R. v. Hernandez
The trial judge did not err: given the seriousness of the offence, the severe harm (amputation), the appellant's very high blood alcohol level, driving without insurance and on a licence requiring no alcohol, general deterrence required a custodial sentence rather than a conditional sentence.
Source-derived case information.
- Citation
- C42217
- Parties
- Respondent: Her Majesty the Queen; Appellant: Margarito Lucio Hernandez
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 14 July 2005
- Procedural Posture
- Criminal / Appeal From Sentence
- Outcome
- Appeal dismissed; sentence upheld.
- Legal Topics
- Sentencing, Conditional Sentence, General Deterrence, Impaired Driving, Dangerous Driving, Driving Without Insurance, Licence Conditions, Bodily Injury
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Her Majesty the Queen
Respondent
Margarito Lucio Hernandez
Appellant
Procedural Posture
Criminal / Appeal From Sentence
Legal Issues
- 1 Whether a conditional sentence was appropriate
- 2 Whether general deterrence required a custodial sentence
- 3 Assessment of moral culpability given intoxication and licence/insurance status
Ratio Decidendi
The trial judge did not err: given the seriousness of the offence, the severe harm (amputation), the appellant's very high blood alcohol level, driving without insurance and on a licence requiring no alcohol, general deterrence required a custodial sentence rather than a conditional sentence.
Court Disposition
Appeal dismissed; sentence upheld.
Orders
- Appeal dismissed
- Sentencing order of the trial judge upheld
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Hernandez Collection Decisions of the Court of Appeal Date 2005-07-14 Docket numbers C42217 Judges Rosenberg, Marc; MacFarland, Jean Louise; Rouleau, Paul S. Subject Criminal Decision Content DATE: 20050714 DOCKET: C42217 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) – and – MARGARITO LUCIO HERNANDEZ (Appellant) BEFORE: ROSENBERG, MACFARLAND and ROULEAU JJ.A. COUNSEL: Jeanine LeRoy for the appellant Deborah Krick for the respondent HEARD & RELEASED ORALLY: July 13, 2005 On appeal from the sentence imposed by The Honourable Madam Justice Roberts on July 8, 2004. ENDORSEMENT [1] We are satisfied that the trial judge considered the appropriate circumstances and could find that this was not an appropriate case for a conditional sentence. The circumstances of the offence were serious. The appellant was driving dangerously and collided with a motorcyclist. As a result of the collision the victim’s leg was amputated. The appellant’s blood alcohol level was very high – several hours after the offence it was still two and a half times the legal limit. The appellant’s moral culpability was also high given that he was driving without insurance and on a licence that required he have no alcohol in his body. Despite the several mitigating factors, the trial judge could properly find that general deterrence required a custodial sentence. [2] Accordingly, the appeal is dismissed.