COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Duke, 2021 ONCA 813
DATE: 20211116
DOCKET: C68295
Doherty, Pardu and Thorburn JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Richard Joseph Duke
Appellant
Jessica Zita, for the appellant
Luke Schwalm, for the respondent
Heard: November 9, 2021
On appeal from the conviction entered by Justice David A. Broad of the Superior Court of Justice on June 10, 2019, and from the sentence imposed on November 4, 2019.
REASONS FOR DECISION
[1] The appellant was convicted of various offences arising out of two attacks on the victim, the first on November 22, 2017 and the second on November 24, 2017. In respect of the November 24th attack, the appellant was convicted of attempted murder. The appeal focuses primarily on that conviction.
[2] Counsel for the appellant, in her concise submissions, contends the trial judge failed to consider the evidence relating to the attempted murder charge as a whole. Counsel argues the trial judge focused almost exclusively on the complainant’s testimony and examined that testimony in a less than exacting manner.
[3] We cannot agree. The trial judge did consider the evidence as a whole. That evidence included the victim’s testimony, the very strong evidence of the appellant’s animus toward the complainant, the serious assault he purported on the complainant two days earlier, and the specific words uttered by the appellant during the assault to the effect that he was going to kill the complainant.
[4] The appellant did not testify.
[5] The evidence reviewed by the trial judge provided a firm basis upon which the trial judge could find the appellant choked the complainant with the intent required for murder. The conviction for attempted murder stands.
[6] The second ground of appeal is a more technical one. The Crown concedes that the conviction on the included charge of assault causing bodily harm cannot stand on the wording of count one as framed in the indictment. The Crown’s concession is based on a recent decision of this court, released well after the trial judge’s reasons.
[7] We need not go into detail. We agree with the Crown’s concession on this point and would quash the conviction for assault causing bodily harm on count one and substitute a conviction for assault.
[8] The trial judge imposed a 6-year sentence on the attempt murder charge and concurrent sentences on the other charges. Taking into account pretrial custody, the appellant received a net sentence of 4 years and 2 months.
[9] Given that the court has quashed the conviction for assault causing bodily harm on count one and substituted a conviction for assault, that sentence should be reduced somewhat. The assault was, however, a serious one. We reduce that sentence from 3 years concurrent to 1 year concurrent. This adjustment has no effect on the net sentence imposed on the appellant. That sentence stands at 4 years and 2 months.
[10] In summary, the conviction on the included offence of assault causing bodily harm on count one is quashed and a conviction on the included offence of assault is substituted. The sentence imposed on count one is varied from 3 years concurrent to the other sentences imposed to 1 year concurrent to the other sentences imposed. Otherwise, the appeal is dismissed.
“Doherty J.A.” “G. Pardu J.A.”
“J.A. Thorburn J.A.”