Court of Appeal for Ontario
Before: Doherty, Cronk and Huscroft JJ.A.
Between:
Her Majesty the Queen Respondent
and
Domenico Fratia Appellant
Counsel: Murray D. Segal, for the appellant Eric Siebenmorgen and Mabel Lai, for the respondent
Heard: April 20, 2015, written submissions received April 27 and May 5, 2015.
On appeal from the sentence imposed by Justice H. Sachs of the Superior Court of Justice on December 9, 2009.
Endorsement
1This appeal has a protracted history. The appeal from conviction has been abandoned leaving only a sentence appeal.
2The appellant was convicted by a jury of various offences, all arising out of the same scheme. The trial judge imposed sentences totaling five years and ordered that the appellant make restitution to the named parties in the amount of $100,000.
3In her careful reasons for sentence, the trial judge thoroughly reviewed the evidence, the case law and the submissions of counsel. She paid particular attention to the conditional sentence granted to a co-accused who had pled guilty.
4The trial judge considered the longstanding and complex nature of the fraud perpetrated by the appellant, the significant financial loss caused by the fraud (over one million dollars), and the personal harm caused to individual victims of the fraud. The trial judge also referred to the appellant’s role in the fraud which she described as that of a principal or planner. The trial judge correctly considered both the nature of the crime and the appellant’s role in the crime to be aggravating factors.
5The trial judge gave detailed consideration to the submission that the parity principle dictated that the appellant should receive a same or similar sentence as had a co-accused who received a conditional sentence. The trial judge highlighted several differences between the appellant and the co-accused, including their respective roles in the crime and the co-accused’s guilty plea. In her view, the distinctions between the co-accused and the appellant put the co-accused in a very different position for the purposes of sentencing.
6The trial judge also reviewed the case law and properly observed that this court has stressed denunciation and deterrence as the key sentencing principles in cases involving large scale, complex frauds. These principles dominate even for first offenders. The appellant has a significant criminal record. The trial judge also recognized, however, that there could be large scale, complex frauds where mitigating factors dictated lower sentences, even conditional sentences. She found, however, that there were no mitigating factors justifying a departure from the normal range of sentencing in this case.
7We see no error in principle in the trial judge’s reasons. Her analysis of the parity and proportionality principles and her recognition of denunciation and deterrence as the dominant considerations are all consistent with the established jurisprudence. The appellant’s crimes called for a significant penitentiary term. Nothing in his personal circumstances justify the departure from the usual range of sentence for this kind of offence. We cannot say that five years’ imprisonment was manifestly excessive.
8In the normal course, our finding that the trial judge did not err in principle and that the sentence was not manifestly excessive would dictate that the appeal be dismissed. However, on consent, the parties have put material before the court relevant to events that occurred after the sentencing of the appellant. The parties agree that this court should take those events into consideration and determine a fit sentence for the appellant in light of the changed circumstances. The parties also agree that under the present circumstances the sentence should be reduced. They disagree as to the quantum of that reduction.
9Counsel have provided the court with several cases involving similar circumstances, although, as one would expect, none are on all fours with the present case. The cases provided to us support a significant variation in the appellant’s sentence. Bearing in mind that fixing the appropriate sentence is not an arithmetic exercise and that five years was appropriate on the facts as they existed before the trial judge, we think an appropriate sentence in the present circumstances is three years.
10The sentence appeal is allowed and the sentence is varied to three years.
11The parties filed material relevant to the post-sentence events under seal. They jointly submit that the interests of justice dictate that the material should remain under seal unless, and until, otherwise ordered by this court. We agree.
12The appellant’s factum, attachments and casebook, dated April 27, 2015, the Crown’s factum and attachment, dated May 5, 2015, and the appellant’s reply factum (undated) are all to remain under seal subject to any further order by this court.
“Doherty J.A.”
“E.A. Cronk J.A.”
“Grant Huscroft J.A.”
