Court of Appeal for Ontario

Citation: R. v. Peciukaitis, 2008 ONCA 672

Date: 20081003

Docket: C48688

Before: Weiler, Gillese and Armstrong JJ.A.

Between:

Her Majesty the Queen

Appellant

and

Colleen Peciukaitis

Respondent

Counsel:

Matthew Asma, for the appellant

Colleen Peciukaitis, in person

Margaret Bojanowska as amicus curiae, for the respondent

Heard: September 29, 2008

On appeal from the sentence imposed by Justice W. George Beatty of the Ontario Court of Justice on March 26, 2008.

ENDORSEMENT

[1] The respondent pled guilty and was convicted of aggravated assault, break and enter and commit assault. The effective sentence was 14 months calculated as follows: six months’ credit for the respondent’s 85 days in custody; two months’ credit for her time spent on bail; and a sentence of six months in jail. In addition, she received three years’ probation.

[2] The Crown appeals on the basis that the sentence as imposed was demonstrably unfit. He submits that a sentence of two and a half years imprisonment ought to be imposed.

[3] The facts giving rise to the offence may be briefly summarized. The respondent and Mr. Findlay had been cottage neighbours and friends for a long time. The respondent and her husband got into a dispute with the local ratepayers’ association over whether a lot line could be moved. They sued the association as well as Mr. Findlay, who was president of the association at the time. They lost and costs were awarded against them. They unsuccessfully appealed the case and had further costs awarded against them in March 2007. At the time, the respondent and her husband were in financial difficulty.

[4] On April 29, 2007, Mr. Findlay went to his cottage. The respondent invaded Mr. Findlay’s cottage home while he was sleeping. She walked into his bedroom with a large kitchen knife, jumped on top of him in his bed and stabbed him in the chest while yelling that he had ruined her life and she wanted him to die. Fortunately, the respondent only landed two blows before Mr. Findlay grabbed the knife away, fled the cottage and took refuge in his neighbour’s house. After pursuing Mr. Findlay, the respondent rattled the front door of the neighbour’s cottage and tried to peer inside. Mr. Findlay called 9-1-1.

[5] Eventually the respondent left the neighbour’s cottage. The police located the respondent on the front step of her home with her daughter who, seeing the blood on the respondent, was asking her mother what she had done.

[6] Fortunately, Mr. Findlay was not seriously injured although the knife blade did nick his lung and stitches were required to close two cuts on his chest.

[7] Following her arrest, the respondent was detained for a 30-day psychiatric assessment and sent to a mental health centre. Her stay was extended to 60 days. A medical report diagnosed the respondent as having major depressive disorder and associated anxiety, as well as symptoms of posttraumatic stress related to physical and sexual abuse suffered as a child. The report concludes that the attack was influenced by the respondent’s emotional vulnerability but that she was not hallucinating or delusional at the time of the incident. After the psychiatric assessment, the respondent remained in custody for a further three weeks. In total, she spent 85 days in custody before bail was granted.

[8] The respondent has completed the custodial portion of her sentence and is presently on parole living in the community. The conditions under which the respondent served the jail time were especially stringent. The facility in which she was incarcerated was in lockdown for three months. As a result, her husband was allowed to visit her only once in a five week period and she was only permitted limited yard time. Bathing was restricted to one shower every three or four days.

[9] A letter from the respondent’s psychiatrist, filed as fresh evidence on this appeal, indicates that she is now emotionally stable, compliant with her medication and not a danger to others.

[10] Unlike many home invasions, the offender is not part of a gang and has no history of violence. There is no question that the offence was out of character for this 60-year old first offender who has no previous criminal antecedents. Before us, the Crown very fairly conceded that specific deterrence was not an issue. However, the Crown submits that the principle of general deterrence warrants the imposition of a further term of imprisonment.

[11] We agree with the Crown that, having regard to the serious nature of this unprovoked attack, the sentence imposed by the sentencing judge is demonstrably unfit and that, for reasons of general deterrence, a penitentiary sentence ought to have been imposed. However, in light of the fresh medical evidence concerning the positive progress made by the respondent and as she has served the custodial part of her sentence, re-incarceration would serve no useful purpose in this case.

[12] Accordingly, in the particular circumstances of this case, while leave to appeal is granted, the appeal as to sentence is dismissed.

“Karen M. Weiler J.A.”

“E.E. Gillese J.A.”

“Robert P. Armstrong J.A.”