R. v. Binning Date:, 2012 BCPC 200

Citation: R. v. Binning Date: 20120315 2012 BCPC 0200 File No: 180571-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RAVINDER SINGH BINNING REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. P. HARRIS Counsel for the Crown: C. Pike Counsel for the Defendant: I. Donaldson, Q.C. Place of Hearing: Surrey , B.C. Date of Hearing: February 28, 2012 Date of Judgment: March 15, 2012

[ 1 ] THE COURT : Ravinder Singh Binning has pleaded guilty to the following offences: Count 1, dangerous driving and thereby causing the death of Bakshish Badh, contrary to s. 249(4) of the Criminal Code ; Count 2, dangerous driving and causing the death of Dilbag Badh, contrary to s. 249(4) of the Criminal Code ; Count 3, dangerous driving and thereby causing bodily harm to Varinder Badh, contrary to s. 249(3) of the Criminal Code ; Count 4, having the care or control of a vehicle that was involved in an accident, and knowing that bodily harm was caused, and did, with the intent of escaping civil or criminal liability, fail to stop his vehicle and give his name and address and offer assistance, contrary to s. 252(1.3) (

b) of the Criminal Code . CIRCUMSTANCES OF THE OFFENCES [ 2 ] In the early morning hours of July 12th, 2008, the Badh family left the Dhaliwal Banquet Hall at 82nd Avenue and 128th Street in Surrey, British Columbia. They had been at the hall celebrating the engagement of their daughter, Rupinder. Travelling from the hall was Rupinder, her sister Varinder, and her mother and father, Dilbag and Bakshish.

Rupinder was driving, Varinder was in the front passenger seat, and Dilbag and Bakshish were in the backseat. [ 3 ] Around the time that the Badhs were leaving the hall, Michael Stevanak was travelling home from work and while driving on 76th Avenue and approaching 128th Street, Mr. Stevanak noticed a white car with bright headlights following closely behind him. On reaching 128th Street, Mr. Stevanak turned left to travel north on 128th Street. The white car followed him. Immediately after turning, Mr.

Stevanak saw police cars with their emergency lights on and they appeared to be dealing with some unknown incident. Upon noticing this, Mr. Stevanak observed that the white car dropped considerably back. He did not notice the white car again until just before the collision. [ 4 ] As Mr. Stevanak passed 84th Avenue in the fast lane, he saw the white car approaching him from behind at a high speed. Mr. Stevanak saw the Badh's vehicle in the slow lane, travelling at an estimated speed of 60 kilometres per hour. Mr. Stevanak estimated that he was travelling slightly faster than the Badh's vehicle. As Mr.

Stevanak got closer to the Badh's vehicle he thought that the white car was approaching too fast and that it had nowhere to go. Mr. Stevanak believed that the white car was going to hit his car or the Badh's vehicle. Accordingly, he steered to the left, taking his vehicle out of the lane of travel and into the centre of the roadway. [ 5 ] Rupinder also noticed the fast-approaching white car. She made this observation when her vehicle was beside Mr. Stevanak's vehicle. It was Rupinder's perception that the white car was travelling really fast and speeding up.

Before Rupinder could react or warn her family, the vehicle was struck on the left rear bumper. At the time of the collision the white car was being driven by the offender and straddling the white dividing line that separated the northbound slow and fast lanes. Engineers estimated that the offender was travelling between 105 and 120 kilometres per hour when he collided with the Badh's vehicle. [ 6 ] The force of the impact caused severe damage to the left, rear bumper and quarter panel of the Badh's vehicle. The left, rear tire crumpled under the frame and ceased rotating.

The impact caused the speed of the Badh's vehicle to increase and it rotated clockwise as it travelled in a north-easterly direction. The car then mounted the sidewalk and the middle, driver's side of the vehicle impacted a utility pole. Photographs show that the pole intruded into the passenger's compartment by approximately two-and-a-half to three feet. Bakshish was ejected out of the rear window, and Dilbag was killed almost instantly. Varinder was seriously injured and unconscious.

Rupinder was slightly injured and conscious. [ 7 ] Immediately after the accident, Rupinder exited the car by climbing through a window. She saw her mother lying in the street and she went to help. She detected a faint pulse. Rupinder starting screaming at her mother to keep breathing. She then went to her car and checked on her father. It was clear to her that her father had passed away. She then went to her sister and tried to get her to wake up. Varinder was bleeding from the ear, her eyes were partially opened, and she seemed dazed and confused.

