HER MAJESTY THE QUEEN - v. -, 2003 ABPC 63

R. v. Pellizzon, 2003 ABPC 63 Date: 20030403 Docket: 017249335P10101, 0103, 0107 017280652P10102 IN THE PROVINCIAL COURT OF ALBERTA BETWEEN: HER MAJESTY THE QUEEN - and - DEREK JOHN PELLIZZON Corrected Judgment: The text of the original judgment has been corrected. The text of the corrigendum released May 6, 2003 is appended. SENTENCING DECISION OF THE HONOURABLE JUDGE G. M. MEAGHER Re:

Section 249.1(3) - Dangerous Driving Causing Bodily Harm While Evading Police COUNSEL J. Rees For the Crown K. Ross For the Defence I. HISTORY OF PROCEEDINGS [2] On November 21 st , 2001, the offender, Derek John Pellizzon, (“Pellizzon”), was charged with committing several criminal offences including dangerous driving, dangerous driving causing bodily harm while evading the police, and property-related offences. The Crown proceeded by way of Indictment on all charges. On February 25 th , 2003, Pellizzon entered guilty pleas to the following charges:

Count: On or about the 20 th day of November A.D. 2001 at or near Okotoks in the province of Alberta did unlawfully operate a motor vehicle on a road in manner that was dangerous to the public contrary to Section 249(1) (

a) of the Criminal Code of Canada . Count: On or about the 20 th day of November A.D. 2001 at or near Okotoks in the Province of Alberta while operating a motor vehicle on a Highway and being pursued by a Peace Officer operating a motor vehicle, did in order to evade the Peace Officer, fail without lawful excuse to stop his vehicle as soon as was reasonable in the circumstances and did operate the said motor vehicle in a manner that was dangerous to the public and thereby caused bodily harm to Richard BERGER contrary to

section 249.1(3) of the Criminal Code of Canada . Count: On or about the 20 th day of November A.D 2001 at or near Okotoks in the Province of Alberta did steal a Pontiac Grand Am the property of Jarod RUFF of a value not exceeding five thousand dollars contrary to 334(

b) of the Criminal Code of Canada . Count: On or about the 20 th day of November A.D. 2001 at or near Okotoks in the Province of Alberta did break and enter a certain place to wit: a dwelling situate at 164 Thorson Crescent Okotoks Alberta and did commit therein the indictable offence of theft contrary to Section 348(1) (

b) of the Criminal Code of Canada . Count: On or about the 20 th day of September A.D. 2001 at or near the Town of Okotoks in the Province of Alberta, did unlawfully have in his possession, property, to wit: a gym bag, one wallet, one pair of athletic shoes, one bar bell with weights and one dress suit and tie, of a value not exceedingly five thousand dollars knowing that all of the property was obtained by the commission in Canada of an offence punishable by indictment, contrary to Section 354(1) (

a) of the Criminal Code . [3] On February 25 th , 2003, a sentencing hearing was held in which Victim Impact Statements from Richard Berger and his parents, a Psychiatric Report and a Pre-Sentence Report from an earlier sentencing in 2002, and Pellizzon’s criminal record were entered into evidence. Submissions were made by counsel for the Crown and Defence. On April 3 rd , 2003, an Update Pre-Sentence Report and an updated Psychiatric Report were entered into evidence and further submissions made by counsel. II.

NATURE OF THE OFFENCES [3] At the sentencing hearing, facts in support of these charges were read in by the Crown and admitted by Pellizzon and his counsel, at which time guilty pleas to these charges were accepted. [4] The most serious offence before the Court is the offence under

section 249.1(3) of the Criminal Code of Canada , that of dangerous driving causing bodily harm while evading the police. This

section of the Criminal Code was proclaimed in force on March 30 th , 2000 and states as follows: 249.1(3) Every one commits an offence who causes bodily harm to or the death of another person by operating a motor vehicle in a manner described in paragraph 249(1) ( a ), if the person operating the motor vehicle was being pursued by a peace officer operating a motor vehicle and failed, without reasonable excuse and in order to evade the police officer, to stop the vehicle as soon as is reasonable in the circumstances. Pellizzon also pleaded guilty to dangerous driving under section 249(1) (

a) of the Criminal Code that he the operated motor vehicle in a manner that was dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the places at which the motor vehicle was being operated and the amount of traffic that was present at the time. [5] The following facts were admitted in support of these offences. On the afternoon of November 20 th , 2001 the police in Okotoks, Alberta received a complaint that Pellizzon was driving a stolen vehicle in a dangerous manner. He almost hit several pedestrians on the sidewalk and roadway.

