R. v. Malloy Date:, 2016 BCPC 467

Citation: R. v. Malloy Date: 20161107 2016 BCPC 467 File No: 212299 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. CHRISTOPHER EVAN MALLOY REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. SUDEYKO Counsel for the Crown: K. Wendel Counsel for the Defendant: S. Leamon Place of Hearing: Surrey , B.C. Date of Hearing: October 5, 2016; October 26, 2016 Date of Judgment: November 7, 2016

INTRODUCTION [ 1 ] Christopher Evan Malloy (“Mr. Malloy”), 52 years old, has entered guilty pleas to three counts of Impaired Driving Causing Bodily Harm, contrary to s. 255(2), as well as to one count of Failing to Remain at the Scene of an Accident, contrary to s. 252(1) (b), of the Criminal Code . [ 2 ] Mr. Malloy has a significant driving offence history, including alcohol-related infractions. [ 3 ] On January 27, 2015, Mr.

Malloy drank to extreme excess, got in his motor vehicle and drove recklessly and at extreme speeds on a major artery in the City of Surrey, B.C. [ 4 ] He caused a terrible accident. [ 5 ] The results were catastrophic. A man was left a paraplegic. His ten-year-old son was knocked unconscious, and a woman suffered a badly broken arm and a brain injury. [ 6 ] The Crown, referring to case law, says the appropriate sentencing range is 12-18 months for the Impaired Driving Causing Bodily Harm offences. She seeks the high end of that range. She also seeks a further two months for the Fail to Remain offence.

The Defence agrees with the Crown on the range, but asks me to consider something less than the high end, and suggests the Fail to Remain should be a concurrent sentence. [ 7 ] The issue in this case is this: What is the appropriate sentence for Mr. Malloy? THE DRIVING AND COLLISION [ 8 ] At approximately 9:00 p.m. on January 27, 2015, Mr. Malloy was driving his SUV (Sport Utility Vehicle) westbound on Fraser Highway in Surrey, B.C. Just after 152 nd street, he was observed to be driving at a high rate of speed, passing a vehicle in the right or outside lane. He “clipped” that vehicle, but failed to stop.

That is the subject of the Fail to Remain offence. [ 9 ] Mr. Malloy then continued on and entered a major intersection at 148 th street. The light had turned red for him, but he proceeded through. He narrowly avoided a collision with vehicles starting to cross 148 th on a green light. He was going at an excessive rate of speed, estimated at 150 kilometres per hour in a 60 kilometres per hour zone. [ 10 ] After travelling through the intersection and a further short distance where the highway narrowed to a single lane, Mr.

Malloy’s vehicle then slammed into the back of a vehicle being driven by Gurbinder Aujla, a father of four children, who was driving his ten-year- old son, Keetan, home from hockey practice. That collision then caused the Aujla vehicle to spin in a counter-clockwise direction and into the oncoming eastbound lane of traffic, where it collided with a vehicle being driven by Georgia Yost. The speed of the Malloy vehicle, calculated from the force of the collision, was determined to be between 140 and 152 kilometres per hour. [ 11 ] The force of the collision also forced the Malloy vehicle off the road.

When civilians went to assist Mr. Malloy at his vehicle, he was found to be significantly intoxicated. He was also belligerent, offering racist and stereotyping comments to those who were there to help him. His belligerence and obvious intoxication remained when the firefighters and emergency personnel arrived. THE INJURIES Gurbinder Aujla [ 12 ] As a result of the force of this collision, which caused the driver’s seat to break away, Mr. Aujla was pushed into the back seat area of his vehicle. His spinal cord was severed, leaving him a total paraplegic from the chest down.

He spent months in hospital and a rehabilitation facility. [ 13 ] The permanent loss of function and the effect on Mr. Aujla and his family was provided by both the Crown and in the victim impact statements offered at the time of sentencing submissions. It can only be described as catastrophic. [ 14 ] A small portion of Mr. Aujla’s victim impact statement reveals the extent of those injuries and that loss: - I am now paralyzed for the rest of my life. I have a T2-T4 spinal break.

