COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stewart, 2014 ONCA 715

DATE: 20141020

DOCKET: C58081

Simmons, Rouleau and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

June Marie Stewart

Appellant

Stacey M. Nichols, for the appellant

Nathan Kruger, for the respondent

Heard: October 16, 2014

On appeal from the sentence imposed on December 11, 2013 by Justice Alan D. Cooper of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1] The appellant pleaded guilty to one count of fraud over $5,000. After several adjournments to permit her to make restitution did not lead to that result, on December 11, 2013, she was sentenced to 18 months imprisonment and 36 months probation with a condition that she pay restitution of $84,336.41. She served 12 days before being released on bail pending appeal.

[2] In our view, this sentence appeal should be allowed. The sentencing judge gave no reasons therefore the sentence imposed is not entitled to deference. The appellant is 76 years old and in poor health. After continuing attempts to sell her house, she has now made full restitution. Although this was a serious offence involving a breach of trust against a long-time friend and the appellant has a related but dated record, the Crown’s position at the time of sentencing had she made restitution would have been for a conditional sentence. In light of the fresh evidence as to restitution and her ongoing health issues, we consider that an appropriate sentence.

[3] Leave to appeal sentence is granted and a conditional sentence of 15 months is imposed on terms attached.