DATE: 20050311

DOCKET: C41876

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

[1] The 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.

[2] The 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.

[3] In 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.

[4] Though 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.”