DATE: 20030728

DOCKET: C36345

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) –and– TERRY JACKSON (Appellant)

BEFORE: CATZMAN, FELDMAN and GILLESE JJ.A.

COUNSEL: Joseph Wilkinson for the appellant Kim Crosbie for the respondent

HEARD: July 11, 2003

RELEASED ORALLY: July 11, 2003

On appeal from the conviction and sentence imposed by Justice L. Theodore G. Collins of the Ontario Court of Justice dated April 19, 2001.

E N D O R S E M E N T

[1] The appellant was convicted on three counts of assault causing bodily harm, forcible confinement and sexual assault. After taking into account the time he had served by way of pre-trial custody, he was sentenced to 18 months on the first count and 6 months consecutive on each of the other two counts. He appeals against both conviction and sentence.

[2] Mr. Wilkinson advanced two grounds in support of the conviction appeal. The first related to the manner in which the trial judge addressed the evidence. While he reviewed the evidence of the witnesses individually and did not explicitly recite the components of R. v. W.(D.) (1991), 1991 SCC 93, 63 C.C.C. (3d) 397 (S.C.C.), it is apparent to us from his reasons, when read as a whole, that he considered all of the evidence and properly applied the requisite burden of proof on the totality of the evidence before finding the appellant guilty.

[3] The second ground related to the conviction for forcible confinement. In our view, the conviction on that count was not unreasonable. The evidence that the appellant threw the complainant into the tool room and, refusing her pleas to let her back in, shut and locked the door leading into the house behind him, provided ample support for the appellant’s conviction on that count. Given the complainant’s naked, battered and drugged condition in an unheated tool room in December, the possibility of her leaving that room to go outside does not detract from the reasonableness of the trial judge’s conviction on that count.

[4] We turn to the question of sentence. Having regard to the appellant’s appalling treatment of the complainant, with whom he lived in a domestic relationship, to the importance of deterrence and denunciation, and to the appellant’s record, the trial judge did not err in imposing consecutive sentences which, specifically taking into account the totality principle, totaled 2½ years. The sentence was in the appropriate range and reflected no manifest error, and there is basis on which this court can properly disturb it.

[5] For the foregoing reasons, the appeal against conviction is dismissed, leave to appeal against sentence is granted, but the appeal against sentence is likewise dismissed.

Signed: "M.A. Catzman J.A."

"K. Feldman J.A. "E.E. Gillese J.A."