At this stage, other motorists stopped to help. [ 8 ] As for the white car, the impact with the Badh vehicle caused it to rotate clockwise until it was travelling approximately sideways in the fast lane. The driver's side tires then caught on the road surface, flipping the white car onto the driver's side. The car then skipped off of the driver's side, causing it to become airborne. The car landed on its roof and slid down the roadway, stopping approximately 90 metres from the Badh's vehicle. [ 9 ] When the white car was sliding on its roof, the rear end of the car struck the passenger's side of Mr.

Stevanak's vehicle. Thereafter, Mr. Stevanak brought his car to a controlled stop just north of the white car. [ 10 ] Mr. Stevanak called 9-1-1 as he was getting out of his car. He estimates that it took him 45 seconds to a minute to make it to the white car. He looked in the white car, but the offender had already exited and fled the scene. [ 11 ] The location where the accident happened is a straight, flat roadway with two divided lines for north traffic and two divided lines for south traffic. The speed in the area is 60 kilometres per hour. At the time of the accident the road was dry and free of defects.

The surrounding area was primarily light industrial businesses with 128th Street being a frequently-used roadway. [ 12 ] Police investigation determined the accident happened at approximately 1:30 a.m., and at 1:32 a.m. until 2:27 a.m. the offender's cell phone was making and receiving calls and text messages.

The cell tower data suggests that some of these calls were made when the offender was moving away from the accident location. [ 13 ] Varinder was taken from the scene to the hospital where it was determined that she had lung contusions, rib fractures, basal skull fractures, and multiple fractures to her vertebrae at the C7, T1 and T2 vertebral levels. She spent several weeks in hospital. My understanding is she suffers from constant pain.

She has undergone various surgeries and she suffers from permanent hearing loss. [ 14 ] After a long police investigation, the offender was arrested and charged on June 17th, 2010. He remained in custody for 83 days and was released on bail with conditions prohibiting him from driving, as well as placing him on a curfew. The matter was scheduled for trial; however, on the day before the start of the trial the offender indicated that he would be pleading guilty.

VICTIM IMPACT [15] Twenty-one victim impact statements have been filed. I have read each and every one of them. I have also carefully listenedto and watched Tejinder Badh, Rupinder Badh and Varinder Badh as they bravely and with much emotion read their victim impactstatements. It is difficult to find words that adequately describe the pain, suffering and deep sadness that is felt by the Badh family.

From what I have read, it is clear that a once productive, happy and bright family has been forced into deep darkness with the deaths ofBakshish and Dilbag. [16] It is also clear from those affected by the deaths of Bakshish and Dilbag that they have not only lost support and guidance,they have lost the centres of their family, centres which have brought, held and unconditionally supported all. Such a loss not onlyimpacts the immediate Badh family, but it will undoubtedly have an impact on future generations.

CROWN'S SENTENCING POSITION [17] Crown argued that the purposes and principles of sentencing, as well as the facts and circumstances of this case, mandate atotal sentence of five years with a lifetime driving prohibition.

DEFENCE SENTENCING POSITION [18] The defence argues the sentence should be proportionate to the gravity of the offence and the offender's degree ofresponsibility, and when one considers that the accused has, by his arrest, charge and the associated publicity, suffered some measure ofdenunciation and deterrence, that a fit, appropriate and just sentence is incarceration for two years for the driving offences and a one-yearconsecutive jail sentence for leaving the scene of the accident. [19] As for a driving prohibition, defence argues that a "massive" driving prohibition is not required.

He argued that the accusedwas a professional driver, he has stopped drinking, he voluntarily stopped driving effective March 2009, and that the driving record doesnot disclose a pattern requiring such a long prohibition. Accordingly, defence argues that a three-year driving prohibition would be fitand appropriate. Defence does not oppose the DNA order. OFFENDER'S CIRCUMSTANCES [20] The offender was born August 1st, 1982. He is now 30 years old. He is single and has no dependents. He came to Canadawith his family when he was 12; his parents returned to India in 1999.

The offender stayed in Canada, living with his sister and brother-in-law and their two children. The offender has one course left in order to complete his GED. At 17 he worked as a meat packer forabout seven years. He then worked at his brother-in-law's trucking company for four years. Since he is no longer able to drive, he hasnot continued driving as a professional truck driver. In terms of other activities, the offender attends temple where he worships andvolunteers. He plays basketball and regularly attends the gym.

His health is good and he has no addictions. [21] At the time of the offence the offender did not have a criminal record. He was on a recognizance of bail from Ontario, withhis brother-in-law being his surety. With respect to his driving history, the accused has seven 24-hour prohibitions. These includeprohibitions which occurred in September 2008 and October 29th, 2008. In October 2004 he pled guilty to the offence of failing to giveinformation about an accident.

