



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 24
th
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 complainants 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 victims testimony, the
    very strong evidence of the appellants 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 Crowns concession is based on a recent decision of this court,
    released well after the trial judges reasons.

[7]

We need not go into detail. We agree with the
    Crowns 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.


