R. v. Z.I.N. Date:, 2012 BCPC 76

Citation: R. v. Z.I.N. Date: 20120126 2012 BCPC 0076 File No: 17989-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Z.I.N. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R.P. HARRIS Counsel for the Crown: W. Sayson, Q.C. & D. Lloyd Counsel for the Defendant: T. Ellan Place of Hearing: Surrey , B.C. Date of Hearing: January 26, 2012 Date of Judgment: January 26, 2012 [ 1 ] THE COURT : I thank counsel and those present for returning this afternoon; although my reasons may not be as clear as I would have hoped.

There are several reasons why I am of the view that it is in the best interest of all those present to complete this matter today. [ 2 ] Those reasons are: 1. It has been almost three years since this tragic event. The community, the victims, all those need to take another step towards healing as soon as possible. 2.

Section 3(1)(d)(ii) of the Youth Criminal Justice Act states "victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the Youth Criminal Justice System." To prolong would prolong the inconvenience. As well, pursuant to s. 38.2(b)(d), the Youth Criminal Justice Act is clear that there is utility in timely interventions to youths.

Accordingly, it is for these reasons that I have elected to give an oral decision this afternoon, rather than a written decision. [ 3 ] Z.N. has pled guilty to two counts of dangerous driving causing death. In arriving at a fit and appropriate sentence, and a

sentence that is consistent with all the principles and purposes enshrined in the Youth Criminal Justice Act, I have carefully considered the harm suffered, t he circumstances of the offence, the circumstances of the accused, the pre-sentence report, all the letters of reference, provisions of the Youth Criminal Justice Act , the case law that has been filed, and the helpful submissions of counsel. INTRODUCTION: [ 4 ] This is a sentencing hearing where the court must dispassionately consider all factors related to the imposition of a sentence.

I say dispassionately because courts are required to apply the law and the facts and the particular circumstances without being influenced by the natural emotions that a case such as this evokes. It must be remembered and recognized, on February 17th, 2009 the world, this community and the M. family lost two human beings, R.M. and S.M., and as precious as they are, nothing that I say or do or the sentence that I impose will ever change that. [ 5 ] Second, the sentence that I impose is in no way a reflection of the priceless value of S.M. and R.M.'s lives.

There is no sentence I can impose that would adequately reflect their value to all those in the community. CIRCUMSTANCES: [ 6 ] On February 19th, 2009 the accused, then 17 years of age with a learner's driver's licence, decided to take his father's Infinity QX4. He did this without permission. He wanted to take it to school to show off to his friends. His actions were contrary to the restrictions on his learner's licence.

At school he met his friends, drove them to a local McDonald's, and then dropped off his friends with one remaining with him in the vehicle. [ 7 ] Just before the accident, Z.N. and his passenger were travelling northbound on 132nd Street approaching 60th Avenue in Surrey. About 200 metres before this intersection is a sign warning about the approaching stop sign, that is, the stop sign at the intersection of 132nd Street and 60th Avenue. Z.N. was not familiar with this area. The intersection of 132nd Street and 60th Avenue was controlled at that time by stop signs on each corner.

This is commonly referred to as a four-way stop. [ 8 ] As Z.N. approached the intersection, S.M. and R.M. were facing south on 132nd Street at 60th Avenue. After stopping, she gently accelerated and started a left turn in order to travel eastbound on 60th Avenue. Z.N.'s vehicle entered the intersection without stopping and when he entered that intersection his passenger shouted, "Stop, stop, stop." Z.N. tried to brake and swerve in order to avoid the collision. His actions were futile and the front of his vehicle collided with the passenger door of the M. vehicle.

At the point of impact, speed was estimated by an engineer to be between 67 kilometres per hour and 77 kilometres per hour. The speed limit in the areas was 60 kilometres per hour. The impact resulted in catastrophic damage to the M. vehicle and massive injuries to the M.'s. Both passed away at the scene. [ 9 ] Prior to police attending, Z.N. and his passenger got out of their vehicle, ran to the M. vehicle and wanted to help. They were told to stay away. It was reported that they were clearly distraught and upset. [ 10 ] Z.N., in his pre-sentence report, recalls going to the M. vehicle, trying to help out.

He stated he recognized R.M. from school. He said that R.M. had been thrown onto S.M. He said that he started trying to pull R.M. out of the vehicle, but as more and more people came to the scene he stepped aside. [ 11 ] It is this court's view that this is consistent with all the evidence. It is clear that in the chaotic scene when witnesses say he went to help but was told to step back, that this is likely the point and time that Z.N. approached the vehicle with the intention of helping R.M. out of the vehicle. [ 12 ] Police arrived on scene shortly thereafter. Z.N. identified himself to Cst.

