COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Camara, 2017 ONCA 817

DATE: 20171025

DOCKET: C57838

van Rensburg, Pardu and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roberto Camara

Appellant

Roberto Camara, acting in person

Ian R. Smith, duty counsel

Lorna Bolton, for the respondent

Heard: October 4, 2017

On appeal from the conviction entered on December 19,
    2008 and the sentence imposed on October 2, 2013 by Justice E.N. Libman of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals his conviction for
    aggravated assault and his designation as a dangerous offender.

[2]

The predicate offence involved the assault of a
    bar patron with a pool cue causing serious and permanent injuries. The assault
    was a sudden, unprovoked and violent attack on a stranger.

[3]

In his conviction appeal the appellant argues
    that the trial judge erred in concluding that he was the person who attacked
    the complainant. The essence of his argument is that, on the evidence in this
    case, the verdict was unreasonable.

[4]

The complainant testified that he was in the bar
    to watch sports, when someone was looking at him very strangely. When he asked
    him to stop, the person, without saying anything, struck him in the face with a
    pool cue. The complainant was unable to identify his attacker. He suffered
    serious injuries, including a lasting injury to one of his eyes and a broken
    jaw.

[5]

The evidence connecting the appellant to the
    offence was that of Gaspare Perricone, the owner of the bar. Mr. Perricone was
    sleeping and did not see the assault. After being roused by an employee, he
    went upstairs and saw the complainant bleeding. The complainant motioned to
    someone in the bar who was sitting calmly, within ten feet. Mr. Perricone
    approached that person and had a conversation with him before asking him to
    leave the bar. The trial judge accepted Mr. Perricones identification of the
    appellant as the person he approached and spoke to, and that during the
    conversation the appellant admitted that he hit the complainant. The
    appellants conviction turned on the trial judges acceptance of this evidence.

[6]

The appellant says there were two errors in the
    trial judges treatment of Mr. Perricones evidence.

[7]

First, he says that the trial judge ought not to
    have accepted Mr. Perricones evidence that he was the assailant, when Mr.
    Perricone mistakenly insisted that he was bald. A photo of the appellant at the
    time of the offence showed that he had short hair, but could not have been
    fairly described as bald. The appellant says that Mr. Perricones evidence
    identifying the appellant was unreliable and ought not to have been accepted.

[8]

We do not give effect to this argument.

[9]

First, Mr. Perricone explained his understanding
    of the term bald in relation to the man he spoke to. He explained that the
    man had very, very short hair, bald. He also described it as maybe small
    hair. Mr. Perricone testified that, to him, a bald person may have shaved his
    head the week before.

[10]

It was open to the trial judge to come to the
    factual conclusion that the appellant was the person who had the conversation
    with Mr. Perricone. The trial judge correctly cited the law and noted the
    frailties of identification evidence, demonstrating his appreciation for the
    caution that was required. He also correctly noted that this was not a case of
    eyewitness identification of a stranger. The witness knew the appellants
    family, knew him by his first name, and had spoken with him many times over
    several months while he was a patron in his bar. He identified the appellant as
    the person he had a conversation with after the incident, and asked to leave
    the bar. There was no error here in the trial judges acceptance of the
    identification evidence notwithstanding that the witness was mistaken in his description
    of a material aspect of the appellants appearance.

[11]

The second argument in the conviction appeal has
    to do with the conversation Mr. Perricone had with the appellant. The appellant
    says that the trial judge erred in concluding that he admitted hitting the
    victim, when the evidence did not clearly disclose an admission.

[12]

Mr. Perricones evidence on this point in direct
    examination was as follows:

Q. tell me the exact words you used when you
    approached him.

A. I said, What did you do, you know.

Q. And exactly what he said?

A. And he said he heard voices at the time. He
    was like, you know, he heard the voice, saying I hit the man, but thats it.
    And then I said, What the hell you do?

Q. He said, I heard a voice. I hit the man?

A. Yeah. As I said, and then I told him to go
    and he left, so you know.

[13]

Under cross-examination, the following exchange
    took place:

Q. And Im going to suggest to you that the
    response about hearing voices was then followed by, not, I hit the man, but,
    He hit the man, right?

A. No, I just said what he said, thats it. He
    didnt say that, that He [ph] hit the man.

Q. Was he asking you a question about

A. Who?

Q. This person Roberto, was he asking you a
    question

A. No.

Q.I hit the man?

