CITATION: R. v. Nusrat, 2009 ONCA 31

Date: 20090115

Docket: C49030

COURT OF APPEAL FOR ONTARIO

Sharpe, Lang and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Nauman Nusrat

Respondent

Craig Harper, for the appellant

Allan Rouben, for the respondent

Heard: November 4, 2008

On appeal from the sentence imposed by Justice Gregory Regis of the Ontario Court of Justice on June 3, 2008 and reported at [2008] O.J. No. 2153.

Epstein J.A.:

I. INTRODUCTION

[1] This Crown appeal concerns the conditional sentence imposed upon the respondent, Nauman Nusrat, after he pled guilty to criminal negligence causing death while street racing.

[2] The respondent was street racing north on Highway 400 with two other young men when he cut off and struck a tractor-trailer driven by the victim, 48 year-old David Virgoe. The collision caused the truck to strike another car before spinning off the highway and rolling into the ditch. Mr. Virgoe was killed instantly.

[3] The respondent pled guilty to criminal negligence causing death while street racing, as well as uttering a forged document and driving with no insurance. At the time of these offences, the respondent was 19 years old. He had no criminal record, although he did have two prior convictions for speeding as well as convictions for failing to have an insurance card and valid licence plates.

[4] For the crime of criminal negligence causing death while street racing, the respondent was sentenced to serve a conditional sentence of two years less a day, followed by two years’ probation, 140 hours of community service, a lifetime driving prohibition, a DNA order, and forfeiture of his automobile to the Crown. In addition to the statutory terms, the conditional sentence included house arrest with exceptions for medical needs, employment, religious observance and school. The respondent was also permitted to leave his residence every Saturday for four hours to attend to personal needs. Fines were imposed for the offences of uttering a forged document and driving with no insurance.

[5] The Crown has appealed the sentence imposed for the criminal negligence conviction. It is argued that the conditional sentence imposed is manifestly unfit and further, that the sentencing judge erred in principle by imposing a conditional sentence contrary to the principles in R. v. Fice, 2005 SCC 32, [2005] 1 S.C.R. 742, and R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61.

[6] For the reasons that follow, I would grant leave to appeal, allow the appeal and impose a sentence of 30 months. Taking into account credit for pre-sentence custody and the time the respondent has already served under the conditional sentence, the respondent has fully served that sentence.

II. FACTUAL BACKGROUND

(1) The offences

[7] During the morning rush hour traffic on June 18, 2007, the respondent and several friends decided to drive from the Toronto area to Wasaga Beach. They drove three cars, a Ford Mustang, a Honda Civic, and a Pontiac Grand Am, each with three passengers. The Grand Am was driven by the respondent. The group entered Highway 400 at Highway 401 and the race began.

(i) The street race

[8] A number of people driving along the 400 were exposed to the driving associated with the race. The agreed statement of facts that supported the guilty plea can be summarized as follows.

[9] One witness observed the Mustang just after the three cars started northbound on Highway 400. The Mustang was opening its roof while travelling about 120 kilometres per hour. The rear window shattered and then the Mustang slowed drastically, veering into the witness’s lane and forcing him to swerve to avoid collision. The Mustang then took off, quickly disappearing out of sight as it passed everyone on the road, cutting in and out of heavy traffic.

[10] The same witness next saw the respondent’s Grand Am. It approached in the passing lane at an estimated speed of 200 kilometres per hour – double the speed the witness was travelling. The respondent drove across all lanes, cutting in and out of traffic with smoke and dust flying, and was soon gone from sight.

[11] Another witness described the extreme speed of the respondent’s Grand Am. It came up very quickly behind her vehicle. She estimated that the car passed at a speed of about 160 kilometres per hour. It overtook several vehicles while weaving in and out of the passing and centre lanes of the 400. At one point, the respondent’s vehicle hit the “rumble strip” on the left shoulder. It almost went out of control but the respondent managed to move back into the left lane and take off. The next thing this witness noticed was the Mustang on her right, overtaking her at a high rate of speed.

[12] The respondent’s Grand Am and the Mustang cut off another witness as he entered the northbound lanes of the 400 from an on-ramp, forcing him to prepare for an emergency stop. He observed the two vehicles zigzagging in and out of traffic. He could tell they were cutting off other drivers from the brake lights of the cars ahead. It was obvious that the drivers of the two cars knew each other because they were laughing and communicating with gestures and cutting each other off.

