CITATION: R. v. Sabaratnam, 2009 ONCA 93
DATE: 20090130
DOCKET: C48092 & C48093
COURT OF APPEAL FOR ONTARIO
Feldman, Simmons and Cronk JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Prathapan Sabaratnam
Applicant/Appellant
and
Tharmenthiya Prathapan
Applicant/Appellant
Peter Connelly, for the appellant Prathapan Sabaratnam
Christopher Hicks, for the appellant Tharmenthiya Prathapan
Holly Loubert, for the respondent
Heard and released orally: January 23, 2009
On appeal from the convictions entered by Justice D. J. Halikowski of the Ontario Court of Justice dated August 23, 2007 and the sentences imposed dated November 16, 2007.
ENDORSEMENT
Conviction Appeals
[1] These appeals arise out of a joint trial of the two appellants, together with a third party. The appellant Sabaratnam appeals his convictions on the basis that the trial judge misapprehended the evidence and reached an unreasonable verdict.
[2] In our view, the trial judge was entitled to rely on the combined evidence of the false credit cards found on the person of the appellant, which he said were always in his possession, together with the evidence of all the equipment found in the home for stealing credit card personal information and for manufacturing false credit cards, to infer knowledge of and participation by this appellant in the crimes charged.
[3] Although the trial judge may have misapprehended some minor details in his description of the evidence, they were not material and did not affect the verdict.
[4] The appellant Prathapan submits that it was not open to the trial judge to infer from the evidence of all the equipment and documents relating to the manufacture of false credit cards found in the home that she had the requisite knowledge for a finding of possession. We disagree.
[5] The trial judge rejected as incredible the unequivocal evidence of the appellant that she only noticed objects that belonged to herself or her husband in her home. Having done so, the trial judge was entitled to infer, based on the number and location in the house of the items found, that the appellant had the requisite knowledge of their presence to ground a finding of possession.
[6] The appeals against conviction are therefore dismissed.
Sentence Appeals
[7] With respect to sentence, we see no basis on which to interfere with the sentence imposed on Sabaratnam. We are not persuaded that the trial judge erred in principle, including in his decision not to impose a conditional sentence, or in his consideration of the appropriate sentencing factors in fashioning his sentence for this appellant. It is not suggested that the sentence imposed is unfit.
[8] In particular, on this record, we do not agree that the sentence imposed offended the parity principle or that the restitution order is unsustainable. Sabaratnam’s brother pled guilty to reduced charges and received mitigation credit as a result. This important factor does not apply to Sabaratnam. With respect to the restitution order, there was some evidence before the trial judge of Sabaratnam’s ability to make restitution. Moreover, this appellant was found guilty of conspiracy in relation to a significant financial fraud. In these circumstances, the restitution order imposed against him was reasonable.
[9] However, we reach a different conclusion in respect of part of the sentence imposed on Prathapan. Her counsel argues that the restitution order imposed on her is unsupportable on the evidence, especially given the absence of any evidence that she benefited from the illegal conduct in issue. We agree, although for somewhat different reasons, that the restitution order against her must be set aside.
[10] In our view, there was no evidential basis to support this order against Prathapan, the 26-year-old mother of two young children who was not and appears never to have been employed outside the home, at least in Canada. Moreover, it is undisputed that her husband was the sole income earner in the family. In these circumstances, absent any proof of ability by this appellant to discharge the restitution order, the restitution order imposed is unsustainable.
[11] Therefore, leave to appeal sentence is granted with respect to both appellants. Sabaratnam’s sentence appeal is dismissed. Prathapan’s sentence appeal is allowed in part, by setting aside the restitution order imposed. In all other respects, her sentence remains in full force and effect.
Signed: “K. Feldman J.A.”
“Janet Simmons J.A.”
“E. A. Cronk J.A.”