DATE: 20060330
DOCKET: C42462
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – DAVID HUNTER (Appellant)
BEFORE:
FELDMAN, JURIANSZ AND MACFARLAND JJ.A.
COUNSEL:
Irwin Koziebrocki
for the appellant
Lisa Joyal
for the respondent
HEARD & ENDORSED:
March 24, 2006
On appeal from conviction by Justice Terrance P. O’Connor of the Superior Court of Justice dated May 25, 2004 and sentence imposed July 23, 2004.
A P P E A L B O O K E N D O R S E M E N T
[1] The appellant was convicted after a trial of assault causing bodily harm and sentenced to two years three months in the penitentiary. The appellant originally appealed both his conviction and sentence but he has now abandoned the conviction appeal. We are here today to deal with the sentence appeal. The appellant has served approximately 3.5 months in custody and has been on release on very restrictive conditions essentially since the date of the offence in 2001.
[2] The circumstances of the offence are extremely serious. The appellant attacked the victim, a young woman he knew, at night, in her house, in her bed. He beat her about the face and upper body while straddling her in bed, causing severe bruising, bleeding and a significant cut to her lip and cheek that required stitches. The victim suffered terrible fear and terror for which she required therapy to help her recover from the trauma.
[3] The Crown at trial asked for a sentence of three years. The trial judge in his reasons referred to all of the mitigating factors in the appellant’s favour including his restrictive bail. It is clear that the presence of those factors reduced the sentence from three years to two years and three months.
[4] We see no error in the approach taken by the trial judge. The seriousness of the attack warranted a very significant sentence of incarceration. The trial judge determined that in this case it should be a penitentiary sentence. He properly considered the appellant’s record that included another conviction for assault causing bodily harm as a factor. He also referred to relevant case law. In our view, the trial judge’s sentence was within the appropriate range. We also see no error in the trial judge’s emphasis on denunciation and general deterrence in this case, again because of the circumstances of the attack.
[5] The fresh evidence filed is very positive and shows a person who hopefully will not re-offend after this sentence is served. He is to be commended for his attitude and progress.
[6] However, we see no error in the reasons or the disposition of the trial judge. Leave to appeal sentence is therefore granted, but the appeal is dismissed.