R. v. Oliver, 2019 NLSC 20

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Oliver , 2019 NLSC 20 Date : January 30, 2019 Docket : 201801G2684 Her Majesty The Queen v. Thomas Sheldon Oliver Before: Justice William H. Goodridge Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: January 28, 2019

Summary: The 50-year old offender pleaded guilty to operating a motor vehicle while disqualified. He had 18 prior convictions for the same offence during the prior 25 years, including one during the prior year. The Court imposed a sentence of two years plus a day, plus a lifetime driving prohibition. Appearances:

Carrie M. Herman Appearing on behalf of the Crown Philip G. Warren Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R. v. Whalen, 2017 NLTD(G) 100; R. v. Naugle, 2010 NSPC 11; R. v. Powder, 2017 NWTTC 4; R. v. Drake,2010 NLTD 82; R. v. Hindmarch, 2010 BCSC 1257; R. v. Curtis, 2009 NLTD 14; R. v. Pardy (2009), 87 W.C.B. (2d) 80, (NL PC); R. v. Slaney, 2013 NLCA 70; R. v. Wheeler (2015), 1167 A.P.R. 157, 375 Nfld. & P.E.I.R. 157 (NL PC); R. v. Roberts,2016 NLTD(G) 82; R. v. Brake (2015), 372 Nfld. & P.E.I.R. 172, 1158 A.P.R. 172 (NLPC); R. v.

Antle (1993), (NLCA), 108 Nfld. & P.E.I.R. 321, 339 A.P.R. 321 (Nfld. C.A.); R. v. Foley, 2017 NLTD(G) 86 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46. REASONS FOR JUDGMENT Goodridge, J.: INTRODUCTION [1] On October 17, 2017, Thomas Oliver, age 50, pleaded guilty and was convicted for operating a motor vehicle whiledisqualified, contrary to section 259(4) of the Criminal Code, R.S.C. 1985, c.

C-46. issue [2] The issue before the Court is the determination of a fit sentence for the crime. objectives and principles of sentencing [3] The determination of a fit sentence requires the consideration of the factors contained in sections 718 to 718.2 of theCriminal Code. The sentencing objectives include: denunciation, general and specific deterrence, protection of the public, rehabilitation,reparation, the promotion of a sense of responsibility in the offender, and acknowledgement of any harm caused. The weight given toeach sentencing objective can differ.

Section 718.1 mandates that a sentence be “proportionate to the gravity of the offence and thedegree of responsibility of the offender”.

Section 718.2 sets out several other sentencing principles that the Court shall consider, such asaggravating or mitigating circumstances, and that the sentence should be similar to sentences imposed on similar offenders for similaroffences committed in similar circumstances. [4] For this particular offender, and this particular offence, the primary goal of sentencing is protection of the public and themaintaining of confidence in the administration of justice.

This is achieved by focusing, in the current context, on the sentencingprinciples of deterrence and denunciation. facts [5] On August 3, 2017, police observed Mr. Oliver driving a Ford Explorer near the intersection of Mundy Pond Road andRopewalk Lane. Mr. Oliver had stopped as a courtesy, to allow a police cruiser to enter the flow of traffic. The police officer (SergeantNeil Duggan) observed that Mr. Oliver was not wearing a seatbelt. In responding to the seat belt issue, Sgt.

Duggan learned that Mr.Oliver did not have a driver’s license and was under a driving prohibition. [6] There was no alcohol or drug involvement, and no other criminal activity. circumstances of the offender [7] A Pre-Sentence Report (PSR) was prepared on January 21, 2019, and it details Mr. Oliver’s background and personalcircumstances. [8] Mr. Oliver dropped out of school after grade six, but subsequently upgraded and is now close to achieving a high schoolequivalency. [9] Mr. Oliver completed a course in small engine repair, and works part-time in small engine repairs (marine). It is a loose

employment arrangement where Mr. Oliver works part-time when there is the need. He has had the same employer over the past 14 years, and that employer (Don Parrell) describes Mr. Oliver as a “dependable and competent worker”. Mr. Parrell did not comment on Mr. Oliver’s absences from work during those same 14 years. Jail terms imposed on Mr. Oliver during that period total 53 months. In addition, Mr. Oliver admits that he was struggling with problems relating to cocaine and alcohol abuse during nine of the past 14 years. Over the past five years, Mr.

Oliver has discontinued use of cocaine, and has significantly reduced his consumption of alcohol. [ 10 ] When not working Mr. Oliver depends on social assistance. [ 11 ] Mr. Oliver has a significant criminal history, which includes 18 prior convictions for driving while disqualified and more than 60 other criminal convictions over the past 30 years. The last conviction for driving while disqualified was January 6, 2016, and the sentence imposed was just under 14 months jail. Despite this long history of criminal behavior, and long history of disrespect for court orders, Mr.

