Court of Appeal for Ontario
Before: Juriansz, Watt and Epstein JJ.A.
Between
Her Majesty the Queen
Respondent
and
Dhaniram Bridgemohan
Appellant
Counsel:
Margaret Bojanowska, for the appellant
Holly Loubert, for the respondent
Heard and released orally: June 30, 2009
On appeal from the conviction entered on March 11, 2008 and the sentence imposed on May 9, 2008 by Justice David Corbett of the Superior Court of Justice, sitting with a jury.
ENDORSEMENT
1The appellant appeals his conviction by a jury of sexual assault and his sentence to 4½ years in custody followed by two years of probation.
2The appellant had sexual intercourse with his 18-year old niece who was living with his family temporarily. At trial, the sole issue was consent. He testified that the complainant had consented to the sexual intercourse. The theory of the Crown was that the complainant, after drinking heavily, was either so drunk she was not aware of what was happening to her or that she lacked the capacity to consent.
3The appellant abandoned the ground of unreasonable verdict set out in his notice of appeal, but raises four other grounds.
4At the outset, we note that this was a relatively short trial and that at no time did defence counsel raise or object to any of the issues upon which the appellant relies on appeal. While not determinative of the merit of any of the grounds of appeal, the failure to object is of particular moment in this case given that defence counsel had several occasions to raise issues with the trial judge concerning the charge; during the pre-charge conference, when the trial judge provided counsel with copies of the charge before he gave it, and at the conclusion of the charge.
5First, counsel for the appellant submits that the trial judge failed to fully explain the defence position to the jury. For example, she submits that the trial judge should have reviewed the evidence of the complainant that the defence relied on to suggest she was trying to deflect blame from her. Counsel identified, as an example, a series of email between the complainant and the appellant’s wife the day following the alleged assault. We disagree. The trial judge more than adequately presented the theory of the defence to the jury. It was within his discretion to decide the extent to which to review the evidence. We would not give effect to this ground of appeal.
6Second, appellant’s counsel submitted that the Crown, in closing, invited the jury to speculate that the complainant may have moved while she was completely passed out or sleeping, and that the trial judge not only failed to caution the jury to disregard the Crown’s submission but also compounded the error by repeating the submission in his summary of the Crown’s case. This presented to the jury a mechanism to reconcile the complainant’s testimony that she was dead drunk during the sexual intercourse with the testimony of her aunt that she was awake. We do not accept that the Crown’s submission or the trial judge’s instruction invited the jury to engage in baseless speculation. Rather, it was permissible for the jury, using their collective life experience, to consider whether the complainant might have moved in the condition that the jury found her to be in, based on the testimony of all witnesses.
7Third, counsel submits that the trial judge erred by giving the jury instructions that went beyond the standard W.D. charge. After giving what the appellant recognizes as model W. D. instructions, the trial judge told the jury that it was not their task to decide whether they believed the complainant, that if they disbelieved her they must acquit the appellant, and that even if they believed her evidence they had to go on to consider whether her testimony together with all of the rest of the evidence satisfied them beyond a reasonable doubt that the appellant was guilty of sexual assault.
8We do not accept this submission. The trial judge’s additional instruction did not undermine the W.D. instruction. Rather, the additional instruction emphasized to the jury that they had to consider all of the evidence in determining whether the Crown had proven its case beyond a reasonable doubt.
9Fourth, counsel submits that the trial judge’s limiting instruction with regard to the appellant’s morally reprehensible conduct had the effect of highlighting that conduct. She submits he should simply have told the jury that the appellant’s conduct in having sex with his niece and cheating on his wife is generally frowned upon and they should not punish him for this misbehaviour. We do not agree. The trial judge clearly instructed the jury not to allow the appellant’s discreditable conduct to affect their analysis of the key issues in the case. We see nothing wrong with the instruction he gave.
10The appeal of conviction is dismissed.
11In regard to the sentence appeal, the Crown concedes that the probation order in the sentence is illegal. We grant leave to appeal sentence and set aside the probation order.
12The Crown also concedes that the trial judge misapprehended the length of sentence imposed on the appellant on his earlier dated convictions for sexual assault and forcible confinement. The trial judge’s reasons make clear he took into account the length of those sentences in gauging the seriousness of his prior record. This significant misapprehension is an error that allows us to reassess the fitness of the sentence and impose the sentence we think appropriate.
13The trial judge regarded the appropriate sentence to be 4 ½ yrs in custody and he allowed 4 months for the time the appellant was in custody before trial. In determining a fit sentence, we agree with the trial judge that specific and general deterrence are the paramount sentencing principles. With this in mind and noting the aggravating factors as well as the mitigating factors the trial judge identified, we would set aside that sentence and replace it with a sentence of 3 years less 4 months time served.
“R.G. Juriansz J.A.”
“David Watt J.A.”
“G.J. Epstein J.A.”
