R. v. Gelowitz Date:, 2013 BCPC 256

Citation: R. v. Gelowitz Date: 20130702 2013 BCPC 0256 File No: 190382-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KELLY TYLER GELOWITZ ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: M. Fortino Counsel for the Defendant: H. Smith Place of Hearing: Surrey , B.C. Dates of Hearing: May 14, June 19, 2013 Date of Judgment: July 2, 2013 [ 1 ] THE COURT : Kelly Tyler Gelowitz is before this court today to be sentenced following his pleas of guilty to two offences on

Information 190382-1 arising from the tragic events of September 11th, 2010. On Count 3 he has pled guilty to the offence that he operated a motor vehicle in a manner dangerous to the public and thereby caused the death of Michael James Dorman, contrary to s. 294(4) of the Criminal Code . On Count 6 in the same circumstances, he has pled guilty to the offence of dangerous driving causing bodily harm to Jonathon James Lawson, contrary to s. 249(3) of the Criminal Code . [ 2 ] On June 19th, 2013, just a couple of weeks ago, I heard submissions from both counsel.

Donna Dorman, Michael Dorman's mother, read her victim impact statement to the court. Mr. Gelowitz also read a statement at the conclusion of the proceedings. I then reserved my decision to today's date. [ 3 ] Dangerous driving causing bodily harm carries a maximum sentence of ten years' incarceration. Where death ensues, the maximum penalty is 14 years' imprisonment. In the circumstances of this case, the Crown proposes Mr.

Gelowitz serve a sentence of imprisonment in the two-to-three-year range in a federal penitentiary for dangerous driving causing the death of Michael Dorman, and a concurrent sentence of 15 to 18 months in respect of the bodily harm caused to Mr. Lawson, reflecting the importance to be placed on deterrence and denunciation as predominant sentencing objectives in cases such as this. [ 4 ] The defence proposes a global custodial sentence of 18 months which the defence says would properly address deterrence and denunciation, but would as well recognize the importance of rehabilitation, considering Mr.

Gelowitz' circumstances. The defence proposes a probation order to include a public service initiative which, in the view of the defence, would have restorative value in the community. The Crown seeks a driving prohibition under the Criminal Code extending five years beyond the end of the custodial sentence. The defence points out that Mr. Gelowitz has been subject to an administrative prohibition, and since bail was set on October the 8th of 2011, to a bail condition which has prevented him from driving.

The defence proposes the driving prohibition be reduced somewhat to reflect those factors. [ 5 ] Counsel have filed an agreed statement of facts which was read at the hearing by Mr. Fortino, Crown counsel, and I am going to summarize those circumstances as follows: Mr. Gelowitz, Michael Dorman and Jonathon Lawson were close friends. Their friendship reached back to their school days and included participation in various sporting events and teams. Mr. Gelowitz had recently purchased a white 2010 Dodge Avenger motor vehicle.

On the night of September 10th and the early morning of September 11th of 2010, those three individuals went out together. They attended a club in Surrey and alcohol was consumed. [ 6 ] At about 3:08 a.m. on the morning of September 11th, 2010, Mr. Gelowitz was driving eastbound on 100th Avenue, approaching the intersection of 156th Street. Mr. Lawson was in the front passenger seat, Mr .Dorman was in the rear seat. Driving conditions were good and visibility was described as unlimited. As traffic eastbound on 100th Avenue approaches 156th Street, left turn and right-turn lanes form.

A single centre lane carries traffic straight on eastbound through the intersection. The speed limit is 60 kilometres per hour. No other traffic was in the immediate area of the intersection as Mr. Gelowitz approached the intersection at a high rate of speed. [ 7 ] At or just beyond the intersection, Mr. Gelowitz lost control of the vehicle. A witness who had just crossed 100th Avenue on foot heard a loud engine noise behind her. She turned and saw the Gelowitz vehicle become airborne. Mr.

Gelowitz' vehicle mounted the curb on the south side of 100th Avenue, it rotated clockwise and struck and uprooted a utility pole. It came to rest on the shoulder facing west. Power lines were dislodged and came down onto the vehicle. The roof and the driver's side of the vehicle were crushed. The extensive damage to the vehicle can be seen in photographs filed with Exhibit 2. [ 8 ] Although people attended the scene and emergency services arrived quickly, they were unable to approach the vehicle until BC Hydro could attend and shut off the power to the lines on or near the vehicle.