A.

No.

[14]

The appellant says that the trial judge
    unreasonably concluded from this evidence that he admitted hitting the
    complainant.

[15]

We disagree. While the transcript may suggest
    that there was some ambiguity in what Mr. Perricone recalled the appellant
    saying, the trial judge, who heard and saw the witness testify, was in the best
    position to assess his evidence.

[16]

The trial judge recounted the evidence elicited
    by the Crown, as the appellant having stated that he had heard voices and hit
    the man. The trial judge also recounted Mr. Perricones testimony in
    cross-examination, disagreeing that he heard the appellant say that another
    person hit the man. The trial judge reviewed and considered the defence
    position that the statement was not made as recounted by the witness, or at
    least that he should have a doubt about that fact. The trial judge found as a
    fact that the appellant related to Mr. Perricone the odd conversation about
    hearing voices and hitting the complainant, and that Mr. Perricones having
    asked the appellant to leave the bar was consistent with understanding him to
    say that he had hit the man.

[17]

In these circumstances, there is no basis to
    interfere with the trial judges conclusion that the appellant was the person
    Mr. Perricone approached after the assault, and that he admitted having hit the
    complainant. The conviction appeal is therefore dismissed.

[18]

With respect to the sentence appeal the
    appellant makes two arguments.

[19]

First, he says that the trial judge erred in
    concluding that he met the criteria for a dangerous offender under s.
    753(1)(a)(i) and (ii) of the
Criminal Code.
Second, he argues that the trial judge erred in concluding that his risk was
    not manageable within the community, and that he should have received instead a
    long-term supervision order of ten years.

[20]

The appellant says that the two incidents relied
    on by the trial judge - the predicate offence and an earlier incident in 1995
    (where he took out a gun and shot strangers at a casino, resulting in his
    conviction for multiple offences and a 12 year custodial sentence) - were not
    enough incidents, were not close enough in time, and were not sufficiently
    similar to constitute a pattern of repetitive behaviour (under s.
    753(1)(a)(i)) or a pattern of persistent aggressive behaviour (under s.
    753(1)(a)(ii)). He also says that the trial judge improperly took into
    consideration his behaviour while in prison as part of the pattern.

[21]

We do not give effect to these arguments.

[22]

The appellant committed a serious personal
    injury offence on January 10, 2008. He was convicted on December 19, 2008. The
    hearing of the dangerous offender application commenced with evidence in June
    2011. Closing submissions were made in June and July 2013. Judgment was
    rendered October 2, 2013.

[23]

While the dangerous offender legislation changed
    between the date of offence and date of sentencing, it appears that the trial
    judge, Crown counsel,
amicus
and Mr. Camara
    operated under the legislation in place at the time that the serious personal
    injury offence was committed. In the circumstances of this case, bearing in
    mind the conclusions reached by the trial judge, both schemes would have given
    rise to the same result.

[24]

While the appellant did not have counsel at the
    hearing, because he had fired him, the court was assisted by his former counsel
    as
amicus. Amicus
asserted
    that Mr. Camara should not be found a dangerous offender because the statutory
    criteria had not been met. In the alternative, if Mr. Camara was found to meet
    the statutory criteria to be declared a dangerous offender,
amicus
argued that he should be subjected to
    a long-term supervision order and not to an indeterminate sentence.
Mr. Camara joined in the submission that the statutory criteria for
    a dangerous offender finding had not been met. He argued that he should be
    sentenced in the normal course to a finite sentence, time served.

[25]

The trial judge did not err in his articulation
    of the proper test or in his detailed and thorough evaluation of the evidence,
    which included the testimony of several lay witnesses, the expert evidence of a
    psychiatrist who examined the appellant and his history, the details of the
    offences disclosed in the appellants lengthy criminal record, and his conduct
    while in prison and in dealing with correctional authorities.

[26]

It was open to the trial judge to find that, on
    all the evidence, although there were some factual differences, the shooting
    incident in 1995 and the predicate offence were remarkably similar as
    unprovoked attacks on unarmed strangers while the appellant was intoxicated,
    with severe and permanent impacts on the victims, and that they showed a
    pattern of unrestrained dangerous conduct.

