R. v. Randhawa Date:, 2011 BCPC 372

Citation: R. v. Randhawa Date: 20110928 2011 BCPC 0372 File No: 215594-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NUBREET KAUR RANDHAWA EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. F. GIARDINI Counsel for the Crown: D. Havlovic Counsel for the Defendant: J. Currie Place of Hearing: Vancouver , B.C. Date of Judgment: September 28, 2011 [ 1 ] THE COURT: I will begin with an introduction. Ms. Randhawa is charged with driving a motor vehicle without due care and attention, contrary to s. 144(1)(

a) of the Motor Vehicle Act. The offence occurred on December 11, 2009 at the intersection of Cambie and Dunsmuir Streets in the City of Vancouver. On June 20, 2011, Ms. Randhawa entered a guilty plea and is now before me for sentencing. The issue I must decide is what is the appropriate sentence for Ms. Randhawa in the circumstances of this case. [ 2 ] I will briefly review the circumstances of the accident. In the early evening of December 11, 2009 at approximately 5:20 p.m. Ms. Randhawa was driving north on Cambie. She entered the intersection at Cambie and Dunsmuir and proceeded to make a left-hand turn.

When she did so, she did not see a southbound Piaggio motor scooter being driven by Mauro Uscanga. Mr. Uscanga was travelling southbound on Cambie and was in the intersection. Ms. Randhawa did not see him and made a left turn directly in front of the motor scooter. [ 3 ] When the car driven by Ms. Randhawa hit the motor scooter, Mr. Uscanga was thrown to the ground. As I understand it, he sustained significant internal injuries. He was rushed to hospital but died at 9:30 p.m. that night. [ 4 ] The accident occurred at rush hour at a busy downtown Vancouver intersection.

The traffic was moderate to heavy at the time. Witnesses reported that the traffic lights at the intersection were working. The weather was cold. The sky was overcast but the road was

dry. Although it was early evening in the wintertime and the sky was dark, that intersection was well-lit by overhead lights and other light sources in the area. Mr. Uscanga was wearing a black helmet, a dark coat and blue jeans. His scooter had automatic daytime running lights on the front. [ 5 ] After the collision occurred Ms. Randhawa herself called 911 and reported the accident. She told the 911 operator that she was turning left and hit someone on a motorbike. She told the 911 operator she did not see the motorbike. She said she had slowed down to make the left-hand turn and did not have to wait.

She was travelling approximately 50 to 55 kilometres per hour. [ 6 ] Witnesses at the scene confirmed that Ms. Randhawa had failed to see the motor scooter when she initiated the left-hand turn. At the time of the incident Ms. Randhawa had a Class 7 new driver licence. Since then she has obtained her Class 5. [ 7 ] Section 144(2) of the Motor Vehicle Act states that a person found guilty of breaching s.144 (1)(

a) is liable to (

a) a fine not exceeding $100; and (

b) the Offence Act applies. That Act provides for a maximum fine of $2,000 or imprisonment for six months or less, or both a fine and imprisonment. Section 98(1) of the Motor Vehicle Act also provides that if a court convicts a person of an offence under the Motor Vehicle Act the court may consider the person's driving record and may prohibit the person from driving a motor vehicle for a period of time if the court considers that the facts of the case or the driving record or both justify a prohibition. [ 8 ] I will now review the position of the parties. The Crown does not seek a jail sentence in this case.

Instead it asks that the court impose a fine in the range of $1,000 to $1,500 and a driving prohibition of six months under s. 98 of the Motor Vehicle Act. The Crown referred to aggravating circumstances and mitigating circumstances as set out in the case law.

The Crown submits that in imposing a sentence in this case I should consider both general and specific deterrence as well as protection of the public. [ 9 ] While the Crown did not seek a jail term, it submitted that the sentence I impose should be sufficient to bring home to the accused and the general public the gravity of the consequences of driving without due care and attention. [ 10 ] The defence urged me to consider the circumstances of Ms. Randhawa as well as the circumstances of the accident and to impose a fine only.

Defence counsel submitted that a prohibition on driving is not required in the circumstances. Ms. Randhawa has no driving record and no criminal record. She entered a guilty plea and she is remorseful. These are the factors the defence asks me to consider in determining an appropriate sentence. The defence asks that I leave any driving prohibition to the discretion of the Superintendent of Motor Vehicles. [ 11 ] I will now review the circumstances of Ms. Randhawa. At the time of the accident Ms. Randhawa was 22 years old. She is now 23 years old and lives with her parents in Surrey, where she was born and raised.