He swerved around an adult, drove onto a sidewalk and through a neighbour’s yard. He also lost control of the vehicle several times. On one occasion he lost control of the vehicle he was driving and slid into a school yard fence. There were children in the school yard or nearby at the time.

[6] Police approached and Pellizzon took off at a high rate of speed nearly colliding with one of the police vehicles. He proceeded northbound on Highway 2A at speeds between 100 and 140 kilometres per hour, passing several vehicles on the left and one vehicle on the shoulder. On Highway 2, a multi-lane, divided highway, Pellizzon proceeded southbound reaching speeds between 110 and 170 kilometres per hour, while weaving in and out of traffic. On two occasions when one of the police vehicles tried overtake him, he abruptly swerved in front of the police vehicle.

The high speeds and erratic driving continued until approximately 1 kilometre north of the High River overpass at which place a spike belt had been deployed by police. [7] Pellizzon turned east into the median on Highway 2 in order to avoid the spike belt. He crossed the median and entered into the northbound lanes proceeding south. The traffic in the northbound lanes was extremely heavy. Pellizzon proceeded against the traffic in the northbound lanes and moved to the east shoulder of the highway. He then proceeded to exit onto the on-ramp from Highway 23 travelling the wrong way on the entrance ramp.

Approximately two-thirds of the way onto the ramp he collided with another vehicle which was properly proceeding down the ramp towards Highway 2. [8] The driver of the other vehicle was Richard Berger who suffered life-threatening injuries and was removed by STARS Air Ambulance. He was hospitalized for a month and continues a variety of treatments and therapy to this day. The following observations have been drawn from the Victim Impact Statements. Richard Berger has damage to the synaptic nerve in his right leg which occasionally affects his mobility.

He has suffered hearing loss caused by damage to his left ear which requires the use of a hearing aid. As a result of the brain injury sustained in the accident he has suffered a loss of sensation to his right side. This in turn leads to additional risks such as suffering from burns in the kitchen and frostbite while outdoors in the winter. Also, because of the brain injury he suffers from frustration and stress with resultant anger management issues which may affect personal and employment relationships. He has a frozen diaphragm which results in his injured left lung not functioning properly.

He is no longer able to participate in certain sports for the fear of risking a further head injury. Richard Berger has suffered permanent injuries and his quality of life has been diminished by the injuries sustained in the collision. Also, the lives of his parents have been negatively impacted by the injuries suffered by their son. III. CIRCUMSTANCES OF THE OFFENDER [9] Pellizzon is a young adult male, twenty-one years of age, with a high school education. He was twenty years old when these offences occurred.

In high school Pellizzon demonstrated some academic potential and has completed some courses towards his first year of Design Drafting Engineering at S.A.I.T. At the time Pellizzon pleaded guilty to these offences he had an extensive record including thirty-three prior convictions. Also at the time of these offences he was bound by two Probation Orders and a Peace Bond pursuant to

section 810 of the Criminal Code . [10] While the Psychiatric Report prepared in March 2002 was for sentencing on other offences, its findings are nonetheless informative. The primary diagnosis was one of anti-social personality disorder. On page six of the Report, the psychiatrist went on to state: . . . That is to say, there is a persuasive pattern of disregard for and violation of the rights of others dating back to his childhood.

Clinical findings consistent with this diagnosis include failure to conform to social norms with respect to lawful behaviors, as indicated by repeatedly performing acts that are grounds for arrest, deceitfulness as indicated by repeated lying, impulsivity or failure to plan, irritability and aggressiveness, reckless disregard for safety of self or others, consistent irresponsibility by repeated failure to sustain consistent work, and lack of remorse. These findings are also clinically supported by psychological testing, which . . .have shown a pattern of personality consistent with the above diagnosis.

This diagnosis was confirmed in the updated Psychiatric Report dated April 3 rd , 2003. In this Report at page 3 the psychiatrist states that Pellizzon’s risk for recidivism must remain classified as moderate/high. In Pellizzon’s favour, the psychiatrist states at page 3 of this Report: . . .An encouraging finding in Mr. Pellizzon’s current presentation is an improvement into his insight regarding the impact of his behaviours on others and his willingness to acknowledge his pattern of antisocial behaviours. Further he was able to demonstrate remorse for the grief he has caused others in his current charges.

