Mississauga daycare provider April Luckese was sentenced Monday to five years and 11 months in jail for killing an infant girl by shaking her and failing to seek care for her injuries.

In his decision in a Brampton courtroom Monday, Superior Court Justice Gordon Lemon expressed sympathy for Luckese, who was convicted of manslaughter in March in the death of 14-month-old Duy-An Nguyen.

“The assault took but seconds in her otherwise exemplary life,” Lemon said, sentencing Luckese to six years minus time served during her trial.

“I have no doubt that Ms Luckese is a good person who has done a bad thing.”

The judge added that Luckese’s sentence is more severe because she did not plead guilty and could have sought medical attention after she shook Duy-An, who had been in her care for just two days.

The courtroom benches were lined with Luckese’s family and friends on Monday, including her husband, who repeatedly sniffled as Lemon sentenced his wife to jail time. Luckese, a short woman with closely cropped brown hair, turned to gaze at him as she was escorted from the courtroom holding a stress ball, her eyes red-rimmed and welling with tears.

The 41-year-old mother ran an unlicensed daycare business out of her home in Mississauga. Lemon ruled that on Jan. 5, 2011, Luckese lost her patience because Duy-An was crying and, in a “momentary failure,” shook the infant in frustration.

The assault took place at around 2:30 p.m., but ambulances weren’t called until other children’s parents arrived almost two hours later, Lemon said. The judge cited Luckese’s statements describing how Duy-An was limp and unresponsive, with her eyes half closed.

There were seven children under age 7 at the unlicensed daycare business that day, Lemon said, including Luckese’s own two children.

The Crown had asked for an eight- to nine-year sentence, while defence lawyer Stephen Whitzman wanted Luckese to go on probation for three years and serve 240 hours of community service.

During the trial, Crown lawyer Amber Lepchuk said Duy-An died of severe head trauma. She had a fractured skull and swelling and bleeding on her brain, Lepchuk said.

Parents with children in Luckese's care testified during the trial that she was “rattled” and concerned about the child on the afternoon of the incident. When they saw the infant was “limp and floppy” and seemed unresponsive, the decision was made to call 911, the court heard.

Duy-An’s parents also testified during the trial, saying their daughter seemed normal and healthy on the morning she was killed. An Nguyen, Duy-An’s mother, described from the witness stand how she raced to the daycare business in a panic after she received an accidental phone call and overheard other people expressing concern about her daughter.

Duy-An was already in an ambulance by the time she got there, she said. Her daughter later died in hospital.

Luckese initially told police that she tripped while carrying Duy-An, and that the child struck her head on a banister. She later recanted and said she had shaken the child.

Whitzman, Luckese’s lawyer, said he would appeal his client’s conviction. Later Monday he began that appeal at Ontario’s highest court in Osgoode Hall, while also arguing for his client to be released on bail in the meantime. Whitzman told the Star he expects a decision on bail by Wednesday.

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“We felt that there were some serious errors that the trial judge made in reaching his decision,” Whitzman said, arguing that the medical evidence didn’t show that the delay in calling 911 significantly contributed to Duy-An’s death. Whitzman said he will also contend that statements supporting Luckese as a good person should have been given more weight and that some of her statements to police should not have been admissible.

“With all due respect to the trial judge, he misunderstood the evidence,” he said.

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