Emergency services established contact with Mr. Gelowitz and Mr. Lawson who confirmed that Mr. Dorman in the backseat was not breathing and did not have a pulse. Damage to the vehicle prevented the individuals in the vehicle, Mr. Lawson and Mr. Gelowitz, from reaching Mr. Dorman to attempt CPR. [ 9 ] At 3:55 a.m., BC Hydro attended and deactivated the wires. The occupants were then attended to by emergency services. Mr. Dorman was confirmed dead at the scene. Mr. Gelowitz was removed by paramedics who detected a strong odour of liquor from his breath. He confirmed to them that he had consumed alcohol that night.

He made the same admission to staff at the hospital. Blood samples were taken from Mr. Gelowitz at the hospital. Through subsequent analysis of his blood and forensic extrapolation, it was determined that Mr. Gelowitz' blood alcohol reading at the time of driving was between 157 and 189 milligrams of alcohol in 100 millilitres of blood. That analysis is set out in the forensic report with Exhibit 2. [ 10 ] A mechanical examination of the Gelowitz vehicle was carried out. It was found to have been in proper working order before the crash. The vehicle's airbag control module records and retains the vehicle's speed.

That data, when analyzed, disclosed the Gelowitz vehicle was travelling 151 kilometres per hour 4.3 seconds before impacting the utility pole. As I indicated, the speed limit in the area is 60 kilometres per hour. [ 11 ] Mr. Lawson has suffered significant injuries that continue to plague him to the present time. In his victim impact statement, Mr. Lawson stated that he suffers constant back pain. He has suffered memory loss. He suffers anxiety and irritability. He has headaches, has trouble sleeping, and has trouble maintaining his attention and concentration.

Although he made an effort to return to work a year following the events, it was unsuccessful and he is unemployed. As a result, his financial circumstances are precarious. He is now attending the University of the Fraser Valley; he is taking a program in Social Services. He has suffered emotionally and is unable to fully care for his young son due to his restricted mobility. He is seeing a psychologist and a psychiatrist regularly. From this, I conclude that Mr.

Lawson's injuries and the disabilities that he is suffering will continue for the foreseeable future. [ 12 ] Michael Dorman died of blunt-force injuries to his head and chest. The pathologist has concluded that Mr. Dorman would not have survived his injuries even had medical services been able to reach him quickly. On the day submissions were heard, Michael Dorman's mother, Donna, was in the courtroom and she read her victim impact statement to the court.

It is difficult to imagine the courage that it takes to stand in a courtroom like this, in the circumstances of such a tragedy, and as a mother, to reflect on the loss of a son and all that might have been. Ms. Dorman's eloquent statement testifies to the close bond between a mother and a cherished son. I am going to read a short portion of Donna Dorman's victim impact statement as I believe it helps us all to understand the enormous

consequences which can flow from serious criminal conduct such as occurred here, conduct which, in a fleeting instant, has ended a young life. [ 13 ] In her victim impact statement, Ms. Dorman said the following. This is a portion of what she wrote and what she read in the courtroom. The effects of such a devastating event as the death of my chid cannot really be measured; in fact, my words cannot adequately express my thoughts and cannot even begin to express the sense of loss, the pain, sorrow and heartache.

The bond between my son Mike and I was even stronger due to the fact that he was born and raised by me as a single mother after my husband had died in a work-related accident. Since Mike was the youngest in the family by five and six years, I had more time to spend with him and we developed a close-knit bond. We spent much of our time together and we developed a special bond. He was more than just a son; he was a great son and a friend. His nature was loving, and he was an encourager and a helper, and he was protective of those he loved. [ 14 ] No sentence which I impose on Mr.

Gelowitz today can in any way compensate for the injuries and the suffering of Mr. Lawson, his family and friends, nor can it fill the awful void left in the lives of Mike Dorman's mother, his family, and Mike's wide circle of friends. That is not a realistic expectation of sentencing in serious cases such as this. [ 15 ] It is my responsibility to determine a fit sentence to be imposed on Mr. Gelowitz. Sections 718 to 718.2 of the Criminal Code set out the purpose and principles of sentencing in criminal cases in this country.

The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions which address the follow objectives: To denounce unlawful conduct; to deter Mr. Gelowitz and others from committing crimes like this; to separate Mr.

Gelowitz, if necessary; to assist his rehabilitation; to provide reparation for harm done to victims and to the community; and, to promote a sense of responsibility in the offender and acknowledgment of harm done to victims and to the community. [ 16 ] The sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. I must take account of aggravating and mitigating factors. The sentence should be similar to sentences imposed in similar cases.

