



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ahmed, 2018 ONCA 426

DATE: 20180504

DOCKET: C64416

LaForme, Watt and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Syed Sufian Ahmed

Appellant

James Foy, for the appellant

Avene Derwa, for the respondent

Heard and released orally: May 2, 2018

On appeal from the sentence imposed on September 26, 2017
    by Justice John R. Sproat of the Superior Court of Justice.

REASONS FOR DECISION

[1]

At trial, the appellant admitted to taking the money from the
    complainant. The trial judge rejected the appellants evidence of his reasons
    for doing so. He found the appellant created a scheme to deprive the
    complainant, a client and friend of the family, of $110,000 by fabricating an
    expensive immigration problem. The fraud, he found, was planned and involved
    a breach of trust but lasted only a few days.

[2]

Defence counsel acknowledged that a conditional sentence was not
    available. Instead, it was proposed that the trial judge workaround this by
    imposing a suspended sentence with a term of probation and possibly a fine of
    $10,000 to $15,000. In the alternative, an intermittent sentence was sought.

[3]

The Crowns position was that an appropriate sentence was a custodial
    term of 18 months and a two year term of probation.

[4]

The appellant was sentenced to 13 and one-half months imprisonment
    followed by 2 years probation. He appeals his sentence.

[5]

The appellant submits that a non-custodial sentence could meet the
    primary objectives of denunciation and deterrence. Having found that these
    goals could be met without incarceration, the trial judge erred by sentencing
    the appellant to jail. He says a suspended sentence is a fit sentence, or in
    the alternative a 90 day intermittent sentence.

[6]

We disagree that the trial judge failed to apply the principle of
    restraint for this first time offender and relied exclusively on the principle
    of parity to justify a custodial sentence. A conditional sentence was not
    available to the appellant for the offence of fraud over $5,000. Nevertheless,
    the trial judge considered whether a suspended sentence or an intermittent
    sentence, as requested by the defence, would be appropriate. He reasonably
    concluded it would not.

[7]

In any case, the trial judges sentencing decision is entitled to
    significant deference from this court. Intervention is only warranted if he
    made an error of law or an error in principle that has an impact on the
    sentence, or if the sentence is demonstrably unfit. Moreover, merely
    identifying an error in the sentencing judges decision will not displace
    deference. The error must have had an impact on the sentencing:
R. v.
    Lacasse
, 2015 SCC 64, at paras. 44. And as the Supreme Court stated at
    para. 51 in
Lacasse
:

[T]he choice of sentencing range or of a category within a
    range falls within the trial judges discretion and cannot in itself constitute
    a reviewable error. An appellate court may not therefore intervene on the
    ground that it would have put the sentence in a different range or category. It
    may intervene only if the sentence the trial judge imposed is demonstrably
    unfit.

[8]

The sentence here is not unfit. The sentence appeal is dismissed.

H.S. LaForme J.A.

David Watt J.A.

I.V.B. Nordheimer
    J.A.