From the chest down, 3/4 of my body is not able to do anything or feel anything - you have taken 3/4 of my life away - I am no longer able to come home from work and pick up my children, or, do things with them. I can’t play catch with them, take them to the park, or take them swimming - I cried while I was at GF Strong when my brother inlaw had to take my youngest son to baseball and play catch with him. That should have been me - I can’t teach my daughter to ride her first bike - I can’t play road hockey with my older sons - Because my body is 3/4 paralyzed, I can’t turn myself.

I have to lie flat on my bed and can no longer hug my wife whenever I feel

like it - I have lost 3/4 of the intimacy with my wife - Being paralyzed means that I need an overhead lift at home to put me in and out of bed and my wheelchair, because I do not have the strength or trunk support to transfer myself - Because of this condition, I have to have Care Aids coming in 3 times daily for 1-2 hour sessions to look after my personal needs. - I need daily help with my bowel routine, shower and getting dressed - I have to wear adult diapers because I can no longer feel 3/4 of my body Keetan Aujla [ 15 ] As a result of the collision, and in particular the significant force against the passenger side of the Aujla vehicle, Keetan was actually pushed over towards and into the driver’s location.

He was knocked unconscious and also suffered a bruised lung. Although he only spent a single night in hospital, the victim impact statements confirm there is a significant emotional injury that continues for this ten-year-old boy as a result of his experience in the collision and the effect on his father. Georgia Yost [ 16 ] As a result of the collision, Ms. Yost, also a mother of four, suffered, among other injuries, a comminuted fracture (shattered) wrist and arm. She required surgery and has undergone many months of rehabilitation.

She also suffered a brain injury, which has affected her memory, her ability to concentrate, resulted in periods of frustration, anger, loss of sleep, and regular migraines. She was no longer able to be that previously proud student and doting mother, losing much of the bonding opportunity with her then one year old daughter. It has affected her relationships, including her marriage, although she has the continued support of her husband. ALCOHOL READINGS [ 17 ] Mr. Malloy was transported to hospital, where he was both treated and his blood alcohol readings were taken.

Based on those readings, his blood alcohol level at the time of driving was determined to be between 255 and 291. DRIVING HISTORY [ 18 ] Mr. Malloy has an extensive driving record, starting in 1987, including the following: - Drive without Due Care and Attention (1987); - Speeding (1987, 1988 x2, 1989, 1990, 1994, 1996, 2003, 2007, 2010); - 24 hour prohibition (1987, 1994, 1999); - 24 hour prohibition-alcohol ( 2007, 2008, 2010); - Disobey Traffic Device (2011, 2014); - Refuse ASD and 90 day Immediate Driving Prohibition (2014); - Fail to Remain at the Scene of an Accident (2014).

THE RANGE FOR SENTENCE [ 19 ] The Crown, joined by the Defence, says that the appropriate sentence range in this case is 12-18 months of incarceration. [ 20 ] One of the “principles” that must be considered by a court at the time of sentencing is that of “parity”, which is set out at s. 718.2 (

b) of the Criminal Code : a sentence should be similar to sentences imposed in similar offenders for similar offences committed in similar circumstances. In short, consistency in sentencing is a principle that a court must consider. [ 21 ] Indeed, sometimes our Court of Appeal will provide guidance to trial courts with respect to the sentencing range for certain offences, often taking into account the circumstances of the offence, or the offender, and where in (or perhaps outside) that range the case might fall.

No such range from our Court of Appeal was presented to me regarding this particular offence. [ 22 ] However, the Crown has, quite properly and thoroughly, put before me a series of court decisions that are, to varying degrees, similar to the facts of this case.

The Crown says this series of cases (and perhaps others) establishes that there is a range of sentence from 12-18 months incarceration for an Impaired Driving Causing Bodily Harm, in which the blood alcohol readings are high, and an accident causes significant injury; but where the offender has no related criminal record and takes responsibility for his or her actions, which usually involves a guilty plea. [ 23 ] I pause here to make three points:

(1) A sentencing range is only guidance, not determinative. That is the case even if our Court of Appeal has provided a range, which is

not the case here;

(2) No two cases are exactly alike with respect to the circumstances of the offence or the offender;

(3) Sentencing is an individualized process. Gulbransen, J. said it best in R. v. Galong, 2014 BCPC 240, at para. 3: As in most sentencing proceedings, this decision must focus on the application of general legal principles to the specific circumstances ofthe offence and the offender. The focus is not on determining whether the sentence imposed in another case should apply to this case.(my emphasis) CASELAW [24] I now turn briefly to the cases forwarded by the Crown. [25] The initial case put forward by the Crown was R. v. Johnson (BC CA), [1996] B.C.J.