Prior to July 2008 the offender had been prohibited from driving on six occasions, and after July 2008 hehad been prohibited from driving on three occasions. I recognize that some of these prohibitions were likely triggered by his 24-hourprohibitions as well as the events of March 2009. [22] With respect to the events of March 2009, Crown points out that the offender was arrested and charged with various offences. With respect to this incident, police saw a vehicle that was being driven by the offender. It was noted that the vehicle was weaving onthe roadway.

The police stopped the vehicle, and after a brief interaction with the police the accused drove off. This resulted in apursuit. During the pursuit the offender's vehicle left the roadway, colliding with a fence. The offender exited, ran from his vehicle, andthe police chased on foot. When the police reached the offender, a struggle occurred. These events occurred in the immediate area ofwhere the offender had caused the death of the Badhs. [23] On January 12th, 2010, the offender was sentenced for offences related to the March 2009 incident.

I acknowledge and I amaware that I am not sentencing the offender for the offences that occurred in March 2009. I have simply included them in my reasonsbecause as stated in R. v. Johnson (BC SC), 1998 BCJ No. 1542 at page 3: The fact that a person convicted of an offence has, since the date of that offence, committed similar offences, cannot be regarded asirrelevant to the sentencing process.

Other similar offences, whether committed before or after that for which an accused is beingsentenced, may well be of considerable importance in determining the character of the accused, the extent, if any, to which there hasbeen rehabilitation, the likelihood of rehabilitation in the future, the extent to which the accused is likely to be deterred by the fact ofconviction, brief incarceration or term of probation, and to some extent a factor related to all of these, the extent to which imprisonment isappropriate for the protection of the public against the commission of further similar offences by the accused. [24] Eighty-four reference letters were filed on behalf of the offender.

I have read each and every letter and I have consideredthem. They speak primarily to seeing a change in the offender since his arrest in March 2009. THE PURPOSES AND PRINCIPLES OF SENTENCING [25] The purposes and principles of sentencing are set out in s. 718 of the Criminal Code: The fundamental purpose of sentencing is to contribute, along with crime prevention initiates, to respect for the law and the maintenanceof a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct;

(

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community. [26] The fundamental principle of sentencing is found in s. 718.1: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [27] Pursuant to s. 718.2, the provisions that are relevant to these proceedings are: A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to theoffence or the offender, and, without limiting the generality of the foregoing, (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders,with particular attention to the circumstances of aboriginal offenders.

Accordingly, it is my duty to draw upon all the principles of sentencing and determine a just and appropriate sentence that isproportionate to the gravity of the offence and the moral blameworthiness of the offender, all the while ensuring that I do not impose asentence that is unduly harsh and the least restrictive that is appropriate in the circumstances. [28] How moral blameworthiness factors into sentencing is discussed by the Supreme Court of Canada in R. v.

M.C.A., (SCC), 1996 1 SCR 500 at para. 79: The mental state of the offender gives rise to the moral blameworthiness which justifies the state in imposing the stigma and punishmentassociated with a criminal sentence. I submit that it is in the same element of moral blameworthiness which animates the determinationof the appropriate quantum of punishment for a convicted offender as a just sanction. [29] Guidance on the issue of moral culpability was offered by Chief Justice Finch in R. v.

Bhalru, 2003 BCCA 645 at para. 28: The level of moral culpability is determined in part by considering the intentional risks taken by the offenders, the degree of harm thatthey have caused, and the extent to which the conduct deviates from the acceptable standards of behaviour. (See C.A.M. supra, para. 80,R. v. Johnson 1996 112 CCC (3d) 25, paras. 33 and 84.) [30] In this case I find the offender's level of moral culpability to be high.

The offender, who has experience as a professionaldriver, intentionally undertook the action of driving at 45 to 60 kilometres per hour above the speed limit in circumstances where he hada clear view indicating that his pathway was blocked by slower-moving vehicles. Despite this obvious risk, the offender continueddriving at a high rate of speed. He then straddled both lanes with the result that the collision occurred. [31] After what was a horrific collision, and with Rupinder screaming, the offender fled the scene. In hand he had his cellulartelephone.

He did not call for help; rather, and within approximately 150 seconds of the collision, he started calling family and friends. As for the gravity of the offences, it is trite to say that all the offences that the offender has pleaded guilty to are serious. [32] The concept of denunciation is explained at paragraph 81 of R. v. M.(C.A.), supra: The objective of denunciation mandates that a sentence should also communicate society's condemnation of the particular offender'sconduct.

