R. v. Payne, 2020 NLSC 110

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Payne , 2020 NLSC 110 Date : August 10, 2020 Docket : 201804G0191 Her Majesty The Queen v. KatlIn Payne Before: Justice Frances J. Knickle Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: July 29, 2020

Summary: Mr. Payne pleaded guilty to dangerous driving causing bodily harm. The victim suffered serious long term injuries. Mr. Payne had no prior criminal history. He also pleaded guilty to two counts of breaching his recognizance. He was sentenced to a period of imprisonment for the three offences of twelve months, less the time served in remand. He had been prohibited from driving for almost three years. A further driving prohibition of two years was imposed. Appearances: Susan Gallant Appearing on behalf of the Crown

Rosellen Sullivan Appearing on behalf of the Offender Authorities Cited: ​ CASES CONSIDERED: R. v. Lacasse, 2015 SCC 64; R. v. Biancafiore (1997), (ON CA), 35 O.R. (3d) 782, 10C.R. (5th) 200 (Ont. C.A.); R. v. Blackmore (1996), (NL SC), 140 Nfld. & P.E.I.R. 56, 438 A.P.R. 56 (Nfld. S.C.(T.D.)); R. v. Warren (2003), 222 Nlfd. & P.E.I.R. 270, 662 A.P.R. 270 (N.L.S.C.(T.D.)); R. v. O’Keefe, 2011 NLCA 41; R. v. Proulx,2000 SCC 5; R. v. Sidhu, 2019 SKPC 19; R. v. Anthony-Cook, 2016 SCC 43; R. v. Frampton, 2018 NLCA 23; R. v. O’Keefe, 2010NLTD 45, aff’d 2011 NLCA 41; R. v. Rogers, 2008 NLCA 19; R. v.

Hodder (2012), 322 Nfld. & P.E.I.R. 243, 1000 A.P.R. 243 (N.L.Prov. Ct.); R. v. Tapper, 2009 NLTD 97; R. v. Steele-Young, 2019 NLSC 174; R. v. Loveys, 2020 NLSC 13; R. v. Sparkes (2011), 315Nfld. & P.E.I.R. 71, 981 A.P.R. 71 (N.L. Prov. Ct.); R. v. Snooks (2019), 157 W.C.B. (2d) 325, [2019] NLPC 1319A00262; R. v. Rawn,2012 ONCA 487; R. v. Hutchings, 2012 NLCA 2; R. v. Rich, 2019 NLSC 37. STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, c. C-46; Highway Traffic Act, R.S.N.L. 1990, c.

H-3 REASONS FOR JUDGMENT Knickle, J.: INTRODUCTION [1] Katlin Payne pleaded guilty to one count of dangerous driving causing bodily harm under section 249(3), and two counts ofbreaches of the terms of his judicial interim release contrary to section 145(3) of the Criminal Code. This is the decision on sentence. Several other charges also laid by the Crown against Mr. Payne are to be withdrawn at the conclusion of his sentencing on the abovecharges. THE CIRCUMSTANCES OF THE OFFENCES [2] The facts were tendered by way of an agreed statement of facts.

The essence of the offence of dangerous driving causingbodily harm is that Mr. Payne while under the influence of alcohol and other substances drove at an excessive speed and crashed head oninto the oncoming vehicle of Kenneth Antle who was on his way home. Mr. Antle was driving the posted speed limit and had no time toavoid the collision. Mr. Antle was severely injured as a result of the collision and still suffers from his injuries. He has not returned towork. The consequences of Mr. Payne’s criminal conduct has had devastating consequences for Mr.

Antle, both physically and mentally. [3] The circumstances of the offence are very serious and illustrate why dangerous driving wreaks havoc on our roads and putseveryone in danger. The facts are detailed below as follows: AGREED STATEMENT OF FACTS On August 4th, 2017 at roughly 11:55 p.m., the Corner Brook RCMP were called to a report of a two car roll over near the “Plant Hill”area of Summerside, NL on route 440. Those on scene could not get any response from the involved vehicles.

Police arrived on scene and noted that there was a 2008 Hyundai (JEB 913, registered to Kenneth Antle), significantly damaged and offthe road/into the southside ditch. The driver, identified as Kenneth, was badly injured and still trapped in his vehicle. Furthermore,police learn that the second vehicle, a 2016 Jeep (JDT 363, registered to Katlin Payne) was in the ditch further down the road. The Jeepwas extremely damaged, appearing to have rolled multiple times. It was later seen to have the driver’s side control arm/wheel hubsheared off along with the fender.