[11] However, in the Update Pre-Sentence Report prepared in March 2003, Pellizzon has reportedly failed to follow through with counselling and his pattern of behaviour has been described as “escalating” in nature. While he has recently participated in programming at a correctional facility, his progress has been questioned in terms of veracity and commitment to change.

At page seven, it is reported that parole authorities believe his attitude is “criminally oriented and his impulsivity and consequential thinking is of concern.” This Report concludes that Pellizzon is not remorseful and redirects responsibility for his inappropriate behaviour. He is considered as a high risk for re-offence, given his lack of effective and appropriate coping skills. IV. SUBMISSIONS OF COUNSEL [12] Counsel for the Crown submitted that the most serious offence before the Court was the offence of dangerous driving causing bodily harm while evading police pursuant to

section 249.1(3) of the Criminal Code . Neither counsel for the Crown nor the Defence were able to provide sentencing authorities on this particular section. Counsel for the Crown made reference to sentencing authorities relating to cases regarding the operation of a motor vehicle involving flight from police and “criminal negligence causing bodily harm” in support of her sentencing submissions, in particular the Alberta Court of Appeal decisions in R. v. Singh (K.) (1995), 1995 ABCA 453 (CanLII) , 174 A.R. 350, and R. v. Collins , [1995] A. J. No. 912 (QL) . The Crown noted that the maximum punishment under this

section is fourteen years imprisonment, which is greater than the ten year maximum punishment for “dangerous driving causing bodily harm” or for “criminal negligence causing bodily harm”.

The Crown submitted that this is an indication of Parliament’s intention regarding the seriousness of this offence of dangerous driving causing bodily injury while evading the police in relation to other offences in the Criminal Code . [13] By way of mitigating factors, the Crown submitted that the guilty pleas entered by Pellizzon to these offences should be considered early guilty pleas and result in a reduction of one-third from the appropriate sentence as determined by this Court.

Although a considerable time has elapsed since the charges were laid in November 2001, the Crown advised that Pellizzon had indicated at a much earlier date that he wished to enter a guilty plea to these charges. In the meantime, Pellizzon had dealt with other matters before the courts and his Defence counsel had engaged in discussions with several other counsel for the Crown before this Crown was assigned.

Counsel for the Crown also indicated that she has given consideration for the fact that alcohol was not involved and that Pellizzon did not have driving offences on his record. [14] By way of aggravating factors, the Crown referred to the nature of the offence which included dangerous driving causing bodily harm while evading police, the various acts of driving which were involved in this flight from police and which were admitted in the facts, and the fact that the vehicle was stolen. [15] Lastly, counsel for the Crown and Defence agreed that Pellizzon should be given credit for nine months time spent in custody prior to sentencing at the rate of two to one.

After taking into account the one-third reduction for the early guilty plea and the eighteen months relating to time spent in custody, the Crown recommended a sentence in the range of three to five years and submitted that, on the facts of this case, the sentence should be in the high end of the range. [16] Defence counsel submitted that Pellizzon is twenty-one years of age, and is a high school graduate who has shown academic promise. He stated that Pellizzon had performed well academically in high school and had commenced his first year of Design Drafting Engineering at S.A.I.T.

He also stated that Pellizzon has expressed to him that he was remorseful and frequently expressed concern for the victim. Defence counsel further submitted that some indication of remorse can be taken from the early guilty pleas. Defence counsel also submitted that Pellizzon has been a model inmate while incarcerated and has successfully completed a treatment program in the correctional facility where he is currently serving time. [17] Defence counsel submitted that the authorities relied upon by the Crown indicated that there was a broad range of sentencing available.

He also submitted that these cases and the case of R. v. Hindes (S.C.) (2000), 2000 ABCA 197 (CanLII) , 261 A.R. 108; 225 W.A.C. 108; 4 M.V.R. (4 th ) 141, stand for the proposition that each case must be assessed on its individual facts. Defence counsel argued that R. v. Collins, supra, was most directly on point.

Defence counsel stated that since Pellizzon is currently serving a two year sentence, the Court should apply the totality principle and consider a sentence for these offences in the range of two to four years before applying the one-third reduction for the early guilty plea and the eighteen month credit for time spent in custody prior to sentence.

