DATE: 20020909 DOCKET: C35723

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. ROBERT NASH (Appellant)

BEFORE: LABROSSE, WEILER and CHARRON JJ.A.

COUNSEL: James Carlisle, for the appellant

David Finley, for the respondent

HEARD: September 3, 2002

On appeal from the judgment of Justice Glenn D. Krelove dated July 19, 1999.

E N D O R S E M E N T

[1] [1] The appellant was convicted on six charges of assault, assault with a weapon, threatening death, unlawful confinement and breach of undertaking. He was also found to be a long-term offender. After receiving credit, on a two-for-one basis, for twenty- seven months in custody, he was sentenced to an additional one year in custody, followed by ten years of supervision. He appeals his conviction and sentence as a long term offender under s. 753.1 of the Criminal Code.

[2] [2] The offences were all committed following a lengthy and abusive relationship with the complainant, Doris Nash, the appellant’s latest wife. The offences extended over an eight-day period, during which he assaulted her, controlled her movements, severely abused her, and subjected her to degrading acts. She escaped from the appellant by jumping out of their vehicle and seeking refuge at a nearby business where the employees contacted the police. She was described as visibly shaken, crying, and on the verge of shock. She suffered bruising on various parts of her body as a result of the assaults, as confirmed by witnesses and medical evidence.

[3] [3] The appellant called no defence.

[4] [4] The appellant submits that the verdict is unreasonable because the inconsistencies in the complainant’s evidence were so substantial as to make the conviction unsafe. Generally, he submits that the trial judge in his reasons for judgment failed to consider significant inconsistencies in the complainant’s evidence, made findings of credibility based on the demeanour of the complainant, and failed to consider relevant evidence.

[5] [5] In our view, the verdict is not unreasonable. None of the alleged inconsistencies raised by the appellant relate to the complainant’s evidence on the assaults, which remains uncontradicted.

[6] [6] The reasons of the trial judge adequately reveal the basis for the appellant’s convictions. The trial judge was alert to the need for caution in relation to the complainant’s evidence. His reasons disclose that he considered the inconsistencies in her evidence. In particular, his finding was reasonable that the inconsistencies and the difficulties in the complainant’s recollection could be explained, in part, by the trauma occasioned by her ordeal.

[7] [7] In summary the trial judge properly assessed the complainant’s evidence in light of all the evidence. He made specific reference to the quality of her evidence. He did not rely solely on her demeanour, as demonstrated by his specific reference to the confirmatory evidence of certain witnesses and the circumstantial evidence of her flight from the appellant’s car.

[8] [8] We therefore give no effect to these grounds of appeal and dismiss the appeal as to conviction.

[9] [9] With respect to sentence, the Crown applied to have the appellant declared a long-term offender under s. 753.1(1) of the Criminal Code and called numerous witnesses. The appellant was described as a chronic spouse abuser. His eight former partners gave evidence that revealed a strikingly similar pattern of behaviour which included controlling and intimidating behaviour, isolation of his partners, and unprovoked physical violence. Almost all his partners also experienced psychological terror during his attacks. In addition, the appellant’s non-criminal but abusive behaviour formed an essential component of the appellant’s pattern of spousal abuse. Having noted the absence of any collusion in their evidence, the trial judge accepted the evidence of the appellant’s former partners. His finding of a pattern of controlling and dominating behaviour does not relate solely to non-criminal behaviour as contended but necessarily includes the numerous assaults committed by the appellant on his various partners. While the appellant’s violence was directed primarily towards his partners, it also extended to others thus, disclosing a general lack of control over his aggression.

[10] [10] The appellant’s violence and threatened violence provided ample evidence that there was a substantial risk he would re-offend. Both the Crown and defence psychiatrists diagnosed the appellant as having a personality disorder. Both experts agreed that there was a substantial likelihood of the appellant re-offending against intimate partners and that his treatment prospects were poor. He is not well motivated to change. However, there was evidence to the effect that there was a reasonable possibility of eventual control of his risk to the community, if he was properly supervised.

[11] [11] Other than his one expert witness, the appellant called no evidence on his sentence appeal.

[12] [12] The trial judge’s finding that the requirements of a long-term offender designation were satisfied was well founded on the evidence and was reasonable. In his detailed reasons, he properly interpreted and applied the relevant statutory provisions. Furthermore, his carefully crafted conditions to give effect to appropriate supervision of the appellant were also reasonable. We therefore see no basis to interfere.

[13] [13] The appeal against sentence is therefore dismissed.

“Jean-Marc Labrosse J.A.”

“Karen M. Weiler J.A.”

“Louise Charron J.A.”