DATE: 20060419
DOCKET: C43950

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) –and- RYAN COUSINEAU (Appellant)

BEFORE: SIMMONS, CRONK AND LANG JJ.A.

COUNSEL: Geoff Chesney for the appellant Joseph Perfetto for the respondent

HEARD & RELEASED ORALLY: April 11, 2006

On appeal from conviction entered on March 7, 2005, and the sentence imposed on March 11, 2005, by Justice James C. Crawford of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant appeals both his conviction and his sentence for an assault on his mother. The appellant’s mother testified that the appellant hit her in the mouth during the course of an altercation between them over the use of her telephone. The trial judge accepted the complainant’s evidence.

[2] On appeal, the appellant argues that the trial judge erred in failing to reconcile certain inconsistencies in the complainant’s evidence. He also submits that the trial judge misapprehended the complainant’s level of certainty about whether she had shown her injuries to the police officer. Although there may have been inconsistencies in the mother’s evidence regarding the precise sequence of movements that unfolded in the course of the struggle, and exactly what was told to the officer, the evidence was clear both that there was a struggle and that the appellant hit the complainant in the mouth with the telephone in the course of that struggle. Any difficulties with the complainant’s evidence were minor in nature and did not reflect on the reliability of her testimony concerning the essential issue of the assault.

[3] We did not call on the Crown on the conviction appeal. We see no reversible error on the part of the trial judge and dismiss the conviction appeal.

[4] The trial judge sentenced the appellant to nine months for the assault, after giving credit for three months of pre-sentence custody. He then imposed a further consecutive sentence of three months for breach of probation. Finally, the trial judge imposed twenty-four months of further probation. This sentence exceeded the one to three month custodial range in addition to time served sought by the appellant, and the global eight to nine months in addition to time served suggested by the Crown. In arriving at these sentences, the trial judge made reference to the appellant’s lengthy record. That record consisted of both multiple property offences and failure to comply convictions. The trial judge properly referred to this record and to other aggravating features, including the domestic nature of this assault and the presence of a five-year old during the assault.

[5] In our view, however, in the circumstances of this case, the totality of the sentence exceeded what was appropriate for simple assault and breach of probation. A total sentence at the maximum range put forward by the Crown would have been appropriate. At this time, however, the appellant has served the entire custodial portion of his sentence. In these circumstances, we grant leave to appeal, allow the appeal as to sentence, and reduce the term of probation from 24 months to 12 months.