[27]

The trial judge also properly concluded that the other elements of
    s. 753 (1)(a)(i) were made out on the evidence. The appellant was convicted of
    a serious personal injury offence. The evidence of the combination of his gross
    intoxication, his refusal to get treatment or accept beneficial programming,
    and his inability to follow rules, demonstrated
an inability to control
    himself so as to make likely the fact that he would cause injury to others in
    the future. Similarly, the trial judges conclusion that the appellant met the
    additional criteria under s. 753(1)(a)(ii) is fully supported by the evidence.
    His substantial indifference to the consequences of his aggressive behaviour
    was shown in his more than 20 criminal convictions, including 11 convictions
    for assaults, his lack of empathy for his victims and the fact he blamed his
    difficulties on others.

[28]

We
    do not therefore accept the appellants argument that there was an error in the
    trial judges conclusion that he met the test for being a dangerous offender.

[29]

As
    for the argument that the trial judge ought to have concluded the appellant was
    a long-term offender, qualifying for a determinate sentence and long-term
    supervision, the appellant is unable to identify any error in the trial judges
    analysis, and we see no error. The trial judge properly concluded on the
    extensive record before him that there was no reasonable possibility of
    eventual control in the community of the appellants risk of recidivism.

[30]

For these reasons leave to appeal sentence is
    granted, but the sentence appeal is dismissed.

K
    van Rensburg J.A.

G.
    Pardu J.A.

Fairburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Carty, 2017 ONCA 770

DATE: 20171005

DOCKET: C59233

Cronk, Juriansz and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Eric Shawn Carty

Appellant

Michael Dineen, for the appellant

Christine Bartlett-Hughes, for the respondent

Heard: September 27, 2017

On appeal from the conviction entered on November 22,
    2013 by Justice Mary Lou Benotto of the Superior Court of Justice, sitting with
    a jury.

REASONS FOR DECISION

INTRODUCTION

[1]

Eric Carty was convicted after a jury trial of the first degree murder
    of Kirk Vaughn Matthews. He appeals his conviction on two grounds. He asserts
    that the trial judge erred in admitting, under the principled hearsay
    exception, a statement made by the deceased after he had been shot and shortly
    before his death, in which the Crown contends he identified Mr. Carty, a.k.a.,
    Sniper, as the shooter.

[2]

The second ground of appeal pursued before us was that the trial judge
    erred in law by not giving the jury a no probative value direction regarding Mr.
    Cartys post-offence conduct. A no probative value direction would have cautioned
    the jury not to use Mr. Cartys post-offence conduct in fleeing after he
    learned he was wanted for the shooting of the deceased, to determine the category
    of homicide offence which Mr. Carty may be guilty of.

[3]

We decline to give effect to either ground of appeal.

DISCUSSION

(1)

Admission of Hearsay Statement

[4]

With respect to the hearsay statement, if we were persuaded that the
    trial judge had indeed admitted that statement solely on the footing that the
    jury had sufficient evidence to resolve whether the deceased had a motive to
    falsely accuse Mr. Carty of the shooting, we would have found there to be an
    error on this basis. This is not, however, how we read the admissibility
    ruling. The trial judge held that the statement bore the indicia of reliability
    that grounds the spontaneous statement fixed hearsay exception, but she chose
    not to rely directly on that exception because of evidence about the history of
    animus between Mr. Carty and the deceased. She made this decision
    notwithstanding her conclusion that the defence theory that the deceased could
    have been motivated to falsely implicate Mr. Carty as the shooter was questionable.
    She said specifically:

These issues viewed in the cold light of a courtroom may amount
    to a reason to fabricate. However, when viewed in the context of the rapidly
    unfolding and dramatic events, such a conclusion is not so simple. Here, the
    mind of the deceased must have been still dominated by the shooting. He had
    just been shot in the chest. He said he could not feel his legs. To say that
    under these circumstances he had the motive and opportunity to fabricate is
    questionable.

That said, I do not base my decision on the
res gestae
but rather the principled approach to the admission of hearsay.

[5]

Given that the sole consideration that prevented the trial judge from
    admitting the statement under the spontaneous statement exception was the
    contest about motive to mislead, and that the trial record gave the jury ample
    opportunity to assess the strength of the motive evidence, the trial judge determined
    that the jury had a satisfactory basis to assess the truth of the statement. In
    doing so, the trial judge, in effect, combined substantive reliability factors
    with the capacity of the jury to resolve the key outstanding hearsay issue that
    remained, to find that the threshold for admission had been achieved.

