CITATION: R. v. Gallagher, 2008 ONCA 252
DATE: 20080407
DOCKET: C47461
COURT OF APPEAL FOR ONTARIO
WEILER, SIMMONS and CRONK JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
PAUL DOUGLAS GALLAGHER
Appellant
Irwin Koziebrocki, for the appellant
Melissa Ragsdale, for the respondent
Heard: January 9, 2008
On appeal from the sentence imposed by Justice J.F. McCartney of the Superior Court of Justice on April 17, 2007.
ENDORSEMENT
1. INTRODUCTION
[1] The appellant, Paul Douglas Gallagher, pleaded guilty to six counts on a twelve-count indictment concerning a series of fraud-related offences. He was convicted of attempting to defraud the Canadian Imperial Bank of Commerce of over $5,000, two counts of defrauding the Toronto-Dominion Bank of over $5,000, fraudulent imper-sonation of his cousin with intent to gain advantage for himself, defrauding a local telephone company of a value not exceeding $5,000, and uttering a forged document. The remaining charges were withdrawn by the Crown. On April 17, 2007, he was sentenced to three years incarceration, after credit for twelve months pre-sentence custody on a two-for-one basis. He was also ordered to make restitution in the amount of $19,542.42. He appeals his sentence, including the restitution order.
[2] The appellant argues that the sentencing judge erred: (i) by holding that deterrence and separation from society were the only applicable sentencing principles in this case; (ii) by failing to properly consider the evidence of the appellant’s prospects for rehabilitation; (iii) by overemphasizing the appellant’s criminal record; (iv) by relying on statements made by the appellant’s probation officer in a pre-sentence report concerning the appellant’s rehabilitation potential; (v) by imposing a sentence that offended the “jump” principle; and (vi) by requiring restitution in addition to the term of imprisonment imposed.
[3] For the following reasons, save for the appellant’s challenge to the restitution order, we would not give effect to these grounds of appeal.
II. DISCUSSION
[4] We see no error in the trial judge’s assessment or application of the governing sentencing principles in this case, or in his consideration of the evidence of the appellant’s criminal record and rehabilitation prospects.
[5] The predicate offences were committed between March 6 and April 7, 2006, while the appellant was on parole for similar offences. The appellant assumed the identity of his cousin and used various forms of forged identification in his cousin’s name to obtain or to attempt to obtain loans from the two banks, to purchase a cell phone, and to enter into an agreement for cellular service with a local telephone company based on identification particulars pertaining to his cousin. In total, the appellant defrauded these organizations of $82,135.53. The sum of $62,593.11 was recovered, leaving an outstanding amount of $19,542.42.
[6] The appellant has a horrendous criminal record for fraud and other property-related offences. Since 1981, when he was seventeen years old, the appellant has amassed an appalling total of 57 prior convictions, 46 of which involved offences similar to the predicate offences, including convictions for fraud, forgery, possession of stolen property and personation with intent. For these crimes, the appellant has served custodial sentences ranging from one day to two years and three months.
[7] In addition, the appellant has nine prior convictions for failure to attend court, attempted obstruction of justice and breaches of both probation orders and a conditional sentence.
[8] The sentencing judge expressly adverted to the sentencing principles set out under s. 718 of the Criminal Code. In particular, in respect of the appellant’s prospects for rehabilitation, the sentencing judge noted that for almost twenty-five years, the appellant has engaged in a persistent course of criminal conduct involving, for the most part, offences the same as or similar to the predicate offences, that is, “offences dealing in some way with depriving others of their property”. He also observed that the appellant’s prior custodial sentences, including penitentiary terms of incarceration, failed to deter him from his criminal conduct, as manifest by the fact that the predicate offences were committed while the appellant was still on parole from his last offences in 2005. Those offences also involved fraud over $5,000, three counts of personation with intent, two counts of false pretences and uttering a forged document.
[9] In this context, the sentencing judge concluded that both general and specific deterrence, denunciation, and the need to separate the appellant from society in order to protect the public were the controlling principles of sentencing in this case. We agree.
[10] We also see no error in the sentencing judge’s treatment of the contents of the appellant’s pre-sentence report. That report confirmed what the evidence before the sentencing judge otherwise established, namely, that neither community nor custodial sentences have deterred the appellant from his demonstrated pattern of criminal wrong-doing and that the appellant appears to have made no effort to date to rehabilitate himself. To the extent that the author of the pre-sentence report offered an opinion regarding the appellant’s willingness to alter his behaviour in the future, this conformed with the mandatory direction contained in s. 721(3)(a) of the Criminal Code that, “wherever possible”, a pre-sentence report contain information regarding an “offender’s age, maturity, character, behaviour, attitude and willingness to make amends”. The sentencing judge’s reasons indicate that he did not consider the pre-sentence report in isolation but, rather, in the context of all the evidence before him relating to the appellant’s rehabilitative prospects. This was unobjectionable.
[11] Finally, having regard to the circumstances of this offender and these offences, the sentence imposed was fit. The frauds perpetrated by the appellant involved considerable planning and preparation. They were serious and sophisticated offences committed while the appellant was on parole for similar serious offences. On the record before this court, greed appears to have been the only motivation for the appellant’s crimes. These factors justify a significant penitentiary sentence. See for example, R. v. Kissondath (2003), 2003 CanLII 21781 (ON CA), 174 O.A.C. 209 (C.A.); R. v. Bradley (2004), 2004 ABCA 362, 357 A.R. 234 (Alta. C.A.); and R. v. Deutsch (2005), 2005 CanLII 47598 (ON CA), 205 O.A.C. 272 (C.A.).
[12] Moreover, while the appellant’s last sentence for earlier similar offences was two years and three months, an increase in the quantum of sentence is warranted where – as here – similar frauds that involve planning and sizeable funds are committed.
[13] Accordingly, we would reject the appellant’s challenge to the custodial sentence imposed.
[14] We reach a different conclusion, however, concerning the restitution order made by the sentencing judge.
[15] The sentencing judge’s reasons contain no explication of the basis for the restitution order. More importantly, it does not appear that the sentencing judge considered the appellant’s ability to make restitution prior to the imposition of the restitution order. Nor, on the record before us, does it appear that any submissions were made to the sentencing judge concerning the appellant’s means or that the sentencing judge was otherwise provided with any information about the appellant’s personal financial circumstances. This court has indicated that while the ability to pay is not a precondition to the making of a restitution order, it is a factor, among others, to be considered by a sentencing judge in determining whether to impose the obligation to make restitution. See for example, R. v. Perciballi (2001), 2001 CanLII 13394 (ON CA), 154 C.C.C. (3d) 481 (Ont. C.A.); and R. v. Devgan (1999), 1999 CanLII 2412 (ON CA), 136 C.C.C. (3d) 238 (Ont. C.A.). In these circumstances, we are of the view that the restitution order cannot stand.
III. DISPOSITION
[16] For the reasons given, leave to appeal sentence is granted, the restitution order imposed by the sentencing judge is set aside and, in all other respects, the sentence appeal is dismissed.
“K.M. Weiler J.A.”
“Janet Simmons J.A.”
“E.A. Cronk J.A.”