Kumar as the driver of the Infiniti and he immediately asked after the M.’s. The officer placed Z.N. into the rear of his police cruiser. It was around this point in time that Z.N. deceived the police officer, claiming his mother had been in his vehicle but had left the scene. This deceit is explained in part but not justified by his age, the horror of the events that had transpired, and impulsivity. This deceit, by all materials filed, was clearly out of character for Z.N. BACKGROUND OF Z.I.N: [ 13 ] Now 20 years of age, he comes from a loving and supportive family.

His parents are immigrants from Fiji who have worked hard to provide a stable, supportive, and loving environment to their family. It is clear that Z.N. has been a good son with no significant behavioural problems. As a teenager he excelled at soccer at the highest levels. He helped his father with his work and for a period of time worked at a local fast food restaurant. When the accident happened, Z.N. was a student at a secondary school. However, because of the accident he was told not to return to the school because there was a risk.

The risk was because R.M. had been a student at that school. [ 14 ] Z.N. attempted to return to his previous high school and he was told he was not welcome. In essence, the school system shut down on Z.N. Despite this, he went to a learning centre and completed Grade 12. He has since enrolled in plumbing programs and completed two years of his apprenticeship. [ 15 ] Z.N. is devoted to his Muslim faith and he attends Mosque regularly. He has no criminal history and since the tragic events of February 17th, 2009, he has received three traffic tickets.

Two of those tickets are not for moving violations; they relate to the non- placement of L's or N's on the rear of the vehicle as his licence required at the time. One of the tickets I am satisfied was as the result of a misunderstanding. These tickets have little impact on my decision. [ 16 ] As a result of the accident, Z.N. has been consumed with guilt and remorse. He has had trouble sleeping. He has suffered nightmares. He is aware that he will never forget the events. He has demonstrated awareness and understanding for the pain and suffering that his illegal actions have brought upon the M. family.

He has suffered periodic depression, he has attended counselling, and as a result of his actions and what he has done, he has thought about taking his own life in committing suicide. It is this court's view that he has a high degree of genuine remorse.

[ 17 ] In support of Z.N., several letters have been filed. I intend to touch on a few points within those letters. One: Z.N. is a practicing Muslim. He understands and takes to heart the ethical and moral stances held within Islam. During the month of Ramadan, he is dedicated to praying the very long and additional prayers held during the evening at the local Mosque. His Islamic upbringing as well as the loving environment he was raised made him into a good Muslim and overall decent human being. We all make mistakes and the situation is very sad and emotional. Ultimately, it was an accident.

So much loss has come out of this accident. Z.N. has an entire life ahead of him with a promising future, but he will never forget what happened that ill-fated day. He will carry the emotional and physical burden of his carefree, youthful decision forever. [ 18 ] Next letter: As I got to know Z.N. outside of soccer, he quickly showed me he was a young man who always showed respect and courtesy to others.

He was a well-reserved and humble man who has a lot of support from his family, and I believe Z.N. has a lot to offer society in the future. [ 19 ] A further letter states: This is to certify that Z.N. has volunteered his time helping us during our soccer games on every Sunday from the age of 15 years. He has helped as being as our player and volunteer for the association. He has contributed his own time in doing the volunteer work for the community with the association. His involvement in helping the kids for their soccer matches earned him the respect of not only of the kids but also of the community.

He is well liked and respected both on the field and off the field as well. [ 20 ] A teacher writes: I first met Z.N. when he entered [name of school] as a Grade 8 student. During his five years at [name of school], Z.N. was a member of the senior boys soccer team and a student in my classes. Z.N. was always a very polite and respectful student. In his senior years he became the captain of our team and conducted himself as a positive role model for the younger players on the team. Also as a Grade 12 student, he organized and was responsible for setting up an intramural soccer

schedule which took place during the lunch hour for students in the school. Since his graduation, Z.N. has returned to offer his support as a spectator during many senior boys' soccer games. He has always demonstrated his appreciation for the opportunities given to him, both during the time spent in [name of school] and over the last three years when he has dropped in to say hello. [ 21 ] Those letters and the pre-sentence report make it evident that Z.N. is a good person, who at 17 years of age made bad choices that resulted in a horrific tragedy. THE AFFECT ON THE M.

FAMILY: [ 22 ] I have read the victim impact statements. I expect those statements do not even come close to expressing the deep sadness and the depth of loss that they have suffered and continue to suffer. It is trite to say that their lives have been forever changed and altered. [ 23 ] This community has also suffered a profound loss. It is clear that S.M. and R.M. were valued to all and that they gave so much, not only to their family, but to their community.

