R. v. Gill Date:, 2011 BCPC 405

Citation: R. v. Gill Date: 20111212 2011 BCPC 0405 File No: 184511-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KULJINDER SINGH GILL REASONS FOR SENTENCE OF THE HONOURABLE ASSOCIATE CHIEF JUDGE G. S. GILL Counsel for the Crown: C. Pike Counsel for the Defendant: D. Gosal Place of Hearing: Surrey , B.C. Date of Hearing: December 12, 2011 Date of Judgment: December 12, 2011 [ 1 ] THE COURT : Before the court for sentencing on a plea of guilty to Count 2 of the Information is Mr. Kuljinder Singh Gill.

Count 2 having an allegation that he, on the 17th of July 2010, in Surrey, British Columbia, having consumed alcohol in a quantity exceeding a blood alcohol concentration of 80 milligrams percent, did have the care or control of a motor vehicle, contrary to s. 253(1) (b). [ 2 ] The facts underlying this guilty plea are that, on the date in question Mr. Gill was operating his Mustang convertible motor vehicle at or about six o'clock in the evening. It was his birthday. He had been drinking. He drank too much -- [ 3 ] MR. PIKE. Sorry, I'll just -- just for the record, it's a different

section number, and it's causing bodily harm as well. I thought I would just say this at the outset, it's 255(2.1) [ 4 ] THE COURT: Okay. Count 2, as I have it, is over .08, so is it a different Information? [DISCUSSION] [ 5 ] THE COURT: The plea then is to Count 2 as amended, driving on the date in question having the care and control of a motor vehicle with the blood alcohol concentration exceeding 80 milligrams percent and did cause an accident resulting in bodily harm to the

complainant. [ 6 ] The facts as I noted were that, on the date in question Mr. Gill was operating his Mustang convertible motor vehicle, proceeding eastbound on 84th Avenue and about to negotiate a left turn which would take him onto 128th Street.

He had been drinking prior to driving, it being, I gather on that date, his birthday. [ 7 ] The driving resulted, in particular as he was about to negotiate that corner, and as a result of the consumption of alcohol and associated lack of ability to properly control his motor vehicle, resulted in a loss of control of the motor vehicle causing the car to swerve out of control as it was taking the corner, crossing both lines of travel on 128th Street in the direction that he had been intending to go, jumping the curb and hitting a bench upon which the complainant, Mr. Pardeep Johal, was sitting at the time.

The impact on the bench resulted in injuries to Mr. Johal which are significant and could in fact have been even worse than they were had Mr. Johal not had the presence of mind, as he saw the Gill vehicle careening toward him, to lift his feet somewhat out of the way prior to the impact by the vehicle. Despite that, he suffered significant injuries that I will go into further on in these reasons. [ 8 ] The principles that I need to be mindful of here, in my view, in a case of this nature, include the need for specific and general deterrence of both Mr. Gill and the public generally.

The principle of denunciation for this kind of conduct which has received no shortage of publicity, and equally importantly, Mr. Gill's own rehabilitation. The protection and the safety of the public are also very important. [ 9 ] I have already alluded to the impact of this accident on the victim, Pardeep Singh Johal. He has filed a victim impact statement that Crown has presented to me for consideration. The victim, at the time of writing this statement, was 29 years old, married with a two-year-old boy. The accident and the injuries that he sustained have impacted his life significantly as he has described.

Firstly, his injuries included, despite him taking evasive measures that I have already mentioned, a broken foot requiring a steel plate to mend, a number of staples, and 15 staples to his head. I thought Mr. Pike had also mentioned a fractured pelvis but I don't see that in his statement. Is that the case, Mr. Pike? [ 10 ] MR. PIKE: That's the indication that we got from the medical -- [ 11 ] THE COURT: All right. [ 12 ] MR. PIKE: A pubic bone, not pelvis. I don't know if that's the same thing. [ 13 ] THE COURT: Fractured pubic bone.

He mentions in his statement that his life has become a daily struggle in coping with headaches, even to this date, he says. He is still using supports to walk, and the question of future surgical interventions is still very much a live issue. The impact on his family emotionally is to be expected and did occur. He is no longer earning income, for the time being at least, and the family has had to make adjustments in that regard. [ 14 ] The question that often people in the situation of this offender have to face is the final statement in Mr.

Johal's statement when he says, very philosophically, and I quote, "I do not hate Mr. Gill, but I want to ask him; why?" That is the statement of Mr. Johal. [ 15 ] The parties before me are in agreement that custodial sentence is very much something Mr. Gill is facing, and the difference of opinion is with respect to the length of that sentence. [ 16 ] The defence suggestion is that a 90-day intermittent sentence would be sufficient to address the principles of sentencing, with an emphasis I think clearly on Mr.

Gill's rehabilitation which, as I have already noted, is an important factor but not one that must be taken into consideration excessively or to the exclusion of what might be an otherwise fit sentence required to address the other objectives. In this regard I note that Mr.