No. 2508 (“Johnson”),a decision of the British Columbia Court of Appeal (“BCCA”). However, it was not cited for establishing the range of sentence, butinstead for the principles of sentencing in like cases. I will return to that case later in these reasons. R. v. Grozell [26] The first case cited by the Crown to support the range was that of R. v. Grozell, 2010 ONSC 307 , [2010] O.J.

No. 360(“Grozell”), a 2010 decision of Justice Lauwers out of the Ontario Superior Court, in which the offender was a young man of 25 whodrove with his girlfriend on a gravel road with an estimated speed of 120 kilometres per hour in an 80 kilometre per hour zone. He lostcontrol and the vehicle struck a boulder in the ditch and careened back on the road.

His blood alcohol readings were calculated back tothe time of driving at 180 to 260 milligrams of alcohol in 100 millilitres of blood. [27] The girlfriend, who seemingly failed to see that he was impaired, suffered very serious injuries, including those requiringseveral surgeries for internal injuries, and, most significantly, spinal nerve damage and a drop foot that required her to walk with a braceand a cane. Although the Crown sought 18 months and the Defence sought a Conditional Sentence Order (no longer available), theJudge sentenced Mr.

Grozell to 13 months incarceration. [28] As serious as the injuries are in that case, they are not to the extent of Mr. Aujla’s injuries, nor are there two other injuredparties. The driving, while significantly exceeding the speed limit, is not at the same level of speed, or the dangerous manner, as that ofMr. Malloy as he travelled through this major artery in Surrey. Mr. Grozell’s readings were high, but they are certainly below thosecalculated for Mr. Malloy, and no driving record was alleged. R. v. McKeown [29] R. v. McKeown, [2010] O.J.

No. 3410 (“McKeown”), another decision of Justice Lauwers, just a few months later, involved a38-year-old offender who, like Mr. Grozell, also injured his friend and passenger. The injuries to the passenger were serious, includingher having spent two and a half weeks in hospital, suffering a head injury, requiring plastic surgery on her face, partial severance of herright arm, an ankle fracture and the requirement of a brace on her leg. Mr. McKeown was also significantly injured, including a brokenfemur and collarbone. Although the manner of driving is not specified, there was no speeding.

His readings were between 147 and 167milligrams of alcohol in 100 millilitres of blood. Mr. McKeown did proceed to trial, but nonetheless took responsibility for his actionsfollowing conviction. He had a single older conviction for drug trafficking, to which he received 6 months probation. Justice Lauwersimposed an 18 month sentence. [30] As in Grozell, the passenger’s injuries in McKeown, while serious, are certainly not in the category of Mr. Aujla. In turn, thedriving, while on an arterial road, involved no speeding, and the blood alcohol readings were significantly lower than those of Mr.Malloy.

The criminal record was minor and unrelated, and no driving record was alleged. R. v. Wengenmayr [31] R. v. Wengenmayr, [2013] B.C.J. No. 730 (“Wengenmayr”) is a decision from the British Columbia Supreme Court. [32] In this case, the 20-year-old driver struck a woman and her 6-year-old son who had proceeded across a six lane highway on adark night and not at a crosswalk or intersection. The mother was injured and her son was killed. The blood alcohol readings weredetermined to be between 114 and 138, and there was no evidence of either speed or erratic driving. The plea was to Impaired DrivingCausing Death.

In that case, Mr. Wengenmayr was sentenced to 18 months jail. [33] The readings were significantly lower than in this case, and the driving itself was not a factor. In turn, the driving record wasminor in comparison to Mr. Malloy, albeit a much younger person with only a short time driving.

Although the results were seeminglyeven more tragic in Wengenmayr, the court found that while the impairment contributed to the accident beyond the de minimus range,some contribution lay with the decision to cross the highway in this manner, and that, together with the speed, driving and level ofimpairment, reduced the moral culpability for Mr. Wengenmayr. I find Wengenmayr offers no comparative assistance to this case. R. v. Mesgarha [34] R. v. Mesgarha, 2014 ONCJ 238 , [2014] O.J. No. 2415 (“Mesgarha”) is a decision from the Ontario Court of Justice. [35] In that case, Mr.

