COURT OF APPEAL FOR ONTARIO

DATE: 20000526

DOCKET: C33364

RE: HER MAJESTY THE QUEEN (Appellant) –and– ROBERT
SCOTT FINKLE (Respondent)

BEFORE: CATZMAN, WEILER and LASKIN JJ.A.

COUNSEL: Lisa Joyal, for the appellant
Irwin Koziebrocki, for the respondent

HEARD: May 19, 2000

On appeal from the sentence imposed by Stong J. dated November
24, 1999.

E N D O R S E M E N T

CATZMAN AND LASKIN JJ.A.:

[1] This was undoubtedly a serious matter and the victim
received serious injuries. That said, it is our view that the
trial judge crafted a sentence that appropriately responded to
the circumstances before him.

[2] The sentence restricts the liberty of the respondent and
places him under control of the authorities for a period of four-
and-a-half years. For the first twelve months, he is under
virtual house arrest. For the next six months, he has continued
restrictions on his liberty. For the following three years, he
is subject to controls, counselling, community involvement and
supervision.

[3] In our view, this sentence addressed all of the appropriate
principles and discloses no error warranting interference by an
appellate court. We are fortified in our decision by the fresh
evidence filed by the appellant’s treating psychiatrist, whose
opinion is that the appellant’s mental state is now stable, that
he is symptom-free and that he presents no risk to the community.

[4] We would dismiss the appeal.

WEILER J.A. (dissenting):

[5] In my opinion, the harm caused by the respondent is grossly
disproportionate to the punishment he received by way of a
conditional sentence.

[6] By his plea of guilty, the respondent did not simply admit
that he stabbed his former girlfriend’s partner so savagely that
he almost died. He admitted he had the intent to commit
aggravated assault. He did not plead that his mental capacity
should diminish responsibility for his act. The sentence imposed
does just that.

[7] Although a conditional sentence can achieve a denunciatory
and punitive objective, I am of the opinion that those objectives
are poorly met by the sentence imposed in this case. While
incarceration may pose a risk that the respondent would again
suffer a depressive episode, that concern, in this case, ought to
give way to the principle of general deterrence.

[8] I would, accordingly, grant leave to appeal sentence, allow
the appeal as to sentence and set aside the conditional sentence.

[9] Having regard to the time the respondent has served on his
conditional sentence, I would impose a custodial sentence of
twelve months imprisonment commencing today, plus probation as
originally ordered.

DISPOSITION

[10] Leave to appeal against sentence is granted, but the appeal
against sentence is dismissed.

Signed: “M.A. Catzman J.A.”
“K.M. Weiler J.A.”
“John Laskin J.A.”