DATE: 20010924

DOCKET: C35388

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. DAVID SANDERSON (Applicant/Appellant)

BEFORE:

DOHERTY, GOUDGE and CRONK JJ.A.

COUNSEL:

Daniel A. Stein

for the appellant

Philip Perlmutter

for the respondent

HEARD:

September 21, 2001

RELEASED

ORALLY:

September 21, 2001

On appeal from the sentence imposed by Justice D.J. Halikowski on October 30, 2000.

E N D O R S E M E N T

[1] The appellant pleaded guilty to numerous charges arising out of a scheme whereby the appellant obtained credit card information and provided it to persons who eventually used that information to defraud the three banks of a total of some $317,000.00. The appellant also pleaded guilty to defrauding Future Shop of $2,121.00 by the use of a fraudulent credit card.

[1] As part of a carefully crafted sentence, the trial judge made a restitution order against the appellant in the amount of $52,121.00 ($50,000.00 in favour of the banks and $2,121.00 in favour of Future Shop). As part of the one-year conditional sentence imposed, the trial judge required that the appellant pay $5,000.00 of the amount ordered in the restitution order. He also provided for variation of that term, if necessary. Further, as part of the three-year probation, the trial judge required the appellant to pay another $15,000.00 towards the amount set out in the restitution order, again with provision for variation of that amount, if the circumstances required.

[2] The trial judge attempted to craft a sentence which would give effect to the purposes of sentencing as described in s. 718 of the Criminal Code. Those purposes include “to provide reparations for harm done to victims”. The appellant pleaded guilty to the frauds on the bank as well as the fraud on Future Shop. The facts read in with respect to the frauds on the bank acknowledged that these frauds resulted in the loss of $317,000.00. The loss to Future Shop of $2,121.00 was never in dispute.

[3] It was open to the trial judge to make a restitution order in favour of the banks and Future Shop against the appellant. In doing so, he had to take into consideration a number of factors, including the appellant’s role in the crimes, the existence of others who apparently profited from the crimes, the appellant’s ability to pay restitution and the total loss suffered by the victims.

[4] The trial judge took these factors into consideration and we see no basis upon which to interfere with the exercise of his discretion.

[5] Leave to appeal sentence is granted and the appeal is dismissed.

“Doherty J.A.”

“S.T. Goudge J.A.”

“Cronk EA, J.A.”