CROWN'S POSITION: [ 24 ] It is the Crown's submission that an appropriate disposition is a six-month deferred custody and supervision order pursuant to s. 42(2)(

p) of the Youth Criminal Justice Act . Following therefrom, an 18-to-24-month of probation with a condition of a victim offender reconciliation program, a DNA order, and pursuant to s. 259.2 of the Criminal Code in conjunction with the Youth Criminal Justice Act , a driving prohibition of five years. [ 25 ] In support, Crown has filed cases showing the range in similar situations.

It is clear that that range is a range of deferred custody and supervision order to probation. [ 26 ] Defence submits that in all the circumstances and bearing in mind the Youth Criminal Justice Act , that a probation order of two years, a five-year driving prohibition, would meet all the purposes and principles of the Youth Criminal Justice Act. THE LEGAL PRINCIPLES THAT I MUST APPLY: [ 27 ] Those legal principles are derived from the Youth Criminal Justice Act.

Section 3 states the following: 1) The following principles apply in this Act: (

a) the youth criminal justice system is intended to (

i) prevent crime by addressing the circumstances underlying a young person’s offending behaviour; (ii) rehabilitate young persons who commit offences and reintegrate them into society; (iii) ensure that a young person is subject to meaningful consequences for his or her offence. (

b) the criminal justice system for young persons must be separate from that of adults and emphasize the following: (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity,

[28] As well: (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, (

c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should: (

i) reinforce respect for societal values; (ii) encourage the repair of harm done to victims. [29] Additionally guidance is found in s. 38 of the Youth Criminal Justice Act that sets out the purposes and principles of sentencing.

Section 38.1 states: The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence through theimposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation andreintegration into society, thereby contributing to the long-term protection of the public. The

section continues on at s. 38.2(c) (

c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for thatoffence; (

d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, withparticular attention to the circumstances of aboriginal young persons. And at 38(2)(e): (

e) subject to paragraph (c), the sentence must (

i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him into society, and (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community. [30] 38.3 sets out some factors that a court must take into account when determining a fit and appropriate sentence. Those include: (

a) the degree of participation by the young person...; (

b) the harm done to victims and whether it was intentional or reasonably foreseeable; (

c) any reparation made by the young person to the victim or the community; (

d) the time spent in detention by the young person as a result of the offence; (

e) the previous findings of guilt...; and (

f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose andprinciples set out in this section. [31] As indicated, counsel has filed cases and relied primarily on those cases that have occurred within this region. Turning to thosecases, In R. v. D.J.H. 2004 BCPC at 0508, Judge MacDonald imposed a deferred custody and supervision order for a period of sixmonths, followed by a probation order for two years and a six-year driving prohibition. That was a case where the accused was foundguilty after trial.

The accused was found guilty of two counts of dangerous driving causing death and one count of dangerous drivingcausing bodily harm. [32] Some of the circumstances of that case is the accused was passing another vehicle at 90 kilometres an hour in a 60-kilometre-an-hour zone. The passing was executed on the crest of a hill against a double solid line. In order to avoid a pending oncoming collision,the accused's vehicle swerved to the right, lost control, collided with a rock. The accused at the time of sentencing in that case was 19years of age.

The accused had dropped out of school and was reported in the sentencing materials as being immature and lazy. As well,prior to the sentencing it was reported that he used drugs. [33] That case is substantially different from the case at bar. I say that for these reasons: 1. There was no substantial mitigation of a guilty plea. 2. The review of the facts in that case suggest a higher degree of consciousness and awareness and responsibility. This is based onthe high rate of speed and the passing on the double solid line at a crest of the hill. 3.

My review of Judge MacDonald's case suggests that the young offender in that case required a much greater degree of assistanceand rehabilitation and reintegration than what is present before us today. I say that, based on the finding of Judge MacDonald that theaccused appeared lazy, that he was not working, and that he was in need of counselling. [34] R. v. J.A.N. 2003 BCPC 13 , 2003 BCPC 0013. In that case the accused was convicted after trial. The accused wasconvicted of four counts of dangerous driving causing death; that is to say, four people were killed in that accident. At the time of that

offence the offender was 16 years of age. The offender had driven through a stop sign and was hit by a tractor-trailer. This occurred at abusy intersection. In that sentencing hearing, numerous letters of good character were filed on behalf of the accused. The accused hadno criminal record and the accused had suffered injuries. [35] In handing down the sentence of two years probation and a five-year driving prohibition, my sister Judge Raven said this atparagraph 22: I have considered the provisions of s. 3, 38 and 39 of the YCJA in the context of the circumstances of the offences and the offenderbefore me.