[6]

This reasoning is also problematic. The ability of a jury to explore, using
    other evidence, an issue that could be the subject of cross-examination of the
    declarant is not an adequate procedural safeguard that can substitute for that
    cross-examination.

[7]

That said, we do not rely on the trial judges theory of admissibility
    to determine this issue. Instead, we uphold the admission of the hearsay
    statement on a simpler footing. In our view, once the trial judge found that
    in the context of the rapidly unfolding and dramatic events the mind of the
    deceased must have been still dominated by the shooting, and that the defence fabrication
    theory was questionable, she should have admitted the hearsay statement as a spontaneous
    statement.

[8]

The theory underlying this exception to the hearsay rule was explained
    by this court in
R. v. Khan
(1988), 27 O.A.C. 142 (C.A.), at p. 148, affd
    [1990] 2 S.C.R. 531:

[A] spontaneous statement made under the stress or pressure of
    a dramatic or startling event and relating to such an occasion may be
    admissible as an exception to the hearsay rule. The stress or pressure of the
    act or event must be such that the possibility of concoction or deception can
    be safely discounted. The statement need not be made strictly contemporaneous
    to the occurrence so long as the stress or pressure created by it is ongoing
    and the statement is made before there has been time to contrive and
    misrepresent. The admissibility of such statements is dependent on the
    possibility of concoction or fabrication. Where the spontaneity of the
    statement is clear and the danger of fabrication is remote, the evidence should
    be received.

[9]

We agree that evidence of a sufficiently strong motive to mislead can
    influence whether to find that a statement was made in circumstances where the
    possibility of concoction or deception can safely be discounted. Where,
    however, a trial judge determines that a statement was made when the stress or
    pressure of the act or event is such that the possibility of concoction or
    deception can be safely discounted, or before there has been time to contrive
    and misrepresent, then the presence of a motive to mislead becomes unimportant
    to admissibility. If one is so caught up in the event that, realistically, they
    are not capable of contriving, evidence that they may have a motive to contrive
    against another is immaterial.

[10]

In
    this case, given her factual findings, the trial judge therefore erred in law
    in failing to admit the deceaseds statement under the spontaneous statement
    exception. Once it was determined that the defences motive to mislead theory
    was questionable, and that the mind of the deceased must have been still
    dominated by the shooting, the trial judge should have admitted the statement without
    resort to the principled exception.

[11]

In
    fairness to the trial judge, she may have approached the motive question differently
    had she relied on the
Khan
articulation of the test for the
    spontaneous statement exception, set out above, instead of using a three-part
    test in which the presence of ongoing stress of a dramatic or startling
    event, and the little possibility of fabrication factor are treated as
    distinct components.  In fact, these two components are cause and effect. If
    the presence of ongoing stress of a dramatic or startling event is intense
    enough to still the ability to reflect and contrive, there is little
    possibility of fabrication, since a declarant is too overwhelmed to act on a
    motive to mislead.

[12]

In
    upholding the admission of the hearsay statement on this basis we are mindful
    that there was evidence that, proximate to the time of his identification of
    Sniper as the shooter, the deceased directed that drugs be removed from his car.
    This can be seen as evidence that, contrary to the trial judges finding, the
    deceaseds ability to concoct was not in fact stilled. The question, however,
    is not whether we would have made the same factual finding as the trial judge.
    The trial judge was entitled on the evidence before her to make the finding
    that she did. Absent palpable and overriding error, her finding on this issue
    is entitled to deference from this court. No such error has been demonstrated
    here. We therefore decline to give effect to this ground of appeal.

(2)

Post-Offence Conduct Instruction

[13]

Nor
    did the trial judge err by failing to caution the jury that Mr. Cartys
    post-offence flight had no probative value in determining the category of
    homicide offence he may have committed.

[14]

It
    is true that flight has no relevance on that issue in the circumstances of this
    case. Each and every possible offence was serious enough to motivate flight. As
    the Supreme Court of Canada recognized in
R. v. White
,
2011 SCC 13, [2011] 1 S.C.R. 433, at
    paras. 38 and 185, however, a no probative value instruction will not always be
    necessary.

