DATE: 20030417
DOCKET: C37811
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) –and– MAXROY ANTHONY ALLEN (Appellant)
BEFORE: McMURTRY C.J.O., WEILER and LASKIN JJ.A.
COUNSEL: Christopher D. Hicks, for the appellant Gillian Roberts, for the respondent
HEARD: April 9, 2003
RELEASED ORALLY: April 9, 2003
On appeal from the sentence imposed by Justice Robert F. Scott of the Superior Court of Justice, sitting without a jury, dated February 28, 2001.
E N D O R S E M E N T
[1] The appellant appeals that portion of his sentence obliging him to make monthly payments of $150 per month towards restitution as a condition of his conditional sentence and probation. In addition, an order for restitution of the principal amount of $5,400 was signed under s. 738 of the Code.
[2] Mr. Hicks argues that none of the other persons involved in this offence had a restitution order made against them, that the restitution order, in addition to the appellant’s imprisonment, is unduly harsh, and that his client cannot afford to make the payments.
[3] In our opinion the sentence was fit at the time it was imposed. The restitution order of $5,400 is modest in comparison with the loss. On the issue of parity of sentence, the appellant appears to have received substantially more money from the fraud than the other persons involved with him and his breach was akin to a breach of trust. The evidence on sentencing as to the appellant’s income was not supported by any independent evidence of his earnings. Moreover, the trial judge did not accept that the appellant, a Class A mechanic, was earning on commission an amount equivalent to less than $10 an hour.
[4] It is now almost two years since the sentencing. If the appellant is currently unable to make the payments of $150 a month, as his counsel submits, he should make an application to have the terms of his conditional sentence and probation varied. Leave to appeal sentence is granted but the sentence appeal is dismissed.
“R. Roy McMurtry C.J.O.”
“K. M. Weiler J.A.”
“John Laskin J.A.”