There are no identifiable circumstances underlying N.'s offending behaviour, other than his youthfulness and inexperience asa driver. He did not intend the horrific consequences of his offences. I am satisfied that N.'s rehabilitation and reintegration into societycan be safely addressed through a non-custodial disposition. Meaningful consequences for his behaviour can be better addressed outsideof a custodial facility than inside of a jail.

In the case of a youth with no prior criminal record, stable and supportive family, educationand work opportunities, and every indication that he will comply with community supervision, it is my conclusion that a non-custodialsentence can be construed that is consistent with the principles in s. 38 of the YCJA despite the severity of the offences in this case. Andas of this finding I do not consider making a custodial disposition as a deferred custody and supervision order is a form of a custodialsentence. [36] That case is very similar to the case at bar.

Perhaps one of the significant differences is that in J.A.N. there was a trial and not themitigation of a guilty plea. [37] The next case relied on is R. v. S.M.B. 2003 BCPC 191 , 2003 BCPC 0191. That was a case wherein a trial wasconducted and there was no guilty plea. The collision in that case resulted in the death of three persons and injury to five persons. Afterthe accident the accused used marihuana. The accused never completed school and the accused was unemployed.

In that case, JudgeGrandison sentenced the young person to probation for two years and a five-year driving prohibition. [38] Comparing the circumstances of that case to the case at bar, I note that there was no benefit of a guilty plea, which issubstantially mitigating, as well, it appears that the antecedents of the accused in that case required a greater degree of rehabilitation thanpresent in this case. [39] Turning to the aggravating and mitigating factors in this case. THE AGGRAVATING FACTORS: [40] The accused did not have permission to use his father's vehicle.

The accused engaged in deceit shortly after the accident. Although it is aggravating, I give it lesser weight given his age, the horrific circumstances in the impulsivity of that act. I find itaggravating that he was breaking the terms of his learner's licence, and the substantial harm caused by his actions is also aggravating. THE MITIGATING FACTORS: [41] He has pled guilty to the offences before the court. Case law directs me that in such circumstances that is very mitigating. Thereasons for that are: 1. It saves the state the time and expense associated with prosecuting a case of this nature. 2.

It saves the victims the pain and the suffering associated with a prolonged trial. 3. It is a waiver of the accused's constitutional rights to say to the state, "Prove the case against me beyond a reasonable doubt." 4. It is a demonstration of remorse. 5. I am mindful of submissions of counsel that this was not the earliest-opportunity guilty plea; however, that has been explained bythe change of counsel after this matter had been set for trial. Additionally, I also find his remorse to be in mitigation.

His remorse I find to be genuine and he has demonstrated a deep empathy andunderstanding, and the impact that it has had on all involved. He accepts full responsibility for his behaviour and does not seek tominimize his conduct. [42] Lastly, the accused has a supportive family to assist him. Z.N. is essentially a good person who, acting with youthful impulsivityand with lack of judgment, committed an unlawful act.

This unlawful act was but momentary with catastrophic consequences that willbe felt forever. [43] After considering all that has been said and all the materials, I find that the level of rehabilitation required, coupled with therequirements under s. 38.2(

e) of the Act, that is to impose a sanction that is least restrictive and capable of achieving the purposes ofsentencing in the Youth Criminal Justice Act, namely to provide meaningful consequences that promote a degree of responsibility as wellas assisting with rehabilitation and reintegration into society. [44] Accordingly, pursuant to s. 42.1(

k) I sentence the accused to be placed on probation for a period of two years. Two years is themaximum allowable under law. [45] The following terms and conditions will be on his probation order: Keep the peace and be of good behaviour. Appear before thecourt when required to do so by the court. You are to report by no later than 4:00 p.m. tomorrow, January 27th, 2012 to a youth workerat 201 - 14727 - 108th Avenue, Surrey, British Columbia, and thereafter as and when directed by the youth worker.

You are to residewhere directed by your youth worker and to follow all rules and regulations of that residence. [46] For the first six months of this order you are not to be outside your place of residence between the hours of 10:00 p.m. to 5:00

a.m. unless you have the written permission of your youth worker.

Such written permission must be carried on your person at all times or unless you are in the immediate company of your father, A.N., or your mother, R.N. [ 47 ] While at your residence you must present yourself at the doorway to any peace officer for curfew-monitoring program who attends for the purposes of ensuring your compliance with this condition. [ 48 ] You are to attend school or seek and maintain employment as directed by your youth worker. [ 49 ] You are to have no contact, directly or indirectly, with A.M. or M.M. except at the direction of your youth worker. [ 50 ] You are not to attend within a one-block radius of any residence, place of employment or educational institute known to you to be that of A.M. or M.M. [ 51 ] You are to attend, participate in, and successfully complete such counselling programs that you are directed to by your youth worker.

