R. v. S.B.B. Date:, 2011 BCPC 262

Citation: R. v. S.B.B. Date: 20110818 2011 BCPC 0262 File No: 184725-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. S.B.B. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE E. GORDON Counsel for the Crown: W. Sayson, B. Lane Counsel for the Defendant: B. Martland Place of Hearing: Surrey , B.C.

Date of Hearing: August 18, 2011 Date of Judgment: August 18, 2011 [ 1 ] THE COURT : S.B. comes before the court for sentencing on two charges; one of Causing Death while his Blood Alcohol level exceeded the legal limit, and the second of Causing Bodily Harm in the same circumstances, both offences arising out of an incident on October 11, 2009. S.B. was driving two friends. The deceased was in the rear seat of his vehicle, and the injured complainant in the front seat of his vehicle. There was a single-vehicle motor-vehicle accident.

To describe the results of that accident as tragic would be to trivialize what actually transpired. [ 2 ] S.B. comes before the court now a 20-year-old man; he was 18 at the time of the incident. [ 3 ] The Crown seeks a period of incarceration in a provincial institution of two years less one day, and defence counsel seeks a period of incarceration of between 12 to 18 months. [ 4 ] Crown and defence agree on the factual circumstances, quite frankly, agree on the legal principles, and essentially agree on all of the aggravating and mitigating factors.

The only difference is the number of months this gentleman will be required to spend in jail.

[ 5 ] A warrant was obtained for a blood sample taken by people at the hospital in the course of their duties, and that warrant was executed and S.B. was found to have an alcohol level in his blood of 185 milligrams of ethyl alcohol in 100 millilitres of blood at the time of testing, which was about an hour and 20 minutes after the accident. We don't know, of course, whether his blood alcohol level was going up or down at the time, but suffice it to say it was more than twice the legal limit which is significant, and the reason it is significant is that s. 255.1 of the Criminal Code of Canada reads as follows: Without limiting the generality of

section 718.2, where a court imposes a sentence for an offence committed under this Act by means of a motor vehicle, vessel or aircraft or of railway equipment, evidence that the concentration of alcohol in the blood of the offender at the time when the offence was committed exceeded one hundred and sixty milligrams of alcohol in one hundred millilitres of blood shall be deemed to be aggravating circumstances relating to the offence and the court shall consider under paragraph 718.2(a).

I point that out because not only is it in and of itself an aggravating factor, I am directed by Parliament that it is always an aggravating factor when someone's blood alcohol level exceeds more than twice the legal limit. [ 6 ] I have been provided with, with respect to S.B., a pre-sentence report that is favourable, and a number of letters of reference.

The letters of reference paint, if I may summarize, a young man who, in the 22 months since the incident, has felt real remorse for his behaviour, was certainly specifically deterred on the day in question, and has done all that he can to rehabilitate himself and, if I can use this expression, make amends to society. He is someone for whom, if the only factor before the court were he, I would not jail him. Of course, that is not the only factor before the court. [ 7 ] I have been provided, mostly by way of testimony, with a variety of victim impact statements.

With respect to the injured complainant, she read her statement to me and the prosecutor read her father's statement. Her statement paints a picture of a young woman who had been vibrant and physically active and who, because of the injuries, can no longer be physically active; she cannot actually bend down to tie up her shoes, and is in constant, daily pain. She will probably be in pain for the rest of her life and will always be reminded of the accident because of that.

Her father painted a picture of the helplessness a father feels for his daughter when he is not in control, and that is because he was separated from her by a body of water and had to wait three hours before he could board the first available ferry, and I cannot imagine the powerlessness and pain that he must have felt. [ 8 ] With respect to the G. family whose son, brother and nephew was the deceased victim, I heard from his aunt, both of his parents and his two sisters.

I do not wish to summarize or minimize what they said, but I think that each person told me in his or her own way that they wake up every morning surprised by the acuteness of the pain that they continue to feel daily. Having thought that perhaps every day, tomorrow the pain may be lessened, it remains 22 months after the event extremely palpable. [ 9 ] With respect to this particular incident, it occurred in October of 2009 and was obviously investigated for a very lengthy period of time. While I cannot put my finger on the Information right now, I believe it was sworn in October of 2010.