I must take care, when imposing a sentence of imprisonment, to do so only to the extent required to address sentencing principles and objectives. [ 17 ] The determination of a fit sentence requires a careful balancing of a complex set of factors in the context of the specific circumstances of this offence and this particular offender. It requires that I exercise restraint to ensure that I impose a sentence which is proportionate to the grave circumstances and Mr.

Gelowitz' substantial moral blameworthiness, while at the same time properly reflecting the rehabilitative and restorative objectives that I have referred to. [ 18 ] I am now going to turn to Mr. Gelowitz' background and circumstances because they are important in this analysis. [ 19 ] Mr. Gelowitz is 32 years of age. He was 30 at the time of this offence. He has completed Grade 12. He was active in sports as were both of his friends, Mr. Dorman and Mr. Lawson. His father is in the trucking business and he brought Mr. Gelowitz into that business and introduced him to trucks at a young age. Mr.

Gelowitz has worked in the mechanical side of the business, and after high school obtained a Class 1 driver's licence permitting him to drive trucks commercially which he did in his father's business, up to the time these charges were laid, and he was placed on a bail condition which precluded him from driving. An administrative prohibition was subsequently imposed. He collected employment insurance but then retrained as a glazier and has been steadily employed since May of 2012 with a firm in that business. His mother has pointed out in the material filed that Mr.

Gelowitz is a hard-working individual who has always maintained employment. [ 20 ] Mr. Gelowitz has the support of a close family. Both of his parents, his sister and his fiancée were in court to support him when submissions were made on the previous date, and I believe they are here today. Mr. Smith, counsel for Mr. Gelowitz, has filed a book of letters of support from family and friends. All speak to Mr. Gelowitz' close connection with and enjoyment of his close and his extended family. Friends speak of his loyalty. One friend in particular writes of Mr.

Gelowitz' remarkable support during that friend's struggle with cancer. His strong work ethic is referred to in letters from employers. Those letters help to provide further substance to the submissions of Mr. Smith and the information that is set out in the pre-sentence report. [ 21 ] Although the pre-sentence report expresses concern that Mr. Gelowitz has not dealt with his feelings of guilt and loss, there can be no doubt today of his personal anguish over his conduct and the enormous loss for which he is responsible.

That was evident in the letter he wrote to Donna Dorman and in the statement which he read at the close of the sentencing hearing on the earlier day. [ 22 ] In the pre-sentence report, Mr. Gelowitz said that he occasionally used marihuana and rarely consumed alcohol. On this particular night, however, at the minimum his blood alcohol level was only just below twice the legal limit. Mr. Gelowitz has no prior criminal record; however, his motor vehicle driver's record is of substantial concern. Mr. Smith points out that some of this history is explained by reason of Mr.

Gelowitz' work as a commercial and professional truck driver and so on the road much more than the average person, and also working subject to deadlines. I find little in that argument to mitigate this driver's extract. I have counted 13 speeding infractions and further infractions for an illegal pass, driving on a sidewalk, a red-light violation, failing to yield and failing to observe a stop sign. He has received five 24-hour prohibitions prior to these events.

I note a number of the infractions, including a five-month prohibition in 2002, pre-date October of 2005, following which there is a four-year gap in the record. [ 23 ] Of further concern, however, are infractions which post-date the offences before this court. On one of those occasions, December 31, 2010, just three months after these events occurred, Mr. Gelowitz drove without due consideration for others; he was speeding, and he received a three-day roadside suspension which would indicate that he recorded a "fail" on a roadside screening device.

On July 23rd of 2011, just seven months later, he again was speeding against a municipal sign. Thereafter, these charges were laid and bail conditions have prevented him from driving.

[24] The offender's moral blameworthiness is an important part of the assessment of a fit sentence. The Supreme Court of Canadadecision in a case called R. v. C.A.M., which is well-known in sentencing considerations in this country, provides assistance inunderstanding this concept and its place in the sentencing process. I am going to read briefly from paragraphs 79 to 82: 79. The mental state of the offender gives rise to the moral blameworthiness which justifies the state in imposing the stigma andpunishment associated with a criminal sentence. I submit… This is the Chief Justice of Canada at the time speaking.

I submit that it is this same element of moral blameworthiness which animates the determination of the appropriate quantum ofpunishment for a convicted offender as a just sanction… 81. …The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particularoffender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender'sconduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law… Our criminal law is also a system of values.

A sentence which expresses denunciation is simply the means by which these values arecommunicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also beimposed in a manner which positively instils the basic set of communal values shared by all Canadians as expressed by the CriminalCode. 82. …The relative weight and importance of these multiple factors will frequently vary, depending on the nature of the crime and thecircumstances of the offender.

