DATE: 20051031

DOCKET: C42260

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – PATRICK TAIPOW (Appellant)

BEFORE:

McMURTRY C.J.O., LASKIN and LANG JJ.A.

COUNSEL:

Vincenzo Rondinelli

for the appellant

David Lepofsky

for the respondent

HEARD & RELEASED ORALLY:

October 20, 2005

On appeal from the sentence imposed by Justice John F. Hamilton of the Superior Court of Justice dated August 9, 2004.

E N D O R S E M E N T

[1] This is an appeal from the 12-month sentence imposed by Justice Hamilton on the appellant’s convictions for fraud.

[2] While a licensed insurance broker, the appellant removed approximately $227,000 from two of his clients’ accounts. While the clients were reimbursed by the CIBC, Mr. Taipow provided no restitution to the CIBC.

[3] At trial, the Crown sought a sentence in the upper reformatory range, while the appellant argued that this case presented exceptional circumstances meriting a conditional sentence.

[4] The appellant argues that the sentencing judge failed to give adequate weight to the mitigating factors, including the appellant’s guilty plea (after the preliminary hearing); his position as a first time offender; his financial responsibility for his mother and his son; the nexus between the offence and the appellant’s gambling addiction; the appellant’s health challenges, including diabetes and depression; and his efforts at rehabilitation.

[5] In our view, however, given the circumstances of these offences and this offender, the sentencing judge made no error in giving primary consideration to the factors of general deterrence, the appellant’s breach of trust, and the amount of money involved.

[6] As an alternative ground, the appellant relies on fresh evidence. Certain of the “fresh” evidence addresses the appellant’s state of depression and his gambling addiction at the time of the offences and his sentence. In our view, that evidence would not have affected the sentence imposed.

[7] The balance of the fresh evidence submitted by the appellant, however, does meet the test, particularly the evidence about the appellant’s cardiac condition. Within the first few days of his incarceration, the appellant suffered a heart attack. After three days of chest pain complaints, the appellant received medical attention and was hospitalized in intensive care, after which he received an angioplasty. He has filed material establishing that he continues to be at risk for cardiac compromise. Indeed, he was again admitted to hospital last week with an abnormal electrocardiogram. Given the appellant’s high risk, which is increased by diabetes and depression, he may well not be able to receive adequate medical treatment in prison.

[8] Accordingly, on the basis of the fresh evidence, and in the unique circumstances of this case, we would allow the appeal, set aside the sentence of imprisonment, and substitute a 12-month conditional sentence on the terms that counsel have agreed upon.

“Roy McMurtry C.J.O.”

“John Laskin J.A.”

“S.E. Lang J.A.”