The body is crumpled everywhere and the rear passenger side wheel is sheared off. The windshieldwas out of the vehicle and laying on the ground further down the road. There was vehicular debris strewn around the front yard of theadjacent residential property. Looking at the sheer damage from the scene, police believe that the required energy to cause same wouldneed to result from speeds in great excess of the 50 km/hr speed limit. Police were also made aware that the driver of the Jeep had beenejected, was nearby the vehicle in the ditch and appeared he had been ‘drinking’.

The male was later identified as the vehicle owner,Katlin Payne and was found to have an odor of liquor from his breath. EMS who arrived on scene, indicated they had to immediatelyreturn to the hospital with Payne due to health concerns while the Fire Department continued to work on extracting Antle from hisvehicle. With the initial scene secured by police, a member attended the hospital with EMS. Katlin Payne was noted to have slurred and laboredspeech. Shortly thereafter, EMS also arrived with Kenneth Antle into the hospital’s emergency department.

Due to medicalintervention, Payne was placed on a ventilator and eventually medically sedated. Due to Payne’s status, he was incapable of providingbreath samples and consciously understanding a blood demand. It was confirmed that hospital staff had taken a quantity of bloodsamples from Payne at 1:20 a.m., which were secure in the hospital’s lab. Speaking to physician, it’s noted that both Payne and Antlewere in critical condition – Antle was stabilized, while Payne sedated.

From their investigation Police learned that Kenneth Antle was returning home from his job at the hospital. After dropping a co-worker off, he was on his way back to Summerside, NL. Shortly before the collision, a grey Jeep overtook a witness near Hugh’s Brook heading towards Summerside at a high rate of speed in the 50 kph zone. At 11:45-50 p.m. halfway up ‘plant hill’, Antle noticed a set of headlights coming at him in his own lane. The vehicle was driving excessively fast, estimated over 100 km/hr. There was no time for Antle to avoid the vehicle, which resulted in a head-on collision.

Witnesses, who were having a fire on the property adjacent to the scene heard the crash and saw a ‘big puff of smoke’. They ran down the driveway and seen Payne’s vehicle upside down in the ditch, empty. Payne was found close by laying in the ditch in his boxers. They also noted the second vehicle further up the road up on the hill, in the ditch. They call 911 and directed traffic. It was 1-2 minutes at most from the time of the crash until 911 was called. The earlier witness overtaken on route 440 identified Payne’s vehicle as the same one that had passed them.

Search warrants were authorized for Katlin Payne’s blood taken by the hospital, the medical records of both Payne and Antle for 10 days following the incident, as well as the search/seizure of the ACM module from Payne’s vehicle. Kenneth Antle has an extensive amount of medical records as a result of the crash. Included are notations of extreme injuries. Antle had an externally rotated leg, deformed arm/hand, open fractures in his lower limb, internal injuries caused by a laceration to the torso area including a lacerated liver and abrasions to his head.

Due to experiencing seizures following arrival at the hospital, Antle appears to have lost functions on the right side of his body, along with neurological problems being detected. In dealing with the family following this incident, police were also made aware of Antle having to he intubated, leading to loss function of his throat muscles and having to rely on the use of a feeding tube for several months after the incident. Antle, who was in ICU at the time of the interview by Police, could not yet walk nor place his weight on his leg which was strapped with a brace.

Antle himself could not recall the amount of broken bones he suffered but noted his femur/tibia were broken (his leg in 3 places) and he had broken ribs. Antle noted it was 6-7 weeks before he regained a full level of consciousness. Medical reports provided by the Hospital confirm that Antle was in the ICU for a period of 6 weeks and remained in the hospital for 6 months to recover from his injuries. Surgeries were required to correct the broken left hip (3 places), broken femur, shattered left knee, dislocated right wrist and to repair a large wound under his left arm.

He had 4 broken ribs and a broken vertebrae. He suffered two strokes after arriving at the hospital and was sedated and on a ventilator for weeks which resulted in a tracheotomy being required. Additionally he suffered number of other cuts and abrasions which required cleaning and sutures. He continues to suffer the consequences of these injuries. Medical reports were also obtained for Katlin Payne. In the medical records EMS described Payne as conscious/combative at the scene. Payne had strong smell of ethyl alcohol (drinking alcohol), with multiple lacerations to his torso and hematoma to his right eye.