Oliver has made a change for the better during the past several years. The January 2016 criminal conviction is his only encounter (other than the current matter) with the criminal courts since 2011. In addition, Mr. Oliver discontinued use of drugs five years ago. There is a direct correlation between his drug use and his criminal behavior. As Mr. Oliver reduced and eliminated his use of drugs (principally cocaine), his criminal behaviour reduced. [ 12 ] Mr.

Oliver has participated in various rehabilitative programs offered by Correction Services of Canada over the years, and he has attended Alcoholics Anonymous meetings. These initiatives suggest that he is receptive to change for the better, although it has been slow coming. [ 13 ] The author of the PSR concludes that Mr. Oliver is not suitable for a conditional sentence order, or for a community service order considering his past inability to comply with court orders. circumstances of the offence [ 14 ] The circumstances of the offence are set out in the brief

summary of the facts, above. [ 15 ] The guilty plea at trial is mitigating. The extensive criminal record, including for similar infractions of the Criminal Code , is aggravating. maximum sentence [ 16 ] The maximum sentence for this offence is 5 years in jail. There is no minimum. position on sentence [ 17 ] Crown counsel suggests a sentence of two years followed by three years’ probation, plus a lifetime driving prohibition. [ 18 ] The context of the crime involves the isolated activity of driving while disqualified. There was no suspicion of impairment or other criminal activity.

However, the Crown seeks this relatively high sentence because prior, more lenient sentences (including the 14- month sentence imposed the prior year) have not delivered the message. Mr. Oliver has not been deterred. He continues to ignore court orders. [ 19 ] Defence counsel suggests a sentence of 11 months, plus a 10-year driving prohibition. In his view, the top of the range for ‘similar’ offenders is only around 12 months, and this matter should not be at the top. The context is that Mr. Oliver was not impaired and was not engaged in any other criminal activity.

That is a significant difference, in the view of Defence counsel, and distinguishes Mr. Oliver’s situation from several of the sentencing authorities relied upon by the Crown. In addition, Defence counsel submit that recent history supports argument that rehabilitation is still possible and that sentencing objectives of rehabilitation must be given some weight. In the alternative, if the Court accepts the Crown’s view that a two-year sentence is appropriate, then Mr. Oliver prefers to have a sentence of two years plus a day. This duration will allow Mr.

Oliver to serve his sentence in a Federal Institution where (he believes) better programming toward rehabilitation is available. COMPARABLE SENTENCING AUTHORITIES [ 20 ] As stated above, the sentence imposed in this case should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Counsel submitted several sentencing decisions, which involve similar offences and similar circumstances. Each case is unique, and each case will have differences in the mitigating and aggravating factors. [ 21 ] In R. v.

Whalen , 2017 NLTD(G) 100, a 69-year old offender was convicted of several crimes, including impaired driving causing death and driving while under a prohibition. Burrage, J. imposed a total sentence of seven years. The sentence relating to driving while under a prohibition was two years concurrent and a lifetime driving prohibition. The context (a death) is quite different from our current context; however, other aspects (age, criminal record, history of alcohol abuse) are similar. [ 22 ] In R. v.

Naugle , 2010 NSPC 11 , a 53-year-old offender pleaded guilty and was convicted for impaired driving and driving while under a prohibition. Hoskins, J. imposed a total sentence of six years and three months. The sentence relating to driving while under a prohibition was three years (less 21 months credit for pre-sentence custody). The context is different (impaired while driving) but otherwise this is a comparable case. We have a man of the same age with a long history of criminal activity, and a long history of disregard for public safety by repeated driving while under a prohibition. [ 23 ] In R. v.

Powder , 2017 NWTTC 4 , a 48-year-old aboriginal man pleaded guilty and was convicted for impaired driving and driving while under a prohibition. Malakoe, J. imposed a sentence of two years and nine months on each count (concurrent), plus a lifetime driving prohibition. The context is different (impaired while driving), but otherwise this is a comparable case. We have a man of about the same age with a long history of disregard for public safety by repeated driving while under a prohibition.

[24] In R. v. Drake, 2010 NLTD 82, a 52-year old man pleaded guilty and was convicted for driving while under a prohibition. Handrigan, J. imposed a sentence of one year plus a 10-year driving prohibition. There was a prior criminal record, somewhat dated,that included nine prior driving related offences, including one conviction for driving while disqualified. Mr. Oliver’s criminal history issignificantly more aggravating. In comparison, Mr. Oliver has had 18 prior convictions for driving while disqualified.