[13] Several witnesses observed the drivers stopped on the shoulder of Highway 400 talking amongst themselves. When the respondent’s Grand Am and the Civic re-entered the highway, they cut off another witness, forcing him, and the pick-up truck behind him, to brake to avoid collision. Then the Mustang pulled out and passed the witness. The cars began to criss-cross all three lanes of traffic apparently playing tag. Many other cars were cut off and came very close to being hit.

[14] Further north along the 400, the respondent attempted to overtake the two other racers and almost hit a tractor-trailer. The witness thought the respondent was going to roll his car when he was forced to snap his car back into his own lane.

[15] Other witnesses described how the vehicles would line up side by side as if drag racing, constantly cutting in and out of traffic with no regard for anyone. The drivers and passengers were seen laughing as they cut off other vehicles.

(ii) The collision

[16] After terrorizing drivers and passengers travelling along the 400 for a distance of over 40 kilometres, the inevitable happened. The luck of the racers, and those who had been endangered by them, ran out.

[17] One of the racers cut in front of a transport truck in heavy traffic and then passed Mr. Virgoe’s truck, just making it around on the right. The respondent attempted the same manoeuvre in the gap between the trucks, but his car started to fishtail as he moved onto the right paved shoulder, travelling at an estimated speed of 160 kilometres per hour. The left rear side of his car contacted the right front corner of Mr. Virgoe’s truck. The respondent’s car began to rotate in a counter clockwise direction and was pushed along the road in front of the truck.

[18] As a result of the impact, Mr. Virgoe lost control of his truck and veered into the left lane of the northbound 400, travelling in a north-westerly direction. The truck struck a jeep travelling in the leftmost lane, pushing it into the steel guide rail. Mr. Virgoe then steered sharply to the right. The respondent’s car separated from the front of the truck and struck the steel guide rail, coming to rest 155 metres further northbound.

[19] Mr. Virgoe’s actions undoubtedly spared those who were southbound from head-on collisions with his tractor-trailer. However, they caused his truck to swerve back across the northbound lanes and into the ditch below the grade of the highway. His truck rolled over and came to rest on its roof, killing him in the process.

[20] When his truck suddenly decelerated, Mr. Virgoe suffered a fatal head injury from the severe rotational and sheering force on his brain.

[21] The respondent remained at the scene. When he saw that Mr. Virgoe was dead, he said “I killed a person. I am a murderer”. He was arrested at the scene and produced a forged insurance slip for his car. The respondent remained in custody for 10 months before entering a plea of guilty. He served a further 1 ½ months before being sentenced – a total of approximately 11 ½ months’ pre-sentence custody.

[22] I would add that the respondent was a member of what can fairly be described as a street-racing subculture. Included in his interests listed on a webpage he maintained were speed, racing and cars. Significantly, he posted a picture of himself posing in front of his car with the moniker “Nauman Aka Cut King (undefeated Champion)”. “Cut King” has a particular meaning among street racers. It refers to someone who cuts off other cars while racing.

(2) The sentencing

(i) The submissions of counsel

[23] In submissions as to sentence, the Crown argued for a sentence of 44 months followed by probation of two to three years. The Crown recommended that the respondent receive credit for his pre-sentence custody on a two-for-one basis, and that he should be sentenced to a further two years in jail. Crown counsel urged the court to take into account that racing on our highways is a serious problem and that incarceration is the appropriate response.

[24] The defence argued that a fit sentence would be two years less a day, served conditionally, and that no credit should be given for pre-sentence custody. In addition, the defence recommended that the sentence include three years’ probation with 240 hours of community service work.

[25] There was a joint submission for a lifetime driving prohibition, a DNA order, and a forfeiture of the respondent’s car to the Crown.

(ii) The reasons for sentence

[26] In his detailed reasons, the sentencing judge started with a review of the events leading up to the accident and noted that the respondent had been arrested at the scene and had been in custody ever since.

[27] The sentencing judge then set out the positions of the parties. In reviewing the arguments advanced, the sentencing judge noted the Crown’s submissions about the impact of the respondent’s conduct upon Mr. Virgoe, the Virgoe family and the community at large. He further noted that the respondent had been convicted of speeding on two prior occasions, the most recent being just 12 days prior to the events giving rise to the fatal accident.

