



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.


