COURT OF APPEAL FOR ONTARIO

DATE: 20001121

DOCKET:C33809

RE: HER MAJESTY THE QUEEN (Applicant/Appellant)

– and – R.J.H. (Respondent)

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

COUNSEL: Trevor Shaw

For the appellant

David M. Tanovich

For the respondent

HEARD: November 15, 2000

On appeal from the sentence imposed by Justice Donald S. Ferguson, dated

February 9, 2000.

E N D O R S E M E N T

[1] In this matter, the Crown argues that the trial judge erred in a number of respects in imposing the sentence he did. We disagree. In our view, it was open to the trial judge to make the findings he did in relation to the affectionate comments made by the appellant, his expression of remorse, his use of alcohol and his relationship with his girlfriend. In particular, it was open to the trial judge to find that the appellant was not a sexual psychopath and that the root cause of his behaviour was his substance abuse.

[2] As to the fitness of the sentence, there is no doubt that the offences were very serious and the appellant’s conduct was brutal and terribly degrading. In the circumstances, a penitentiary sentence was clearly required.

[3] The trial judge recognized this and, in effect, imposed a four-year sentence. While, in our view, that sentence was at the very low end of the range, it is not one with which we are prepared to interfere. The trial judge attached strict terms of probation and he was in the best position to assess the appropriateness of this. Overall, the disposition he made was one which we cannot say was manifestly unfit.

[4] Leave to appeal is granted and the appeal is dismissed.

“C.A. Osborne A.C.J.O.”

“M. J. Moldaver J.A.”

“S.T. Goudge J.A.”