CITATION: R. v. Hameed, 2008 ONCA 51
DATE: 20080125
DOCKET: C47843
COURT OF APPEAL FOR ONTARIO
WEILER, SIMMONS and CRONK JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
ASIF HAMEED
Appellant
Faisal Mirza for the appellant
Tracy Stapleton for the respondent
Heard and released orally: January 10, 2008
On appeal from the sentence imposed by Justice Anton Zuraw of the Ontario Court of Justice on September 20, 2007.
ENDORSEMENT
[1] The appellant appeals his sentence for three counts of obtaining credit cards by fraud. He was sentenced to one year imprisonment, two years probation, and ordered to pay restitution in the amount of $199,083. He appeals his sentence and argues that a conditional sentence of one year should have been imposed and that the amount of restitution he was ordered to pay is too high.
[2] Even assuming that the trial judge erred in principle in his comments with respect to whether the appellant was truly remorseful for what he had done and in commenting on the ineffectiveness of a conditional sentence imposed in another case by a brother judge, we are of the opinion that the sentence of one year incarceration was fit. On numerous occasions jail sentences have been upheld by this court for large scale commercial frauds which this was. The custodial part of the sentence was therefore fit.
[3] Insofar as the restitution order is concerned, we agree with the appellant that having regard to the evidence before the sentencing judge and before this court respecting the appellant’s ability to pay, and other circumstances, it cannot stand.
[4] Accordingly, we would grant leave to appeal sentence and allow the appeal in part, set aside the order for restitution and substitute an order for restitution of $35,000 to be paid in accordance with a direction to be provided by the Crown. In all other respects, the appeal is dismissed.
“Karen M. Weiler J.A.”
“Janet Simmons J.A.”
“E.A. Cronk J.A.”