COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wilson, 2016 ONCA 888

DATE: 20161123

DOCKET: C62773

Sharpe, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Wilson

Appellant

Marianne Salih, for the appellant

Philippe Cowle, for the respondent

Heard and released orally: November 21, 2016

On appeal from the sentence imposed on May 12, 2016 by Justice P.B. Hambly of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] This is a sentence appeal. The appellant was convicted after a guilty plea of fraud over $5,000 when, as a bank employee, he disclosed personal financial information of bank clients to third party fraudsters, causing a loss of $500,000 to the bank and its exposure to civil liability of over $3 million. The appellant was sentenced to a term of imprisonment of two years less a day and a DNA order was imposed.

[2] The appellant seeks a conditional sentence of the same length. A conditional sentence is available because the offence was committed before the amendments to the Criminal Code, R.S.C. 1985, c. C-46, removing that option for fraud over $5,000. In the alternative, he seeks a reduction of his sentence to 18 months.

[3] The appellant also seeks to set aside the DNA order made by the sentencing judge.

[4] The appellant makes three arguments on appeal. He also seeks to introduce fresh evidence on his appeal.

[5] First, the appellant says that the sentencing judge, in refusing a conditional sentence, failed to give effect to mitigating factors. We disagree. The sentencing judge took into account the mitigating factors of the appellant’s age, his drug addiction at the time of the offence and his completion of a drug rehabilitation program before sentencing, the absence of a criminal record and the appellant’s strong support from his family and friends.

[6] As the sentencing judge noted, the appellant pleaded guilty in the face of overwhelming evidence. His plea occurred after a preliminary inquiry and a voluntariness voir dire. In these circumstances, the guilty plea would not have been a significant mitigating factor. In any event, there is nothing in the reasons or sentence itself to suggest the guilty plea was ignored by the sentencing judge.

[7] As for the suggestion that the appellant was entitled to a conditional sentence because he did not benefit from the fraud, in the initial investigation by his employer, the appellant claimed his fraud had been motivated by threats to his girlfriend’s safety, while he advised the author of the pre-sentence report that the fraud was to pay off his drug debts. The sentencing judge, based on his factual findings, rejected the appellant’s “girlfriend” story. In any event, he did not treat greed as an aggravating factor. Nevertheless, he accepted the role of the appellant’s drug addiction in the fraud and took that into account.

[8] The primary sentencing objectives for this offence are general deterrence and denunciation. It is only when there are exceptional mitigating circumstances that a significant fraud with breach of trust would warrant a conditional sentence. No such circumstances existed here. Accordingly, we reject this ground of appeal.

[9] Second, the appellant says the sentencing judge gave insufficient reasons to explain the sentence. His focus, however, is on the judge’s rejection of the “girlfriend” story.

[10] The reasons for sentence were entirely sufficient and clear. There was no evidence to support what the appellant initially said to his employer, which was contradicted by his own account to the probation officer. The sentencing judge was entitled to regard the explanation as “preposterous”, having regard to the appellant’s inability to provide any information about the girlfriend’s current whereabouts. This ground of appeal is therefore rejected.

[11] The fresh evidence confirms that the appellant has successfully completed a substance use program and a harm reduction workshop offered by Correctional Services, and has earned a high school level four credit. While the appellant is to be commended for pursuing these courses and continuing his efforts toward rehabilitation, they have no material effect on his sentence.

[12] This was a large scale fraud that attracted a significant sentence. It had a serious financial impact on the bank and the theft of customer identities affected numerous bank clients. All relevant factors were taken into consideration in imposing a sentence of two years less a day in prison. The sentence reveals no errors. But for the mitigating factors, a penitentiary sentence would have been justified.

[13] Finally, we would not interfere with the decision to impose a DNA order. This was within the discretion of the sentencing judge, who gave reasons for the order. Having rejected the defence contention that the appellant posed no risk of reoffending, the sentencing judge properly considered that the DNA order might well deter the appellant in the future and that DNA evidence could be used in his apprehension. There is no reason to interfere with this discretionary order.

[14] For these reasons, leave to appeal sentence is granted and the appeal is dismissed.

“Robert J. Sharpe J.A.”

“K. van Rensburg J.A.”

“G. Pardu J.A.”