R. v. Mastromonaco
The trial judge did not err in principle and the appellate court must defer to the judge's sentencing discretion; given the egregious fraud, position of trust, elderly victims, the appellant's lack of remorse and refusal to propose restitution, a conditional sentence was properly refused and the appeal is dismissed.
Source-derived case information.
- Citation
- C38329
- Parties
- Appellant: Lino Mastromonaco; Respondent: Her Majesty the Queen
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 15 February 2005
- Procedural Posture
- Criminal / Appeal From Conviction and Sentence
- Outcome
- Appeal dismissed
- Legal Topics
- Appeal, Conditional Sentence, Remorse, Elder Abuse, Position of Trust, Sentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lino Mastromonaco
Appellant
Her Majesty the Queen
Respondent
Procedural Posture
Criminal / Appeal From Conviction and Sentence
Legal Issues
- 1 Whether the trial judge erred in giving inappropriate emphasis to lack of remorse
- 2 Whether a conditional sentence was appropriate given the nature of the offence and the offender's conduct
- 3 Whether appellate court should interfere with trial judge's sentencing discretion
Ratio Decidendi
The trial judge did not err in principle and the appellate court must defer to the judge's sentencing discretion; given the egregious fraud, position of trust, elderly victims, the appellant's lack of remorse and refusal to propose restitution, a conditional sentence was properly refused and the appeal is dismissed.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed
- Conviction and sentence affirmed
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Mastromonaco Collection Decisions of the Court of Appeal Date 2005-02-15 Docket numbers C38329 Judges Rosenberg, Marc; Simmons, Janet M.; Lang, Susan Elizabeth Subject Criminal Decision Content DATE: 20050215 DOCKET: C38329 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) – and – LINO MASTROMONACO (Appellant) BEFORE: ROSENBERG, SIMMONS and LANG JJ.A. COUNSEL: Israel Gencher for the appellant Thomas Galligan for the respondent HEARD & RELEASED ORALLY: February 10, 2005 On appeal from conviction by Justice George Valin of the Superior Court of Justice dated October 26, 2001 and sentence imposed by Justice Valin on April 22, 2002. ENDORSEMENT [1] This was particularly a case where the trial judge’s decision was entitled to deference. He presided over the trial and not only had the opportunity to see the appellant testify, but also dealt first hand with the sentence submissions including the appellant’s own interventions. [2] We do not agree that the trial judge gave inappropriate emphasis to the lack of remorse. It was not just the lack of remorse here but the appellant’s continuing refusal to acknowledge the harm to victims, despite the undisputed fact that he did take the money from the victims. He not only refused to pay the money back but has refused to propose a method for doing so. [3] This was a particularly egregious fraud. The appellant was in a position of trust and took advantage of the elderly victims, depriving them of a substantial portion of their savings. It was open to the trial judge to find that the principles of sentencing of promoting responsibility and acknowledgment of harm would not be met by a conditional sentence. In our view, the trial judge did not err in principle in refusing to impose a conditional sentence. [4] Accordingly the appeal is dismissed. Signed: “Marc Rosenberg J.A.” “Janet Simmons J.A.” “S.E. Lang J.A.”