DATE: 20060110
DOCKET: C43376
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) –and- DANIEL PETER CAMPSALL (Appellant)
BEFORE:
CRONK, JURIANSZ and LaFORME JJ.A.
COUNSEL:
Ian Gerald T. Smits
for the appellant
C. Jane Arnup
for the respondent
HEARD & RELEASED ORALLY:
December 22, 2005
On appeal from the convictions entered by Justice Jane A. Milanetti of the Superior Court of Justice dated February 16, 2005 and the sentence imposed by Justice Milanetti dated April 14, 2005.
E N D O R S E M E N T
[1] This is an appeal from convictions entered by the trial judge sitting without a jury for the offences of one count of inviting a minor to touch for a sexual purpose and one count of sexual assault. The offences occurred when the complainant was between the ages of nine and eleven years and between the years 1996 and 2003.
[2] The appellant also seeks leave to appeal his sentence of six months incarceration followed by two years probation. The appellant testified in his defence and the trial judge described the trial as being “a credibility battle of he said, she said”. We agree with that description.
[3] The grounds of appeal in relation to the appeal against conviction, as set out in the appellant’s factum can be summarized as follows:
the verdict was unreasonable; and
the trial judge erred in failing to adequately reconcile inconsistencies in the evidence.
[4] However, as argued before us, the appellant essentially confined his challenge of the trial judge’s decision to her assessment of the credibility of the complainant. He pointed to various inconsistencies between the evidence of the complainant and that of the appellant, the complainant’s mother, and the defence witness, Reeve. He argued that these inconsistencies and the associated conflicting evidence at trial required the trial judge to examine the reliability of the complainant’s evidence with close scrutiny, and that she erred in failing to do so. We do not agree that the trial judge erred.
[5] The trial judge expressly addressed some of the evidentiary discrepancies relied upon by the appellant. She was not required, however, to specifically mention each inconsistency in her reasons. In the end, the trial judge accepted the core evidence of the complainant regarding the allegations against the appellant. Moreover, she found that part of the complainant’s evidence was confirmed on essential aspects by the appellant himself, the complainant’s mother, and Reeve. It is clear that the trial judge was alive to the frailties in the evidence and took them into account. Her credibility assessments attract considerable deference from this court.
[6] The evidence was capable of supporting the findings of the trial judge, including those as to credibility. The appellant has failed to demonstrate that the trial judge misapprehended the evidence, or that the verdicts are not supported by the evidence. Accordingly, the appeal against conviction is dismissed.
[7] We turn next to the appellant’s appeal of the sentence imposed.
[8] The appellant argues that the trial judge erred in not exercising her discretion to impose a conditional sentence. In our view, the trial judge considered the appropriate aggravating and mitigating factors. She provided a fulsome analysis of the relevant sentencing objectives, and she arrived at a fit and proper sentence for this offender, in all the circumstances.
[9] Although the trial judge erred in equating the appellant’s position of maintaining his innocence with a lack of remorse, this error did not materially affect the appropriateness of the sentence in the circumstances of this case. This court has repeatedly stated that in cases where there has been a breach of trust through the sexual touching of a child, such as this case, a custodial sentence is usually appropriate. This is especially the case where, as here, the offences establish a continuing course of conduct.
[10] In our view, the trial judge correctly concluded that a custodial sentence was required to address the nature of the offences, and specific and general deterrence. These were serious offences, they were committed upon a child, they amounted to repeated breaches of trust, and they involved more than one incident. We see no overall error in principle, nor is the sentence manifestly unfit in all the circumstances.
[11] For these reasons, we grant leave to appeal sentence, and dismiss the appeal.
[12] The publication ban ordered at trial shall continue.
“Singed E.A. Cronk J.A.”
“R.G. Juriansz J.A.”
“H.S. LaForme J.A.”