DATE: 20040917

DOCKET: C40886

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. MARCELO PEREZ (Appellant)

BEFORE: MCMURTRY C.J.O., DOHERTY and LANG JJ.A.

COUNSEL: Aaron Lang for the appellant Lisa Joyal for the respondent

HEARD: September 14, 2004

ORALLY

RELEASED: September 14, 2004

On appeal from the sentence imposed by Justice D. Hogg of the Superior Court of Justice dated October 29, 2003.

E N D O R S E M E N T

[1] Counsel for the appellant has convinced us that the trial judge erred in principle. He treated the result in R. v. Biancofiore, 119 C.C.C. (3d) 344 (Ont. C.A.) as determinative of the sentence to be imposed rather than taking the principles enunciated in that case and applying them to the specific facts of the case before him.

[2] Having found error in principle, it falls to this court to impose an appropriate sentence.

[3] The Crown has convinced us that in the circumstances of this case, a conditional sentence would not be appropriate and a custodial sentence was required. The circumstances which we have in mind include the following:

• the appellant was driving at a very high rate of speed on a city street;

• the appellant was apparently racing;

• the appellant had been drinking and was over the legal limit at the time of the accident; and

• the passenger suffered serious injuries.

[4] Having regard to those circumstances, we are satisfied that a sentence of imprisonment of one year is an appropriate sentence. Consequently, the appeal is dismissed.

“R.R. McMurtry C.J.O.”

“D.H. Doherty J.A.”

“S.E. Lang J.A.”