DATE: 20050714

DOCKET: C42217

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – MARGARITO LUCIO HERNANDEZ (Appellant)

BEFORE:

ROSENBERG, MACFARLAND and ROULEAU JJ.A.

COUNSEL:

Jeanine LeRoy

for the appellant

Deborah Krick

for the respondent

HEARD & RELEASED ORALLY:

July 13, 2005

On appeal from the sentence imposed by The Honourable Madam Justice Roberts on July 8, 2004.

E N D O R S E M E N T

[1] We are satisfied that the trial judge considered the appropriate circumstances and could find that this was not an appropriate case for a conditional sentence. The circumstances of the offence were serious. The appellant was driving dangerously and collided with a motorcyclist. As a result of the collision the victim’s leg was amputated. The appellant’s blood alcohol level was very high – several hours after the offence it was still two and a half times the legal limit. The appellant’s moral culpability was also high given that he was driving without insurance and on a licence that required he have no alcohol in his body. Despite the several mitigating factors, the trial judge could properly find that general deterrence required a custodial sentence.

[2] Accordingly, the appeal is dismissed.