Such completion must be to the satisfaction of your youth worker. [ 52 ] Within the first 18 months of this order you are to complete 150 hours of community work service at the direction of your probation officer. [ 53 ] If directed by your youth worker, and if A.M. or M.M. consent, you must participate in and successfully complete any justice conference agreement. This completion must be to the satisfaction of your youth worker and the youth justice facilitator. ANCILLARY ORDERS: [ 54 ] Pursuant to s. 487.051(3), Crown counsel is seeking a DNA order, times two.

A DNA order in the circumstances of this case is secondary. For those reasons I must consider that such an order would be in the best interests of the administration of justice. In making this decision I must consider the accused's criminal record, the nature of the offence, the circumstances surrounding its commission, and the impact that such orders would have on your privacy and security of the person. [ 55 ] When I consider these, certainly the administration of justice has an interest in having DNA profiles. I recognize that you have no previous criminal record. The nature of this offence is serious.

The circumstances have one trait that militates towards the DNA order and that was the deceit in placing your mother in the vehicle. I have considered the impact that such an order would have on your privacy and security of person, and in considering your privacy and security of person, I note that there are strict legislative guidelines with respect to how the DNA is to be stored, kept, and the limited purposes for which it may be used for.

I also note that the taking of the sample is minimally intrusive. [ 56 ] Accordingly, I arrive at the conclusion that it is in the best interests of the administration of justice to direct that two DNA samples be taken. Those samples are pursuant to s. 487.051(3), and I direct that you attend the local RCMP station on Wednesday, February 1st, 2012 between the hours of 8:00 a.m. and 4:30 p.m. for the purposes of complying with this direction. [ 57 ] Pursuant to s. 259.2 of the Youth Criminal Justice Act I direct that you be prohibited from driving for a period of five years.

This prohibition commences today and is in effect every day thereafter until the expiration of five years. [ 58 ] I have considered a victim fine surcharge, and in the circumstances of an unemployed youth I do not see it appropriate and I waive the victim fine surcharge. [ 59 ] In closing, I have carefully considered the purposes and principles of sentencing, the degree of rehabilitation, and all the other factors to arrive at the sentence that in the view of this court will achieve all the desired outcomes as set out in the Youth Criminal Justice Act. [ 60 ] I thank all counsel. [ 61 ] MR.

SAYSON: There are some minor matters. [ 62 ] THE COURT: Yes? [ 63 ] MR. SAYSON: Just to confirm that the court sentence applies concurrent to Counts 1 and 2 -- [ 64 ] THE COURT: Yes. [ 65 ] MR. SAYSON: -- for the purposes of JUSTIN. And secondly, if the court could direct that the registry ensure, pursuant to s. 56(1)(c), that a copy of the probation that you just ordered be provided to the parents -- [ 66 ] THE COURT: Yes. [ 67 ] MR. SAYSON: -- who are in attendance. [ 68 ] THE COURT: Yes, I apologize. Pursuant to s. 56(1)(

c) under the Youth Criminal Justice Act I direct that a copy of the pre- sentence report be provided to the parents. [ 69 ] As well, one last thing I neglected to put in the probation order and it is this: At all times that you are outside your place of residence you must carry a copy of this order on your person. I want this order to be a representation and a reminder to you of the offences for which you have been convicted and the tragic consequences that have flowed from them. [ 70 ] MR. SAYSON: The other item is when Your Honour referred to the probation order.

[ 71 ] THE COURT: Yes. [ 72 ] MR. SAYSON: The no go, no contact order, term number 7 in the PSR. [ 73 ] THE COURT: Just a moment. [ 74 ] MR. SAYSON: Tab 11, last page. [ 75 ] THE COURT: Yes. [ 76 ] MR. SAYSON: It concludes "except at the direction of your probation officer and for purposes of the youth conferencing." That way that the -- [ 77 ] THE COURT: You must have a different one than I do because it does not say "and for the purposes --" [ 78 ] MR.

SAYSON: Oh, I'm suggesting that we add that, because -- [ 79 ] THE COURT: I thought I said "except as permitted by your youth worker," that was part of my condition in 7, and a youth worker certainly would direct him to participate in this. So, I think -- [ 80 ] MR. SAYSON: That would cover it. (REASONS FOR SENTENCE CONCLUDED)