DATE: 20060327

DOCKET: C44296

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – DREW BROWN (Applicant (Appellant))

BEFORE:

FELDMAN, JURIANSZ and MACFARLAND JJ.A.

COUNSEL:

Nicholas A. Xynnis

for the appellant

Christine Bartlett-Hughes

for the respondent

HEARD & ENDORSED:

March 21, 2006

On appeal from sentence imposed by Justice M. Hogan of the Ontario Courts of Justice date September 16, 2005.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant appeals his sentence of eighteen months for impaired driving and refuse breath test. In our view, the sentence was a fit one in the egregious circumstances of this case.

[2] We are satisfied that the trial judge took into account the fact that the appellant had not been convicted of any alcohol-related offences in over ten years and his guilty plea.

[3] Although it would have been preferable to ask the appellant for his comments before imposing sentence, in this case there was no prejudice to him by obtaining his comments afterwards. His counsel had made full submissions on his behalf before sentence was imposed.

[4] It is unclear however, whether the trial judge intended to give the appellant a one-month reduction from the eighteen months to reflect his pre-trial custody. Although the clerk interpreted the trial judge’s disposition differently, in our view the trial judge intended to give one month credit off the eighteen months. The sentence will be varied to that extent.

[5] We see no error in the imposition of a lifetime driving prohibition based on the appellant’s record.

[6] Leave to appeal is granted and the sentence is reduced to seventeen months plus one month of time served.