In the final analysis, the overarching duty of a sentencing judge is to draw upon all of the legitimateprinciples of sentencing to determine a just and appropriate sentence which reflects the gravity of the offence and the moralblameworthiness of the offender. [25] The Supreme Court of Canada in that same case has said that a sentence must address the utilitarian importance of objectivessuch as deterrence and rehabilitation, but it must also sanction the moral culpability of the offender.

That concept of retribution as anobjective of sentencing provides the link between the criminal liability of the offender and the imposition of criminal sanctions. It is notvengeance; it incorporates the principle of restraint, that is, "…the imposition of a just and appropriate punishment and nothing more." (R. v. M.(C.A.), (SCC), [1996] 1 SCR 500) [26] I have reviewed the case authorities provided by counsel. I will not review all of them here.

A number of the cases that wereprovided by counsel involve sentencing for the offence of impaired driving causing death which carries a maximum penalty of lifeimprisonment, or for that offence in conjunction with the offence which is before this court and which carries a maximum sentence of 14years in respect to a death. [27] Maximum sentences, although not often imposed, are often referred to in order to demonstrate the seriousness with which thecommunity views those offences. In the present case, Mr. Gelowitz consumed a considerable amount of alcohol before he drove.

Hisreadings approached twice the legal limit. Concerns expressed by courts about the implications of driving having consumed alcohol, andas an aggravating feature, have application where present in a case of dangerous driving causing death, as in a case of impaired drivingcausing death. In that regard, Madam Justice Ryan's words in a case called R. v. Johnson in the Court of Appeal in this province in 1996continue to resonate.

Madam Justice Ryan stated at paragraph 30 of her decision: Drinking-driving causing death or bodily harm offences are senseless crimes because they are so easily avoided and at the same timethey are so easily committed by ordinary citizens. They are unlike any other crimes in the sense that nothing much can be offered tojustify driving drunk. Crimes of theft may be motivated by poverty, crimes of assault may be motivated by fear, but what excuse can beoffered for driving drunk, except that alcohol allowed the offender to lose all sense of judgment?

It is for this reason that communitiesrightfully express outrage when victims are killed or injured as a result of such conduct. It is for this reason that both deterrence anddenunciation are legitimate objectives to pursue for this type of offence. (R. v. Johnson (1996), (BC CA), 112 CCC(3d) 225 (BCCA)) [28] R. v. Dhillon is a recent decision of my colleague Judge Jardine of this court, delivered on April the 10th of this year. Heimposed a one-year sentence with two years of probation following conviction for dangerous driving causing death.

The offender droveat high speed and in an aggressive manner before losing control and killing the victim as he waited at a bus stop. The 20-year oldoffender's rehabilitative circumstances were positive. Judge Jardine referred to the aggravating impact the presence of alcohol or drugswill have in assessing a fit sentence. Those were not present in the Dhillon case. (R. v. Dhillon, April 10, 2013, Surrey Reg. #186387-1,Jardine PCJ) [29] R. v. Wood is a recent decision of Judge Gardner of this court. The decision was delivered on June 3rd of this year.

Theoffender in that case pled guilty to dangerous driving causing death, and assault. The offender drove at high speed and struck anoncoming vehicle which may have been partially in his lane, killing the driver, and then he pushed and punched the driver's son as thatson attempted to call 9-1-1. There was an odour of liquor about the offender. He had a previous impaired driving conviction and anunimpressive driving record. After considering Dhillon and the recent Court of Appeal decision in R. v. Smith, Judge Gardner imposed atwo-year sentence. (R. v.

Wood, June 3, 2013, Surrey Reg. #190383-1, Gardner PCJ) [30] R. v. Smith, which is the case I have just mentioned, is a decision of the Court of Appeal in this province earlier this year. It wasa Crown appeal against a sentence of one day and three years of probation following a guilty plea to impaired driving causing death. Ms.Smith was highly intoxicated and in an agitated state, having consumed cocaine and alcohol. She drove a distance of 3.6 kilometres overfive minutes in a highly dangerous manner before striking and killing a motorcyclist travelling in an oncoming lane. She was 35, with nocriminal history.