V. APPLICATION OF THE PRINCIPLES OF SENTENCING (

a) Fundamental Purpose and Objectives -

Section 718 [18] The fundamental purpose of sentencing includes promoting a safe society and providing for the protection of the public. [19] By enacting this offence of dangerous driving causing bodily harm while evading police with a maximum punishment of fourteen years (s.249.1(4)), the Parliament of Canada has indicated the seriousness of this type of offence. I have considered the various principles and objectives of sentencing and have concluded that denunciation and deterrence should be the paramount considerations in this sentencing.

Deterrence includes both specific deterrence for this particular offender and general deterrence by sending a message to others in society that criminal behaviour of this nature will not be tolerated. [20] The separation of the offender from society, where necessary, is another consideration which is relevant and appropriate for Pellizzon in this sentencing.

This separation is necessary for the protection of the public in the present case and also to promote rehabilitation and a sense of responsibility in Pellizzon. [21] I have considered and balanced the objectives of rehabilitation and promoting a sense of responsibility in the offender. Rehabilitation is most desirable for the long term safety of society and the protection of the public. It is also in Pellizzon’s best interests. However, in Pellizzon’s case, this rehabilitation must occur through treatment programs in a correctional institution and subsequently through community services.

The prospects of promoting a sense of responsibility for his conduct may best be achieved through a correctional setting at the present time. The objective of providing reparations for harm done to his victim is neither relevant nor achievable considering the bodily harm suffered by the victim of this offence. [22] I have considered and balanced the objectives set out in

section 718 and I am satisfied that in the circumstances of this offence and in the circumstances of this offender, denunciation and deterrence must be the paramount sentencing considerations in order to achieve the purpose of promoting a safe society and the protection of the public. (

b) Proportionality Principle -

Section 718.1 [23] The proportionality principle requires that consideration must be given to the gravity of the offence and the degree of responsibility of the offender.

In general, the gravity of this offence is indicated by its enactment on March 30 th , 2000, as a “flight from police” offence - that is, a special offence covering circumstances of dangerous driving causing bodily while evading police with a maximum penalty greater that the offences of dangerous driving causing bodily harm and criminal negligence causing bodily harm. [24] In specific terms, Pellizzon has admitted to driving a stolen vehicle on the afternoon of November 20 th , 2001, in a dangerous manner, almost hitting several pedestrians on the sidewalk and a roadway.

He drove through several stop signs at high speeds and lost control of the vehicle several times, including sliding into a school yard fence where children were either in the school yard or nearby. All of this occurred before the police arrived and has been admitted by Pellizzon. [25] When the police arrived, Pellizzon attempted to evade police by driving off at a high rate of speed, nearly colliding with a police vehicle. He proceeded to drive at speeds between 110 and 170 kilometres per hour on a multi-lane divided highway, weaving in and out of traffic.

On two occasions he prevented a police vehicle from overtaking him by swerving in front of the police vehicle. He continued to attempt to evade the police when he avoided a spike belt placed by police by crossing over the median and proceeding the wrong way down the opposite lanes in which the on-coming traffic was described as extremely heavy. He exited onto an on-ramp and collided with the vehicle driven by the victim. The victim suffered life-threatening injuries and today suffers from permanent injuries sustained in the collision. [26] The Crown has referred to the Alberta Court of Appeal decision in R. v.

Konkolus (1988), 1988 ABCA 127 (CanLII) , 6 M.V.R. (2d) 220, a case involving criminal negligence causing death. There was no evasion of police in this case and the case can be distinguished on these and a number of other facts from the present case. The case is instructive, however, on the factors that the Court of Appeal considered most important in assessing the offence. The Court of Appeal at p.224 stated:

The factors of most importance in this case in terms of the charge of criminal negligence are the degree of recklessness of the accused, the tragic consequences, and the previous driving record of the accused, and his behaviour.

Applying this approach to the offence of dangerous driving causing bodily harm while evading police, the factors of most importance in assessing the gravity of the offence and the responsibility of the offender are the degree of recklessness demonstrated in the dangerous driving, the evasion of the police, the tragic consequences and the circumstances of the offender, including his previous record. [27] The degree of recklessness shown by Pellizzon as demonstrated by these facts was very high and involved a marked indifference for the lives and safety of others.

He showed a complete disregard for members of the public including pedestrians, schoolchildren, other users of the highway and the police. His acts of driving were intentional and deliberate and were extremely dangerous to members of the public and the police. His failure to stop his vehicle and his choice to continue to attempt to evade police by avoiding the spike belt and by driving at high speeds and on the wrong side of the highway led to tragic consequences. [28] Regarding the evasion of the police, Pellizzon had numerous opportunities to stop the stolen vehicle he was driving.

