



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fratia, 2015 ONCA 460

DATE: 20150624

DOCKET: C51746

Doherty, Cronk and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Domenico Fratia

Appellant

Murray D. Segal, for the appellant

Eric Siebenmorgen and Mabel Lai, for the respondent

Heard:  April 20, 2015, written submissions
    received April 27 and May 5, 2015.

On appeal from the sentence imposed by Justice H. Sachs
    of the Superior Court of Justice on December 9, 2009.

ENDORSEMENT

[1]

This appeal has a
    protracted history.  The appeal from conviction has been abandoned leaving only
    a sentence appeal.

[2]

The appellant was
    convicted by a jury of various offences, all arising out of the same scheme. 
    The trial judge imposed sentences totaling five years and ordered that the
    appellant make restitution to the named parties in the amount of $100,000.

[3]

In her careful
    reasons for sentence, the trial judge thoroughly reviewed the evidence, the
    case law and the submissions of counsel.  She paid particular attention to the
    conditional sentence granted to a co-accused who had pled guilty.

[4]

The trial judge
    considered the longstanding and complex nature of the fraud perpetrated by the
    appellant, the significant financial loss caused by the fraud (over one million
    dollars), and the personal harm caused to individual victims of the fraud.  The
    trial judge also referred to the appellants role in the fraud which she
    described as that of a principal or planner.  The trial judge correctly
    considered both the nature of the crime and the appellants role in the crime
    to be aggravating factors.

[5]

The trial judge gave
    detailed consideration to the submission that the parity principle dictated
    that the appellant should receive a same or similar sentence as had a
    co-accused who received a conditional sentence.  The trial judge highlighted
    several differences between the appellant and the co-accused, including their
    respective roles in the crime and the co-accuseds guilty plea.  In her view,
    the distinctions between the co-accused and the appellant put the co-accused in
    a very different position for the purposes of sentencing.

[6]

The trial judge also
    reviewed the case law and properly observed that this court has stressed
    denunciation and deterrence as the key sentencing principles in cases involving
    large scale, complex frauds.  These principles dominate even for first
    offenders.  The appellant has a significant criminal record.  The trial judge
    also recognized, however, that there could be large scale, complex frauds where
    mitigating factors dictated lower sentences, even conditional sentences.  She
    found, however, that there were no mitigating factors justifying a departure
    from the normal range of sentencing in this case.

[7]

We see no error in
    principle in the trial judges reasons.  Her analysis of the parity and
    proportionality principles and her recognition of denunciation and deterrence
    as the dominant considerations are all consistent with the established
    jurisprudence.  The appellants crimes called for a significant penitentiary
    term.  Nothing in his personal circumstances justify the departure from the
    usual range of sentence for this kind of offence.  We cannot say that five
    years imprisonment was manifestly excessive.

[8]

In the normal course,
    our finding that the trial judge did not err in principle and that the sentence
    was not manifestly excessive would dictate that the appeal be dismissed. 
    However, on consent, the parties have put material before the court relevant to
    events that occurred after the sentencing of the appellant.  The parties agree
    that this court should take those events into consideration and determine a fit
    sentence for the appellant in light of the changed circumstances.  The parties
    also agree that under the present circumstances the sentence should be
    reduced.  They disagree as to the quantum of that reduction.

[9]

Counsel have provided
    the court with several cases involving similar circumstances, although, as one
    would expect, none are on all fours with the present case.  The cases provided
    to us support a significant variation in the appellants sentence.  Bearing in
    mind that fixing the appropriate sentence is not an arithmetic exercise and
    that five years was appropriate on the facts as they existed before the trial
    judge, we think an appropriate sentence in the present circumstances is three
    years.

[10]

The sentence appeal
    is allowed and the sentence is varied to three years.

[11]

The parties filed
    material relevant to the post-sentence events under seal.  They jointly submit
    that the interests of justice dictate that the material should remain under
    seal unless, and until, otherwise ordered by this court.  We agree.

[12]

The appellants
    factum, attachments and casebook, dated April 27, 2015, the Crowns factum and
    attachment, dated May 5, 2015, and the appellants reply factum (undated) are
    all to remain under seal subject to any further order by this court.

Doherty J.A.

E.A. Cronk J.A.

Grant Huscroft J.A.


