Court of Appeal for Ontario
Before: Rosenberg, Epstein and Lauwers JJ.A.
Between:
C52747
Her Majesty the Queen Respondent
and
Dustin McDonald Appellant
C52758
Her Majesty the Queen Respondent
and
Brandon Green Appellant
Counsel: Gerald Chen, for the appellant, Dustin McDonald Mark Halfyard, for the appellant, Brandon Green David Lepofsky and Dan Guttman, for the respondent
Heard and released orally: October 31, 2013
On appeal from the sentence imposed on June 21, 2011 by Justice R.M. Thompson of the Superior Court of Justice, sitting with a jury.
Appeal Book Endorsement
1We agree with the appellants that in the unusual circumstances, this is not a case for deference given that the entire emphasis at trial was on the aggravated assault conviction which has now been set aside.
2We see no benefit to returning these appellants to custody given the 5 years that has elapsed since the offence, the time spent on bail pending appeal and the 9 days each has spent in custody.
3We are also satisfied that notwithstanding the seriousness of this common assault, imposing a discharge would not be contrary to the public interest. There were no serious injuries to the victim who did not file a victim impact statement. The appellants were young and at the time both were first offenders.
4We are also satisfied that the public interest can be served and the seriousness of offence reflected in a lengthy term of probation with community service.
5A discharge is in the appellant’s interest given their prior good character and the possible impact of a conviction on their prospective careers and in Mr. Green’s ability to travel to be with his family.
6Accordingly, leave to appeal is granted. The appeals are allowed, the sentence is set aside and each appellant is granted a conditional discharge with probation for 2 years on the terms imposed by the trial judge with the additional condition that the appellant’s each complete 200 hours of community service.
