Court of Appeal for Ontario

Citation: R. v. Balendra, 2009 ONCA 724

Date: 2009-10-15

Docket: C50319

Before: Moldaver, Armstrong and Rouleau JJ.A.

Between:

Her Majesty the Queen

Respondent

And

Henry Balendra

Appellant

Counsel:

Catriona Verner for the appellant

Jacob Sone for the respondent

On appeal from sentence imposed by Justice Nick Borkovich of the Superior Court of Justice dated January 23, 2009.

Heard and endorsed: October 9, 2009

APPEAL BOOK ENDORSEMENT

[1] The appellant pled guilty to one count of possession of a forged credit card and one count of possession of property obtained by crime of a value exceeding $5,000. He received a sentence of 15 months imprisonment plus one year probation and a restitution order of $4,100.

[2] In the circumstances of this case, we are not persuaded that the trial judge erred in failing to give the appellant any credit for the period for which he was on bail under strict conditions. Nor are we persuaded that he erred in considering the principle of parity in the context of the fifteen-month conditional sentence imposed upon a co-accused. In this regard, apart from the fact that no such submission was made to the trial judge, the appellant had a far worse criminal record (23 previous convictions including numerous offences of dishonesty and breaching court orders) than his co-accused and the trial judge was more than justified in imposing a lengthy custodial term on the appellant.

[3] In the circumstances, while we accept that the sentence was probably at the high end of the range, given the appellant’s horrendous criminal record, we think it was fit.

[4] As for the restitution order, the evidence is unclear as to whether there was any loss in respect of the offence. The appellant volunteered to pay $2,100 and does not seek to have that amount returned. He does seek to have the remaining $2,000 set aside. We see merit in that submission and would vary the restitution order to a sum of $2,100 in total.

[5] Accordingly, leave to appeal sentence is granted and the sentence is varied only insofar as the restitution order is concerned. In all other respects, it remains the same, except for the restitution condition in the probation order which will be varied according to these reasons.