Gill, having been no stranger to drinking and driving, has had any number of opportunities in the past to address this problem to the extent that rehabilitation is an issue, and I will come to more of that in a moment. [ 17 ] The Crown's sentencing range is suggested to be in the range of nine to 12 months, described as being mid range in what the cases say. [ 18 ] There are mitigating circumstances that must be recognized.

There is first of all the guilty plea that has been entered that undoubtedly saves justice system resources, and even more importantly, it seems to me, the requirement of witness testimony, including that of the victim. There will also be, undoubtedly, additional civil consequences, including potentially a loss of insurance coverage for any injuries sustained and claimed by the victim. Those are all important factors, but they must also be looked at in light of the other factors that are clearly aggravating. Some of them statutorily aggravating, I might add.

First of all, the very high readings which are, in fact, a statutorily aggravating circumstance. Anything exceeding 160 milligrams percent. In this case Mr. Gill was at 190, I gather on one reading, and 170 milligrams percent on another. Each of those is over double the limit. [ 19 ] Then there is the driving itself,

an act of misjudgement while operating his car resulting in taking a corner at a speed that was estimated to be in the vicinity of 80 kilometres per hour, even higher by other estimates. In any event, far too fast to take that kind of a corner in a busy intersection. The loss of control is not surprising when going at that speed. [ 20 ] Then there is his record. He has a criminal record which I gather relates to a different phase of his life, and I am prepared to acknowledge that in terms of the criminal convictions which are largely unrelated to what is before me today. But then there is his driving record.

It is clearly relevant and indicates a pattern of just very, very bad driving interspersed with numerous 24-hour prohibitions. Again, I acknowledge that they ended in 2006 but it would appear to me that they are indicative and indeed, looking in hindsight, they were predictive of what was to occur eventually, and it did occur eventually. It seems to me that Mr.

Gill was given every chance to reflect on his driving conduct and the risk that he was presenting to others while drinking and driving. [ 21 ] It appears that at least at the time he was getting these 24-hour prohibitions that drinking and driving was almost akin to a recreational activity for him. He may well have learned something of a lesson after that because I do not see anything after 2006, but he still has this record to contend with. Based on his conduct on the date in question, it clearly demonstrates that he did not learn. There

was a gap, no question about that, but ultimately it came back to haunt him. [ 22 ] Under the circumstances, with respect to the sentencing principles that I have enunciated, I have concluded that the sentence is indeed one that calls for a period of custody and not one that, in my view, is amenable to being served intermittently.

The combination of the driving record, the actual offence on the date in question with all the aggravating features of the actual driving that it involved, the very high readings, and the injuries sustained by the victim simply cannot be addressed by serving his sentence on an intermittent basis [ 23 ] Mr. Gill, would you please stand? Sir, I impose a period of a custodial sentence of nine months. That is, in my view, a fit and fair sentence for your misconduct on the date in question, having regard to everything that I have said by way of explanation.

It could have been higher. [ 24 ] There will be a driving prohibition pursuant to s. 259 of the Criminal Code and s. 98 of the Motor Vehicle Act prohibiting you from operating a motor vehicle on any street, road, highway or other public place for a period of two years from today's date. [ 25 ] That will be followed by a period of 18 months probation on the following terms and conditions: You are to keep the peace and be of good behaviour. You must report forthwith upon your release from custody to a probation officer in person, thereafter as and when directed.

You are to provide your residential address to your probation officer and not change it without prior notice. You are to take such counselling as directed by your supervising probation officer. [ 26 ] Mr. Gosal, does your client consent to an order abstaining from the possession or consumption of alcohol, or is that something that he would take issue with. [ 27 ] MR.

GOSAL: No, I think he's okay with that, Your Honour. [ 28 ] THE COURT: You are to abstain absolutely from consuming and possessing alcohol and other intoxicating substances. [ 29 ] You must not attend in any establishment where the primary commodity for sale is alcohol, including liquor stores, bars and pubs. [ 30 ] You must not contact Pardeep Johal, directly or indirectly, for any purpose. [ 31 ] I do not, under all the circumstances, see any justification in making an order for DNA samples on the circumstances of this case. I decline to make that order. [ 32 ] MR.

GOSAL: Your Honour, can I just work in an exception just in case, I am assuming there is going to be civil consequences, contact except through family -- or I mean, except through legal counsel. [ 33 ] THE COURT: Of course. Save and accept as required in legal proceedings through legal counsel. [ 34 ] MR. GOSAL: Thank you, Your Honour. [ 35 ] MR. PIKE: Thank you, Your Honour. Stay on Counts 1 and 3, Madam Registrar, and if for some reason a -2 Information ever appears, the Crown's staying that one completely. Thank you. [ 36 ] THE COURT: Yes. All right, very good. [ 37 ] MR.

PIKE: Thank you, Your Honour. [ 38 ] THECOURT: Thank you. (REASONS FOR SENTENCE CONCLUDED)