At the hospital, he was noted to have intermittent combativeness, pain in his leg, no movement in left leg and had to be assisted with ventilation due to fast-shallow breaths. The physician summarized his injuries as scrapes/abrasions over his hip and knuckles – none of which required sutures. He had a fractured C6 vertebrae which wasn’t displaced and a severe pulmonary contusion with 2 fractured ribs. Payne was released from hospital days after the incident. Payne’s toxicology test from the hospital returned a presumptive positive result for Cocaine and Cannabis.

His alcohol levels at the time of sampling were noted as 57.6 mml/l, and noted a level of 17.0 mml/l is over the legal limit (this is a factor of 3.388). Payne's blood was sent for toxicology testing by the RCMP Forensic Laboratory for blood alcohol concentration testing and quantitative drug analysis for the detected cocaine and cannabis. The Report produced by the Forensics Laboratory on October 19, 2017, confirmed the presence of both cocaine and cannabis in the blood of Payne.

Blood Alcohol Content was returned as being 179 mg of alcohol in 100 ml of blood (+- 3 mg%) at the time the blood was drawn at 1:20 a.m. An extrapolation of this reading was completed and it was determined that the reading at 11:50 p.m. the time of the accident would have been between 194 -209 mg of alcohol in 100 ml of blood. RCMP Collision Reconstructionist had attended the scene initially and using their scene analysis and the data from the ACM module, a collision analyst report was completed.

The report notes that Kenneth Antle’s vehicle had a speedometer slap of 32 km/hr (indicated speedometer display at crash). Katlin Payne’s vehicle was traveling at 129 km/hr 5 seconds for the ACM algorithm (believed referring to before crash), and its accelerator pedal was 100% activated. At 0.6 seconds prior, the breaks were activated and the speed was 138 km/hr. At 0.1 seconds prior, the speed was reduced to 129 km/hr. From steering inputs, it was determined that Payne’s vehicle also crossed the center line and impacted with Antle’s.

Furthermore Payne’s vehicle was found to have no mechanical faults following an inspection and it was noted that the driver’s seatbelt was unbuckled at impact. Vehicular debris from Payne’s vehicle, which would have been traveling at the same speed ended up in the children’s play area on the adjacent residential property. Impact marks were noted on the children’s play structures – including a rotor. Payne was arrested on October 30 th , 2017 at 1400 hrs. He was afforded an opportunity to speak to a lawyer over the phone and in person. Police attempted a warned statement from Payne on the event.

Payne did not which to speak on the matter. He indicated and only ‘me and him’ would know who was in the right/wrong if they could remember. He went through the windshield, and credits being ejected with minimizing the injuries he sustained. He believed his ribs were broken due to the seatbelt. He noted when they hit, the other vehicle seemed to back into the ditch, while his went ‘flipping on’. He noted he was also taking 8-50 lbs bags of potatoes home for his sister (where the potatoes on the scene came from). He notes he had major injuries and had to be put on life support.

Even after being released, he was referred for surgery for his neck injury. [ 4 ] Mr. Antle also provided a victim impact statement to the court. Mr. Antle recounted that he spent six months in hospital, and has not fully recovered, even though the accident occurred three years ago. He has difficulty with simple tasks, both physically and mentally. Mr. Antle described the impact on his day to day living: Besides the obvious emotional ups and downs me and my family endured during the 6 months of hospitalization, I still struggles to do everyday chores.

I get frustrated very easily with simple tasks which limit what I do. For example mowing the lawn used to take an hour but now takes three hours that need to be spread out over several days due to the physical limitations on my body. I have to be relying on

others to complete chores around the house like clearing snow off the roof in winter months and getting wood for heating the home. I am no longer able to be a father who can support his children with any physical household chores… [ 5 ] The full statement was read into the record, and is nothing short of tragic. Mr. Antle suffered tremendous injury. He had to undergo a tracheotomy, and also suffered two strokes while in hospital. Now, still suffering the consequences, even something as simple as playing a game of cards is problematic. The above facts and victim impact statement of Mr.

Antle illustrate the gravity of this crime and the severe and permanent impact. [ 6 ] Mr. Payne also suffered serious injury and will have to carry the responsibility of his actions for the rest of his life. This is a heavy burden. [ 7 ] With respect to the two breaches of his Recognizance, the facts in

summary are that on two separate occasions, Mr. Payne wilfully failed to abide by a curfew condition. On one of the occasions he was missing for more than 24 hours. He did turn himself into the police on both occasions. [ 8 ] The sentence imposed for the above offences must adequately reflect the gravity of these circumstances. In these circumstances, part of the dangerousness of Mr. Payne’s conduct was that he had consumed alcohol, cocaine and cannabis. He should not have been behind the wheel of a car.

