DATE: 2001-04-06

DOCKET: C31285

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) and ROHAN RAMSAYWACK (Appellant)

BEFORE: MOLDAVER, MACPHERSON AND SIMMONS JJ.A.

COUNSEL: Alan D. Gold for the appellant Thomas D. Galligan for the respondent

HEARD: April 3, 2001

On appeal from the conviction on December 2, 1998 and the sentence imposed by Justice Marie C. Corbett, on January 29, 1999.

E N D O R S E M E N T

Released Orally: April 3, 2001

[1] Following a trial presided over by Corbett J., the appellant was convicted of sexual assault. He received a sentence of 1 year imprisonment and 2 years probation. The appellant appeals both conviction and sentence.

[2] The appellant advances three grounds of appeal against conviction:

(1) The trial judge erred in her assessment of the complainant’s credibility;

(2) The trial judge misapprehended the evidence on crucial matters; and

(3) On the whole of the evidence, the verdict reached by the trial judge was unreasonable.

[3] In spite of the able and comprehensive submissions of Mr. Gold, we do not accept any of these submissions.

[4] The trial judge engaged in a careful assessment of the complainant’s credibility. Indeed, she made specific reference to the three issues (positions of the parties when dancing, the first kiss, and which of the complainant’s hands was cut) raised by the appellant in support of his contention that the trial judge should have been more troubled by the complainant’s testimony. We can see no error in her treatment of these issues or in her review of other matters related to her ultimate conclusion that the young complainant was a truthful witness.

[5] Nor can we conclude that the trial judge misapprehended the evidence. In fact, her review of the evidence was comprehensive and accurate.

[6] Finally, there is no serious basis on which to conclude that the trial judge’s verdict was unreasonable. Indeed, on the basis of the record, the conviction of the appellant on the charge of sexual assault was an entirely reasonable verdict.

[7] With respect to the sentence appeal, although the trial judge may, in light of R. v. Proulx, have erred in principle in relying upon this court’s earlier decision in R. v. S. (W.) [1998] O.J. No. 2867 (C.A.), we are not persuaded that the sentence she imposed was unfit. Indeed, in our view, having regard to the fact that this was a serious sexual assault perpetrated on a 15 year old in her home by an adult in a position of trust, a custodial sentence of 1 year was fit.

[8] Accordingly, the appeal against conviction is dismissed. Leave to appeal sentence is granted and the appeal from sentence is dismissed.

“M. J. Moldaver J.A.”

“J. C. MacPherson J.A.”

“J. M. Simmons J.A.”