed by Supervisor;
Attend such counselling as is deemed necessary by Supervisor;
Not associate or communicate, either directly or indirectly, with Prescott Duff, except through counsel or through Supervisor;
Pay to Prescott Duff, on the 15th day of each month, the sum of $1,000.00, until the balance referred to in the Minutes of Settlement, dated September 26, 2011, has been paid; and
Abstain from the consumption of alcohol or any other intoxicating substance.