Docket: 1854 J.H.T. Appellant - v. -, 2010 SKCA 150

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2010 SKCA 150 Date: 20101207 Between: Docket: 1854 J.H.T. Appellant - and - Her Majesty the Queen Respondent An order has been made in this case pursuant to s. 486.4 of the Criminal Code prohibiting publication of any information that could disclose the identity of the complainant. Coram: Lane, Jackson and Richards JJ.A. Counsel: J.H.T. appearing in person W. Dean Sinclair for the Crown

Appeal: From: Provincial Court Heard: December 7, 2010 Disposition: Dismissed (orally) Written Reasons: December 8, 2010 By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Richards Lane J.A . [ 1 ] This is an appeal from a conviction on firstly, a charge of committing a sexual assault causing bodily harm contrary to s. 272 (1) (

c) of the Criminal Code , and, secondly, touching for a sexual purpose a person under the age of 16 years contrary to s. 151 of the Code and is also an appeal of the sentence of four years imposed as a result of the convictions. [ 2 ] The appellant was 26 years of age at the time of the offences and his niece was 12. The central issue at trial was the credibility of the appellant and the complainant. The trial judge believed the complainant was telling the truth about what happened between her and the appellant.

The complainant testified the appellant gave her a pill to make her “mellow.” She testified they had sex at least two times and, after having sex, the appellant told her he liked to burn a mark on the women he had sex with and proceeded to burn her leg with a hot machete blade. [ 3 ] The appellant contends that, because no DNA samples were taken and there was no analysis of the complainant’s clothing, there was no evidence upon which he could be convicted.

That ground has no merit. [ 4 ] He then contends the two charges were duplicitous, however, it is clear there is no factual or legal nexus between the two offences. Although both offences took place during the complainant’s visit to the appellant’s shack, he argues the sexual assault was a separate incident which took place after the sexual touching and was done to show the prior sexual conquest. [ 5 ] Further, the appellant says he ought not to have been convicted of sexual assault because the branding was not of a sexual nature.

Again, we see no merit to these arguments because, as stated above, the branding had a sexual connotation in that it was done to demonstrate a sexual conquest. [ 6 ] The sentence appeal also has no merit. The appellant has been convicted of approximately 76 criminal offences in the last 16 years including two prior assaults with a weapon. He has numerous property offences, has been convicted of escaping from lawful custody on at least four occasions, and has demonstrated a refusal to comply with court orders. Although he argues he has a problem with alcohol, this is no excuse.

He plied his 12-year-old niece with a drug and engaged in repeated acts of unprotected sexual intercourse with her. He then proceeded to brand her. There are simply no mitigating factors and the appellant has failed to demonstrate the sentence imposed is unfit. [ 7 ] The appeal of conviction and sentence is therefore dismissed.