But to have also reached speeds of well over a hundred kilometers per hour, as he himself has candidly stated, he and Mr. Antle are lucky to be alive. THE CIRCUMSTANCES OF THE OFFENDER [ 9 ] Mr. Payne is 31 years of age. The Pre-Sentence report (PSR), albeit brief, is generally positive. Mr. Payne had a “happy” childhood and grew up in a stable and caring family environment. He has one sibling, with whom he is close, and also someone upon whom he has relied. He has the support of his family, notwithstanding his conduct. [ 10 ] As an adult, Mr.

Payne developed an addiction to substances, in particular, crack or cocaine. This addiction played a role in the offence, as the facts disclosed he was under the influence of not only alcohol but cannabis and cocaine at the time he struck the oncoming vehicle. Since the accident he has taken steps to address this abuse of substances. [ 11 ] There is also a seven-year-old daughter with whom he has a positive relationship. [ 12 ] He has also developed mental health issues since the accident. Mr.

Payne disclosed to the author of the report that he can attribute many of his impulsive decisions to his mental health issues having gone undiagnosed. He sought the care of a medical professional and expressed that he understands he must address these issues. [ 13 ] Mr. Payne has no criminal history prior to the present offences. He has held various labour types of employment, but since the accident has upgraded his skills by attending programs in the electrical field. He is open to counselling as part of any sentence and was deemed a suitable candidate by the author of the PSR. [ 14 ] Although Mr.

Payne has no recollection of what happened, he accepts responsibility for his conduct. [ 15 ] Mr. Payne has been under a number of strict conditions for his release since his arrest for these charges on October 31, 2017, including a condition not to drive a motor vehicle. Although there were initially issues with compliance, as the two offences for breaching

section 145 of the Criminal Code illustrate, since the second of the two charges for breaching the terms of his release, in February of 2018, there have been no issues. THE PRINCIPLES OF SENTENCING [ 16 ] The principles of sentencing are codified under the Criminal Code at sections 718 to 718.2 . Under

section 718.1, a sentence must be commensurate with the gravity of the offence and the degree of responsibility of the offender, sometimes referred to as the level of “moral blameworthiness” of the offender, or the “proportionality principle.” Wagner, C. J. in R. v. Lacasse , 2015 SCC 64 , explained the proportionality principle in sentencing, at paragraph 12: In such cases, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender.

The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. … [ 17 ] The proportionality principle includes a consideration of the kinds of sentences that have been imposed for similar offenders in similar circumstances, referred to as the “parity” principle.

However, as stated by Wagner, C.J., first and foremost, the sentence must “fit” the offender and the circumstances of the particular case. It is an individualized process. As stated in Lacasse , at paragraph 58 : “The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision.” [ 18 ] The fit sentence must reflect the fundamental principle under

section 718: 718. Purpose The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 or to the community. [19] The sentence imposed must also promote respect for the law, and a just and peaceful society as stated in

section 718. [20] Sentences for the offence of dangerous driving causing bodily harm, or many of the other driving offences, emphasize theprinciples of deterrence and denunciation. This is not to say that there is no consideration of the principles of rehabilitation. There is, andthere will be due weight given in this case. But the nature of the offence requires a primary emphasis on deterrence and denunciation.

Wagner, C.J. in Lacasse, at paragraph 73 stated: While it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevant to offences thatmight be committed by ordinarily law-abiding people. It is such people, more than chronic offenders, who will be sensitive to harshsentences. Impaired driving offences are an obvious example of this type of offence, as this Court noted in Proulx: [D]angerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence.

These crimesare often committed by otherwise law-abiding persons, with good employment records and families. Arguably, such persons are the onesmost likely to be deterred by the threat of severe penalties: see R. v. McVeigh (1985), (ON CA), 22 C.C.C. (3d) 145(Ont. C.A.), at p. 150; R. v. Biancofiore (1997), (ON CA), 119 C.C.C. (3d) 344 (Ont.

C.A.), at paras. 18-24; R. v.Blakeley (1998), (ON CA), 40 O.R. (3d) 541 (C.A.), at pp. 542-43. [para. 129] [21] As observed in the above excerpts there is a tendency for offenders and members of the public to see this kind of conduct,however reprehensible, not so much as “criminal,” but as “an accident.” In R. v. Biancafiore (1997), (ON CA), 35O.R. (3d) 782, 10 C.R. (5th) 200 (Ont. C.A.), referred to in the above quote, discussing the need for an emphasis on denunciation of suchoffences, the court stated at paragraph 26: The drinking and driving offences occupy a unique position in the criminal law.