Mesgarha was a 31-year-old first time offender who was travelling with his wife and two family members. Hetravelled at twice the speed limit of sixty kilometres per hour and when he overtook a vehicle, then struck a 56-year-old man who waswith a work van, there to perform sewer inspections. Mr. Mesgarha’s blood alcohol readings were 174. The injuries to the man weresignificant, including a closed head injury, and severe injuries to his shoulder, legs, collarbone and back. After some two years, he

walked with a limp and with the assistance of a cane, and was unlikely to re-enter the job market. In addition to the injuries suffered byhis own relatives, including a broken leg, shoulder fracture, broken ribs and a chipped spine, Mr. Mesgarha suffered significant physicaland cognitive injuries. That reduced what otherwise would have been a sentence of 15 months to 11 months. [36] Once again, the blood alcohol readings are not as high and the speeding is less excessive than that of Mr. Malloy. The injuriesare very serious and involve more than one victim, but do not reach the level of injury suffered by Mr.

Aujla. There is also no drivingrecord alleged. [37] I also note that at paragraph 42 of that Mesgarha decision, the court approves the sentencing range for Impaired DrivingCausing Bodily Harm offered by the Crown at 9 months to 2 years less a day. R. v. Ranger [38] R. v. Ranger, [2015] O.J. No. 3982 is a decision of the Ontario Superior Court of Justice. [39] This matter proceeded to trial, which resulted in a conviction. Mr. Ranger’s blood alcohol reading was found to be 191-230during the relevant time. The driving involved Mr.

Ranger weaving through traffic, overtaking vehicles and ignoring lane and controlmarkings, before causing a serious off-set head-on collision and a second collision with another vehicle. His speed was as much as 130-140 in an 80 kilometre zone. The injuries were substantial to three people, the most serious of which was to a man that will requirewalkers, motor-powered assist chairs and similar devices for the rest of his life. Mr. Ranger also suffered very significant and near-fatalinjuries, leaving him with permanent consequences.

He had no previous alcohol-related or driving issues, and indeed had a history ofexceedingly cautious behavior in that regard. He was deeply remorseful for his actions. The Judge sentenced him to 19 months,followed by probation. [40] The results of the collision in Ranger were nearly as bad for that particular victim as that of Mr. Aujla. However, the bloodalcohol readings were lower and the speeding less excessive. As well, the severity of the injuries to Mr. Ranger and the fact thisbehavior was entirely out of character, were also significant considerations.

Summary [41] By way of

summary, except arguably the Wengenmayr case (which I find distinguishable), none of the cases cited had either ablood alcohol reading, a level of speeding, a manner of driving, a driving record, or as catastrophic a result, as that occurring in this case. It is this constellation of aggravating factors that most distinguishes this case from all of the others. Further Submissions [42] Following my initial review of the circumstances of this offence, Mr. Malloy’s circumstances, and the law, I was concernedwith the adequacy of the range presented to me.

Therefore, I invited further submissions from Crown and Defence with respect to myconcern that the high end of 18 months for the Impaired Driving Causing Bodily Harm was inappropriate for this case. [43] As a result, the Crown confirmed that while the range was agreed between the Crown and the Defence, this was not a jointsubmission. The Defence agreed with that, but also introduced three additional cases for my consideration. I now turn to those threecases. R. v. Thompson [44] R. v. Thompson, 2011 BCSC 1886, is a decision of Mr. Justice Joyce from the BC Supreme Court. [45] Mr.

Thompson, who had a criminal record, including two convictions of Impaired Driving and Driving with over 80 milligramsand motor vehicle infractions, as well as conditions to not drink at the time, was tailgating and then sped and passed a vehicle on aresidential street. That caused him to lose control and the back end of his vehicle swung around and struck a group of four children neara fence. He was cooperative at the scene and admitted to drinking. His readings were 190 and 180.

All of the children suffered someinjury, but the most serious was a child that suffered a broken sternum and a closed head injury, requiring hospitalization for two weeksand an uncertain prognosis. In addition to the 3 months of time served, the Judge imposed a further 12 months of jail. [46] Clearly, this is a case in which the previous drinking and driving criminal record is even more aggravating than that of Mr.Malloy’s poor driving record involving alcohol. However, it is also the case that the blood alcohol readings are certainly lower.

