DATE: 20031124

DOCKET: C37860

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – DARREN GAUDET (Appellant)

BEFORE:

WEILER, ABELLA and SIMMONS JJ.A.

COUNSEL:

Catherine Glaisier

for the appellant

Sarah Gray

for the respondent

HEARD AND ENDORSED:

November 21, 2003

On appeal from his conviction entered by Justice Peter Grossi of the Superior Court of Justice on December 1, 2000 and the sentence imposed by Grossi J. on December 20, 2000

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

[1] The appellant pleaded guilty to two serious driving offences and two property offences, and not guilty to two other charges relating to a police chase. After a trial, he was found guilty of assault. The appellant submitted that the trial judge misdirected himself on the proper test for a finding of guilt on assault. While his language could have been clearer, he made his reference to an “objective” test in contradistinction to the specific intent offence of attempt murder of which he had just acquitted the accused.

[2] Reading his reasons as a whole, we see no error in the application of the appropriate test. Mens rea can properly be inferred from these facts to support a conviction for assault on the basis of a threatening act, and the trial judge’s conclusion was available, especially considering that the appellant, in a speeding car, drove his car directly towards the police officer.

[3] The appellant’s counsel also submits that the imposition of consecutive sentences resulting in a total sentence of six years was excessive. She asserts the assault arose from the same facts as the dangerous driving offence and therefore called for a concurrent sentence. We do not agree. This was a separate offence, and was based on additional aggravating facts.

[4] The offences were serious, the appellant had 44 prior convictions, these driving offences occurred while the appellant was under a driving suspension, the chase occurred in a residential neighbourhood, and the victim was a police officer acting in the line of duty. These are all aggravating factors.

[5] While the sentences imposed resulted in a disposition on the high end of the range, nonetheless, given particularly the context of a police chase and the lengthy criminal record of this 30-year-old appellant, the principles of general and specific deterrence denunciation render this sentence fit.

[6] The appeal from conviction is accordingly dismissed. Leave to appeal sentence is granted but the sentence appeal is dismissed.