Unlike most other criminal offences, such as crimes ofviolence or crimes against property, the stigma attached to the drinking and driving offences is often not matched by the objective gravityof these crimes. [22] The above statement is equally applicable to other driving offences such as dangerous driving causing bodily harm. [23] The principle of rehabilitation must also play a role as stated in Lacasse, at paragraph 4: “Rehabilitation is one of thefundamental moral values that distinguish Canadian society from the societies of many other nations around the world, and it helps thecourts impose sentences that are just and appropriate.” The principle of restraint must also play a role in determining the proper sentencein these circumstances, as per sections 718.2 (

d) and (e). Mr. Payne is a youthful, first-time offender who has never faced a term ofimprisonment. RANGE OF SENTENCE AND POSITION OF THE PARTIES [24] The maximum available sanction for dangerous driving causing bodily harm as dictated by the Criminal Code is ten yearsincarceration. It is also open to the Court to impose a driving prohibition to a maximum of ten years, plus any period of imprisonmentthat is imposed.

A review of the jurisprudence reveals that these sentences vary significantly depending on the circumstances. [25] At the low end of the spectrum are cases where fines have been imposed, including several from our jurisdiction (see forexample R. v. Blackmore (1996), (NL SC), 140 Nfld. & P.E.I.R. 56, 438 A.P.R. 56 (Nfld. S.C.(T.D.)); R. v. Warren(2003), 222 Nlfd. & P.E.I.R. 270, 662 A.P.R. 270 (N.L.S.C.(T.D.)).

In both Warren and Blackmore, the offenders pleaded guilty, asignificant mitigating factor. [26] Given the changes to the Criminal Code with respect to the considerations on sentence where bodily harm has occurred, it maybe that in most cases incarceration will be the appropriate sanction. As stated by our Court of Appeal in R. v. O’Keefe, 2011 NLCA 41 atparagraph 57, that since R. v.

Proulx, 2000 SCC 5, “there has been a developing trend towards the imposition of periods of incarcerationfor serious driving offences causing bodily harm.” [27] At the high end of the range are periods of imprisonment that approach a federal term, and longer, depending on thecircumstances (see R. v. Sidhu, 2019 SKPC 19). The joint recommendation on sentence

[ 28 ] Although not a formal joint submission, both the Crown and counsel for Mr. Payne submitted that the appropriate sentence in these circumstances is ten months imprisonment for the dangerous driving causing bodily harm, plus a driving prohibition of three years. The parties also recommended a period of probation of two years.

For the two breaches of his curfew, a condition of his judicial interim release, both counsel recommended a further period of imprisonment on each for 30 days, or one month to run consecutively to the period of imprisonment of ten months. [ 29 ] The total period of imprisonment recommended is twelve months. [ 30 ] There were slight differences respecting the implementation of the driving prohibition. The Crown submitted that the three years should be imposed without considering credit for the period of time that the Accused was prohibited from driving as part of his judicial interim release.

The Defence requested the Court take into account the fact that the Accused has been prohibited from driving since his arrest in October of 2017, as per the principle in Lacasse . [ 31 ] A joint recommendation while similar is not the same as a joint submission. I am not bound to follow the joint recommendation in the same way as a joint submission. That is to say, in circumstances where the parties have placed before the court a joint submission, the court will accept that submission, unless to do so would bring the administration of justice into disrepute or would be contrary to the public interest (see R . v .

Anthony-Cook , 2016 SCC 43 , at paragraph 32 ). However the same level of deference is not required with a joint recommendation. In R . v. Frampton , 2018 NLCA 23 , the Newfoundland and Labrador Court of Appeal explained the difference. At paragraph 21, the court stated: The benefit of a joint recommendation usually flows mainly to the defence because, by virtue of the Crown’s agreement, it is an indication to the court that the sentence is to be considered by the parties to be reasonable and appropriate.

Generally it is expected that the Crown would be seeking a more onerous penalty than would be submitted by the defence.

In the case of a joint submission, based on the quid pro quo and accommodation by the parties, benefits generally flow to both the Crown and defence. [ 32 ] At paragraph 28, the court then stated: I hasten to reiterate that, in assessing a joint recommendation, while procedural considerations similar to those that apply to a joint submission may be engaged, the high threshold discussed in Anthony-Cook would not apply in the case of a joint recommendation. [ 33 ] In these circumstances, I am satisfied that a period of ten months imprisonment, while at the lower mid end of the range, is within the range of sentence for the offence of dangerous driving causing bodily harm. [ 34 ] While I view the conduct of Mr.