[28] Turning to the defence submissions, the sentencing judge commented on the respondent’s youth and lack of previous involvement with the criminal justice system. Further, he noted the respondent’s remorse and that it was the respondent’s idea to propose a lifetime driving ban.

[29] The sentencing judge agreed with Crown counsel that the principles of general deterrence and denunciation were applicable in this case. He proceeded to balance the relevant factors pertaining to the offender and the offence. The analysis focused on the respondent’s antecedents, his youth and his remorse on the one hand and the importance of deterring street racing on the other.

[30] The sentencing judge concluded that the principles of general deterrence and denunciation could be addressed within the framework of a conditional sentence, a sentence he imposed on the terms I have summarized above.

III. ISSUES

[31] Two issues present themselves for determination:

(1) Was the conditional sentence imposed in violation of the principles in Fice?

(2) If so, what is a fit sentence?

IV. ANALYSIS

(1) Was the conditional sentence imposed in violation of the principles in Fice?

[32] In my view, the conditional sentence imposed violated the principles outlined by the Supreme Court of Canada in Fice, in two respects. First, the sentencing judge’s reasons demonstrate that he failed to decide upon the appropriate range of sentence before considering the possibility of a conditional sentence. Essentially, he treated pre-sentence custody as a mitigating factor, rather than as a credit against the appropriate sentence. Second, the record does not disclose a principled justification for refusing credit for the time served by the respondent in pre-sentence custody.

(i) Pre-sentence custody is not a mitigating factor that can affect the range of sentence and the availability of a conditional sentence

[33] Since the date of the offence, Parliament amended the conditional sentence regime described under s. 742.1 of the Criminal Code. Under the current version, a conditional sentence is not available, inter alia, where the offender is convicted of a serious personal injury offence. The new language would preclude an offender convicted of criminal negligence causing death from being eligible for a conditional sentence. However, pursuant to s. 11(i) of the Canadian Charter of Rights and Freedoms, the respondent is entitled to the benefit of the lesser punishment available at the time of his offence. Consequently, the following paragraphs describe the conditional sentence regime as it existed at the time of the offence.

[34] Section 742.1 of the Criminal Code listed four criteria that a court must consider before deciding to impose a conditional sentence:

(1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;

(2) the court must impose a term of imprisonment of less than two years;

(3) the safety of the community would not be endangered by the offender serving the sentence in the community; and

(4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[35] In Proulx, the Supreme Court of Canada decided that the first three criteria were prerequisites to any conditional sentence. Once these prerequisites were satisfied, the next question was whether a conditional sentence was appropriate.

[36] Proulx clarified that the requirement in s. 742.1 that the court “imposes a sentence of imprisonment of less than two years” was intended to identify the type of offenders who could be entitled to a conditional sentence. A conditional sentence is not available for offenders who should receive a penitentiary term, nor should it be imposed on offenders who would be entitled to a more lenient community sanction, such as a suspended sentence with probation. This interpretation is consistent with Parliament’s objective of reducing the use of incarceration for less serious offenders.

[37] The court outlined a two-stage analysis for determining whether an offender should be permitted to serve his or her sentence in the community. At the first stage, the sentencing judge must make a preliminary determination of the appropriate range of sentence. Where the preliminary determination excludes both probationary measures and a penitentiary term, and assuming the other statutory prerequisites are satisfied, the sentencing judge should proceed to the second stage of the analysis. At the second stage, the sentencing judge will determine whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing outlined in ss. 718 to 718.2 of the Code.

[38] Following Proulx, some confusion arose about the effect, if any, of pre-sentence custody on a sentencing judge’s determination of the availability of a conditional sentence. That confusion was put to rest by the Supreme Court of Canada in Fice.

[39] Fice clarified that pre-sentence custody is part of the overall punishment imposed. It is not a mitigating factor affecting the range of sentence and the availability of a conditional sentence – it should not be considered at the first stage of the analysis when the appropriate range of sentence is being considered. Rather, pre-sentence custody should only be considered at the second stage of the inquiry, after it is determined at the first stage that a sentence in the reformatory range is appropriate. As the Supreme Court of Canada stated in Fice, at para. 4:

A conditional sentence cannot become available to an offender who otherwise deserves a penitentiary term solely because of the time the offender spends in pre-sentence custody.

[40] The divide between the Crown and defence turns on the interpretation of how the sentencing judge dealt with the issue of pre-sentence custody in the imposition of the conditional sentence.

