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The Court of Appeal upheld a conviction for assault causing bodily harm, finding the included offence was properly left to the jury.
The appellant appealed his conviction for assault causing bodily harm and sought leave to appeal his sentence of 14 months' imprisonment and two years' probation.
The conviction arose from a second trial following a mistrial on a charge of aggravated assault of Tim Runge.
The appellant argued that the trial judge erred in leaving assault causing bodily harm as an included offence to the jury, contending that the uncontested expert evidence of a serious and permanent brain injury established the elements of aggravated assault as a matter of law.
The Court of Appeal dismissed the conviction appeal, finding that the trial judge properly left the included offence with the jury as there was an air of reality to it, and that defence counsel had requested the instruction.
The court also dismissed the sentence appeal, finding no basis to interfere with the trial judge's findings regarding aggravating factors.
The offender was sentenced to 14 months in jail for an unprovoked assault that caused a severe brain injury.
Nedeljko Mikasinovic was convicted by a jury of assault causing bodily harm, an included offence of aggravated assault.
The sentencing judge rejected the defense's claim of self-defense, finding the assault unprovoked, gratuitous, and disproportionate, resulting in severe and permanent brain injury to the victim.
Despite mitigating factors such as the offender's efforts to rehabilitate and positive character references, the judge found the offender lacked genuine remorse and had a history of violent offenses.
The Crown sought a penitentiary sentence of 2.5 years, while the defense sought a suspended or intermittent sentence.
The court imposed a 14-month reformatory sentence, two years probation, a 10-year weapons prohibition, and a non-communication order.
