DATE: 20030417 DOCKET:C37974

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) and PAUL HOLLINGSHEAD (Appellant)

BEFORE:

CARTHY, GOUDGE AND GILLESE JJ.A.

COUNSEL:

Tanya Kranjc For the appellant

Laura Hodgson For the respondent

HEARD:

March 27, 2003

On appeal from the conviction by Justice Paul Hermiston dated October 25, 2001 and on appeal from the sentence imposed by Justice Paul Hermiston dated November 9, 2001.

ENDORSEMENT

Released Orally March 27, 2003

[1] In our view the charge was adequate to warn the jury that they could not use evidence relating to one count in their evaluation of another count. This encompasses counts each supported by the evidence of a different complainant.

[2] As to propensity, it would have been preferable for the trial judge to clearly warn against reasoning on the basis that the appellant was the kind of person who would have committed the offences charged. However, he did caution the jury that they could not find that because the appellant did one thing he must have done the other. In this case that was adequate, particularly given that there were only two complainants and no evidence of non-criminal disreputable conduct.

[3] Secondly, the trial judge adequately put the theory of the defence and did not err in commenting on his view of whether the witnesses had colluded. The jury would not have misunderstood because this issue could have been relevant to them only for credibility purposes.

[4] As to the sentence, the Crown concedes that the appellant should get credit for one month due to his post-conviction, pre-sentence time in custody. Apart from that we would dismiss the sentence appeal. It was open to the trial judge to find that all incidents alleged had been proven and to sentence on that basis. The sentence imposed is not unfit. This was a case where the complainants were either to be believed or not as to their evidence about all the incidents alleged. In our view, the jury's verdict can only be taken as their finding that all incidents were sufficiently established.

[5] The conviction appeal is therefore dismissed. Leave to appeal sentence is granted and the global sentence is reduced by one month.

"J.J. Carthy J.A." "S.T. Goudge J.A." "G.G. Gillese J.A."