There isa dangerous manner to the driving in a residential street, although no speed is provided and it does not match the extent of dangerousnessto which Mr. Malloy drove on this occasion. Finally, while the child’s prognosis was uncertain, this matter came for sentencing less than3 months after the accident, such that it is difficult to determine the extent of that injury over time. We know Mr. Aujla’s prognosis andit is dire. R. v. Booth [47] R. v. Booth, 2008 BCPC 280 , 2008 BCPC 0280 is a decision of Her Honour Judge Pothecary of our Provincial Court. [48] In this case, Mr.

Booth drove his van after consuming alcohol to such an extent that he eventually registered a blood alcoholreading of 301 milligrams. The manner of driving resulting in the collision is perhaps more common for those who are significantlyimpaired. His van was seen to be swerving all over the road, striking the curb to crossing the centre line, before he eventually crossedover that centre line and struck a vehicle going in the opposite direction.

The driver of that vehicle was a mother of two very youngchildren, who suffered substantial injuries, including broken legs, a broken arm, a broken pelvis and orbital bone. She was in hospital forthree weeks and had to use a wheelchair for about 14 weeks. The lingering effects continued at the time of sentencing. Despite notfinding that Mr. Booth had achieved true insight into his issues, Judge Pothecary imposed an 18 month jail sentence, followed byprobation.

[49] The blood alcohol reading is extremely high and even exceeds that of Mr. Malloy, although depending on the range perhaps notby a great deal. Mr. Booth also had a criminal record, including some five previous Drinking and Driving convictions, as well as acontinuing lack of insight. Therefore, there are factors in the Booth case that are more aggravating than in this case. There was,however, not the excessive speeding, seemingly away from an accident already caused by a dangerous manner of driving.

And despitethe significant injuries suffered by the victim in Booth, they are not at the level of those suffered by Mr. Aujla. R. v. Griffin [50] R. v. Griffin, (NLCA) is a decision out of the Newfoundland and Labrador Court of Appeal. [51] This case involved a police officer who was stopped on the side of the road with just a portion of his vehicle protruding into thelane of travel. His vehicle was struck from behind by Mr. Griffin, causing serious injury to that police officer, including fracture of a C-6vertebrae. It would effectively end his policing career, causing chronic pain and post-traumatic stress.

The case proceeded to trial on theImpaired Causing Bodily Harm charge and there was enough evidence for conviction to follow, but no readings were available. Therewas no evidence of driving pattern, including speeding, except for the collision itself. Mr. Griffin had no criminal record, nor was adriving record alleged. The Court of Appeal reduced the sentence to 16 months from 2 years. [52] This case does not have the elements of severe impairment (aside from no blood alcohol readings), nor observed dangerousmanner of driving and excessive speed. There was also no driving record alleged.

Although the injuries to the police officer wereserious, they are not to the level of those suffered by Mr. Aujla.

Summary [53] In

summary, there are elements in both Thompson and Booth that can be characterized as more aggravating than those in thiscase, and elements that are clearly more aggravating in this case. However, it is the totality of the circumstances of the offence and theoffender that I must consider. SENTENCE Purpose, Principles and Objectives [54] The “fundamental purpose” of sentencing, including the objectives to be achieved, is set out at s. 718 of the Criminal Code.

That “fundamental purpose” is to “contribute … to respect for the law and the maintenance of a just, peaceful and safe society byimposing just sanctions” that may have one or many “objectives”, including denunciation, deterrence, rehabilitation, and the promotionof a sense of responsibility in offenders and acknowledgment of the harm done to victims. [55] The “fundamental principle” of sentencing is that of proportionality, as set out at s. 718.1 of the Criminal Code, which is thatthe “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [56] Finally, s. 718.2 sets out “other sentencing principles” that a court must take into consideration, including both aggravating andmitigating circumstances.

Denunciation and Deterrence [57] The Crown submitted, and I agree, that the primary “objectives” in this case, and those like it, are those of denunciation anddeterrence. [58] In support of their position, the Crown put forward the Johnson decision of the BCCA. That decision was based on even moreaggravated facts, as a father and two children were killed by a drunk driver, who had a criminal history, including impaired driving. TheBCCA increased the sentence from three to five years, on the basis the sentencing judge had failed to properly recognize thedenunciatory and deterrent effect of sentencing.

