DATE: 20040130 DOCKET: C38969

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) - and -RANDOLPH WHITE (Appellant)

BEFORE:

SHARPE, ARMSTRONG and BLAIR JJ.A.

COUNSEL:

Irwin Koziebrocki for the appellant

Eric Siebenmorgen for the respondent

HEARD & ENDORSED:

January 29, 2004

On appeal from the conviction and sentence imposed by Justice Patricia H. Wallace of the Superior Court of Justice dated May 9, 2002 and September 30, 2002.

APPEAL BOOK ENDORSEMENT

[1] It is conceded that the jury was properly instructed. We are not persuaded that the jury's verdict was unreasonable. Although there were inconsistencies in the complainant's evidence, we do not accept that they render her evidence so unreliable as to make the verdict unsafe. Rather, they are of a nature common in historical sexual assaults. They were fully explored by defence counsel and it was up to the jury to accept or reject the evidence. The inconsistent verdict point was not pursued.

[2] It is conceded by the Crown that the trial judge erred in principle in treating the appellant's refusal to accept responsibility, thereby necessitating a trial requiring the complainant to testify, as an aggravating factor. However, we cannot say that a six-month custodial sentence for this offence was unfit.

[3] Appeal from conviction dismissed. Leave to appeal sentence granted, but the appeal is dismissed.