COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – COLLEA-LYNN DUBINSKY (Appellant)
BEFORE:
GOUDGE, FELDMAN and JURIANSZ JJ.A.
COUNSEL:
Neil R. Jones
for the appellant
Nancy Dennison
for the respondent
HEARD & RELEASED ORALLY:
March 8, 2005
On appeal from the sentence of Justice W. Festeryga dated February 16, 2004.
E N D O R S E M E N T
1The sentencing judge’s reasons indicate that in imposing sentence he focused almost exclusively on general deterrence, and apparently failed to consider individual deterrence and rehabilitation. For a youthful offender this was an error in principle. See R. v. Priest (1996), 110 C.C.C. (3d) 289.
2The offences for which the offender accepted responsibility were serious, had aggravating factors and deserved incarceration. However, the sentencing judge did not pay heed to the well-established principle that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the offender, especially in the case of a youthful one.
3In our view a proper sentence would reflect her youth, her guilty plea, and the fresh evidence, which shows that she has made increasing progress in trying to turn her life around.
4Though a significant period of incarceration was warranted, she has served seven months, she now has regained custody of her young child, and is about to complete a term of schooling. In these circumstances we do not think it is in the interests of justice to re-incarcerate her. We would grant leave to appeal, set aside the sentence, and impose a sentence of time served together with the probation ordered by the sentencing judge.
“S.T. Goudge J.A.”
“K.N. Feldman J.A.”
“R.G. Juriansz J.A.”