Referring to the Supreme Court of Canada decision of R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500, the BCCA said this about deterrence: The principle of deterrence as a goal of sentencing is embedded in our law. The Supreme Court of Canada has said so in C.A.M., theamendments to the Criminal Code specifically refer to it as a sentencing objective (see s. 718(b)). We must assume that deterrentsentences have some effect. It is futile to ask whether a particular sentence will deter others. That question can never be answered. Deterrence operates in a general way.

Those that would break the law must know, and law-abiding citizens must be assured, that law-breakers will receive sentences which reflect the seriousness of their crimes. This will deter some potential offenders. It will not deterothers. The Severity of the Injuries and Retribution [59] In granting the Crown’s appeal, the BCCA in Johnson found that the trial Judge put too narrow a view of moral culpabilitybased on the act of driving while impaired, without considering the tragic effects in that case.

Although the courts have held that the enormity of tragic consequences should not unduly distort the sentence (R. v. Mellstrom (1975), 22 C.C.C. (3rd) 327 (Alta.

C.A.)), theBCCA quoted from C.A.M. (pp. 557-8) and the Supreme Court of Canada’s approval of the concept of “retribution” in the criminalcontext in this regard: Retribution in a criminal context… represents an objective, reasoned and measured determination of an appropriate punishment whichproperly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the harm he or she hascaused, and the degree of deviation from acceptable standard of behavior the conduct represents.

Furthermore, unlike vengeance,retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment and nothingmore.

(Emphasis added.) Rehabilitation [ 60 ] The other relevant “objective” of sentencing is that of assisting, wherever possible, with rehabilitation. In the end, a rehabilitated offender is a safer member of the community. Extensive jail terms rarely offer significant benefit to rehabilitation. Mitigating Circumstances

(1) Difficult Family history [ 61 ] Mr. Malloy’s childhood was a difficult one. His parents separated when he was five and he then had minimal contact with his father. His mother was an alcoholic. His stepfather, who arrived when he was 10, was verbally aggressive and physically abusive. Mr. Malloy began consuming alcohol as a teenager and by 17 was consuming daily and soon thereafter left the family home for good. His alcohol abuse has continued to affect his life over the long term, including an inability to maintain a stable residence, difficulties holding a job and financial issues.

(2) Support in the community [ 62 ] Although he experienced a dysfunctional first common law union, he maintains a relationship with the three daughters resulting from that, one of whom lives with him. He says he is now in a stable marriage from a relationship of some 10 years, that Ms. Malloy is apparently not alcohol involved and is supportive. The probation officer completing the pre-sentence report was unable to contact her, however.

(3) Guilty Plea [ 63 ] Mr. Malloy pleaded guilty and that is certainly to his credit. It both saves the state the need to prove its case and the witnesses avoid the difficulty of testifying at a trial. It is an acceptance of responsibility.

(4) Rehabilitation efforts [ 64 ] As provided in the pre-sentence report, Mr. Malloy identifies as an alcoholic. He informed the probation officer that he has maintained sobriety for the past one and a half years, at least in part as a result of his recognition of the effect of his behavior on the safety of others. He has taken

part in counselling for alcohol, including an eight session relapse program in the spring of 2016, and attends twice weekly to recovery meetings. He has also attended some individual drug and alcohol counselling and was continuing to do so at the time of sentencing. [ 65 ] The probation officer suggests, and I accept, that given the longevity of the addiction and the failure to achieve full insight, Mr. Malloy is still in need of programming, which is available both in the institution and by way of residential treatment in the community.

(5) No Criminal Record [ 66 ] Mr. Malloy’s lack of a previous criminal record is to his credit.

(6) Remorse [ 67 ] The pre-sentence report confirms his expression of shame and remorse for his actions and the effect on the victims. His efforts to similarly express that remorse at the time of sentencing was understandably difficult, but I accept that was his intention. Aggravating Circumstances

(1) The Blood Alcohol Readings and Impairment [ 68 ] The blood alcohol readings were calculated to the time of driving at between 255 and 291. By virtue of s. 255.1, any readings over 160 are statutorily to be considered aggravating. Clearly these readings are significantly greater than both the legal driving limit of 80 and the aggravated level of 160. Additionally, there were observations of obvious impairment at the scene of the collision.