[41] The Crown argues that the sentencing judge erred in principle by considering the respondent’s pre-sentence custody as though it were a mitigating factor affecting the range of appropriate sanctions, in determining whether to impose a conditional sentence. In the light of the Supreme Court of Canada’s decision in Fice, it is submitted that the sentencing judge failed to consider the appropriate range of sentence first, before taking into account pre-sentence custody in determining the duration of the sentence remaining to be served.

[42] The respondent submits that the sentencing judge properly considered Fice, contending that nowhere in the sentencing judge’s reasons is there any indication that a sentence of more than two years would have been imposed if not for the pre-sentence custody.

[43] In my view, the reasons reveal that the sentencing judge failed to make a preliminary determination about the appropriate range of sentence before considering pre-sentence custody in deciding to impose a conditional sentence.

[44] I will review the sentencing submissions and the reasons for sentence in some detail in order to outline how the sentencing judge addressed the issue of the respondent’s pre-sentence custody.

[45] In the course of Crown counsel’s submissions advocating a 44-month term of incarceration, the Crown pointed out that, at the time of the sentencing hearing, the respondent had served approximately 10 months of pre-sentence custody. The Crown asked the sentencing judge to give the respondent 20 months of credit for pre-sentence custody against the time to be served in any sentence imposed, on the standard two-for-one basis.

[46] Defence counsel argued in favour of a maximum conditional sentence with no credit for pre-sentence custody. Defence counsel stated:

I’ve asked Your Honour to consider that sentence of two years less a day conditional sentence, and I’ve not yet spoken to the reality that Mr. Nusrat has been incarcerated for ten months. I’m not asking Your Honour to consider his pre-trial custody. I’m not asking you to deduct from that two-and-a-half [sic, two?] year sentence any pre-trial custody. I’m asking you to impose the maximum allowed for a conditional sentence of two years less a day.

I’m not agreeing with the Crown that a penitentiary sentence is warranted, that you should deduct his pre-trial custody, and that the balance be served as a conditional sentence, and I say that because of course of the case my friend reviewed Fice. That’s not legally permissible.

[47] Later in her submissions, defence counsel said the following:

And I had indicated I would not ask Your Honour to consider any pre-trial custody in respect of the criminal negligence charge. I would only ask you to consider that in respect of specific deterrence in that Mr. Nusrat had ten months of incarceration to think about his actions, to think about the impact of his actions. And in that respect I would ask you to consider, that is the specific deterrence. [Emphasis added.]

[48] At para. 31 of his reasons for sentence, after referring to the principle in R. v. Linden (2000), 2000 CanLII 15854 (ON CA), 147 C.C.C. (3d) 299, that “the particular offence is very much driven by individual factors, especially the blameworthiness of the conduct” of the offender, the sentencing judge found that a jail sentence was required. He noted that the question remaining was the length and the form of the sentence, which the sentencing judge went on to consider at paras. 32-35, as follows:

The Crown’s position is not supported by the facts of this case. The guilty plea, the fact that Mr. Nusrat has no prior record, and that he is a first time youthful offender, are factors, which undermine the Crown’s position. I also believe his remorse is genuine and will be rehabilitated. As I have already stated I do not believe I can substitute street racing for alcohol. Mr. Nusrat was not consuming alcohol nor was he under the influence of any illicit drugs.

In arriving at the proper sentence, the courts are required to balance several factors, which include the conduct of the offender as well as the consequences of the offence.

In this case I have taken into account that Mr. Nusrat has pleaded guilty, that he has no previous convictions, that he is very remorseful and that he has spent 11 [sic, 11 ½ months?] months in pre-sentence custody. I have balanced these factors against the very aggressive driving, the high rate of speed on a busy highway, the extended driving distance and the fact that this was not a spontaneous event. I also do so in the context of Mr. Nusrat’s age.

On the basis of all the evidence before me, I have concluded that he does not need to be specifically deterred. I do not believe, based on the way he has conducted himself since his arrest, that he will be back before the Courts for a similar offence. [Emphasis added].

[49] No further mention is made of the pre-sentence custody, other than in para. 40 where the judge expressed the view that the respondent did not need to be further incarcerated, stating: “He does not need more jail” (emphasis added).

[50] In the very next sentence, the sentencing judge said: “Consequently, the sentence is one of two years less one day custody to be served conditionally to be followed by two years probation.”