He attempted to evade police by driving off at a high rate of speed when he was first approached, almost colliding with one of the police vehicles. On Highway 2 he swerved in front of one of the police vehicles which was attempting to overtake him on two occasions. He further attempted to evade the police by avoiding the spike belt, crossing the median and driving down the wrong side of the highway. [29] The tragic consequences to the victim have been described in more detail elsewhere in this decision. The victim suffered life altering physical and psychological injuries.

In considering this factor I have taken into account the principle set out by the Alberta Supreme Court, Appellate Division in R. v. Mellstrom (1975), 1975 CanLII 1270 (AB CA) , 22 C.C.C. (2 nd ) 472 at p. 486: While the enormity of the tragic consequences of an offence is a factor to be taken into consideration it must not be permitted unduly to distort the consideration of the Court as to the appropriate sentence for the offence committed.

This was a case of criminal negligence causing death and criminal negligence causing bodily harm in the operation of a motor vehicle. [30] In assessing the responsibility of this offender, I have considered the particular circumstances of Pellizzon which have also been described earlier in this decision. The criminal culpability of Pellizzon is significantly high. He had had previous experiences with the criminal justice system. He had committed a crime of stealing a motor vehicle and driving dangerously in or about the Town of Okotoks. He chose to attempt to evade police.

He took intentional and deliberate risks that represented a significant departure from acceptable standards of behaviour and that resulted in tragic consequences and permanent injuries to the victim. [31] The degree of recklessness, the evasion of the police, the intentional and deliberate choices made by Pellizzon, the harm caused to the victim and the circumstances of this offender should place this offence towards the higher range of sentence for this type of offence. (

c) Mitigating and Aggravating Factors -

Section 718.2(a) [32] The main mitigating factor in this case is the early guilty plea. The Crown has suggested a reduction of one-third from the appropriate sentence determined by this Court. While it is true that society has been saved the costs of a trial, it should be noted that there is no suggestion of weakness in the Crown’s case or an unwillingness on the part of the victim to testify. However, in keeping with the principle of restraint in sentencing I will accept the Crown’s position in this regard. Counsel for the Crown also considered the fact that alcohol was not involved.

In the circumstances of this offence, the absence of alcohol is not a mitigating factor. The lack of intoxication underscores the intentional and deliberate nature of this offence. [33] In view of the findings of the Update Pre-Sentence Report, I do not accept the submissions by Defence counsel that Pellizzon has been a model inmate, or that the parole authorities are supportive of his release on the matters on which he is currently incarcerated. In the Psychiatric Report of March 2002, it was found that Pellizzon was not remorseful.

However, the updated Psychiatric Report in April 2003, indicated that Pellizzon appeared to demonstrate remorse for the injuries to the victim and the suffering he has caused to the victim’s family. At the same time, the Update Pre-Sentence Report prepared in March 2003, clearly indicates that Pellizzon is not

remorseful. The early guilty pleas are some indication of his remorse as are his comments in addressing the Court. I have also taken into account the facts that Pellizzon is twenty-one years of age, that he has demonstrated some academic potential, and that he may respond favourably to treatment programs over time. [34] There are several aggravating factors.

The facts that Pellizzon was driving dangerously and caused bodily harm while evading the police are elements of the offence that have been considered in assessing the gravity of this offence, and should not be considered further as aggravating factors. [35] However, Pellizzon’s criminal record is an aggravating factor as it relates to his character and to the extent that he should not have the benefit of any reduction from the appropriate sentence based on good character. Also, it should be noted that Pellizzon has a prior driving conviction under section 252(1) (

b) of the Criminal Code . [36] I have also considered as an aggravating factor that these offences occurred while Pellizzon was subject to two Probation Orders and a Peace Bond under

section 810 of the Criminal Code to keep the peace and be of good behaviour. [37] Lastly, it is an aggravating factor that Pellizzon was driving a stolen vehicle at the time of and during the commission of this offence. (

d) Similar sentences on similar offenders for similar offences committed in similar circumstances -

