COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Precup, 2016 ONCA 669

DATE: 2016-09-09

DOCKET: C61024

Laskin, Sharpe and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Vlad Precup

Appellant

Michael Davies, for the appellant

Gavin MacDonald, for the respondent

Heard and released orally: September 1, 2016

On appeal from the sentence imposed on March 12, 2015 by Justice Paul F. Lalonde of the Superior Court of Justice.

ENDORSEMENT

[1] At his first trial the appellant was sentenced to two years less a day consisting of 18 months for dangerous driving and six months for failing to remain. This court ordered a new trial on his convictions.

[2] At the second trial, the appellant was again convicted, but this time the sentencing judge imposed a sentence of four years, consisting of two years for dangerous driving and two years for failing to remain.

[3] The appellant appeals his sentence. His principal submission is that the sentencing judge failed to apply the principle well established in this court that after a re-trial, the sentencing judge should not consider the sentence de novo but must take into account the fitness of the original sentence. Otherwise an accused might legitimately have a sense of grievance: see R. v. B.(L.) (1997), 1997 3187 (ON CA), 35 O.R. (3d) 35, 116 C.C.C. (3d) 481 at p. 512 (C.A.). In R. v. Harriott(2002), 2002 23588 (ON CA), 58 O.R. (3d) 1, our colleague MacPherson J.A. put the principles succinctly at para. 52:

It is true that the imposition of a sentence imposed after a re-trial should not be regarded as a matter entirely de novo. If the trial judge at the second trial decides to impose a greater sentence than the original sentence, he or she must first determine that the original sentence was unfit, or that new facts have emerged, and then consider all the relevant factors before imposing the new sentence: see R. v. B. (L.) (1997), 1997 3187 (ON CA), 35 O.R. (3d) 35, 116 C.C.C. (3d) 481 at p. 512 (C.A.).

[4] We agree with the appellant that the sentencing judge failed to apply this principle. His failure to do so is itself an error in principle, which had an impact on the fitness of the current sentence. We are therefore justified in intervening.

[5] In our view, the original sentence should be restored. The facts at the second trial were essentially the same as the facts at the first trial. And though the sentencing judge was perhaps more blunt in his assessment of the appellant’s conduct than the sentencing judge at the first trial, as we read the reasons of the sentencing judge at the first trial, his findings do not differ significantly.

[6] Accordingly, leave to appeal sentence is granted, the appeal is allowed and the appellant is sentenced to 18 months for dangerous driving and six months consecutive for failing to remain at the scene of the accident.

“John Laskin J.A.”

“Robert J. Sharpe J.A.”

“B.W. Miller J.A.”