Payne as very serious, and indeed it approaches a more serious offence, I am cognizant that I am not apprised of all the circumstances that may have been forthcoming if the matter had proceeded to trial. I must sentence him for the offence to which he has pleaded guilty. While the sentence is on the mid low side, given the circumstances, it is not so low that it cannot be endorsed. Mr. Payne has saved the need for a trial, and for Mr. Antle to have to testify. He has also expressed remorse, which I accept is genuine.

In this regard the situation has similarities to the circumstances of a joint submission and while I am not bound to follow the recommendation, I am prepared to accept the recommendation. Both counsel are experienced, and the sentence is within the range. [ 35 ] In assessing the recommendation, I am also cognizant that no sentence will put Mr. Antle back in the position he was prior to the accident. This is the tragedy of these kinds of offences. [ 36 ] Finally, it is important to remember that sentencing ranges are just that, ranges.

They are not fixed points or “straightjackets” from which a sentencing judge may never deviate ( Lacasse , at paragraph 57 ). A sentence is not unfit simply because it departs from what might be seen as the given range. But I am also cognizant that a sentence must be based on the proper application of principles including parity to the extent it can be applied and still result in the fit sentence. [ 37 ] The following decisions discussed below illustrate why I can be satisfied in these circumstances that a period of imprisonment of ten months is a fit sentence.

The ranges of sentence as illustrated in the case law [ 38 ] In R. v. O’Keefe , 2010 NLTD 45 , aff’d 2011 NLCA 41 , our Court of Appeal upheld a period of incarceration of six months for an offender who was found guilty after a trial of two counts of dangerous driving causing bodily harm to a mother and daughter who were pedestrians. The dangerous driving was largely due to his excessive speed. The mother suffered serious and likely permanent injury to her leg. The offender was considered at low risk to re-offend and the court accepted that he accepted responsibility for his conduct.

The offender possessed a previous history of offences under the Highway Traffic Act , R.S.N.L. 1990, c. H-3 . [ 39 ] In R . v . Rogers , 2008 NLCA 19 , an 18 month period of imprisonment was imposed after a trial on an accused for dangerous driving simpliciter. The offender possessed a previous criminal history including two offences for impaired driving. He drove an all- terrain vehicle with his two year old son, and also fled from the police. He pleaded guilty to the offence.

Although this decision addressed the range of sentences imposed for dangerous driving, it provided a useful review of sentencing decisions for dangerous driving causing bodily harm, illustrating at paragraphs 18-22 why the sentence imposed by the trial judge was more in keeping with the more serious offence of dangerous driving causing bodily harm. At paragraph 35, the court noted that sentences for dangerous driving causing bodily harm tended to range between a high fine and six months imprisonment.

The sentence was reduced on appeal to twelve months imprisonment. [ 40 ] I note the range observed in Rogers pre-dates the Court of Appeal’s subsequent review of sentencing for this kind of offence in O’Keefe , where the court observed that there was a tendency towards increased lengths of periods of incarceration, referring to Proulx . [ 41 ] In Proulx , referred to earlier, a youthful and inexperienced driver pleaded guilty to one count of dangerous driving causing bodily harm and one count for dangerous driving causing death. On the count involving bodily harm he was sentenced to 18 months

imprisonment. This sentence was upheld by the Supreme Court of Canada. [ 42 ] In R . v . Hodder (2012), 322 Nfld. & P.E.I.R. 243, 1000 A.P.R. 243 (N.L. Prov. Ct.) a youthful offender (20 years old at the time) pleaded guilty to one count of dangerous driving causing death and one count of dangerous driving causing bodily harm. He reached speeds of 130 kilometres an hour. Although the bodily harm suffered by the victim was not as serious as the circumstances here, the deceased in the matter was the victim’s brother. The victim watched his brother drown unable to assist him because of his own injuries.

The offender was bound by a probation order at the time. He was sentenced to eighteen months imprisonment and thirty months for the charge of dangerous driving causing death. He was prohibited from driving for five years. [ 43 ] In R. v. Tapper , 2009 NLTD 97 , the offender pleaded guilty, albeit on the eve of trial, to two counts of dangerous driving causing bodily harm. The injuries were serious but do not reach the magnitude of the injury suffered here. The offender had consumed alcohol and drove recklessly. The court attached a high level or moral blameworthiness to his conduct.

