R. v. Warren Date:, 2012 BCPC 483

Citation: R. v. Warren Date: 20121228 2012 BCPC 0483 File No: 193652-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NATASHA LEIGH WARREN REASONS FOR SENTENCE OF THE HONOURABLE ASSOCIATE CHIEF JUDGE G.S. GILL Counsel for the Crown: C. Pike, D. Assonitis Counsel for the Defendant: M. Cacchioni Place of Hearing: Surrey , B.C. Dates of Hearing: December 17, 18, 2012 Date of Judgment: December 28, 2012 [ 1 ] THE COURT : Natasha Leigh Warren is before the court on a number of Criminal Code offences arising from her conduct on

May the 3rd, 2011.

Specifically, she has pleaded guilty on Count 1, to the dangerous operation of a motor vehicle, thereby causing the death of Kassandra Kaulius, contrary to s. 249(4); on Count 3, to exercising the care and control of a motor vehicle while having a blood alcohol concentration exceeding 80 milligrams percent and causing an accident resulting in the death of Kassandra Kaulius, contrary to s. 255(3.1), and; on Count 4, that she being involved in an accident and knowing that bodily harm had been caused to another person, Kassandra Kaulius, and whose death resulted from that accident, did, with intent to escape civil or criminal liability, fail to remain at the scene of an accident, to identify herself and offer assistance, contrary to s. 252(1.3)(b). [ 2 ] Ms.

Warren is today before the court to receive her sentence on these charges. The sentencing is based on information placed before the court from a variety of sources, including victim impact statements and letters, reference letters and testimonies on behalf of Ms. Warren, a pre-sentence report, a counselling report tendered by the defence, a letter written by Ms. Warren to the Kaulius family, submissions by counsel, and an oral statement by Ms. Warren to the court. [ 3 ] I will now outline the circumstances of the offence. [ 4 ] During the evening hours of May 3rd, 2011, Ms.

Warren was watching a Canucks playoff hockey game at home with her then boyfriend. Earlier they had purchased beer and wine, which they consumed during dinner and over the course of the evening while watching the game. During this time Ms. Warren voluntarily consumed at least one-and-a-half bottles of wine. [ 5 ] Following the game, Ms. Warren stepped outside her residence and while under the influence of the alcohol earlier consumed entered into her employer provided Ford Econoline van at or about 9:30 p.m. and drove away.

While her whereabouts for the next 45 minutes are not precisely known, she did by approximately 10:15 p.m. find herself proceeding northbound on 152nd Street and approaching its intersection with 64th Avenue. [ 6 ] Earlier that same evening Kassandra Kaulius was at the Cloverdale Athletic Park coaching a kids' softball game and then playing in a game herself. She concluded the game and left the park just after 10:00 p.m. in her red BMW, driving westbound on 64th Avenue and towards its intersection with 152nd Street.

At approximately 10:15 p.m. she entered that intersection facing westbound in order to make a left turn southbound onto 152nd Street. Very shortly afterwards her vehicle was struck directly on the driver's side door by the Econoline van operated by Ms. Warren. [ 7 ] At the time of the collision the roads were dry and the area was well lit. There was nothing obstructing the view ahead. Ms. Kaulius had entered the intersection on a green light. The traffic light controlling Ms. Warren's direction of travel had been red for about ten seconds at the time she entered the intersection.

Other traffic proceeding in her direction in the lane adjacent to hers was stopped in compliance with the red light. Ms. Warren failed to heed the red light, the adjacent traffic stopped at the intersection, and the vehicle occupied by Ms. Kaulius that had approached and entered the intersection on the line of travel directly in front of her. [ 8 ] Data extracted from the power control module located in the Econoline van revealed a number of parameters about how Ms. Warren had been driving.

It is known that at approximately 500 metres from the point of impact she was travelling at 42 kilometres per hour; then from that point onwards the accelerator pedal was fully depressed, accelerating the van to a speed of 103 kilometres an hour, which was the speed at the time of impact in the intersection only 9.4 seconds later. The module recorded that the van's brakes were applied only 0.2 seconds before the collision, thereby having no opportunity to slow the vehicle.