In short, a sentence with a denunciatory element represents the symbolic, collective statement that the offender's conductshould be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. Our criminallaw is also a system of values.

A sentence which expresses denunciation is simply the means by which these values are communicated;in short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a mannerwhich positively instils the basic set of communal values shares by all Canadians as expressed by the Criminal Code. [33] The primary sentencing objectives in cases involving dangerous driving causing death and fleeing the scene of the accidentare denunciation and deterrence.

This is because the moral blameworthiness of the offender is great, and therefore the sentence mustexpress society's condemnation. Moreover, denunciation and deterrence is an important sentencing objective in this particular casebecause, like drinking and driving causing death or bodily harm, the offence of dangerous driving is easily avoided and easilycommitted. Finally, this community frequently experiences tragic and horrific collisions that are not mere accidents, rather they arecrashes caused by criminal conduct.

It is for all these reasons that I must impose a sentence that reflects denunciation and deterrence. [34] Counsel for the offender argues the amount of denunciation and deterrence required should be tempered by the intense mediaattention surrounding this case. It is counsel's argument that the media attention has partially served the function of denunciation anddeterrence. While in certain cases intense media attention can be considered in sentencing, I am of the view that this is not one of those

cases. I say this because of the nature of the case, specifically, a horrific crash on a public roadway, the death of two innocent persons who have a large family, will always attract media attention. Further, it is likely that any media attention was heightened because of the offender's actions of fleeing the scene. Moreover, while I accept there has been media coverage on this case, I only have defence counsel's submissions that it was intense.

There is no evidence showing that it was somehow outside of what would be normal in this type of case. [ 35 ] An additional sentencing objective that is relevant in the factors of this case, and given the circumstances of this offender, is the principle of specific deterrence. I am of this view because of the offender's driving record which includes an offence for failing to give information about an accident. AGGRAVATING CIRCUMSTANCES [ 36 ] In the circumstances, I find the following to be aggravating: 1. The factual circumstances leading to the collision.

In this regard I take defence counsel's point that the driving in this case is not as extreme as the driving disclosed in R. v. Antunes, 2012 BCCA 104 , and R. v. J.A.W ., 2006 BCJ No. 112 . Despite this, I find the offender's driving in this case not to be at the lower end of the scale. This is because the offender was travelling between 105 kilometres per hour and 120 kilometres per hour in a 60-kilometre-per-hour zone. Further, he was travelling at this high speed while approaching vehicles that were clearly visible and moving at a much slower speed than his vehicle.

Moreover, he drove in this fashion while straddling the two northbound lanes. Finally, there was no evidence that the offender tried to slow his vehicle in these circumstances. 2. At the time of the offence, the offender was an experienced professional driver with a Class 1 driver's licence. He had four years experience driving 18-wheel tractor-trailers. Given these qualifications and his experience, I expect he had a heightened awareness with respect to the substantial risk associated with the driving that he displayed on July 12th, 2008. 3.

On July 12, 2008, the offender was bound by a recognizance of bail from Ontario. 4. The harm caused was extreme. Not only did the offender's action cause substantial property damage, but he also directly caused the death of two innocent persons as well as significant physical harm to Varinder Badh. 5. The offender's driving record. Prior to the accident, the offender had received four 24-hour roadside prohibitions. After the accident he received three 24-hour prohibitions.

In addition, the offender had Motor Vehicle Act convictions for speeding, failing to give information about an accident, drive without due care and attention, and illegal pass on a laned roadway. I appreciate that some of the entries are dated. In my view, the offender does not take his responsibilities as a driver seriously. Moreover, the horrific events of July 2008 were not sufficient to trigger a change at that time in his driving behaviour. 6.

It is aggravating that when the offender fled the scene, and even though he had a cellular telephone with him, he did not call emergency personnel to help those at the scene; rather, he chose to call friends, associates and family. MITIGATION [ 37 ] Crown has argued that there are no mitigating factors. After considering the submissions of defence counsel, I find the following to be mitigating: 1. Since the arrest of the offender he has been bound by a curfew to be inside his residence between 7:30 p.m. until 6:00 a.m. daily. He was also bound by a condition preventing him from driving. 2.

As of March 2009, the offender has stopped drinking. This action shows a willingness to address his driving record as it relates to alcohol. 3. The offender pleaded guilty to the charges. I see this as having some mitigation on sentence. Defence counsel urged this court to give the guilty plea substantial weight in mitigation. I have declined to do so because the pleas were very late. In this regard, notice of the pending guilty pleas was given less than 12 hours before the trial was scheduled to have commenced. Crown had already prepared for trial.