[15]

In
    this case, the trial judge made clear to the jury that evidence of Mr. Cartys
    flight was relevant to the issue of his alleged identity as the shooter. Moreover,
    there was no defence objection to the absence of a no probative value direction
    in the jury charge. This is a fair indication that even defence counsel
    recognized that this caution was not required, a conclusion supported by the
    fact that the trial judge mentioned Mr. Cartys flight only when describing the
    identity issue, and did not include it when describing the evidence relating to
    his state of mind. In the circumstances, the prospect that the jury might rely
    on the evidence of Mr. Cartys flight to determine his level of culpability was
    sufficiently remote that a no probative value direction was unnecessary.

[16]

Accordingly,
    this ground of appeal also fails.

DISPOSITION

[17]

The
    appeal is therefore dismissed.

E.A. Cronk J.A.

R.G. Juriansz J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dedeckere, 2017 ONCA 799

DATE:  20171018

DOCKET: C62914

Pepall, Benotto and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Constantinus Dedeckere

Appellant

Apple Newton-Smith, for the appellant

Rebecca DeFilippis, for the respondent

Heard: October 11, 2017

On appeal from the sentence imposed on October 12, 2016 by
    Justice John S. Skowronski of the Ontario Court of Justice.

REASONS FOR DECISION

Introduction

[1]

The appellant attempted to commit suicide by driving his vehicle into a
    hydro pole on a rural road.  As a result of the collision, debris struck the
    victim, seriously injuring her.  At the time, the appellant was an in-patient
    on temporary leave from the Mental Health Care facility at Parkwood Hospital.

[2]

The victim was badly injured.  Due to the debris, she had a hole in her
    skull that required surgery and time in rehabilitation.  Fourteen victim impact
    statements were filed at the sentencing hearing, including one from the victim.

[3]

The appellant pled guilty to a charge of criminal negligence causing
    bodily harm for which he was sentenced to two years imprisonment in a
    penitentiary followed by three years probation and a six-year driving
    prohibition.

[4]

He seeks leave to appeal his sentence.  He submits that the sentencing judge
    erred in sentencing the appellant on the basis of denunciation and deterrence
    to the exclusion of all other principles of sentencing and failed to consider
    the principles of restraint and proportionality.  Moreover, he submits that the
    sentencing judge erred by failing to give adequate meaningful consideration to
    the appellants psychiatric issues and rehabilitation.  The appellant argues
    that the sentence imposed was demonstrably unfit.  He also seeks leave to file
    fresh evidence showing that he has been diagnosed with kidney cancer.

[5]

For the following reasons, we granted leave to appeal sentence and
    allowed the sentence appeal.

Background Facts

[6]

The appellant was 58 years old at the time of the incident, was not
    impaired by alcohol or drugs, and had no criminal record.  There was no dispute
    that his sole intention was to kill himself.  He had a lengthy history of
    mental illness and failed suicide attempts.  He was first diagnosed with
    bipolar affective disorder in 1980 following a manic episode.  He required
    multiple hospitalizations in 1980, 1981, 1994, 1995, and 2014 due to
    depression.  Approximately two years before the incident, the appellant was
    taken off his medication as he had developed a toxicity to it. His condition
    gradually deteriorated, leading to his hospitalization in early 2014.  He was subsequently
    admitted to the mental health unit of the St. Thomas Elgin General Hospital a
    number of times that year.  By December 2014, he had a regular treating
    psychiatrist and later was an in-patient at the Parkwood Institute Mental Health
    Care facility.

[7]

The appellant was called to the bar in 1984 but ceased to practice in
    2014.  As mentioned, on the day of the incident, he was on a day pass from
    Parkwood.  He had also received a letter from the Law Society of Upper Canada
    reporting that he would be disbarred.  This prompted his suicide attempt.

[8]

After the incident, he was released on bail and returned to the lockdown
    unit at Parkwood.  In 2016, he was discharged to his home.  As a condition of
    his bail, he was not permitted to leave his home without either a member of his
    family or the Parkwood team.  His time on bail was without incident.  He is
    genuinely remorseful for what he did.  He has a loving and supportive family
    including his wife, four children, and two grandchildren.

The Sentence

[9]

Before the sentencing judge, the Crown sought a custodial sentence of two
    to two-and-a-half years and the defence sought a suspended sentence and three years
    probation.

