DATE: 20050215

DOCKET: C38329

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – LINO MASTROMONACO (Appellant)

BEFORE:

ROSENBERG, SIMMONS and LANG JJ.A.

COUNSEL:

Israel Gencher

for the appellant

Thomas Galligan

for the respondent

HEARD & RELEASED ORALLY:

February 10, 2005

On appeal from conviction by Justice George Valin of the Superior Court of Justice dated October 26, 2001 and sentence imposed by Justice Valin on April 22, 2002.

E N D O R S E M E N T

[1] This was particularly a case where the trial judge’s decision was entitled to deference. He presided over the trial and not only had the opportunity to see the appellant testify, but also dealt first hand with the sentence submissions including the appellant’s own interventions.

[2] We do not agree that the trial judge gave inappropriate emphasis to the lack of remorse. It was not just the lack of remorse here but the appellant’s continuing refusal to acknowledge the harm to victims, despite the undisputed fact that he did take the money from the victims. He not only refused to pay the money back but has refused to propose a method for doing so.

[3] This was a particularly egregious fraud. The appellant was in a position of trust and took advantage of the elderly victims, depriving them of a substantial portion of their savings. It was open to the trial judge to find that the principles of sentencing of promoting responsibility and acknowledgment of harm would not be met by a conditional sentence. In our view, the trial judge did not err in principle in refusing to impose a conditional sentence.

[4] Accordingly the appeal is dismissed.

Signed: “Marc Rosenberg J.A.”

“Janet Simmons J.A.”

“S.E. Lang J.A.”