COURT OF APPEAL FOR ONTARIO

DATE: 20001109

DOCKET: C32031

RE: HER MAJESTY THE QUEEN (Respondent) –and– HELEN PAVICH (Appellant)

BEFORE: FINLAYSON, WEILER and ABELLA JJ.A.

COUNSEL: Howard J. Borenstein, for the appellant

Christopher Webb, for the respondent

HEARD: November 6, 2000

On appeal from the sentence imposed by Mr. Justice Clair B. Marchand, without a jury, dated April 12, 1999.

E N D O R S E M E N T

[1] The appellant pleaded guilty to misappropriating $204,238.30 from her employer over a period of some three years. She was sentenced to 18 months in custody.

[2] The circumstances that support the sentence are that the appellant’s offence constituted a significant breach of trust. She exploited her position as an office manager of a small three-partner law firm. It lost a substantial amount of money and endured significant hardship as a result of the offence. None of the funds have been recovered and no restitution has been made. This misappropriation was not an isolated affair. It was extensive and consisted of two separate schemes carried out simultaneously over a three‑year period and involved over 180 separate transactions.

[3] The appellant is an intelligent individual. She had an annual wage of $85,000 but was living beyond her means. There is no suggestion that any persons are or were dependent upon her for support. The trial judge properly refrained from permitting the appellant to serve her sentence in the community.

[4] The appellant offers as fresh evidence a letter from Dr. C.S. Doxey speaking to the hardship and damage to the appellant’s mental and physical health, almost all of which was suffered subsequent to her arrest on this charge. However, the letter merely restates statements attributed to the doctor at trial by defence counsel. It is not fresh evidence.

[5] That said, we think that the custodial term is too long. The trial judge appeared offended at the lack of remorse exhibited by the appellant. Indeed, while she was awash in self‑pity at being caught, she expressed almost no concern for what she had inflicted on her employer. In the circumstances, we are concerned that the trial judge treated her absence of remorse as an aggravating factor rather than stating that it was not a mitigating one and he erred in so doing. In our view, an appropriate sentence would be twelve months to be served in prison.

[6] Accordingly, leave to appeal is granted, the appeal is allowed and the sentence is reduced from 18 months to 12 months in custody.

Signed: “G.D. Finlayson J.A.”

“K.M. Weiler J.A.”

“R.S. Abella J.A.”