DATE: 20001121

DOCKET: C33195

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. RICHARD BELL (Appellant)

BEFORE: OSBORNE A.C.J.O., MOLDAVER and GOUDGE JJ.A.

COUNSEL: Tanya Kranjc

For the appellant

Sandra Kingston

For the respondent

HEARD: November 14, 2000

On appeal from conviction by Justice C.B. Noble on October 1, 1998 and from sentence imposed on February 5, 1999.

E N D O R S E M E N T

Conviction Appeal

[1] The appellant pursued two grounds of appeal in support of his submission that the convictions cannot stand and a new trial should be ordered.

[2] First, he submits that a "Vetrovec" warning was essential in this case and that the trial judge erred in failing to caution himself accordingly before acting on the evidence of the complainant to convict the appellant. We see no merit in this submission.

[3] Having regard to the trial judge's comments during closing argument and his reasons for judgment, it is apparent that he considered the complainant to be a trustworthy witness. In our view, the record amply supports his belief. The complainant's evidence revealed no major inconsistencies, her credibility was not impugned to any real extent in cross-examination and she was not shown to be a person of disreputable character. In the circumstances, it cannot be said that this was one of those clear-cut cases where a "Vetrovec" warning was essential to a fair trial. Rather, the trial judge retained a discretion in this regard and his failure to exercise it in favour of a "Vetrovec" warning did not amount to reversible error.

[4] Second, the appellant submits that the trial judge failed to give adequate reasons for convicting the appellant. In particular, he submits that in the circumstances of this case, it was incumbent upon the trial judge to explain why he rejected the appellant's evidence and accepted the complainant's testimony.

[5] In our view, although it would have been preferable had the trial judge given more extensive reasons, his failure to do so did not result in a miscarriage of justice. The trial judge was alive to the alleged frailties in the complainant's evidence, including the fact that she fell asleep between the hours of 4:00 a.m. and 7:00 a.m. on the morning in question and that she first recounted the details of the sexual assault at the preliminary hearing. Although he did not say so expressly, it is implicit in his reasons that the trial judge accepted the complainant's explanations concerning these and other matters upon which the defence relied to cast doubt on her credibility.

[6] As for the appellant's testimony, when the record is read as a whole, it is also apparent that the trial judge viewed the appellant's version of the events as irrational and not worthy of belief. In coming to this conclusion, he took the appellant's extensive criminal record into account and properly used it as a reason for rejecting his evidence as incredible.

[7] In the last analysis, this was not a complex case and the evidence was relatively straight-forward. Accordingly, even though the trial judge's reasons leave much to be desired, we are satisfied that they were adequate in the circumstances.

[8] Turning to the Kienapple ground of appeal, the Crown concedes that the trial judge should have stayed the charge of breaking and entering and committing theft and substituted a conviction for theft under $5,000. The Crown also concedes that the charge of possessing a weapon for a purpose dangerous to the public peace should have been stayed. We agree and would give effect to both of these submissions.

Sentence Appeal

[9] The appellant received a total sentence of five years and two months. In arriving at this sentence, the trial judge imposed a sentence of 36 months on the break and enter and commit theft charge and 24 months consecutive on the weapon dangerous charge.

[10] The appellant submits that because those charges ought to have been stayed, he should not have been sentenced for them. In the circumstances, he submits that those sentences should be taken off the table and that a sentence in the range of two months should be substituted for the offence of theft under.

[11] We disagree with the result suggested by the appellant. In our view, given the seriousness of the offences and the appellant's horrendous criminal record, a sentence of five years and two months was entirely fit for the offences upon which the appellant has now been convicted, taking into account the principle of totality and time served by the appellant. To give effect to this, we would grant leave to appeal and vary the sentences imposed by the trial judge as follows:

(a) On the charge of breaking and entering and committing a sexual assault, a sentence of 48 months is substituted.

(b) On the charge of theft under $5,000 we would impose a sentence of two months consecutive.

In all other respects, the sentences imposed by the trial judge shall remain the same. In the end, we confirm the total sentence of five years and two months.

__________ "A.A. Osborne ACJO"

__________ "M. J. Moldaver J.A."

__________ "S.T. Gaudge J.A."