The context isotherwise identical --- similar age male, no drugs or alcohol involved, and no other criminal activity involved. A comparable sentencefor Mr. Oliver would be greater than one year, because of the aggravating circumstances. [25] In R. v. Hindmarch, 2010 BCSC 1257, a 30-year old man pleaded guilty and was convicted for driving while under aprohibition. Fisher, J. imposed a sentence one year and 9 months (less time served) plus a 10-year driving prohibition.

The offenderhad a lengthy criminal record including three prior convictions for driving while prohibited, four for dangerous driving, and three forimpaired driving. He had been subject to five driving prohibitions, the last two of which were recent. [26] In R. v. Curtis, 2009 NLTD 14, a 45-year old man pleaded guilty and was convicted for driving while under a prohibition. Adams, J. imposed a sentence of one year plus a one-year driving prohibition. There was a lengthy criminal record, (38 priorconvictions including eight for driving while disqualified). The facts are similar to the situation with Mr. Oliver.

One distinguishingfeature is that the Crown had requested sentence be one year. Another distinguishing feature is that Mr. Oliver has a more extensivecriminal record of related offences. [27] In R. v. Pardy (2009), 87 W.C.B. (2d) 80, (NL PC), a 24-year old male pleaded guilty to several drivingrelated offences, including dangerous driving and driving while under a prohibition. Gorman, J. imposed a total sentence of nine months,with three months relating to the driving while disqualified. Mr. Pardy was a youthful offender with a positive pre-sentence report.

Heaccepted full responsibility and had good prospects for rehabilitation. His prior record (two criminal convictions) was insignificant incomparison to Mr. Oliver’s. The circumstances are not comparable and accordingly the resulting sentence is of limited value as a guidefor the current matter. [28] In R. v. Slaney, 2013 NLCA 70, the Court of Appeal upheld a 10-month jail term for two counts of driving while under aprohibition and one count of breach of probation. The offender had five prior convictions, over the previous 10 years, for driving whiledisqualified.

This was an appeal by the offender and Barry, J.A. noted that “Mr. Slaney has shown nothing to indicate a sentence of 10months is disproportionate or excessive”. Mr. Oliver’s criminal record of similar offences is much more extensive, in comparison to therecord of Mr. Slaney. Also, the trial Judge emphasized rehabilitation in light of the offender’s young age. [29] In R. v. Wheeler (2015), 1167 A.P.R. 157, 375 Nfld. & P.E.I.R. 157 (NL PC), a 47-year old man pleaded guilty and wasconvicted of impaired driving, breach of probation, and driving while under a prohibition.

Gorman, J. imposed a 22-month sentence, partof which was a 10-month sentence (before adjusting for totality) for driving while disqualified. The offender had a history of relatedoffences, including five prior convictions for drinking and driving and two prior convictions for operating a motor vehicle whileprohibited. [30] In R. v. Roberts, 2016 NLTD(G) 82, a 34-year-old offender was involved in an armed robbery, during which he drove to andfrom the crime scene while under a driving prohibition.

He had a lengthy criminal record, including (inter alia) prior convictions fordangerous driving, impaired driving, and driving while disqualified. Marshall, J. imposed a four-year sentence plus a four-year drivingprohibition. There were two convictions for driving while disqualified and Marshall, J. imposed six-month sentences (concurrent) onboth. Of note, Marshall, J. relied upon what she described as the “very helpful” sentencing principles for the offence of driving whileunder a prohibition, as set out by Gorman, J. in R. v. Brake (2015), 372 Nfld. & P.E.I.R. 172, 1158 A.P.R. 172 (NLPC).

At paragraph 33of that decision Gorman, J. stated: 33 I would summarize the sentencing principles applicable to the offence of operating a motor vehicle, while prohibited from doingso, in the following manner: • the offence involves a breach of a court order and the principles applicable to other offences involving breaches of court orders apply(Drake); • periods of imprisonment, will as a result, often be imposed (in R. v. Power, [2010] N.J. No. 331 (N.L. Prov.

Ct.), for instance, PikeC.J.P.C. indicated that sentences "for breaching court orders almost always involve incarceration to denounce this conduct and send asignal to those who would be so inclined."); • the primary goal of sentencing for this offence is protection of the public and the maintaining of confidence in the administration ofjustice through resort to the sentencing principles of deterrence and denunciation (Slaney, Drake, R. v. Kakakaway, 2006 SKCA 18, [2006] S.J. No. 91 (Sask. C.A.), and R. v. Williams, [2004] N.J. No. 77 (N.L.

