DATE: 20020515 DOCKET: C37620

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Appellant) - and - DAVID RAMESH PERSAUD (Respondent)

BEFORE:

MOLDAVER, SIMMONS and ARMSTRONG JJ.A.

COUNSEL:

Philip Perlmutter

For the appellant

Marie Henein and Todd White

For the respondent

HEARD:

May 8, 2002

RELEASED ORALLY:

May 8, 2002

On appeal from the sentence imposed by Justice W. Gonet on January 8, 2002.

E N D O R S E M E N T

[1] [1] We need not finally decide whether as a matter of law, a conditional sentence was available in these circumstances. Suffice it to say that if it was, it will be the rare and exceptional case that a trial judge, who is otherwise of the view that a penitentiary sentence is warranted, will ultimately impose a conditional sentence after factoring in time spent in pre-trial custody.

[2] [2] In our view, this was not one of those rare cases. The crime of criminal negligence causing death was in and of itself horrific. The respondent, while under the influence of alcohol, drove along a major thoroughfare at a very high rate of speed and for no apparent reason, struck the victim with such force that the victim's legs were severed and he was impaled on the windshield. As if this was not enough, rather than stopping his vehicle and offering assistance, the respondent fled the scene and left the victim lying on the roadway bleeding to death. He then returned home and even at that point, after having an opportunity to compose himself, he did not seek assistance for the victim. This behaviour was callous, irresponsible and cowardly and in our view, it served to significantly elevate the respondent's degree of moral blameworthiness.

[1] [3] In the circumstances, despite the respondent's unblemished background and his prior good character, we are of the view that a conditional sentence was manifestly unfit. It failed to reflect the gravity and seriousness of the crimes and it did not give sufficient weight to the principles of denunciation and general deterrence which are paramount in these circumstances.

[2] [4] Accordingly, we would grant leave to appeal and impose a sentence of 20 months imprisonment on the charge of criminal negligence causing death to commence on the day that the respondent surrenders into custody. In all other respects, the sentence imposed at trial shall remain the same. A warrant for the arrest of the respondent shall issue if necessary.

Signed: "M.J. Moldaver J.A."

"Janet Simmons J.A."

__ "Robert P. Armstrong J.A."