COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Silva, 2015 ONCA 301

DATE: 20150504

DOCKET: C59179

Watt, Pepall and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Graciela Silva

Appellant

Cameron R.B. Fiske, for the appellant

John McInnes, for the respondent

Heard and released orally: April 28, 2015

On appeal from the sentence imposed on July 28, 2014 by Justice Marvin A. Zuker of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1] Graciela Silva defrauded her employer of more than $300,000 over a period of almost 14 months. Her scheme involved the creation of 93 company cheques payable to herself. Each was deposited into her account at a bank. The proceeds of the fraud were transferred from her account or spent. There has been no recovery.

[2] Prior to detection of the fraud, Ms. Silva consulted with a lawyer who advised her employer of the fraud. About two months later, she surrendered to police. About a year later, she pleaded guilty to a single count of fraud.

[3] Ms. Silva appeals the carceral portion of the sentence imposed upon her, a term of ten months. She seeks a sentence of the equivalent or lesser length to be served in the community. She does not contest the propriety or quantum of two restitution orders made against her.

[4] Ms. Silva recognizes that when legally available, conditional sentences are rarely imposed in cases involving a breach of trust. That said, she submits that this is a case in which a proper balancing of the relevant sentencing objectives, together with the mitigating and aggravating factors, warranted imposition of a conditional sentence.

[5] We do not agree.

[6] Taken as a whole, the reasons of the sentencing judge reflect a thorough understanding of the relevant sentencing objectives and a balanced consideration of the appropriate aggravating and mitigating factors. This offence involved a breach of trust. The conduct was not some momentary lapse of judgment, but rather a scheme – however unsophisticated – that remained undetected for about 14 months.

[7] The sentencing judge was well aware of the fact that it was Ms. Silva who reported herself to her employer. He gave effect to her plea of guilty and imposed a sentence, which by any measure, was very lenient and would have been no different had the sentencing judge made an affirmative finding that the motivating factor was addiction, rather than greed, and had the judge provided the appellant with an opportunity to speak to sentence.

[8] It is not suggested that had the right of allocution been afforded to the appellant, as it should have been, the substance of what she would have said would have differed from information already before and considered by the sentencing judge.

[9] We see no error in principle in either the quantum of sentence imposed or the manner in which it should be served.

[10] The appeal from sentence is dismissed.

“David Watt J.A.”

“S.E. Pepall J.A.”

“M.L. Benotto J.A.”