Appeal Court upholds penalties for refusing breathalyzer ■ JUSTICE
A Pictou Landing man will continue to serve probation and a lengthy driving prohibition despite an attempt to appeal his sentence.
Leroy David Denny was sentenced in April 2016 in Pictou provincial court to a one-year driving prohibition, one day in custody that ran concurrently for both charges and two $10 fines after pleading guilty to two counts of refusing the breathalyzer in August and October 2015.
The Crown appealed Denny’s sentence with the Summary Conviction Appeal Court that stated the sitting court judge erred in his sentencing of Denny and, as a result, Denny was sentenced to a $1,000 fine for each offence, a 12-month probation period and a 30-month driving prohibition.
Denny appealed the Summary Convictions Appeal Court’s ruling on the grounds that it didn’t take into consideration the provincial judge’s notice of traffic volumes at the time of the offence and that it failed to apply the sentencing principles outlined by the Supreme Court of Canada in R vs Gladue, and R vs Ipeelee.
Denny said the appeal court also erred because there was no evidence to suggest that probation was still required one year after the appellant’s sentencing in April 2016.
In regard to consideration of traffic volumes, Justice David Farrar with the Nova Scotia Court of Appeal said traffic volumes were not an issue at sentencing. He said it is a mystery why a provincial court judge would refer to them and consider it a positive factor in the sentencing.
In addition, Farrar said the Supreme Court cases of Gladue and Ipeelee are well known but this case didn’t raise any issues unique to the application of those sentencing principles nor did Denny show the court how the sentence would have been different if the principles were applied.
The justice also said a period of probation imposed by the appeals court was necessary. Farrar said the terms of the probation were not overly strict and at the time of Denny’s appeal he had already served eight of the 12month probation period.
The one area where Denny and the appeal court did agree upon was that the 30-month driving prohibition should start at the time of his April 2016 sentencing rather than the result of the Crown’s appeal in May 2017.