[51] These reasons reveal that the sentencing judge did not answer his own question about the length of sentence before considering pre-sentence custody in deciding to impose a conditional sentence. Nowhere in his reasons is there an explicit consideration of the appropriate range of sentence.

[52] Upon rejecting the Crown’s position of a 44-month period of incarceration, the sentencing judge proceeded directly to a consideration of the pre-sentence custody as one of the factors in determining a fit sentence, as though it were a mitigating factor affecting the range of appropriate sanctions. Indeed, at para. 34, the sentencing judge included pre-sentence custody in the same sentence where he listed the various mitigating factors. There is no indication that the sentencing judge considered a lower range penitentiary sentence or even that a sentence in the reformatory range was appropriate before he turned to the respondent’s pre-sentence custody in arriving at a fit sentence.

[53] This violates both Proulx and Fice, which make it clear that that a judge must first determine the appropriate range of sentence before considering if the offender qualifies for a conditional sentence. As the Supreme Court of Canada stated in Fice, at paras. 21-22:

[T]he time credited to an offender for time served before sentence ought to be considered part of his or her total punishment rather than a mitigating factor that can affect the range of sentence and therefore the availability of a conditional sentence.

Since the time spent in pre-sentence custody is part of the total punishment imposed, it is clear that it is not a mitigating factor that can affect the range of sentence and therefore the availability of a conditional sentence, as argued by the respondent.

[54] Simply put, it is an error to refuse credit for pre-trial or pre-sentence custody so that it can be used as a mitigating factor to reduce the appropriate range of a sentence.

[55] I would add that even if the sentence imposed did not violate Proulx and Fice, it is my view that incarceration is necessary for the respondent’s criminal conduct and its consequences. Driving in the fashion set out above on a major thoroughfare, thereby endangering the lives of those engaged in innocently moving about our community, combined with taking the life of one of those individuals, warrants a severe custodial sanction.

(ii) Absent justification, credit should be given for time spent in pre-sentence custody

[56] Section 719(3) of the Criminal Code provides as follows:

s. 719(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence. [Emphasis added.]

[57] The wording of this provision makes it clear that the sentencing judge is entitled, but not obligated, to take pre-sentence custody into account in fashioning an appropriate sentence: see R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455.

[58] However, credit for pre-sentence detention is the norm, and there must be a principled reason to justify disallowance of credit. In R. v. Doiron (2005), 2005 NBCA 30, 194 C.C.C. (3d) 468 (N.B.C.A.), at para. 22, the court held as follows:

[E]ven where a credit is not stricto jure mandatory, disallowance cannot be capricious: the court’s reasons for sentence must feature a principled justification for its refusal to give credit for pre-sentence custody.

[59] Moreover, in R. v. Rezaie (1996), 1996 CanLII 1241 (ON CA), 31 O.R. (3d) 713, at p. 721 this court stated that “absent justification, sentencing judges should give some credit for time spent in custody before trial (and before sentencing).”

[60] Potential reasons for refusing to give credit for pre-sentencing custody could include cases where credit would have no practical impact on a lengthy custodial sentence or where the pre-sentence custody resulted from an abuse of the legal process: see e.g. Rezaie at p. 721, citing R. v. C.A.M., 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 96.

[61] In his reasons, the sentencing judge makes no mention of credit for pre-sentence custody or his rationale for denying it. The Crown, clearly troubled by this, raised the issue with the judge after his reasons for sentence were delivered. The following exchange ensued:

THE COURT: Ms. McCleave?

MS. MCCLEAVE: Yes, part of the sentence to this day I believe that he has served 349 days in pre-trial custody. As I understand was it the Court’s intention to give that two-for-one credit?

THE COURT: No. It’s a fact that the Court took into account in arriving at the sentence.

MS. MCCLEAVE: So for point of clarification, the Court is not cons…not applying the pre-trial custody of 349 days as part of the overall sentence?

THE COURT: It can be noted.

MS. MCCLEAVE: I’ll note for the record that it was 349 days that he’s been in custody. Thank you.

[62] While I appreciate that the respondent specifically asked that he receive no credit for the time served in pre-sentence custody, and that the sentencing judge was undoubtedly well-intentioned, the only available conclusion is that the sentencing judge decided not to give the respondent credit to avoid the impact of Fice. In my view, the objective of creating an opportunity to impose a conditional sentence is not a principled justification for declining to give credit for pre-sentence custody and therefore the sentencing judge erred in principle in not giving credit for pre-sentence custody.