The previous conviction for aggravated assault supported that Mr. Tapper also may have possessed a problem with alcohol. Two concurrent sentences of twenty months were imposed, and a further consecutive three months for breach of a probation order. [ 44 ] In R . v. Steele-Young , 2019 NLSC 174 , a period of two years imprisonment followed by driving prohibition for a period of five years was imposed, after trial, upon a first time offender for speeding on busy highway in inclement weather causing an accident that caused his passenger to be ejected from the car.

The injuries to the passenger, the girlfriend of the accused, were catastrophic, and she was permanently paralyzed from the chest down from her injuries. The offender lacked insight into his conduct. The court emphasized both general and specific deterrence. The court took into account the fact that the offender had been prohibited from driving for a significant period of time. [ 45 ] While the injuries in the present circumstances are severe they are not of the same magnitude as in Steele-Young . I also note the significant distinguishing factor in the present circumstances that Mr.

Payne pleaded guilty, at an early stage of the proceedings, and accepts responsibility for his conduct. This was not present in the circumstances in Steele-Young . [ 46 ] In R . v. Loveys , 2020 NLSC 13 , two sentences of 20 months imprisonment were imposed for an offender who drove his vehicle and deliberately struck the two victims (the offender was also sentenced to aggravated assault). The offender pleaded guilty, and was a first time offender. He suffered from Crohn’s disease. He had the support of his family.

The sentencing court attached a high level of moral blameworthiness to his conduct. [ 47 ] In R . v. Sparkes (2011), 315 Nfld. & P.E.I.R. 71 , 981 A.P.R. 71 (N.L. Prov. Ct.) , a period of imprisonment of six months was imposed for dangerous driving causing bodily harm. A two year driving prohibition was imposed. The offender was 29 years of age with three children. He pleaded guilty. The victim suffered very serious injuries, and lost the use of his arm.

After a review of sentencing precedents, at paragraph 34 the sentencing judge observed that in Newfoundland and Labrador sentences ranged from fines to periods of imprisonment of upwards of twenty months. [ 48 ] In R. v. Snooks (2019), 157 W.C.B. (2d) 325 , [2019] NLPC 1319 A00262, a 26 year-old offender pleaded guilty to impaired driving causing bodily harm and was sentenced to 90 days imprisonment to be served intermittently, twelve months probation and a driving prohibition of eighteen months.

He had one prior unrelated conviction, and the injuries suffered by his passenger were much less serious than the circumstances here: a fractured wrist. [ 49 ] In R . v. Rawn , 2012 ONCA 487 the Ontario Court of Appeal overturned a suspended sentence imposed after a trial by jury for an offender who was involved in speeding with another vehicle. The cars collided and the occupants suffered very serious injuries. The Court of Appeal imposed a period of imprisonment of nine months, even though the driver of the other vehicle received a suspended sentence.

However, the court noted that the other offender had pleaded guilty and was very youthful. A five year driving prohibition was imposed. [ 50 ] These are examples of sentences that have been imposed for dangerous driving causing bodily harm. As can be seen, the circumstances of both the offence and the offender vary tremendously resulting in a wide range of what might be the “fit” sentence. The sentences vary from a low period of imprisonment, to the eighteen month period of imprisonment in Proulx and the two year sentence imposed in Steele-Young .

THE FIT SENTENCE IN THE CIRCUMSTANCES [ 51 ] The aggravating features of the circumstances here was the level of dangerous conduct and the harm caused to the victim, Mr. Antle. While no one disputes that Mr.

Payne never intended harm (something that might be considered to have been present in Loveys for example), he was nonetheless prepared to take control of a motor vehicle while having consumed alcohol and illegal substances, and drive at a very high speed, all acts which are clearly a “marked departure from the conduct of the reasonably prudent driver” and created a substantial risk to other drivers. [ 52 ] On the other hand, in mitigation, I accept that Mr. Payne is a first-time offender, and I accept his expression of remorse for the harm suffered by Mr. Antle at the sentencing hearing.

He is not youthful any longer, but he appears to have prospects in rehabilitation. While his level of moral blameworthiness in driving as he did is high, and the harm suffered by Mr. Antle as a result is severe, Mr. Payne has shown insight into the dangerousness of his conduct. He has taken concrete steps to get his life back on track, including schooling and counselling.

He is also addressing his mental health. [ 53 ] I view his admission of guilt in pleading guilty as a mitigating factor that deserves weight in determining the fit sentence. [ 54 ] Given the above, I am satisfied that a period of imprisonment of ten months for the dangerous driving adequately reflects both the principles of general deterrence and denunciation and the gravity of the circumstances, but also attaches the proper weight to the mitigating factors of his guilty plea, and his efforts at rehabilitation. [ 55 ] I am also satisfied a period of supervised probation is warranted.