Madam Justice Bennett, in her reasons, described Ms. Smith's life as "a story of tragedy and abuse." She had, since the

event, taken substantial steps towards rehabilitation. The Court of Appeal acknowledged that progress but concluded the sentenceimposed did not reflect the high level of moral blameworthiness present in Ms. Smith's actions, and the enormous consequences whichflowed. At paragraph 39, Madam Justice Bennett stated this: The imposition of a fit sentence accomplishes a number of things: it holds the offender responsible for his or her actions; it demonstratesto society as a whole that this member of society cannot commit crimes without facing consequences; it acknowledges the harm done tothe victim; it contributes to the protection of the public by either (

a) rehabilitating the offender or (b), through incapacitation, punishingthe offender; and reminds the offender that unlawful conduct has consequences. The court in that case allowed the appeal and imposed an effective two-year sentence with a three-year probation order and substantialcommunity work service. (R. v. Smith 2013 BCCA 173) [31] In R. v. Matheson in 2011, Mr.

Justice McEwan of the Supreme Court in this province imposed sentences of two yearsconcurrent for impaired driving causing death and dangerous driving causing death, and 18 months for impaired driving causing bodilyharm and dangerous driving causing bodily harm following a conviction. The youthful offender, with a blood alcohol level between .13and .165, drove fast and lost control, resulting in the death of her father and injury to a friend. She was unlicensed at the time. She hadmade remarkable strides towards rehabilitation.

The court considered the important decisions outlining sentencing principles, which Ihave earlier referred to, including C.A.M., R. v. Woodley (1993), (BC CA), BCJ 906 BCCA, R. v. Johnson. The courtquoted extensively from Judge Gulbransen's decision in R. v. Berner, [2010] BCPC 305 in 2010 in this court. Ms. Berner had consumedalcohol and then drove at excessive speeds. She lost control and struck and killed a young child at the roadside, and injured her aunt. She had no prior criminal record and a very limited driving history.

Judge Gulbransen imposed concurrent sentences of two years and sixmonths on four counts of impaired driving and dangerous driving causing death and bodily harm. [32] I turn now to the consideration of a fit sentence in respect of Mr .Gelowitz. I take account at the outset of Mr Gelowitz'expression of distress over his conduct and actions. That was evident, as I indicated earlier, when he spoke here in court. As he standshere today I conclude that Mr. Gelowitz is ashamed and truly sorry for what he has done, and for the loss for which he is responsible.

He has pled guilty, and in doing so he has accepted criminal responsibility. He has the close support of family which will assist hisrehabilitation going forward, but in the circumstances here, Mr. Gelowitz' moral blameworthiness is high. Mr. Gelowitz exercised theworst possible judgment on the night of September 11th, 2010; he consumed alcohol and then he got into his car with his two closefriends. It is not possible, on the facts before me, to say over what distance Mr. Gelowitz drove at such high speeds, but this was not afleeting failure of judgment.

It must be viewed in the context of the risks drinking and driving create. A driver, acting as Mr. Gelowitzdid on this night, presents an enormous risk to everyone on or near the roadway, no matter the distance travelled. I see little to mitigatehis conduct by reference to the time or distance which he drove. His blood alcohol level was near double the legal limit.

He has causedenormous loss and suffering. [33] Although he has no prior criminal history, his motor vehicle record demonstrates that frequent prior ticketing for speeding andother unsafe conduct, and 24-hour prohibitions, had no influence or impact on his decision to drink and drive at high speed on September11th of 2010. Despite the events of that tragic night, Mr. Gelowitz again violated the Motor Vehicle Act by speeding on two occasionsand driving without due consideration for others. It is astonishing that he would again drive with sufficient alcohol in his system to fail aroadside screening device.

I accept that since those violations, the last in July of 2011, Mr. Gelowitz has begun to come to terms with hisactions and is gathering insight about his conduct and its consequences, but the sentence I impose, tempered by those considerations,must nevertheless deliver a statement of denunciation in strong terms and act as best our sentencing regime can do to deter others. [34] Mr. Gelowitz, if you could now stand up, please? [35] On Count 3, the dangerous operation of a motor vehicle causing the death of Michael James Dorman, I impose a sentence oftwo years and six months' incarceration.

On Count 6, dangerous driving causing bodily harm to Jonathon James Lawson, I impose a 15-month concurrent sentence. [36] There will be a driving prohibition thereafter. I have determined the appropriate length of that prohibition should be five yearsfrom today's date, so it will extend some period beyond the conclusion of your sentence. It applies throughout Canada. [37] The victim fine surcharge is waived. [38] You are in the custody of the sheriff. [39] MR. FORTINO: Thank you, Your Honour. The Crown directs a stay of proceedings on the outstanding counts. (REASONS FOR SENTENCE CONCLUDED)