DATE: 20040525
DOCKET: C41053
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) –and–
GARY ROSS (Appellant)
BEFORE: CRONK, ARMSTRONG and LANG JJ.A.
COUNSEL: Gary Ross the appellant in person
Nadia Thomas for the respondent
Marie Henein duty counsel
HEARD: April 26, 2004
On appeal from the sentence imposed by Justice Roderick J. Flaherty of the Ontario Court of Justice on November 19, 2003.
E N D O R S E M E N T
[1] Mr. Ross pleaded guilty to two counts of impersonation, one count of fraud over $5,000, and one count of failure to comply with a recognizance. Mr. Ross admitted he proffered false identification to banks on two separate occasions within a two-week period in an attempt to acquire funds. In addition to six months credit for three months of pre-trial custody, the trial judge sentenced Mr. Ross to a fourteen-month jail term and eighteen months probation. Mr. Ross appeals his sentence, having abandoned his conviction appeal.
[2] In the first offence, Mr. Ross presented false identification to a bank in an attempt to obtain $9,700 (Canadian) and $3,000 (American). Two weeks later, when on bail for the first offence, Mr. Ross attempted to obtain a $50,000 personal line of credit from another bank, again using false identification.
[3] Before this court, Mr. Ross provided fresh evidence, which was admitted on consent, indicating that he was under treatment for a serious infectious disease.
[4] Two issues arise on appeal:
Is the sentence demonstrably unfit?
Does the fresh evidence provide grounds to vary the sentence?
1. The fitness of the sentence
[5] In fixing a fourteen-month jail term, the sentencing judge considered the Crown submission for a two-year sentence and the defence submission for a six-month sentence, both in addition to time served.
[6] The sentencing judge considered Mr. Ross’ criminal record. His last conviction, in 1999, was for a drinking and driving offence. In addition to a 1998 twelve-month conditional sentence for his conviction on charges of false pretences, theft, and possession of stolen property, Mr. Ross had a 1997 eighteen-month sentence for break and enter. He had also received probation and a fine for a 1994 fraud conviction.
[7] The Crown took the position at trial that, given the prior sentence of eighteen months, Mr. Ross should receive a somewhat longer sentence for these offences. It proposed that a sentence of two years imprisonment should be imposed, after credit on a two-for-one basis for Mr. Ross’ three months pre-trial custody.
[8] When his counsel was making submissions on the appropriate length of his jail term, Mr. Ross intervened. He pointed out to the judge that he had not actually obtained any money from either bank, and that other people who committed similar offences received lighter sentences. He also pointed out that it had been four years since his last criminal conviction, and that he had shown remorse by pleading guilty. Finally, Mr. Ross told the judge that “the Crown…told me that [after] three months [of pre-trial custody] I could get time served.”
[9] After taking into consideration the gap in Mr. Ross’ criminal record from 1999 to 2003, and the fact that Mr. Ross had spent much of his three-month pre-trial custody in lockdown, the sentencing judge determined that his sentence should be less then a maximum reformatory term. However, he considered the “aggravating circumstances here that he committed the second offence, the $50,000 attempt fraud, directly in the face of the bail release order that prohibited him from having these phony identification documents in his possession”. The trial judge concluded: “So I’m going to sentence him to fourteen months then in the reformatory. Having given him credit for three months he’s already spent on a two-for-one basis, to reduce it from a maximum reformatory sentence to fourteen months.” In imposing this sentence, the judge appears to have made an arithmetical error in Mr. Ross’ favour by deducting six months from twenty months, rather than from twenty-four months, with the result that fourteen months imprisonment was imposed although the trial judge apparently intended to impose eighteen months imprisonment.
[10] In the circumstances of Mr. Ross’ record, and the aggravating factor of committing the second offence while on bail for the first, there is no basis for the assertion that this sentence is demonstrably unfit.
2. The fresh evidence
[11] Mr. Ross asked to have his sentence reduced to time served on the basis of the fresh evidence, admitted on consent, that he is now under medical treatment for a serious infectious disease. The fresh evidence consists of letters written on Mr. Ross’ behalf to the Ontario Parole and Earned Release Board, including a letter from a doctor at the institution where he is incarcerated. At their highest, those letters recommend that Mr. Ross be granted parole “so that the continuity of his treatment with…[his doctor] may be kept.”
[12] There is no evidence, however, that Mr. Ross is not now receiving adequate medical treatment. Indeed, there is an obligation on the institution to provide such treatment, an obligation it must meet.
[13] On the evidence before us, we are not prepared to reduce Mr. Ross’ sentence. His parole application will come before the Parole Board next month. Given the support for that application by the institution where he is incarcerated, Mr. Ross may well be granted parole. We proceed on the assumption that the Parole Board would exercise compassion, if appropriate.
[14] Accordingly, leave to appeal the sentence is granted, but the appeal is dismissed.
Signed: “E.A. Cronk J.A.”
“Robert P. Armstrong J.A.”
“Susan Lang J.A.”