Ms. Randhawa has an older brother with whom she has a very close relationship, and to whom she turns for advice and support. Ms. Randhawa was raised in a loving and stable home. She has a good relationship with her parents and her brother. She is also supported by a wide circle of friends and family. [ 12 ] Ms. Randhawa graduated from high school and then attended Kwantlen College, enrolling in a business program. At the time the accident occurred she was enrolled at Langara College to study accounting. The accident had quite an impact on her.

She failed all of her courses at Langara and left after her first semester. [ 13 ] Ms. Randhawa worked for approximately three years for a company called Best Services Pros. As well, she worked part-time with International Clothiers, where she has worked since high school. At the present time Ms. Randhawa is enrolled at BCIT in an international business program. [ 14 ] Ms. Randhawa has not been under the care of a psychologist or psychiatrist. However, she wants to take counselling on a private patient basis and is attempting to find funds to pay for that counselling.

She feels guilty about asking her parents to spend more money on her, as they have already supported her in her education and assisted her with legal fees for this case. Ms. Randhawa told the probation officer that she has gone to her family doctor for overwhelming feelings of sadness and grief as a result of the accident. She has recurrent nightmares. This accident has had a significant impact on her. [ 15 ] I now turn to the victim, Mr. Uscanga, and the victim impact statement. Mr. Louis Gonzales, a friend of Mr. Uscanga, provided and read a victim impact statement to the court. Mr. Uscanga was 32 years old.

He was born in Mexico City and was raised in Puebla and Veracruz in Mexico. His family has a sugar cane ranch in Veracruz. Mr. Gonzales wrote that Mr. Uscanga's family has lost so much that they simply cannot put it into words. To them, the idea of being asked to explain what they lost is insulting and unbearable to think about. To this day they have not come to grips with their loss. [ 16 ] When Mr. Uscanga was 21 he moved to Canada to study at the University of Victoria towards a Bachelor of Commerce degree. That is where he met Mr. Gonzales. While at the University of Victoria, Mr.

Uscanga opened his home, which had been purchased for him by his parents, to other international students. Mr. Uscanga's home became a home away from home for others like him and Mr. Gonzales. Mr. Gonzales reported that to this day there are a group of worldwide friends who have one thing in common, namely, that they lived at Mr. Uscanga's house. [ 17 ] Mr. Gonzales described Mr. Uscanga's approach to life as follows. Happiness to him was a very large table where he sat at the head and where his friends will eat and share a meal together.

That is how I remember him being the most happy. [ 18 ] After graduating from the University of Victoria Mr. Uscanga returned to Mexico to work at his family's sugar cane ranch. He later returned to Vancouver and started working here as an accountant. Mr. Uscanga decided he wanted to live here and found a way to make it happen. [ 19 ] Mr. Gonzales reported that Mr. Uscanga loved British Columbia because of its natural beauty. He never complained about the rain or the cold as most Mexicans do, because he appreciated British Columbia and loved its natural beauty. Mr. Gonzales said that Mr.

Uscanga took a chance on people he believed in, even when he did not know them. Mr. Uscanga saw the good in people and more

importantly, he brought out the good in people. Mr. Gonzales said words could not express the extent to which Mr. Uscanga is missed by his family and friends. [ 20 ] It is a tribute to Mr. Uscanga that Mr. Gonzales said, addressing Ms. Randhawa, that Mr. Uscanga would have forgiven her without hesitation. Mr. Gonzales said Mr. Uscanga would have told Ms. Randhawa that she did not need to carry guilt or sorrow in his name. Mr.

Uscanga would have been the first to tell her to live happily and to the fullest, and no matter what she did she should concentrate on what really matters, namely, that she is alive, that she has friends and family who love her and that she should love them back. [ 21 ] I now turn to my reasons for sentence. It is my duty today to determine the appropriate sentence for Ms. Randhawa for an offence under the Motor Vehicle Act ; namely, driving without due care and attention. Imposing a sentence for a driving offence that has resulted in a person's death is for me a sad and difficult task.