There being no specific information before the court explaining this driving, the only reasonable inference is that it was caused by the alcohol induced impairment. [ 9 ] The heavy impact crushed the interior of the BMW vehicle and propelled it in a roughly northerly direction, spinning it clockwise in the process until it came to a stop about 15 metres away facing south in the southbound left turn lane of 152nd Street. The injuries thereby sustained by Ms.

Kaulius were multiple and catastrophic, as a result of which she died, very likely at the scene of the collision. [ 10 ] The van continued through the intersection post-impact, coming to a stop about 45 metres away and still facing northbound on 152nd Street. Its airbags had deployed during the collision, thereby protecting Ms. Warren and enabling her to emerge from the van without any visible injury. [ 11 ] Witnesses at the scene watched Ms. Warren eventually approach and check the BMW vehicle. One of the witnesses felt Ms. Warren, thereafter seen placing her hand on her chest, to be in a state of shock.

She was then seen hurrying away from the BMW vehicle and disappearing into some nearby bushes adjoining 152nd Street. [ 12 ] Police arrived on scene about ten minutes after the collision and Ms. Warren was located hiding in those bushes only a couple of minutes afterwards, or at about 10:28 p.m. She complied with directions to return to the scene, where she was placed under arrest.

She was at that time noted to have what police described as an overpowering odour of liquor emanating from her breath, with bloodshot eyes and a staggering gait. [ 13 ] She was medically checked and then transported to the police detachment, where she provided two samples of her breath into a breathalyzer instrument. The analysis resulted in two readings, the pertinent one for sentencing purposes disclosing a blood alcohol content of 140 milligrams percent, a level significantly above the Criminal Code limit of 80 milligrams percent. [ 14 ] Those are the circumstances of these offences.

They speak of a needless and preventable tragedy that has caused great harm. That harm was disclosed in the deeply emotive victim impact statements provided to the court by family, friends and teammates. The statements, many of which were read into the record by their authors, revealed the anguished loss of a cherished daughter, a caring sibling, a beloved niece, a future lifelong partner, and a young adult with great potential.

The Kaulius family's world was irrevocably altered with the taking of their daughter's life and their continuing loss can neither be measured nor adequately described. [ 15 ] I will now address the circumstances of the offender. [ 16 ] Ms. Natasha Warren is 35 years old. She is single, having after the commission of these offences broken off a relationship of 12 years duration with her boyfriend. That relationship is one that was not going particularly well, and, indeed, there was some reference

made during these proceedings to it being he who counselled her via text messages exchanged immediately after the accident to flee the scene. [ 17 ] This offender has no prior criminal record. She does have a driving record which since 1999 consists of a number of speeding infractions, a conviction for disobeying a stop sign, one for following too closely, and two driving prohibitions, all over a span of roughly 12 years. [ 18 ] This offender would drink socially, but previous to this offence was known by her friends and family to be averse to drinking and driving.

She was described as the one who would take the keys from others who had been drinking and put them in her pocket so they would not drive. I am told she has since quit drinking alcohol all together. [ 19 ] Ms. Warren moved back with her mother and her family following this event. She has been engaged in part time employment and resumed her studies at Douglas College, where she is enrolled on a full time basis in a criminology program. She aspires to become a youth probation officer. [ 20 ] Twenty-eight letters of reference and support were filed on her behalf.

Common themes speak of her longstanding attitude toward taking personal accountability and her commitment toward working with youth. College faculty described her as industrious and a high academic achiever. This is supported by her academic transcript revealing mostly "As" and "Bs." [ 21 ] A letter from the Elizabeth Fry Society confirms she is valued by youth and staff alike at Burnaby Youth Custody Services where she has served as a volunteer since October of 2010. She has also volunteered for many years in the Downtown Eastside of Vancouver in assisting marginalized people located there.

