R. v. Zenari (R.), (2012) 536 A.R. 224

• Judge: Ritter, Slatter and Bielby, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: Tuesday September 25, 2012
• Citations: (2012), 536 A.R. 224;2012 ABCA 279

R. v. Zenari (R.) (2012), 536 A.R. 224; 559 W.A.C. 224 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. SE.086

Her Majesty the Queen (appellant) v. Riccardo Zenari (respondent)

(1203-0022-A; 2012 ABCA 279)

Indexed As: R. v. Zenari (R.)

Alberta Court of Appeal

Ritter, Slatter and Bielby, JJ.A.

September 25, 2012.

Summary:

The accused police constable stole over $225,000 from his employer by filing 237 fraudulent overtime claims and 71 fraudulent court claims. The accused pleaded guilty to fraud over $5,000. He raised funds and borrowed from family to make full restitution.

The Alberta Provincial Court, in a judgment reported [2012] A.R. Uned. 65, recognized that denunciation and deterrence would generally require 1-2 years' incarceration, but held that "exceptional circumstances" warranted imposing a conditional sentence of imprisonment for two years less a day. The Crown appealed against sentence.

The Alberta Court of Appeal allowed the appeal and substituted a sentence of 18 months' imprisonment. The accused was given credit for time served on the conditional sentence on a one-to-one basis.

Criminal Law - Topic 5720.4

Sentencing - Considerations on imposing sentence - Conditional sentence - When available or appropriate - [See Criminal Law - Topic 5859 ].

Criminal Law - Topic 5830.1

Sentencing - Considerations on imposing sentence - Mercy or leniency - [See Criminal Law - Topic 5859 ].

Criminal Law - Topic 5837

Sentencing - Considerations on imposing sentence - Mitigating circumstances - [See Criminal Law - Topic 5859 ].

Criminal Law - Topic 5848.7

Sentencing - Considerations on imposing sentence - Denunciation or repudiation of conduct - [See Criminal Law - Topic 5859 ].

Criminal Law - Topic 5849.1

Sentencing - Considerations on imposing sentence - Position of public trust of accused - [See Criminal Law - Topic 5859 ].

Criminal Law - Topic 5849.6

Sentencing - Considerations - Prohibited or improper considerations - [See Criminal Law - Topic 5859 ].

Criminal Law - Topic 5859

Sentence - Fraud - Over a 37 month period, the accused police constable stole over $225,000 from his employer by filing 237 fraudulent overtime claims and 71 fraudulent claims - He forged the signatures of nine different staff sergeants and was found in possession of other blank overtime forms, indicating a plan to continue his fraud - The motive was to fund a completely organic lifestyle to maximize the odds of his wife becoming pregnant - The accused immediately confessed and pleaded guilty to fraud over $5,000 - He sold his home and borrowed from family to make full restitution - The trial judge, while recognizing that denunciation and deterrence would generally require 1-2 years' incarceration, held that there were "exceptional circumstances" warranting a conditional sentence of imprisonment for two years less a day - The Alberta Court of Appeal allowed the appeal and substituted a sentence of 18 months' imprisonment - There were no exceptional circumstances warranting a departure from the general rule of a custodial sentence in cases of employee theft - The trial judge erred in distinguishing cases where stolen funds were used to support an extravagant lifestyle - The court noted that stealing $6,000 a month for 37 months "can only be described as an extravagant organic lifestyle" - The accused's motive was explanatory, but not mitigating - The judge erred in finding, as mitigating factor, that police officers serving time would face more "onerous" conditions because of their status - There was no rule that an accused required to serve "hard time" should get a more lenient sentence than an accused who would only have to serve "easy time" - The judge was correct in finding that voluntary full restitution was a mitigating factor, especially where recovering the misappropriated funds would otherwise be difficult - The accused was given credit for time served on the conditional sentence on a one-to-one basis.

Cases Noticed:

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 6].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 6].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 6].

R. v. Fulcher (J.J.) (2007), 422 A.R. 329; 415 W.A.C. 329; 2007 ABCA 381, refd to. [para. 7].

R. v. McKinnon (V.A.) (2005), 361 A.R. 271; 339 W.A.C. 271; 38 Alta. L.R.(4th) 23; 2005 ABCA 8, refd to. [para. 7].

R. v. Keller (D.W.) (2009), 469 A.R. 151; 470 W.A.C. 151; 2009 ABCA 418, refd to. [para. 7].

R. v. McTighe (J.) (2005), 361 A.R. 315; 339 W.A.C. 315; 2005 ABCA 30, refd to. [para. 7].

R. v. Bracegirdle (S.) (2004), 354 A.R. 313; 329 W.A.C. 313; 34 Alta. L.R.(4th) 7; 2004 ABCA 252, refd to. [para. 7].

R. v. Magas (D.L.) (2012), 524 A.R. 98; 545 W.A.C. 98; 2012 ABCA 61, refd to. [para. 7].

R. v. Nguyen (P.T.) (2011), 513 A.R. 399; 530 W.A.C. 399; 2011 ABCA 300, refd to. [para. 7].

R. v. Cassidy (L.) (2011), 510 A.R. 288; 527 W.A.C. 288; 2011 ABCA 223, refd to. [para. 7].

R. v. Miles (D.A.) (2011), 502 A.R. 270; 517 W.A.C. 270; 2011 ABCA 133, refd to. [para. 7].

R. v. Fraser (S.-A.E.) (2007), 425 A.R. 260; 418 W.A.C. 260; 2007 ABCA 386, dist. [para. 10].

R. v. Chand (J.R.) (1994), 52 B.C.A.C. 301; 86 W.A.C. 301 (C.A.), refd to. [para. 13].

Counsel:

E.A.M. Gilmour, for the appellant;

F.K. MacDonald, Q.C., for the respondent.

This appeal was heard on September 19, 2012, at Edmonton, Alberta, before Ritter, Slatter and Bielby, JJ.A., of the Alberta Court of Appeal.

On September 25, 2012, the following memorandum of judgment was filed by the Court.