DATE: 2006-06-30

DOCKET: C43466

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – HARPREET SINGH GOSAL (Appellant)

BEFORE: CRONK, BLAIR JJ.A. and THEN J. (ad hoc)

COUNSEL: Lawrence Ben-Eliezer for the appellant Carol Ann Bauman for the respondent

HEARD & RELEASED ORALLY: June 28, 2006

On appeal from the sentence imposed by Justice Eric R. Libman of the Ontario Court of Justice, dated April 27, 2005.

E N D O R S E M E N T

[1] The appellant pled guilty to several fraud related offences and was sentenced by the trial judge to a term of incarceration of four months with terms of probation for a period of two years and ordered to make full restitution.

[2] The appellant abused his position of trust as an account supervisor to defraud his employer of over $70,000, over a one-year period, by means of a relatively sophisticated scheme. The money was used by the appellant to finance his gambling activities and to play the stock market. As a result of unrelated attempts to defraud the company an investigation uncovered the appellant’s crimes. None of the proceeds of the fraud were recovered.

[3] In his notice of appeal, the appellant submits that the appeal be allowed, and a conditional sentence substituted on two bases: (1) the trial judge failed to give adequate reasons for the sentence of incarceration which was imposed; and, (2) the sentence of incarceration imposed was manifestly unfit. The second ground of appeal was abandoned by the appellant during oral argument.

[4] With respect to the adequacy of the reasons for sentence, we are all of the view that the trial judge adequately explained his decision to impose a sentence of incarceration, rather than a conditional sentence.

[5] The reasons for sentence contained an exhaustive marshalling of pertinent aggravating and mitigating factors.

[6] Further, the trial judge indicated he was alive to the principles applicable to the imposition of conditional sentences as outlined by the Supreme Court of Canada in the seminal decision of R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449. More particularly, the trial judge indicated that he appreciated that no type of case, including those involving breaches of trust and serious fraud, excludes the conditional sentence regime and that the conditional sentence regime itself provides for denunciation and deterrence.

[7] Nevertheless, the trial judge was of the view that in balancing and weighing the aggravating and mitigating factors and having regard to the jurisprudence of this court in such cases as R. v. Dobis (2002), 58 O.R. (3d) 536 and R. v. Suhr, [2002] O.J. No. 4315, the principles of sentencing that were controlling were denunciation and general deterrence and accountability for one’s actions. He concluded that the case law supported a sentence in the range of six to nine months but, in view of the remorse shown by the appellant and his early plea, leniency was appropriate, resulting in a sentence of four months.

[8] In our view, it cannot reasonably be said that the reasons for sentence are incomprehensible or that the reasoning of the trial judge is unavailable to the appellant, or that the reasons are impervious to appellate review.

[9] For these reasons, the appeal must be dismissed. Leave to appeal sentence is granted, but the appeal is dismissed.

“E.A. Cronk J.A.”

“R.A. Blair J.A.”

“E. F. Then J. (ad hoc)”