There have also been other volunteer activities. [ 22 ] The offender has attended seven one-hour therapy sessions with Mr. Dale Trimble, a registered clinical counsellor. Having over the past 35 years worked with over 2,000 clients, committing various types of offences, he described this offender's sense of responsibility through her expressed and willing acceptance to face any period of incarceration imposed for this misconduct as something he has not often seen.

He notes this as a significant factor that in his professional opinion mitigates any risk of future similar misconduct, along with other factors that include the high level of family support, her academic record, and her commitment to serve and educate others about the risks of drinking and driving by drawing attention to her own irresponsible behaviour. [ 23 ] The pre-sentence report prepared for the court echoes similar attitudes expressed by the offender and others about her to the probation officer interviewing her.

There is nothing contained in that report that would question or challenge the veracity of those sentiments. [ 24 ] Based on all of the foregoing sources of information, I believe it is fair to characterize this offender as but for this offence having a longstanding commitment to helping the disadvantaged and eventually making a career of it. Her conduct in committing this offence appears not to be in keeping with her character as demonstrated before and after its commission.

Her expressions of remorse and acceptance of personal accountability appear to be genuine and based not only on her own assertions, but the impressions she has left upon others, some of whom are professionally detached from this case. [ 25 ] I will now address the legal principles of sentencing by which this court must be guided in imposing sentence and their application to this particular case. [ 26 ] Sentencing offenders under the Criminal Code requires an individualized and discretionary assessment of each case.

That assessment, however, is one that must be informed by the relevant sections of the Code and by the case authorities interpreting and applying them. [ 27 ] The fundamental purpose and principles and objectives of sentencing under the Criminal Code are those set out in sections 718 to 718.2 . [ 28 ]

Section 718 provides that: The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of 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 acknowledgment of the harm done to victims and to the community. [ 29 ]

Section 718.2 provides that: 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 the offence or the offender...

(

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. [ 30 ] And, finally, s. 718.1 provides that the fundamental principle of sentencing is that: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

This section, which could be described as the centrepiece of Canadian sentencing legislation, connects the criminal sanction with the concept of retribution as a component thereof. [ 31 ] For reasons that will follow, I conclude that this case, as with many of a similar nature preceding it, calls primarily for a sentence reflecting the objectives of retribution, denunciation and deterrence. These principles are very well described in the Supreme Court of Canada case of R. v.

C.A.M. , reported at [1996] SCR 500 . [ 32 ] At paragraph 79, Lamer C.J. said the following about retribution: Retribution, as an objective of sentencing, represents nothing less than the hallowed principle that criminal punishment, in addition to advancing utilitarian considerations related to deterrence and rehabilitation, should also be imposed to sanction the moral culpability of the offender. In my view, retribution is integrally woven into the existing principles of sentencing in Canadian law through the fundamental requirement that a sentence imposed be "just and appropriate" under the circumstances.

Indeed, it is my profound belief that retribution represents an important unifying principle of our penal law by offering an essential conceptual link between the attribution of criminal liability and the imposition of criminal sanctions . [ 33 ] Then, drawing upon the distinction between retribution on the one hand and vengeance on the other, the court went on to note that vengeance, as an uncalibrated act of harm upon another, has no place in a civilized system of sentencing; rather, as noted by the court at paragraph 80: Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct.

Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more . [ 34 ] The court goes on in that decision to describe the objectives of denunciation, explaining at paragraph 81 as follows: The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct .

In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. [ 35 ] Thus, the C.A.M. case endorses the clear and rational connection between the gravity of an offence and its associated moral blameworthiness on the one hand, and the resulting proportional but calibrated imposition of the retributive criminal sanction on the other, but also noting later in the decision the necessity to always keep in mind that any overall penal sanction imposed must be balanced against other legitimate sentencing objectives, including deterrence, denunciation, rehabilitation, and the protection of society, as difficult as it may be to separate those inter-related principles. [ 36 ] Applying these principles to the present case, there can be no conclusion other than that the offender's conduct was grave and morally blameworthy.