(2) What is a fit sentence?

[63] Having found an error in principle, this court is entitled to review the record and impose what it regards to be an appropriate sentence: see e.g. Rezaie at p. 719. This is so regardless of whether it is a Crown or defence appeal: see e.g. R. v. Biancofiore (1997), 1997 CanLII 3420 (ON CA), 35 O.R. (3d) 782 (C.A.).

[64] In determining an appropriate sentence, the court must consider not only the circumstances of the offence, but also the circumstances of the offender. This case-specific nature of sentencing is evident in the fundamental sentencing principle of proportionality under the Criminal Code:

s. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[65] In my view, the sentence in this case should be one that sends a strong message to the general public, and to those who are members of the so-called street racing subculture, that street racing will not be tolerated. Having regard to the seriousness of the offence and its catastrophic consequences, the objectives of general deterrence and denunciation must be paramount.

[66] While the respondent did not intend to cause Mr. Virgoe’s death, he deliberately engaged in egregious racing behaviour over an extended distance on a busy highway. The potential for tragedy was high, if not inevitable. In these circumstances, I agree with the comments of Doherty J.A. in R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), at paras. 93-94:

[F]actors mitigating personal responsibility cannot justify a disposition that unduly minimizes the seriousness of the crime committed.

In some circumstances, one side of the proportionality inquiry will figure more prominently in the ultimate disposition than the other.

[67] Where the offender’s conduct results in serious personal injury or death, the gravity of the offence must be given predominance in determining the appropriate sentence.

[68] The respondent entered into an agreement with other thrill seekers to race along a busy highway – taking the life of one and risking the lives of many. This conduct evidences a deliberate endangerment of other users of the road and carries with it a high level of moral blameworthiness. In my view, where persons such as the respondent engage in intentional risk taking of this nature and duration, and with such horrific consequences, they should expect to face a substantial period of incarceration.

[69] In the light of the seriousness of the offence in this case, I am of the view that a penitentiary range sentence was essential to adequately address the paramount sentencing purposes of denunciation and general deterrence. Although involving a drinking and driving offence, the comments of this court in R. v. McVeigh (1985), 1985 CanLII 115 (ON CA), 22 C.C.C. (3d) 145, at p. 150 would seem appropriate: “The public should not have to wait until members of the public are killed before the courts’ repudiation of the conduct that led to the killing is made clear.” Like every drunk driver, every street racer is a potential killer. The respondent turned this potential into a reality.

[70] With appropriate emphasis on the circumstances surrounding the offence and the gravity of its consequences, and taking into account the circumstances of the offender, I am of the view that an appropriate sentence in this case would be one of 30 months in jail.

[71] I see no principled reason for refusing to give the respondent credit for pre-sentence custody on the usual two-for-one basis. Since the respondent served approximately 10 months of pre-sentence custody prior to his plea of guilty, and a further 1 ½ months before he was sentenced, he should be given 23 months of credit against the 30 month custodial sentence, leaving a further 7 months to serve.

[72] I am left with the question of whether the respondent should be sent to jail at this stage. He has already served just over 7 months of his conditional sentence. There is no suggestion that he has not complied with its terms.

[73] This court has consistently held that reincarceration itself imposes additional hardship on an offender and as such has been reluctant to reincarcerate unless the sentence is grossly inadequate and the interests of justice require the court’s intervention: see R. v. Cheng (1991), 50 O.A.C. 374. In all of the circumstances, I see no useful purpose in reincarcerating the respondent.

V. DISPOSITION

[74] I would grant leave to appeal and allow the appeal. I would impose a sentence of 30 months. Having regard to the credit to which the respondent is entitled on a two-for-one basis for his pre-sentence custody (23 months), I would have imposed a further custodial sentence of 7 months. However, the respondent is entitled to credit for the 7 months he has served on his conditional sentence. Thus, the respondent has effectively served the sentence I would have imposed. Consequently, the appropriate order is that the sentence is varied to one of time served, to be followed by the two year term of probation. The lifetime driving prohibition and the other orders imposed by the sentencing judge remain the same.

RELEASED:

“RJS”

“JAN 15 2009” “G. Epstein J.A.”

“I agree Robert Sharpe J.A.”

“I agree Susan Lang J.A.”