Court File and Parties

Citation: R. v. Nedev, 2010 ONCA 39 Date: 2010-01-20 Docket: C51217

Court of Appeal for Ontario Moldaver, Cronk and Lang JJ.A.

Between:

Her Majesty the Queen Respondent

and

Nikolay Nedev Appellant

Counsel: Paul Slocombe, for the appellant Susan Magotiaux, for the respondent

Heard and endorsed: January 18, 2010 On appeal from sentence imposed by Justice D. Cole of the Superior Court of Justice dated October 14, 2009.

Appeal Book Endorsement

[1] The appellant pled guilty to various credit card offences and unlawfully being in Canada. The trial judge rejected a joint submission for a global sentence of 7 months imprisonment on the basis that it was manifestly inadequate and consequently would bring the administration of justice into disrepute. The trial judge then proceeded to impose a sentence that effectively amounted to eighteen months. His reasons for doing so provide little insight as to why he increased the proposed sentence by such a significant amount. Given this error, we are not bound to show the deference that we would otherwise accord to the trial judge.

[2] In the circumstances, we are of the view that the proposed global sentence of seven months was inadequate. The offences involved identity fraud, a serious crime. The appellant had a prior conviction for conspiracy to commit fraud, for which he received a two year sentence and was deported. At the time of the predicate offences, he was illegally in Canada and had been here for some time.

[3] Against these factors, we note that the criminal record is dated and the appellant pled guilty, thereby saving court time and abandoning any possible defence he may have had. Fresh evidence has also been filed which provides some additional information of a positive nature in support of mitigation.

[4] In the end, we would not disturb the five month sentence imposed for the Immigration Act charge (save for an adjustment for pre-trial custody). On the remaining offences, for which the trial judge imposed consecutive sentences of two months each, consecutive to the five months imposed on the immigration offence, we are of the view that a global sentence of seven months concurrent is appropriate, but consecutive to the five month imposed for the Immigration Act offence. We would reduce the global sentence of 12 months by 3 months for pre-trial custody and arbitrarily assign the reduction to the Immigration Act offence, thereby reducing that sentence from five months to two months.

[5] In the result, the appeal is allowed and a global sentence of 9 months is imposed.