The Badhs were ready to testify, and an expert witness had been flown in to the jurisdiction. In addition, I note the case against the offender on the charge of leaving the scene of the accident was quite strong; specifically, his cellular phone was active just before the accident and it was active just after and in the area of the accident. His keys to his house were on the keychain with the ignition key which was left in the ignition. Finally, the offender's blood and DNA were found on the deployed airbag and on a piece of interior trim.

I have attributed some mitigation to the guilty pleas because they have saved the state the time and expense associated with what was scheduled to be a lengthy prosecution. Further, it is also a waiver of the offender's constitutional right in making the state prove the case against him beyond a reasonable doubt. Finally, because and most importantly, it has saved the Badhs the emotional pain associated with a trial. 4. At the time of the offence the offender did not have a criminal record and he is a person with substantial support as evidenced by the letters that have been filed on his behalf. 5.

Defence counsel argues his client has genuine remorse and this should be mitigating. I have carefully considered this submission, and it is my view that the offender has not demonstrated genuine remorse for his conduct. I say this for the following reasons: 1. If the offender was truly remorseful for his dangerous driving, then he would not have left the scene. ( R. v. Gill 2010 BCCA 388 ) 2. If the offender was genuinely remorseful for his conduct, then he would not have fled the scene of the accident in March

2009, nor would he have been involved in the events of that date, all of the events which started on 128th Street and were within a block of where the July 2008 accident occurred. 3. Although the offender's statement in court appeared to convey remorse, it did not appear to be genuine. The offender described the events as an accident. He spoke primarily to the difficulties that he was suffering as a result of the events, and he even stated that the accident could have happened to anyone.

He did apologize to the Badh family; however, such an apology lacks substance when it is couched with terms like "accident" and statements such as, "It could have happened to anyone.” RANGE OF SENTENCES [ 38 ] I have carefully reviewed the authorities provided by counsel. They are of some assistance; however, I am mindful that sentencing is an individual exercise which takes into account the unique circumstances of each case and each offender. For dangerous driving causing death, the authorities support a range of sentences of 12 months to four years. (See R. v. Kwasnica 2006 BCSC 2037 , R. v.

Berner 2010 BCPC 305 , R. v. Scott 2009 BCJ No. 1491 , R. v. Prasad 2006 BCCA, R. v. Antunes , 2012 BCCA 104 .) [ 39 ] The range of sentences for leaving the scene of an accident is four months to 18 months. (See R. v. Gill 2010 BCCA 388 , R. v. Prasad 2006 BCCA 479 , R. v. Hutchinson 1999 BCJ No. 1649 , R. v. Lisi 2001 BCCA 559 .) CONCLUSION [ 40 ] I find the main sentencing objectives to be denunciation, general deterrence and specific deterrence. I find the offender's moral blameworthiness to be high, and the gravity of the offences to be high.

Had it not been for the mitigating factors identified, I would have been inclined to impose a higher sentence. [ 41 ] Accordingly, and after considering the submissions of counsel, all of the materials filed, and the relevant law, I find that a fit and appropriate sentence is as follows: Count 1, dangerous driving causing the death of Bakshish Badh, three years; Count 2, dangerous driving causing the death of Dilbag Badh, three years; Count 3, dangerous driving causing bodily harm to Varinder Badh, three years. Counts 1, 2 and 3 will be served concurrently.

Count 4, failing to stop at the scene of an accident, 18 months, less credit for pre-trial custody of six months. Count 4 will be served consecutively to Counts 1, 2 and 3. [ 42 ] With respect to a driving prohibition, I partially agree with defence counsel that the circumstances do not require a lifetime prohibition. Having said that, I do not see the offender as having voluntarily stopped driving for the last three years. His record shows that since April 2009 there has been an almost continuous driving prohibition with the exception of a break between April 2010 and June 2010.

Thereafter, there were conditions of bail which prevented him from driving. As such, and bearing in mind his age, the legal principles, the authorities, he will be prohibited from driving on Counts 1, 2 and 3 for a period of ten years. [ 43 ] I will make the DNA order as sought by Crown. [ 44 ] Victim fine surcharge is waived on all counts. [ 45 ] MR. PIKE: The one question the Crown has is whether that ten years is plus the four years, so a 14 total, in other words. The Crown understands Mr.

Binning will now be serving four years jail, which is the totality of your sentence that's left. [ 46 ] THE COURT: Yes. [ 47 ] MR. PIKE: And Your Honour's driving prohibition begins today. [ 48 ] THE COURT: Ten years, commencing today. (REASONS FOR SENTENCE CONCLUDED)