Court of Appeal for Ontario

Date: 2018-07-17 Docket: C65072

Justices: Benotto, Trotter and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Collea Dubinsky Appellant

Counsel

Collea Dubinsky, acting in person Hannah Freeman, for the respondent Amy Ohler, duty counsel

Heard and released orally: July 9, 2018

Appeal Information

On appeal from the conviction entered on September 21, 2017 and the sentence imposed on January 31, 2018 by Justice Joseph Nadel of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals from a 12-month sentence imposed for aggravated assault. The appellant, who was 34 years old, became involved in a consensual fight with the victim, who was 35 years old. There was long-standing animosity between the two.

[2] During the fight, the appellant struck the victim multiple times with a beer bottle. The victim sustained serious and disabling injuries to her left hand, injuries that required surgery.

[3] After the hearing at which the Crown was afforded the opportunity to prove aggravating features of the offence, the sentencing judge found that:

i. the appellant did not engage in an unprovoked assault attacking the victim from behind; and

ii. the appellant did cause all of the injuries sustained by the victim.

[4] The appellant has had a very difficult background. She suffered from post-traumatic stress disorder and struggled with other mental health issues. The trial judge accepted the appellant had these conditions, but he found that they did not contribute to the offences in any way.

[5] We do not see any error in the way in which the trial judge dealt with this evidence. Given the manner it was presented to him at trial by defence counsel (who was not Ms. Ohler), and by the appellant during her allocution under s. 726 of the Criminal Code, the trial judge weighed all the relevant factors in rejecting the appellant's request for an intermittent sentence. The 12-month sentence, acknowledged by her trial counsel to be reasonable, was fit, especially given the serious injuries sustained by the victim.

[6] Leave to appeal sentence is granted, but the appeal is dismissed.

M.L. Benotto J.A.

Gary T. Trotter J.A.

David M. Paciocco J.A.