[10]

In
    sentencing the appellant to two years in penitentiary, the sentencing judge
    identified certain mitigating factors: the appellants lack of a criminal record,
    his guilty plea, his genuine remorse, and his supportive family and friends.
    The sentencing judge identified the only aggravating factor as the offence
    itself, including the significant impact it had on the victim. He also
    considered the powerful victim impact statements.

[11]

The
    sentencing judge referred to the principles of sentencing set out in s. 718 of
    the
Criminal Code
,
R.S.C.
    1985, c. C-46, stating that deterrence and denunciation should be treated as
    the primary objectives in sentencing for the offence of criminal negligence
    causing bodily harm, and that both general and specific deterrence need[ed] to
    be addressed. With respect to the former he stated that it is important to
    dissuade those who may be self-destructive from acting on such ideations to
    their detriment and from exposing the innocent bystanders, as it were, to
    possible physical danger.  As for specific deterrence, he noted that the
    appellant did not adequately examine or even consider the impact his suicide
    plan could have had on others on the roadway.  The sentencing judge therefore concluded
    that probation would not be adequate to achieve the necessary level of
    deterrence and denunciation.

Analysis

[12]

We
    recognize that absent an error in law or an error in principle that has an
    impact on the sentence, or the imposition of a demonstrably unfit sentence, deference
    is owed to the decision of a sentencing judge: see
R. v. Lacasse
, 2015
    SCC 64, [2015] 3 S.C.R. 64, at para. 11.  However, for the following reasons,
    such deference is not justified in the circumstances of this case.

[13]

Although
    the sentencing judge mentioned rehabilitation as a principle of sentencing, he
    sentenced the appellant on the basis of deterrence and denunciation to the
    exclusion of all other relevant sentencing principles.  He failed to consider
    restraint and proportionality, and did not give meaningful consideration in his
    analysis to the appellants mental health and rehabilitation.  In essence, the
    sentencing judge determined that specific deterrence could only be met by a
    custodial term due to the appellant being chronically suicidal.

[14]

Specific
    deterrence has little relevance in the context of suicide and general
    deterrence is a factor of decreased significance when sentencing those whose
    behaviour is driven by mental illness.  As explained by Gillese J.A. in
R.
    v. Batisse
, 2009 ONCA 114, 93 O.R. (3d) 643,
[1]
at para. 38, when mental health problems play a central role in the commission
    of the offence  deterrence and punishment assume less importance.  Here, the
    Crown acknowledged that the appellants mental illness played a central role in
    the offence.

[15]

Moreover,
    the sentencing judge failed to consider that the moral blameworthiness of the
    appellant was less than that of someone who had set out to do such harm to
    another.  The sentencing judge attached moral blameworthiness to the
    appellants desire to take his own life rather than considering the impact that
    the appellants bipolar disorder and depression had on his judgment.

[16]

The
    sentencing judge should have considered the appellants serious and
    longstanding mental health issues as a central component of the appellants
    circumstances. Instead, the sentencing judge focused on the appellants
    chronically suicidal behaviours and continued struggles with his mental
    illness as a basis for incarceration.

[17]

Clearly
    these errors impacted the two-year penitentiary sentence that the sentencing
    judge imposed, a sentence that was unfit in the circumstances.

[18]

Accordingly,
    it falls to this court to sentence the appellant anew.

[19]

The
    appellant is over 60 years of age and has suffered from mental illness for many
    years.  He is very remorseful and did not intend to harm the victim.  No
    alcohol or drugs were involved.  This was his first criminal offense.  He has
    supportive family and friends.  His period on bail was without incident.

[20]

The
    victim impact statements are moving and profound.  The victim was seriously
    injured and negatively affected by the appellants conduct.

[21]

The
    appellant has been incarcerated for one year.  Without minimizing the
    seriousness of the offence and the impact on the victim, a sentence of time
    served and two years probation is fit and adequate to reflect the principles
    of sentencing including proportionality.  The ancillary orders will remain the
    same.

[22]

In
    light of this disposition, it is unnecessary to address the motion to admit
    fresh evidence.

[23]

In
    conclusion, leave to appeal sentence is granted.  The sentence appeal is
    allowed and the sentence is varied from two years imprisonment to time served
    and two years probation, all other terms to remain the same.

S.E. Pepall J.A.

M.L. Benotto J.A.

I.V.B. Nordheimer J.A.

[1]
It does not
appear that this case was brought to the
    sentencing judges attention.