Section 718.2(b) [38] Neither counsel for the Crown or the Defence presented any authorities decided directly under

section 249.1(3) of the Criminal Code . Counsel for the Crown submitted several cases involving criminal negligence causing bodily harm involving police chases, criminal negligence causing death and dangerous driving. The Crown argued that each case, although not exactly on point, had some similarities and instructive value to the present case. [39] Because there are no case authorities directly on

section 249.1(3), I have reviewed these cases decided under other sections of the Criminal Code , bearing in mind the similarities and differences to the facts in the present case, in order to arrive at an appropriate sentence. [40] Two types of offences where “flight from police” cases have been previously prosecuted are dangerous driving causing bodily harm pursuant to section 249(3) of the Criminal Code and criminal negligence causing bodily harm pursuant to

section 221 of the Criminal Code . This new offence pursuant to

section 294.1(3) incorporates the element of evasion of police with an increased maximum punishment of up to fourteen years imprisonment. [41] Counsel for the Crown referred to R. v. Singh (K.) , supra , a 1995 decision of the Alberta Court of Appeal in which the Court upheld a sentence of seven years imprisonment and a ten year driving prohibition for the offence of criminal negligence causing bodily harm in which the victim was a police officer.

The facts involved attempting to evade police, excessive speed, running red lights, and injuries to a police officer who was caught partly inside and partly outside the accused’s vehicle during the chase. The case was characterized by a callous disregard for the well-being of the officer who had not fully recovered from her injuries at the time of the appeal. [42] The Ontario Court of Appeal in R. v. Keevil , [2003] O.J. 112 (QL) referred to R. v. Singh (K.) , supra .

This case involved a police pursuit of twenty minutes duration with significant danger to the police and which resulted in a permanent disability being suffered by one of the officers. The offender had been charged with aggravated assault endangering life arising from these facts and the Ontario Court of Appeal upheld a sentence of seven years imprisonment for this particular criminal conduct. The offender had also been charged with other offences, including break and enter and possession of a stolen vehicle.

The trial judge had determined that a total sentence of nine and one-half years was appropriate, and after giving credit for pre-trial custody, sentenced the offender to seven years and nine months imprisonment. The Ontario Court of Appeal reviewed the overall sentences imposed and upheld the trial judge’s application of the totality principle. [43] The Crown also cited R. v. Konkolus , supra , in which an accused who had a lengthy driving record was convicted of criminal negligence causing death. He was sentenced to a total of seven years imprisonment.

In upholding this sentence, the Alberta Court of Appeal commented that it was almost impossible to describe a typical case of criminal negligence in the operation of a motor vehicle

because each case had unique features. The Court of Appeal found that the cases differed substantially in terms of the degree of disregard for life and that that was the key sentencing factor for the offence [ R. v. Konkolus , supra at p.222]. This case did not involve flight from police. [44] In R. v . Bohaychuk, [1997] A. J. No.1112 (QL) , the Alberta Court of Appeal upheld a sentence totalling five years imprisonment for several offences including dangerous driving. The offences arose out of two incidents, one involving a police chase and one involving a hit-and-run.

The accused was a repeat offender. [45] Both counsel for the Crown and the Defence referred to R. v. Collins , supra. The accused was involved in a short police chase. He drove at a high rate of speed through two red lights and on the wrong side of the road. He drove over a curb and collided with a young woman at a bus stop. The young woman was seriously and permanently injured, suffering the loss of both legs. The accused had no prior criminal record. The Court of Appeal upheld the sentence of four and one-half years imprisonment and reduced the driving prohibition from ten years to four years.

The Court emphasized general deterrence and the need to convey a clear message that the type of conduct engaged in by the accused would not be tolerated and would be dealt with strictly by the courts. [46] R. v. Tkachuk (10 October 2001), Edmonton, ABCA 243 (Alta.C.A.)[unreported], was also referred to by the Crown. This was a case of criminal negligence causing bodily harm where the Alberta Court of Appeal upheld the trial judge’s decision to reject a joint submission and impose a sentence of three years imprisonment plus a ten year driving prohibition.

In this case, the accused had decided to kill himself by driving his vehicle into an on-coming vehicle. The Court of Appeal reviewed a number of factors considered relevant on sentencing and gave an indication of what should be a fit sentence in those circumstances. Since the Crown did not appeal the three year sentence, the Court of Appeal stated that it would not interfere with it. [47] The Crown referred to R. v. Laxdal , [1992] M.J. No. 71 (QL) a decision of the Manitoba Provincial Court - Criminal Division, for the principles of general deterrence and the protection of the public.

In this case the accused was involved in a fifteen minute, high-speed police chase. At one point he dragged a police officer who sustained injuries. The court found that the appropriate sentence for the offence of criminal negligence causing bodily harm on the circumstances of that case was two years imprisonment and a five year driving prohibition. [48] Counsel for the Defence relied on these same cases to argue that these cases demonstrated a wide range of sentences. Counsel referred to R. v. Hindes (S.C.) , supra , that each case must be decided on its own facts. He argued that R. v.

