R. v. McCoy (R.A.), 2006 NBQB 329

• Judge: Garnett, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: May 31, 2005
• Jurisdiction: New Brunswick
• Citations: 2006 NBQB 329;(2006), 310 N.B.R.(2d) 118 (TD)

R. v. McCoy (R.A.) (2006), 310 N.B.R.(2d) 118 (TD);

    310 R.N.-B.(2e) 118; 800 A.P.R. 118

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2006] N.B.R.(2d) TBEd. OC.006

Her Majesty the Queen (appellant) v. Reginald Arthur McCoy (respondent)

(F/CRA/3/05; 2006 NBQB 329)

Indexed As: R. v. McCoy (R.A.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Garnett, J.

September 29, 2006.

Summary:

The accused pleaded guilty to driving with an excessive blood-alcohol level. The trial judge sentenced him to pay a fine of $1,500, a victim surcharge of $225 and prohibited him from driving for 18 months. The Crown appealed.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the appeal. The court added a sentence of three months in gaol.

Criminal Law - Topic 5842

Sentencing - Considerations on imposing sentence - Previous criminal offences - The accused pleaded guilty to driving with an excessive blood-alcohol level - The breath sample readings were .210 and .190 - The accused had four previous convictions for driving offences - The Crown did not give the accused notice that it intended to seek a greater punishment by reason of the previous convictions as required by s. 727 of the Criminal Code - The sentencing judge treated the accused as a first of­fender and sentenced him to pay a fine of $1,500, a victim surcharge of $225 and prohibited him from driving for 18 months - The New Brunswick Court of Queen's Bench, Trial Division, ruled that the sen­tencing judge erred in principle resulting in an unfit sentence - The court added a sentence of three months in gaol - The Crown's failure to give notice of greater punishment did not result in the conclusion that the accused should be treated as a first time offender - The sentencing judge should have considered "all relevant factors in determining a proper sentence" includ­ing general deterrence, prior criminal record, specific deterrence and s. 255.1 of the Criminal Code - See paragraphs 8 to 16.

Criminal Law - Topic 5842

Sentencing - Considerations on imposing sentence - Previous criminal offences - The accused, aged 57 at the time of sentencing, pleaded guilty to driving with an excessive blood-alcohol level - The breath sample readings were .210 and .190 - His criminal record contained a 1975 conviction for criminal negligence in the operation of a motor vehicle causing death - There were also convictions in 1984, 1986 and 1988 for driving with an excessive blood-alcohol level - The trial judge sentenced the ac­cused to pay a fine of $1,500, a victim surcharge of $225 and prohibited him from driving for 18 months - The Crown ap­pealed - The accused argued that since there had been a gap of over 15 years since the last offence, the court should give them little or no weight in determining sentence - The New Brunswick Court of Queen's Bench, Trial Division, rejected the argument and allowed the appeal - When someone caused the death of another through operation of a motor vehicle while intoxicated, no gap could ever repair the harm nor should the offence ever be dis­counted because of the passage of time - The court added a sentence of three months in gaol - See paragraphs 4, 19 and 23.

Criminal Law - Topic 5886

Sentence - Impaired driving - [See both Criminal Law - Topic 5842 ].

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sen­tence - Grounds for varying sentence im­posed by trial judge - [See first Criminal Law - Topic 5842 ].

Cases Noticed:

R. v. Longaphy (J.F.) (2000), 189 N.S.R.(2d) 102; 590 A.P.R. 102 (C.A.), consd. [para. 10].

R. v. Branscombe (W.D.) (1989), 97 N.B.R.(2d) 206; 245 A.P.R. 206 (Prov. Ct.), consd. [para. 12].

R. v. Norris (1988), 41 C.C.C.(3d) 441 (N.W.T.C.A.), consd. [para. 13].

R. v. Johnson (K.J.M.) (1994), 131 N.S.R.(2d) 45; 371 A.P.R. 45 (C.A.), affing. (1993), 127 N.S.R.(2d) 57; 355 A.P.R. 57 (S.C.), consd. [para. 14].

R. v. McVeigh (1985), 11 O.A.C. 345; 22 C.C.C.(3d) 145 (C.A.), consd. [para. 17].

R. v. Bourhill (L.M.), [1999] O.T.C. 224 (Sup. Ct.), consd. [para. 18].

Authors and Works Noticed:

Salhany, Roger E., Canadian Criminal Pro­cedure (6th Ed. 1994), p. 9-34 [para. 9].

Counsel:

William J. Corby, Q.C., for the appellant;

Randall Maillet, for the respondent.

This appeal was heard on May 31, 2005, by Garnett, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, who delivered the following decision on September 29, 2006.