Accordingly, I want to acknowledge from the outset the tragic loss and the terrible tragedy experienced by Mr. Uscanga's family and friends as a result of the December 11th accident that led to his death. [ 22 ] The sentence I impose cannot compensate for the loss of a son, brother or friend, or for the pain and suffering that loss has caused. My role in imposing a sentence on Ms. Randhawa is not and cannot be to compensate Mr. Uscanga's family and friends for their loss. That is not the purpose of this sentencing proceeding.

However, I want to acknowledge the nature of that loss as did Judge Stansfield in another case. I will paraphrase what Judge Stansfield said because I cannot improve on what he said so eloquently. [ 23 ] Mr. Uscanga's family and friends have lost a piece of their hearts. They have lost the love, affection, friendship and support of someone who has been described as a very special young man. I cannot know the magnitude of your loss. However, as I have already said, the sentence I am about to impose is not and cannot be seen as a measure of the value of the life of Mr.

Uscanga. [ 24 ] I now turn to three of the fundamental objectives of sentencing, which are to denounce unlawful conduct; to deter the offender and others from committing offences; and to assist in the rehabilitation of the offender. [ 25 ] The Criminal Code makes it clear that sentencing is a very individualized process. My duty is to sentence Ms. Randhawa, not anybody else, and I must sentence her for the offence to which she has entered a guilty plea and not for anything else. [ 26 ] Ms. Randhawa has entered a guilty plea to driving without due care and attention.

She is not being sentenced for criminal conduct, but for failing to exercise due care and attention as required under the Motor Vehicle Act. The Motor Vehicle Act and the Offence Act set out the penalties available to this court for that offence, namely, a fine of not less than $100 but not more than $2,000; imprisonment of six months or less; and a driving prohibition. The Crown has not sought jail time, so I will not be considering imprisonment.

However, the Crown has urged me to consider both a fine and a driving prohibition. [ 27 ] The aggravating factors I have considered in this case are: (1) the death of Mr. Uscanga which has resulted from the accident. As I have already said, Ms. Randhawa is not being sentenced for negligent or dangerous driving causing death. However, the death of Mr. Uscanga is a relevant factor which should be taken into account. Ms. Randhawa may not have intentionally caused Mr. Uscanga's death, but his death was a direct consequence of her failure to drive with due care and attention; (2) the lack of care exercised by Ms.

Randhawa, who was a new driver at the time; (3) the impact of the loss suffered by Mr. Uscanga's family and friends. This last factor may not be an aggravating factor in the usual sense of the word, as it is applied in these courts, but it is a factor which is nevertheless proper to consider in fashioning a fit sentence. Additionally, I agree with the observation of Wright J. in R. v. Messercola that driving a motor vehicle is not a right.

Instead, it is a privilege which when violated with devastating consequences requires a significant consideration in terms of sentence. [ 28 ] The mitigating factors that I have considered are:

(1) Ms. Randhawa's remorse; (2) her guilty plea; (3) the inadvertent nature of the act; Ms. Randhawa did not do anything intentionally that caused the accident; (4) the driving record which is a minor consideration because Ms. Randhawa was a new driver, so did not have a record to speak of as such. [ 29 ] The Crown and the defence both agree a fine is appropriate in this case. They have left the amount to me to determine. Defence counsel argued against a driving prohibition on the basis that Ms. Randhawa will be significantly inconvenienced.

Defence counsel urged me to leave this aspect of sentencing to the Superintendent of Motor Vehicles. [ 30 ] Given the nature of the offence, the consequences of Ms. Randhawa's driving and all of the surrounding circumstances, I have concluded this is an appropriate case in which to impose a driving prohibition. The fact that it will cause some inconvenience to Ms. Randhawa is regrettable. However, in my view, specific and general deterrence require that a driving prohibition be imposed in this case.

I have considered and weighed the facts of the accident, the mitigating and aggravating factors, denunciation, deterrence and rehabilitation. I have also reviewed the very helpful cases given to me by both the Crown and the defence. In all of the circumstances I conclude the appropriate sentence for Ms. Randhawa is a fine of $1,500 and a driving prohibition of six months. [ 31 ] MS. HAVLOVIC: Your Honour, with respect to victim fine surcharge I'm obliged to raise that before you. [ 32 ] THE COURT: Yes. In the circumstances, given the amount of the fine, I will waive the victim fine surcharge.

You will have three months time to pay. (REASONS FOR SENTENCE CONCLUDED)