Konkolus , supra , should be distinguished on its facts because it was a case of criminal negligence causing death. He also argued that R. v. Collins , supra, was more applicable to the present case. In that case the accused was charged with criminal negligence causing bodily harm. There had been a short high-speed chase police chase and the victim suffered serious and permanent injuries. The accused had no prior criminal record.

The Court of Appeal upheld a sentence of four and one-half years and imposed a driving prohibition of four years. [49] Defence counsel also referred to additional cases to demonstrate the range of sentences that have been given in similar cases and in support of his submissions on sentence. In R. v. Michael , [1985] A.J. No. 271 (QL) , the Alberta Court of Appeal was dealing with the offence of criminal negligence in the operation of a motor vehicle. There was a police chase but there were no injuries involved. The offender had recently been sentenced to six months imprisonment for dangerous driving.

The Court of Appeal reduced the sentence from two years imprisonment to one year imprisonment to be served consecutively to the six months sentence already being served. [50] In R. v . Murphy , 1993 ABCA 29 (CanLII) , [1993] A.J. No. 37 (QL), the Alberta Court of Appeal was dealing with offences including dangerous driving and a repeat offence of driving while disqualified. A police chase was involved but there was no indication of bodily harm or injuries. The Court had ordered a global sentence of fifteen months and a five year driving prohibition. [51] In R. v. Adel , [1993] A.J.

No. 1008 , the Alberta Court of Appeal considered a number of charges including dangerous driving and failure to remain at the scene of an accident. Apparently a police chase was involved but there was no indication of bodily harm or injuries. The Court considered the global effect and reduced the overall sentence from five years imprisonment to four years imprisonment. [52] The foregoing cases may be distinguished on the basis that there were no injuries or bodily harm to others resulting from the criminal conduct.

[53] In R. v. Clarke , [1994] Alta.D 7165-03, in the Court of Queen’s Bench of Alberta, the accused was convicted of several offences including dangerous driving causing bodily harm and a .08 offence. He had a previous impaired driving conviction. Two of five passengers in his vehicle suffered injuries in the accident that occurred. After considering mitigating factors the Court awarded a global sentence of twelve months. [54] In R. v. Morrison , [1993] A.J.

No.779 , the Alberta Court of Appeal imposed a sentence of two years less one day followed by probation plus a five year driving prohibition, to take effect upon release from the custodial sentences. The offences included dangerous driving causing bodily harm and leaving the scene of an accident, which was described as a serious injury accident. [55] In R. v. Cartwright , [1995] A.J. No. 677 , the Alberta Court of Appeal imposed a sentence of three years, plus a five year driving prohibition for dangerous driving causing death. [56] Defence counsel also referred to R. v. Hindes , supra, and R. v.

Reddon , [1998] A.J. No. 1248 , where in the particular circumstances those cases, the Courts were prepared to consider conditional sentences for the offences of dangerous driving causing bodily harm. [57] I have considered all of the foregoing in order to appreciate the range of similar sentences on similar offenders for similar offences committed in similar circumstances and to apply this principle of sentencing. (

e) Imprisonment or Other Sanctions - Sections 718.2(d) & (e) [58] I am satisfied from a review of the case authorities and the circumstances of this offence and of this offender that the only reasonable and appropriate sanction for Pellizzon is a period of imprisonment in excess of two years. Consequently, a conditional sentence will not be considered. (

f) Totality Principle -

Section 718.2(c) [59] The Crown’s position on sentence is that the appropriate sentence should be in the range of seven to ten years. After taking into account the totality principle, the reduction of one-third for the early guilty plea and eighteen months credit for time spent in custody prior to sentence, the Crown submitted that Pellizzon should be incarcerated for a period of three to five years, consecutive to time currently being served.

In all the circumstances of this case, the Crown asked the Court to consider a sentence in the high end of this range. [60] Defence counsel submitted that the Court should take into account the two year term of imprisonment currently being served by Pellizzon in applying the totality principle in order to arrive at the appropriate sentence for the present offences. The term of imprisonment currently being served is for offences unrelated to the present offences.

