Court File and Parties

CITATION: R. v. Sherman, 2010 ONCA 462

DATE: 20100621

DOCKET: C50323

COURT OF APPEAL FOR ONTARIO

Doherty, Cronk and Watt JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

John Sherman Appellant

Counsel: Damien R. Frost, for the appellant Andreea Baiasu, for the respondent

Heard: June 18, 2010 On appeal from the convictions entered by Justice Marietta L.D. Roberts of the Ontario Court of Justice dated February 27, 2009.

APPEAL BOOK ENDORSEMENT

[1] We are satisfied that the trial judge found that the appellant knew that he had Herpes II when he repeatedly had unprotected sex with the complainant. In doing so, the appellant acted in a manner that showed a marked and substantial departure from the way in which a reasonable person would have conducted himself.

[2] The trial judge’s finding flows from her implicit acceptance of the complainant’s evidence that the appellant admitted that he knew he was infected and did not tell her, and from statements made by the appellant in his cross-examination which described conduct by him that was consistent only with someone who was aware that he was infected and chose to disregard that fact in conducting his relationship with the complainant.

[3] The reasons for conviction on the assault charge do not reveal error. The trial judge limited her findings as to the nature of the assault to the injuries that were corroborated by the photographic evidence. This was a prudent and proper approach to the evidence.

[4] The appellant received a total sentence of 12 months. Counsel submits that a conditional sentence should have been imposed. The trial judge considered the appropriateness of a conditional sentence. She found it to be inappropriate and gave reasons for that conclusion, including the fact that the appellant was on probation for domestic assault when he committed these offences. We see no reversible error in the trial judge’s analysis.

[5] The appeal is dismissed.