R. v. Ariharan, 2024 ONCA 557

Case Summary

The appellant, Ghana Ariharan, appealed his sentence for fraud over $5,000 and failing to comply with an undertaking. The sentencing judge imposed an 18-month custodial sentence (less pre-sentence credit) and a concurrent three-month sentence, along with a restitution order and fine in lieu of forfeiture of $81,995.00. The appellant argued his restitution efforts were not adequately considered and the breach of undertaking sentence was excessive. The Court of Appeal found the restitution efforts insignificant and the breach sentence not excessive. However, the court agreed the trial judge erred in calculating the restitution and forfeiture amounts, adjusting them to $77,795.00. The appeal was allowed to this extent and otherwise dismissed.

Court File and Parties

Court of Appeal for Ontario Date: 2024-07-15 Docket: COA-24-CR-0349

Before: Lauwers, Trotter and Paciocco JJ.A.

Between: His Majesty the King, Respondent and Ghana Ariharan, Appellant

Counsel: Ghana Ariharan, acting in person Joe Wilkinson, appearing as duty counsel Akshay Aurora, for the respondent

Heard: July 8, 2024 by video conference

On appeal from the sentence imposed by Justice Nathan N. Baker of the Ontario Court of Justice on December 1, 2023.

Reasons for Decision

[1] The appellant entered a plea of guilty to one count of fraud over $5,000 (Criminal Code, R.S.C. 1985, c. C-46, s. 380(1)(a)) and one count of failing to comply with an undertaking (s. 145(4)(a)).

[2] The appellant was engaged in a rental scam by which he would purport to rent apartments to prospective tenants. He received first and last months’ rent for apartments that did not exist then ceased communication with the prospective tenants. The appellant was arrested and charged with the fraud and released on an undertaking. He continued his fraudulent activities and was arrested again. In total, there were over 50 victims.

[3] The sentencing judge imposed a custodial sentence of 18 months’ imprisonment, less 162 days’ credit for pre-sentence custody. In addition, he imposed a three-month concurrent sentence for failing to comply with his undertaking. The sentencing judge made a restitution order and imposed a fine in lieu of forfeiture, each in the amount of $81,995.00.

[4] The appellant submits that his custodial sentence should have been reduced in light of the restitution efforts that he made before he was sentenced. He contends that the trial judge did not take this into account. The reasons of the sentencing judge are unclear on this issue. Nevertheless, the amounts that the appellant repaid to some of the victims was insignificant. It would not have had any impact on the custodial sentence imposed.

[5] The appellant also submits that the sentence he received for breaching his undertaking – three months’ imprisonment – was excessive. We do not agree that the sentence for this offence was excessive. However, regardless of this, we note that this sentence was made concurrent to the sentence imposed on the fraud count.

[6] We agree with the appellant that the trial judge erred in his calculation of the amounts in the restitution order and the fine in lieu of forfeiture. With the assistance of Crown Counsel, we have determined that both orders should be in the amount of $77,795.00. The restitution order and the fine in lieu of forfeiture are adjusted to reflect this amount. Thus, the appeal is allowed to this extent, but is otherwise dismissed.

“P. Lauwers J.A.”

“Gary Trotter J.A.”

“David M. Paciocco J.A.”