He argued that by applying the totality principle and considering the range of sentences from the cases cited, the appropriate sentence for these offences should be in the two to four year range and asked the Court to consider the mid-range of three years. After deducting one-third for the early guilty plea and the eighteen months credit for time spent in custody prior to sentence, this would mean a sentence of six months, consecutive to time currently being served. [61] I have taken into account that where consecutive sentences are imposed that the combined sentence should not be unduly long or harsh.

In so doing, I have considered both the effect of the sentence that Pellizzon is currently serving and the appropriate sentences for the five offences for which he is now before the Court. I have applied the principles of sentencing contained in s.718 to 718.2 of the Criminal Code to these five offences in order to arrive at the appropriate overall sentence for these offences. VI. APPROPRIATE SENTENCE

[62] I have considered the intent and context of

section 249.1(3) of the Criminal Code and the various cases cited and submissions made by counsel for the Crown and the Defence. Denunciation, deterrence and the protection of the public and the police are clearly the paramount considerations in this sentencing. Taking into account the degree of recklessness, the attempts to evade the police, the tragic consequences to the victim, and the circumstances of this offender, the appropriate sentence for the offence of dangerous driving causing bodily harm while evading police contrary to

section 249.1(3) of the Criminal Code is seven years imprisonment. [63] After giving Pellizzon a reduction of one-third for the early guilty plea and a further credit of eighteen months for the nine months in custody prior to this sentence, I hereby sentence Derek John Pellizzon to imprisonment for a term of three years and two months, to be served consecutive to time currently being served. [64] For the offence of dangerous driving contrary to section 249(1) (

a) of the Criminal Code , the appropriate sentence for this offence is six months. After the deduction of one-third for the early guilty plea, I hereby sentence Derek John Pellizzon to four months imprisonment, to be served consecutive to time being served and to the other sentences imposed hereunder. [65] For the offence of theft of a motor vehicle valued at under five thousand dollars contrary to

section 334 (

b) of the Criminal Code , the appropriate sentence for this offence is three months. After the deduction of one-third for the early guilty plea, I hereby sentence Derek John Pellizzon to two months imprisonment, to be served consecutive to time being served and to the other sentences imposed hereunder. [66] For the offence of break and enter of a dwelling house and commit an indictable offence therein contrary to section 348(1) (

b) of the Criminal Code , the appropriate sentence for this offence is three months. After the deduction of one-third for the early guilty plea, I hereby sentence Derek John Pellizzon to two months imprisonment, to be served consecutive to time being served and to the other sentences imposed hereunder. [67] For the offence of possession of stolen property of a value not exceeding five thousand dollars, contrary to section 354(1) (

a) of the Criminal Code , the appropriate sentence for this offence is three months. After the deduction of one-third for the early guilty plea, I hereby sentence Derek John Pellizzon to two months imprisonment, to be served consecutive to time being served and to the other sentences imposed hereunder. [68] Therefore, the global sentence for these offences is four years. [69] Additionally, as part of this sentence I have considered the matter of section 259(2)(

b) regarding an Order of Prohibition From Driving. In R. v. Singh , supra and R. v. Tkachuk, supra the Court of Appeal upheld a ten year driving prohibition. The Defence submitted that in R. v. Collins, supra the Court of Appeal reduced the driving prohibition from ten years to four years. All of these cases may also be distinguished on their facts, but it should be noted that in R. v. Collins, supra that the appellant had no prior criminal record. In the cases of R. v. Cartwright, supra , R. v . Murphy , supra, and R. v . Morrison, supra , the Alberta Court of Appeal either imposed or upheld five year driving prohibitions. [70] Applying the principles of sentencing set out in

section 718 to 718.2 of the Criminal Code and giving particular weight to the degree of recklessness involved, the evasion of police, the tragic consequences to the victim, and the particular circumstances of this offender, Derek John Pellizzon is hereby prohibited from operating a motor vehicle on any street, road, highway or other public place for a period of seven years to take effect upon his release from the custodial sentences to which he has been sentenced for these offences. DATED this 3 rd day of April, A.D. 2003 at the Town of Okotoks in the Province of Alberta.

_______________________________ Judge G. M. Meagher Provincial Court of Alberta CORRIGENDUM OF THE JUDGMENT OF THE HONOURABLE JUDGE G. M. MEAGHER In order to comply with s.38(1.1) of the Young Offenders Act , an corrigendum has been issued as follows: Page 4, para. [9] the words “. . . eleven previous findings of guilt as a youth and twenty-two prior Criminal Code convictions as an adult.” have been changed to read “. . . an extensive record of thirty-three prior convictions”.