DATE: 20021114

DOCKET:C38008

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – ROLF SUHR (Appellant)

BEFORE: MCMURTRY C.J.O., CARTHY AND SIMMONS JJ.A.

COUNSEL: Laurence Cohen For the appellant

Philip Perlmutter For the respondent

HEARD: October 15, 2002

On appeal from the sentence imposed by Justice David P. Cole of the Ontario Court of Justice dated March 12, 2002.

E N D O R S E M E N T

[1] We dismissed this appeal on October 15, 2002. These are our reasons for dismissing the appeal.

[2] On February 28, 2001, the appellant pleaded guilty to one count of theft over $5000 relating to the theft of a quantity of telephones from Bell Canada. The appellant stole telephones and equipment from Bell Canada over the course of at least one year and used the proceeds of sale to fund his gambling addiction. The appellant was employed by Bell Canada for over 22 years. At the time of the thefts, he worked as an administrative technician and was responsible for ordering equipment for other technicians.

[3] Cole J. sentenced the appellant to six months imprisonment, 18 months probation, and 240 hours of community service. He also imposed a freestanding restitution order requiring that the appellant repay $90,000 to Bell Canada.

[4] We find no error in the sentencing judge’s conclusion that, on the facts of this case, denunciation and general deterrence would not be adequately addressed by the imposition of a conditional sentence. When the facts on sentencing were read into the record, counsel for the appellant specifically acknowledged that the appellant was in a position of trust. In our view, because the appellant’s position as an administrative technician facilitated this offence, the facts read in properly gave rise to a finding of breach of trust. Further, although the appellant was a first offender, the magnitude, duration, and breach of trust component of the offence justified the sentencing judge’s decision to refuse to impose a conditional sentence.

[5] Given that the issues on sentence were few and narrow, it was not necessary that the sentencing judge specifically advert to the mitigating factors. The sentencing judge’s reasons reflect the basis of his decision to impose a custodial sentence as opposed to a conditional sentence. In the circumstances, there is no available inference that the sentencing judge ignored, or misunderstood, the mitigating factors.

[6] We find no error in the sentencing judge’s brief reference to this court’s decisions in R. v. Dobis, 2002 32815 (ON CA), [2002] O.J. No. 646 and R. v. Pierce (1997), 1997 3020 (ON CA), 114 C.C.C. (3d) 23. Both decisions emphasize the importance of general deterrence as a sentencing principle in situations involving a breach of trust. The sentencing judge had delayed sentencing pending this court’s decision in Dobis. He did not suggest that there was a close analogy between the facts of this case and the facts in either of those decisions.

[7] Finally, we note that in imposing a sentence involving a combination of incarceration and community service, the sentencing judge made the following comments:

Prima facie I would say that a sentence of between nine to twelve months would be appropriate to impose on this accused. However, I also believe that the Parliament of Canada by enacting the new part XIV of the Criminal Code has sent a clear signal to judges that we are to reduce incarceration wherever possible.

I have previously articulated a methodology for reducing an otherwise fit custodial period in two cases: R. v. Visanji, 1997 26237 (ON CJ), [1997] 9 C.R. (5^th) 388 and R. v. Sandreswaren, [2001] O.J. No. 3933. I do not propose to repeat what I said in those cases. But the methodology in both of them was that I took an otherwise fit custodial sentence, reduced it down and ordered community service in lieu of a portion of the custodial period.

[8] The combination of a custodial sentence not exceeding two years and a probation order requiring community service of up to 240 hours is a permissible sentencing option under ss. 731 and 732.1(3)(f) of the Criminal Code, R.S.C. 1985, c. C-46. Without endorsing any “methodology” for imposing this form of sentence, on the particular facts of this case, we conclude that, after rejecting the availability of a conditional sentence, the sentencing judge’s decision to impose what he considered was a somewhat reduced custodial sentence in combination with a community service order was appropriate. The facts supporting this approach include the appellant’s status as a first offender; the fact that the appellant had repaid $10,000, as of the date of sentencing, out of a total loss of approximately $100,000; and the nature of the offence, namely a relatively low-level breach of trust.

[9] For the foregoing reasons, leave to appeal sentence was granted, but the appeal was dismissed.

“R.R. McMurtry C.J.O.”

“J.J. Carthy J.A.”

“Janet Simmons J.A.”