Court of Appeal for Ontario

Citation: R. v. Fiorilli, 2015 ONCA 328 Date: 2015-05-11 Docket: C58390

Judges: Feldman, Pardu and Brown JJ.A.

Between:

Her Majesty the Queen Respondent

and

Michele (Mike) Fiorilli Appellant

Counsel: Tina Yuen, for the appellant Hannah Freeman, for the respondent

Heard and released orally: April 28, 2015

On appeal from the sentence imposed on February 20, 2014 by Justice Trotter of the Superior Court of Justice, sitting without a jury.

Endorsement

[1] The appellant seeks leave to appeal his sentence on 2 counts of fraud over $5,000, of 12 months in jail, plus a restitution order of $213,084.61, and a fine of $110,000.00, in lieu of forfeiture, with six years to pay.

[2] The appellant argues that the trial judge erred in not imposing a conditional sentence, by not giving sufficient weight to the 10 years of delay it took to reach trial and sentencing (5 years pre-charge, 5 years post-charge), and in identifying a penitentiary level sentence as potentially available. He also argues that the trial judge erred in the quantum of the restitution order and in the amount of time given to pay the fine in lieu of forfeiture.

[3] On appeals against sentence, this court may interfere only if the trial judge imposed a sentence that was manifestly unfit or made an error in principle. Otherwise, appeal courts accord trial judges significant deference on the issue of sentence. In this case, the trial judge viewed these offences as in the large fraud category, because of the complexity of the scheme, the premeditation, the number of people he involved in it, and the relatively large amounts involved.

[4] Although the number of frauds and the amount involved were lower than in the R. v. Bogart (2002), 2002 41073 (ON CA), 61 O.R. (3d) 75 (C.A.), and R. v. Dobis (2002), 2002 32815 (ON CA), 163 C.C.C. (3d) 259 (Ont. C.A.) line of cases, it was not an error in principle for the judge to treat this case, for the reasons he articulated, as falling within the type of fraud in those cases, or to consider a low penitentiary term as potentially available for sentence.

[5] It is clear that the trial judge was very concerned about the delay in this case, and he took it into account, along with the appellant’s health difficulties and his family situation in reaching the sentence of 12 months as appropriate in all the circumstances.

[6] Finally, the trial judge did not accept that the objectives of deterrence and denunciation could be met in this case by the imposition of a conditional sentence. Appellant counsel argues that this court in R. v. Smickle, 2014 ONCA 49, came to a different conclusion on the facts of that case and that we should apply the reasoning in Smickle. However, we cannot find that the trial judge erred in principle in his decision not to impose a conditional sentence on the facts in this case.

[7] On the issue of the restitution order, the trial judge was not satisfied that the appellant did not have the ability to pay. We see no basis to find an error in his conclusion or in the quantum of the order. Similarly, in our view, 6 years is not an unfair amount of time to pay the fine in lieu of forfeiture. If the appellant cannot pay at that time, that issue can be addressed at a subsequent hearing.

[8] In the result, leave to appeal sentence is granted, but the appeal is dismissed.

“K. Feldman J.A.”

“G. Pardu J.A.”

"David Brown J.A."