DATE: 20060804

DOCKET: C44656

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – LEO NOEL (Appellant)

BEFORE: SIMMONS, ARMSTRONG AND ROULEAU JJ.A.

COUNSEL: Eric McCooeye for the appellant Greg Skerkowski for the respondent

HEARD & RELEASED ORALLY: July 24, 2006

On appeal from the sentence imposed by Justice John Kukurin of the Ontario Court of Justice on December 8, 2005.

E N D O R S E M E N T

[1] In our view, the sentencing judge did not err in imposing a total sentence of 43 months imprisonment in addition to pre-sentence custody in relation to the two sets of offences for which the appellant was sentenced.

[2] In addition to other offences, each of the two sets of offences for which the appellant was sentenced included a conviction for impaired driving and a conviction for driving while disqualified. At the time of sentencing the appellant was 44 years of age. He had a lengthy record that included eight prior convictions for drinking and driving offences and three prior convictions for driving while disqualified. When this factor is coupled with the circumstances of these offences, the total sentence imposed is neither outside the range nor manifestly unfit.

[3] Further, even if the sentencing judge erred by failing to recognize the existence of a step principle in sentencing, in our view, the fact that the appellant may have been shown substantial leniency on prior occasions was not a basis for declining to impose a fit sentence on this occasion.

[4] Although the Crown requested a global sentence of 44 months imprisonment less five months credit for time served, the sentencing judge was not bound by this position nor was he required to give specific reasons addressing the interests of the administration of justice before departing from it. On the record before us there is nothing to indicate that this was a negotiated plea nor that the appellant was specifically induced to enter pleas of guilty based on the sentencing position taken by the Crown.

[5] However, on our review of the record, the trial judge erred in depriving the appellant of the usual two-for-one credit for pre-sentence custody on the basis that it was the appellant who requested an adjournment of the original sentencing day. On the original date set for sentencing the trial judge advised counsel of a number of authorities he proposed to rely on in relation to sentencing that were not referred to by counsel. In these circumstances, appellant’s counsel was justified in seeking an adjournment. Accordingly, we would adjust the sentence to reflect full two-for-one credit for pre-sentence custody.

[6] Based on the foregoing reasons, leave to appeal sentence is granted and the sentence imposed is varied by reducing the sentence on the second impaired driving charge (i.e. the impaired driving charge contained on Information 2602) from eleven months imprisonment to nine and one-half months imprisonment. The balance of the sentence imposed shall remain in full force and effect, including the provision specifying that the sentence on the second impaired driving charge is to be served consecutively.

“Janet Simmons J.A.”

“Robert P. Armstrong J.A.”

“Paul Rouleau J.A.”