Her decision to drive a motor vehicle while intoxicated and having a blood alcohol content of 140 milligrams percent represents serious misconduct that deviates highly from normative societal behaviour. The driving also represents a high degree of intentional risk-taking and danger to which the public was exposed. That risk was particularly illustrated and materialized in the dangerous manner in which she was known to have operated the vehicle for the last ten seconds immediately before the collision.

Particulars of that risk included the acceleration of her vehicle to a speed of 103 kilometres per hour in a busy urban setting where the posted speed limit was 60 kilometres an hour; in failing to heed the red light requiring her to stop; in failing to heed or avoid the vehicle occupied by Ms.

Kaulius directly in front of her in the intersection, and; in proceeding into that intersection and colliding at a speed completely unabated. [ 37 ] Additional aggravating factors include the decision to attempt to avoid liability by leaving the scene of the accident and hiding in nearby bushes, knowing surely at least that Ms. Kaulius had been grievously injured. The devastating harm caused and the taking of the life of Ms.

Kaulius and leaving in its wake the impact on victims as already canvassed earlier in these Reasons also attracts a high degree of moral culpability. [ 38 ] As per the applicability of denunciation and deterrence as sentencing objectives, it is equally clear that these kinds of offences

are highly condemned by society. This is because too many lives have been senselessly taken at the hand of drinking drivers, causing needless pain and suffering that should be entirely preventable. A sentence must reflect in a measured way that reflection of society's values. [ 39 ] In R. v. Johnson, a 1996 decision of the Court of Appeal, Ryan J.A. had this to say about these two objectives of denunciation and deterrence in paragraph 30 of that decision.

She said: Crimes of theft may be motivated by poverty, crimes of assault may be motivated by fear, but what excuse can be offered for driving drunk, except that alcohol allowed the offender to lose all sense of judgment? It is for this reason that the communities rightfully express outrage when victims are killed or injured as a result of such conduct. It is for this reason that both deterrence and denunciation are legitimate objectives to pursue for this type of offence. [ 40 ] Before moving on from general principles, I will also refer to what is known as the totality principle set out in s. 718.2(

c) and earlier mentioned in these Reasons. [ 41 ] I must be mindful of this because I am sentencing this offender on multiple counts, for one of which a consecutive sentence is being sought.

Here is what Lamer C.J. had to say about this at paragraph 42 of the C.A.M. decision: In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the "totality principle." The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. [ 42 ] Having canvassed the applicable sentencing principles and objectives, I will now review a number of cases involving similar offences with a view to assessing the appropriate range of sentence in the present case, having regard to the presence or absence of various similar or relevant factors. [ 43 ] Here, it should be noted that the Crown seeks a jail term totalling 42 months, comprised of a 36-month term for the driving offences and six months for failing to remain at the scene.

By contrast, the defence position is one of 24 months and one month respectively, for a total term of 25 months. [ 44 ] Both Crown and defence presented a number of cases on point, including cases from other provinces. Although I have carefully read and considered all of the cases, I will refer only to those I find most pertinent. [ 45 ] In R. v.

J.A.W. , a 2006 decision of the British Columbia Court of Appeal, the 26-year-old female offender spent an evening drinking with her boyfriend and then with a blood alcohol level of 158 milligrams percent drove her car in the wrong direction on a freeway off-ramp and into oncoming traffic on the highway. A number of cars managed to avoid her, but she eventually collided head- on with a motorist, killing him instantly.

That motorist was a 23-year-old investment counsellor in a closely knit family, whose resulting loss was described as crushing. [ 46 ] On a charge of criminal negligence causing death the accused pleaded guilty and was found to express genuine remorse for her conduct, but she had a history of problems with alcohol and drugs and prior convictions for impaired driving as well as for dangerous driving.

In considering the Crown's appeal, the court substituted the lower court's sentence of two years with a jail term of four years, noting that the offender had learned nothing from her prior convictions and experiences. [ 47 ] In R. v.