A summons was issued, and S.B. first appeared in court in December of 2010. By Surrey standards, in terms of obtaining disclosure and negotiations between counsel, an early guilty plea was entered. I say that because a trial date was never set, and it was always intended by S.B. that he would enter a guilty plea and face the consequences. [ 10 ] Crown and defence have provided me with a variety of authorities with respect to the appropriate sentence. If I may say this, it ranges anywhere from 12 months to eight years, depending on the circumstances of the offence and the circumstances of the offender.

Everyone agrees that in this case the circumstances of the offence require a period of incarceration, and everyone agrees in this case that the circumstances of the offender are such that a sentence not in a penitentiary is an appropriate sentence. The issue simply is whether, when I think of general deterrence and denunciation, the appropriate quantum. [ 11 ] As I said earlier, were the only factors in sentencing those applicable to S.B., of course I would not jail him. It is always difficult to jail a young man who I can say will likely never be back before the courts, but that is not the only factor.

The main factors, as I am instructed by the British Columbia Court of Appeal, are general deterrence and denunciation. [ 12 ] I have to weigh the aggravating facts and the mitigating facts. The mitigating facts are that this is a young man who is employed, comes from a good family, is genuinely remorseful, suffers Post Traumatic Stress Disorder from this particular crime that he committed, and will likely never be before the court again.

The aggravating factors are, as the Crown points out, the moral culpability of engaging in this behaviour, and that is that it is not someone who is homeless and starving and steals a sandwich, who, while that may be an offence of specific intent, their moral culpability is very low. This is someone who knew that he had been drinking, and obviously drinking a lot, and elected to get behind the wheel of a motor vehicle notwithstanding that.

He was speeding at the time, although having made the translation, 15 miles an hour over the speed limit is not excessive, it must have been the alcohol and lack of judgment rather than the speed which caused the accident. [ 13 ] There are, when I weigh the factors, three very aggravating factors in this case: One is his blood alcohol level which I am directed specifically is an aggravating factor; and secondly, only three months prior to this incident, this young man had been placed on probation for a conviction for Robbery.

While I read in the pre-sentence report that subsequent to this incident he was very compliant with probation services and completed that probation, he was barely into it at the time. Thirdly, he was not an adult in the eyes of British Columbia at the time.

He elected to consume alcohol and commit a very morally-culpable offence. [ 14 ] Those three factors weigh very heavily on the aggravating side of the scale, and when I consider the aggravating factors and the mitigating factors, the aggravating factors weigh in favour of the Crown's submission and there will be a sentence of two years less one day to be followed by three years of probation. [ 15 ] Before I tell you the terms of the probation, which will make sense, there will be a prohibition from driving which will commence upon your release from custody, of one year. The terms of the probation will make sense.

So the prohibition from driving, sir, is anywhere in Canada at all times. [ 16 ] The conditions of the probation will be that you keep the peace and be of good behaviour, that you report to Probation Services within 72 hours of your release from custody, and thereafter as and when directed.

[ 17 ] You will attend for, participate in, and complete to the satisfaction of the probation officer, all counselling and programming as directed by the probation officer. [ 18 ] Once you have completed the one-year driving prohibition you will be permitted to operate a motor vehicle if the Superintendent of Motor Vehicles of British Columbia re-licenses you, only to and from employment or in the course of employment.

Do you understand that? [ 19 ] THE ACCUSED: Yes. [ 20 ] THE COURT: For the first two years of the probation order you will abstain absolutely from the consumption of alcohol, all non-prescribed medication, and all other intoxicants. [ 21 ] You will have no contact, directly or indirectly, with J.F. [ 22 ] There are a few other subsidiary orders I have to make. You will pay, on each count, a victim surcharge of one hundred dollars, payable by September 30, 2011, and you will provide a sample of your DNA to the authorities today. (REASONS FOR SENTENCE CONCLUDED)