The probation order will include the usual statutory

conditions, as well as a condition to have no contact or communication with Kenneth Antle and to remain away from his place of employment or residence. Mr. Payne will report to a probation officer immediately upon his release and thereafter as required by the probation officer.

He will also attend such counseling as recommended by the probation officer [ 56 ] For the two breaches of the terms of his judicial interim release, I am satisfied that a further period of thirty days of imprisonment on each count is appropriate and in keeping with sentences in similar circumstances. [ 57 ] I am also satisfied, as per the application of the principles in R . v . Hutchings , 2012 NLCA 2 , that the sentences should be consecutive, resulting in a total period of imprisonment of twelve months.

The breaches of the court orders are distinct and separate offences, and for this reason should be consecutive; they are also offences against the administration of justice. On two separate occasions, Mr. Payne ignored the conditions of his judicial interim release to abide by a curfew. On one of those occasions he went missing for 48 hours. For the conditions of such a court order to have any meaning, the consequences for intentionally failing to abide by conditions must be serious.

A concurrent sentence does not adequately address the seriousness of the offence. [ 58 ] I am also satisfied it is not necessary to have these sentences run concurrently to give the proper effect to the principle of totality. I am satisfied that to allow the sentences to run consecutively would not result in an overly harsh or crushing sentence.

A total sentence of twelve months in these circumstances, when combined with the driving prohibition I am about to impose, in my view results in the “fit” sentence, taking into account the above mitigating and aggravating factors, and the nature of the offences. [ 59 ] However, as Mr. Payne was remanded in custody on July 29, 2020, he has now spent 13 days in remand. I will give him credit for this time at the usual ratio of 1:1.5, which results in a credit of 19.5 days. He was also in custody for one day on three separate occasions in relation to each of the charges.

Giving him credit again at 1:1.5 results in 4.5 days, for a total remand credit of 24 days. I will deduct this amount from the second period of imprisonment of 30 days. The period of imprisonment will now be 6 days, not 30 days for the second breach of the Recognizance. THE DRIVING PROHIBITION [ 60 ] A driving prohibition is not mandatory for dangerous driving causing bodily harm, but in many cases will be an appropriate sanction. In the present circumstances a driving prohibition is recommended by both counsel. As I stated in R. v.

Rich , 2019 NLSC 37 , at paragraph 45 , a driving prohibition is a useful alternative to incarceration as a means of providing for the protection of the public, and to promote a sense of responsibility in an offender; particularly where there is confidence that the offender will abide by the order. [ 61 ] Mr. Payne has been bound by court order since November 1, 2017 to not drive a motor vehicle, a period of just over 34 months, or almost three years.

Under Lacasse , it may be appropriate to take into account this period of time in determining the appropriate driving prohibition. [ 62 ] As stated, both counsel have submitted a slightly different approach as to the extent to which credit should be given. I am not inclined to award full credit for the fact that Mr. Payne has been prohibited from operating a motor vehicle for almost three years. In these circumstances if credit is given on a 1:1 basis, this means that there will effectively be no further driving prohibition.

Given the seriousness of the dangerous driving, I am not satisfied that no further driving prohibition appropriately protects the public. While Mr. Payne’s guilty plea and expression of remorse are encouraging for his rehabilitative prospects, given the seriousness of his conduct, it would send the wrong message in my view that he be allowed to drive a motor vehicle upon his release. [ 63 ] In my view, the seriousness of the circumstances warrant a lengthy driving prohibition and I impose a driving prohibition of a further two years, plus the period of imprisonment as recommended.

This means that when combined with the prohibition that has been imposed to date because of the terms of his judicial interim release, Mr. Payne will be prohibited from driving for a period of almost five years.

In my view, this total duration is in keeping with the above and other sentencing precedents. [ 64 ] I am declining to impose a DNA Order in these circumstances. conclusion [ 65 ] For the offence of dangerous driving causing bodily harm, Katlin Payne is sentenced as follows to: - For the offence of dangerous driving causing bodily harm, ten months imprisonment; - For the two offences of breaching the terms of his judicial interim release, 30 days imprisonment on each to run consecutively to the dangerous driving imprisonment, and to each other, less the 24 days credit while on remand, for a total period of imprisonment of ten months and 36 days imprisonment. - Two year driving prohibition - plus his period of imprisonment; - Two years supervised probation. [ 66 ] Judgment accordingly. _____________________________ Frances J.

Knickle Justice