Binning, a 2012 decision of this court, the offender pleaded guilty to dangerous driving causing the death of two individuals and causing bodily harm to a third, all of whom were family members in a car that he, while approaching from behind in his vehicle at a speed estimated between 105 and 120 kilometres an hour in a 60 kilometre an hour zone, rear-ended as it was travelling ahead of him on the roadway.

He immediately escaped the scene on foot and was not arrested and charged until almost two years following the accident after a lengthy police investigation. [ 48 ] Binning had a driving related record of such significance that the sentencing judge found him not to take his driving responsibilities seriously.

Although he did eventually enter a guilty plea, it was very late in the process and overall the offender was found to have not exhibited genuine remorse for his conduct. [ 49 ] Binning received a sentence of three years total incarceration on the two charges of dangerous driving causing death and one charge of dangerous driving causing bodily harm. He was imposed a consecutive 18-month term for leaving his numerous injured and dying victims and for his lengthy interval of hiding from responsibility. [ 50 ] Another case involving failing to remain at the scene is R. v. McAndrew .

Following an accident the offender removed his lifeless passenger from the car, laying her on the ground and then fled to the home of a friend, where he was persuaded to turn himself in to the police. McAndrew had a bad driving record that included a previous conviction for dangerous driving, as well as refusal to provide a breath sample, and this was now the second time he had failed to remain at the scene of an accident.

The appeal court upheld McAndrew's sentence of six months jail. [ 51 ] Isolating that particular aspect of the conduct in the present case I do not consider the overall circumstances of the failure to remain offence and circumstances of the offender to be as aggravating as that found in McAndrew. [ 52 ] In R. v. Charles , a 21-year-old offender arrived already drunk to a party where he consumed additional liquor, reaching a blood alcohol level in the vicinity of 200 milligrams percent.

He then drove his mechanically unfit and unregistered car, without a valid driver's licence, and lost control of his vehicle, killing his two young passengers. The Court of Appeal upheld the sentence imposed by

the trial judge on the unremorseful offender, which was one of three years incarceration in total. [ 53 ] In R. v. Berner , a 58-year-old female offender, who had consumed alcohol but was not found to have been highly intoxicated thereby, driving at a high rate of speed and oblivious to two approaching speed bumps, lost control of her car and killed a four-year-old girl and seriously injured her aunt. She had no prior record and the crime was committed in a time interval measured in minutes or seconds.

That offender was sentenced to a term of two-and-a-half years’ jail. [ 54 ] Defence counsel, in particular, raised the case of R. v. Matheson , a decision of the Supreme Court of British Columbia. In that case the offender, a young adult, was driving her father and two passengers home from a party while she, herself, had a blood alcohol content of over 130 milligrams percent and she did not have a driver's licence. She lost control of the car around a corner, as a result of which her father was killed and one passenger seriously injured.

The reason she drove was that she was in better condition impairment- wise than her father. She was sentenced to two years in prison. [ 55 ] There are some features in common between the Matheson case and the case presently before the court. For example, both involve younger female offenders with no prior records; both involve a level of intoxication in the 140 milligram percent range.

Some features of the case could even be described as more aggravating than the present case, such as the court's finding of a prolonged driving, adding to the level of moral blameworthiness. [ 56 ] However, despite those features, I find there is more to distinguish the case than to identify with it.

The three most distinguishing features relate firstly to the personal circumstances of the offender, which were described as having been extremely disadvantaged - that is not a feature of the present case; secondly, the close relationship between the offender and her victims, which placed the relative weighing and assessment of the sentencing objectives in a different context, and in this regard I refer to paragraph 9 of that decision in particular, and; thirdly, while the driving identified in the present case was not as prolonged as that found in Matheson it nonetheless occurred in a fashion that I conclude to be significantly more culpable than in Matheson .