C.A.)); • lengthy driving prohibitions will be imposed for repeat offenders (Williams and R. v. Cullen, [2009] N.J. No. 57 (N.L. C.A.)); • conditional periods of imprisonment have been imposed (Bell and Wheeler);

• periods of imprisonment of 1 month (Bell, Moulton and R. v. Matthews, [2004] N.J. No. 35 (N.L. Prov. Ct.)); 2 months (Jacobs); 3months (R. v. Pardy, [2009] N.J. No. 321 (N.L. Prov. Ct.)); 4 months (Wheeler and R. v. Hedderson, [2006] N.J. No. 135 (N.L. Prov.Ct.)); 6 months (R. v. Mitchell, [2008] N.J. No. 55 (N.L. T.D.)); 8 months (Dwyer); and 12 months (Drake) have been imposed. Thehigher end of this range being reserved for those with lengthy and related criminal records; and • a fine has been imposed (Reid). [31] In R. v. Antle (1993), (NL CA), 108 Nfld. & P.E.I.R. 321, 339 A.P.R. 321 (Nfld.

C.A.), a 32-year oldoffender was sentenced to a total sentence of 12 months for ‘over 80’, dangerous driving, and driving while under a prohibition, plus aone-year driving prohibition. Two months of the sentence related to the offence of driving while disqualified. There were five priordriving related offences, an undisclosed number of other criminal convictions. This was a relatively young offender by comparison toMr. Oliver. [32] In R. v. Foley, 2017 NLTD(G) 86, a 48-year old offender was convicted after trial for aggravated assault, breach of probation,and driving while disqualified.

He was sentenced to four and a half years, with four months of the sentence relating to the driving whiledisqualified. There was a prior record of 15 criminal convictions, four of which were driving related. Mr. Oliver’s prior record is muchmore serious, and the sentencing Judge acknowledged that the four-month sentence imposed “is of shorter duration than I would sentencehim for this offence if it had stood alone” (paragraph 56). In the circumstances, this decision is of limited guidance in constructing the fitsentence for Mr. Oliver. [33] From these authorities, I conclude that there is rather broad range.

Among offenders of similar age to Mr. Oliver, and of similarcriminal past, the range appears to be from four months jail to three years in jail. Isolating the authorities that involve only a singlecharge of driving while disqualified (Drake, Hindmarch, Curtis) the range is from 12 months jail to 21 months jail. [34] Mr. Oliver has been given gradually higher sentences for repeats of the same offence over the years, which is entirelyappropriate. If he does not get the message to discontinue this criminal behavior, by imposition of a light sentence, then a heaviersentence is justified.

The last sentence he received (2016) for driving while disqualified was 14 months in jail plus a 10-year drivingprohibition. The next year, not too long after his 2016 sentence was completed, he repeated the exact same criminal conduct, being thiscurrent matter. The sentence today needs to be heavier. Prior sentences have been ineffective in achieving the sentencing objective ofspecific deterrence. analysis [35] There is a high degree of responsibility on Mr.

Oliver’s part, considering that the current offence is merely the latest in a stringof 18 convictions for driving while disqualified, going back over the past 25 years. Interspersed with these convictions there arebreaches of probation, assaults, thefts, causing a disturbance and more. Mr. Oliver has little or no respect for the laws, which seek toprotect the public. He flouts the Court's efforts to eliminate that risk and he shows contempt for the Court's interest in protecting theinnocent members of the public. [36] Based on the PSR, I am of the view that Mr.

Oliver has little insight into his criminal behavior, apparently unaware orunconcerned that his driving is a public hazard, based on his past record. It is also abundantly clear that he has almost no respect forcourt orders. This current disregard for a court order (the driving prohibition) occurred less than nine months after he finished his jailsentence for the same offence. There are 38 other convictions for disregarding court orders. Mr. Oliver has been given many chances torehabilitate himself, by more lenient sentences, and those attempts have failed. Mr.

Oliver deliberately breached the driving prohibitionyet again. Mr. Oliver needs a stronger message sent to him than has previously been sent in an attempt to have him mend his ways. Mr.Oliver poses a risk to the public, a risk that some innocent person will be injured or killed due to his irresponsible conduct of drivingwhile prohibited. [37] A substantial period of incarceration is required if he is going to be deterred from future offences.

In addition, a significantperiod of incarceration is required to reflect the seriousness of the impact on the driving public should drivers decide to follow Mr.Oliver’s example. [38] For breach of section 259(4) of the Criminal Code, Mr. Oliver is sentenced to two years plus a day, plus a lifetime drivingprohibition. _____________________________ William H. Goodridge Justice