Court of Appeal for Ontario

CITATION: R. v. Kalonji, 2010 ONCA 111

DATE: 20100210

DOCKET: C50450

Sharpe, Simmons and Epstein JJ.A.

Parties

BETWEEN

Her Majesty the Queen

Appellant

And

Samuel Mulomba Kalonji

Respondent

Counsel and Hearing

Gavin MacDonald, for the appellant

Waikwa Wanyoike, for the respondent

Heard and released orally: January 29, 2009

On appeal from the sentence imposed on April 14, 2009 by Justice Alan D. Cooper of the Ontario Court of Justice.

Reasons for Decision

Sharpe and Simmons JJ.A.:

[1] The Crown appeals the conditional discharge with three years’ probation imposed following a guilty plea for fraud over $5,000 involving the appellant’s employer and asks that we substitute a conditional sentence of six months plus one year probation.

[2] We agree with the Crown that it will only be in the most exceptional case that a conditional discharge will be appropriate for this offence. However, as the Crown concedes, a conditional discharge is not absolutely excluded. The trial judge recognized that ordinarily a conditional discharge would not be appropriate for this offence but found the respondent’s circumstances to be exceptional.

[3] We are not persuaded that we should interfere with his sentence. The respondent was a first offender, had a strong record of community service and enjoyed the support of his family and community. The trial judge concluded that the sentence imposed would enable the respondent to carry on his charity work involving immigrants and facilitate his aspiration to be admitted one day to medical practice. This amounts, in our view, to a finding that the public interest would be served by a conditional discharge. We are not persuaded that there is any error in principle that would justify appellate interference.

[4] Accordingly, we would grant leave to appeal but dismiss the Crown’s appeal.

“Robert J. Sharpe J.A.”

“Janet Simmons J.A.”

Dissenting Reasons

Epstein J.A. (Dissenting):

[5] I am unable to agree with my colleagues. In my view, in the circumstances of this case, the trial judge placed too much emphasis on the mitigating circumstances and failed to attach sufficient importance to the public interest.

[6] This was a serious breach of trust that involved planned and sophisticated conduct. The respondent perpetrated the fraud over a period of many months.

[7] I agree with the Crown’s submission with respect to the appropriate disposition, namely a six-month conditional sentence followed by a period of probation, taking into account the period of probation that the respondent has thus far served.

“G.J. Epstein J.A.”