DATE: 20060731

DOCKET: C43936

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – CHARLENE YVONNE GOWANS (Appellant)

BEFORE:

SIMMONS, ARMSTRONG and ROULEAU JJ.A.

COUNSEL:

Keith Wright

for the appellant

Gillian Roberts

for the respondent

HEARD & RELEASED ORALLY:

July 26, 2006

On appeal from the sentence imposed by Justice T. Devlin of the Ontario Court of Justice dated July 14, 2005.

E N D O R S E M E N T

[1] The appellant and three others including the co-accused Tyler Prevedel and Jade Sparkman lured the complainant into their car late at night, unlawfully confined her there and drove her to a dark field. The appellant repeatedly pounded the complainant on the head throughout the journey, so much so that the appellant bruised her hand in several places and was surprised she did not break it. Once at the field, Mr. Prevedel stayed in the car while everyone else got out. The appellant continued to beat the complainant about the head using her legs and knees. The appellant then ordered the complainant to strip and robbed her of her mother’s engagement ring.

[2] Counsel for the appellant acknowledges that the appellant was the main culprit and central player in the attack. The appellant argues that the reasons for sentence reveal two significant errors in principle.

[3] First, they impose an unjustified and unjustifiable disparity with the sentences previously given to Prevedel and Sparkman. Second, they fail to explain why only a period of incarceration could adequately address general deterrence and denunciation.

[4] In our view, there was ample basis to impose a harsher sentence on the appellant than on the co-accused Prevedel and Sparkman. The appellant was the leader throughout the unlawful confinement and attack. She engaged in the vast majority of the violence consisting of kicking, kneeing and repeatedly pounding the victim on the head. She compelled the victim to undress and robbed her of her mother’s engagement ring. The appellant was also considerably older than the co-accused and had a significant criminal record including convictions for uttering threats and assault.

[5] We find no error in the trial judge’s approach to sentence nor in her ultimate conclusion that a conditional sentence would not be appropriate for the appellant. The fresh evidence filed in this court adds little to the information that was before and was considered by the trial judge. The concerns expressed in the fresh evidence relating to the potential negative effects of incarceration are no more than general statements that would apply to any accused having similar circumstances to those of the appellant and facing incarceration. Having regard to the very serious nature of the offences, the appellant’s principal role in their commission and her prior record for violent offences, the trial judge concluded that a nine-month jail term was appropriate. The trial judge provided thorough and careful reasons. We see no basis to intervene in her exercise of discretion in reaching her conclusion.

[6] As a result, leave to appeal sentence is granted but the appeal is dismissed.

“Janet Simmons J.A.”

“R.P. Armstrong J.A.”

“Paul S. Rouleau J.A.”