(2) The Dangerous Manner of Driving (

a) recklessness [ 69 ] The driving pattern in this matter is aggravating by virtue of the reckless nature of striking a vehicle as he passed on the right, the fact he proceeded through a red light in a busy intersection, barely avoiding collision, and then the crash into the Aujla vehicle from behind, resulting in the second collision. (

b) excessive speed [ 70 ] This reckless driving occurred while Mr. Malloy was travelling at speeds initially estimated and later determined to be between 140 and 152 kilometres per hour in a 60 kilometre per hour zone. (

c) location [ 71 ] This reckless driving at excessive speed occurred in a busy arterial route in the city of Surrey, bringing the risk of collision and injury to users of the roads to a much higher level.

(3) The Driving Record [ 72 ] Mr. Malloy has a long pattern of driving infractions and offences, including 10 speeding convictions, as well as six 24 hour prohibitions, the latter three of which are specifically identified to alcohol. There is also a 90 day driving prohibition for a refusal to perform an ASD in 2014, which is also connected to alcohol. The Fail to Remain pertains to the same incident giving rise to that 90 day driving prohibition. [ 73 ] This long pattern and more recent offences should have provided “red flags” to Mr.

Malloy that he had a serious issue with both driving in a dangerous manner, and drinking and driving. ANALYSIS [ 74 ] Turning to the facts of this particular case, I find that Mr. Malloy’s decision on this occasion to drink alcohol to extreme excess, to then drive recklessly and at enormous speeds along a busy arterial road, made the likelihood of a collision causing serious injury entirely probable. While the injuries, particularly in the case of Mr. Aujla, are catastrophic, they are not unexpected on these facts. Indeed, a death, or a similar injury as that suffered by Mr.

Aujla to his 10-year-old son, Keetan, might very well have been the result. [ 75 ] Returning to the words of the Supreme Court of Canada in C.A.M. (supra) the significant “harm caused” by Mr. Malloy, based on his “intentional risk-taking”, together with the “deviation from acceptable standard”, supports a high level of moral culpability and a sentence that incorporates principles of retribution. [ 76 ] The message to be sent to Mr.

Malloy and, even more importantly, to others, is that the consequences of driving after drinking, and driving in a dangerous manner, often have tragic consequences to innocent parties, and that there will be serious consequences for those that do so. [ 77 ] Balanced against that is the objective of rehabilitation and Mr. Malloy’s efforts at rehabilitation in the community, which any jail term will likely disrupt.

However, it is also the case that further treatment is required and there is some opportunity to attend to that in the institution and continue to do so following release. [ 78 ] Therefore, taking into account those multiple objectives, and in consideration of the mitigating and aggravating circumstances, I conclude that the appropriate sentence for the three charges of Impaired Driving Causing Bodily Harm is a period of 2 years less a day, all to run concurrently to one another. [ 79 ] I am also of the view that the “clipped vehicle” incident giving rise to the Fail to Remain offence should receive a sentence of two months, but find that it was a part of one continuous act, such that the sentence of two months should also run concurrently to the sentence. [ 80 ] I will further impose a period of probation to assist with your rehabilitation, which will follow such jail sentence for a period of 2 years, the terms of which will be as follows: 1.

Report within 72 hours of your release from custody to a probation officer at the Surrey South Community corrections at 100-13545 64 th Avenue, Surrey B.C., and thereafter as directed; 2. Provide your residential address to the probation officer and not change that address without prior written consent of the probation officer; 3. You are to attend, participate and complete any assessments, counselling, or treatment as directed by your probation officer, including but not limited to counselling and psychiatric/ psychological assessment and/or counselling; 4.

You are to abstain from the consumption of alcohol and non-prescription drugs; 5. You are to have no contact directly or indirectly with Gurbinder Aujla, or any member of his family, except during legal proceedings; 6. You are not to attend within a 2 block radius of any known place of residence, work place, or school of Gurbinder Aujla or his family, or that of Georgia Yost. [ 81 ] Finally, I impose a driving prohibition pursuant to s. 259 of the Criminal Code that will continue during your incarceration and for a period of three years following your release. [ 82 ] I will make the order for a DNA sample.

The Honourable Judge D. Sudeyko Provincial Court of British Columbia