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Sentencing reasons for sexual assault and forcible confinement: 3.5 years’ imprisonment was imposed, with mandatory ancillary orders and no victim surcharge.
On the evidence the Crown proved beyond a reasonable doubt that the accused intentionally assaulted the complainant causing bodily harm, that her consent to sexual activity was vitiated by fear of further violence (sexual assault), that the accused unlawfully confined her by creating a violent environment that restricted her freedom, that he knowingly made threats, and that he took $420 by exploiting her fear; the s.601 amendment to Count 9 was denied as untimely and prejudicial, so Count 9 failed.
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The court held that the trial judge reasonably inferred identity from the forensic evidence when considered in the totality of the evidence (matching descriptions, the pristine and situational context of the mask, and the placement and condition of the duct tape), and that alternative innocent explanations were speculative rather than reasonable; therefore the convictions were supported and were upheld.
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The 100-day sentence was demonstrably unfit given the gravity and circumstances of the offences; the appropriate punitive component was 21 months custody, but in light of the respondent's time already served, rehabilitation, employment and family responsibilities the Court substituted a 21-month conditional sentence to be served in the community with one year probation and granted 100 days credit for time already served.
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The Court found the conviction unreasonable because the trial judge misapplied W.(D.) by compartmentalizing evidence, made several central misapprehensions about key defence evidence, and relied on identification evidence that exhibited multiple indicia of unreliability; given the strength of the alibi and cumulative errors the conviction could not stand, and an acquittal was entered.
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