It is for those reasons that the Matheson case is more useful to the present case for the principles enunciated than for the two year sentence actually imposed on that particular offender. [ 57 ] That said, it should be noted that appellate authority guiding sentencing in British Columbia for offences such as these range from those at the lower end of 18 months to a high end range touching eight years incarceration. See in this regard the cases of R. v. Lunn, R. v. Grezenda, R. v. Sweeney and R. v.

McNeil, all decisions handed down by the British Columbia Court of Appeal in 1992. [ 58 ] The sentence imposed in the Berner case may be characterized as one closer to the lower end of the range of sentence imposed for these types of crime.

I consider the sentence imposed in the Berner case would be insufficient in the present case as it would not adequately reflect the increased level of moral blameworthiness of this offender as demonstrated by the higher level of alcohol intoxication and the more dangerous manner of driving, even if that driving was exhibited in an interval also measured in seconds. [ 59 ] Similarly, I note that sentences in British Columbia exceeding three to four years incarceration tend to involve cases involving longer intervals of bad driving or risk-taking, multiple injuries and deaths, poorer prospects for rehabilitation, departure from the scene in a particularly aggravating fashion, and/or where the offender had prior convictions for similar conduct.

Terms of incarceration beyond that begin to approach the realm of isolating the offender from society, which is not an objective I find necessary to these proceedings; see in this regard, R. v. Woodley , a 1993 decision of the Court of Appeal. [ 60 ] In determining where the present offender fits along this sentencing continuum I am drawn to the following considerations:

(1) The offender has no prior criminal record and while she has something of a driving record I do not regard it as a particularly aggravating factor.

(2) The departure of the offender from the scene, while hurtful and morally reprehensible, was likely influenced by text message advice received from her then boyfriend. I am satisfied it occurred more as

an act of stricken panic, but having little chance of actual success, there being other people also present at that time. She was located minutes later.

(3) The offender subsequently co-operated with police in providing her DNA to aid the investigation and she pleaded guilty at the earliest reasonable opportunity after receiving appropriate legal advice and thereby saving significant court resources and sparing the victims additional emotional strain they would have had to otherwise endure.

(4) Apart from this offence, which the offender has herself described as unforgiveable, she has otherwise lived a life demonstrating good character and helping others. She has an established plan to continue and conclude her academic education after serving any sentence imposed and has the support of her family and others around her. She is not likely in my view to reoffend.

(5) The offender is genuinely remorseful. She does not seek to lay blame on any of her life circumstances and has told many people she wishes to receive a jail term to personally atone for her misconduct.

(6) Overall, the offender's moral culpability based on how she drank and drove is a highly aggravating factor; however, this must be tempered by the observation that while her actions and whereabouts for the roughly 45 minutes after leaving her residence are unknown, the driving for which she is being sentenced involved conduct measured in seconds.

(7) The harm caused by her conduct during that brief interval cannot be adequately put into words. This is clearly an aggravating factor. [ 61 ] Overall, I determine the appropriate range for Counts 1 and 3 to be higher than 30 months, but not higher than 36 months. I determine the sentence for Count 4 to fall in the range of three to four months, for a total sentence falling in the range of between 33 to 40 months duration.

[ 62 ] Ms. Warren, would you please stand? [ 63 ] For your commission of the offences of dangerous driving and for having a blood alcohol level exceeding 80 milligrams percent and thereby causing the death of Kassandra Kaulius, I sentence you to a penitentiary term of 34 months. For your commission of the offence of failing to remain at the scene of the accident, I sentence you to a term of three months, to be served consecutively to the other terms.

The total length of the sentence commencing today is, therefore, three years and one month. [ 64 ] I also prohibit you from operating a motor vehicle on any street, road, highway or other public place for a period of eight years. [ 65 ] If you have a driver's licence with you I direct the Deputy Sheriff to take it from you at this time. [ 66 ] Insofar as these matters involve primary designated offences, I order pursuant to s. 487.051 that you provide such samples of your DNA as may be suitable for analysis. [ 67 ] The surcharge is waived. (SENTENCE CONCLUDED)