R. v. Peragine - RFS Date:, 2012 BCPC 355

Citation: R. v. Peragine - RFS Date: 20121010 2012 BCPC 0355 File No: 223222-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. VINCENZO MOSCATO PERAGINE REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: K. A. Murphy Counsel for the Defendant: D. Stewart Place of Hearing: Vancouver , B.C. Date of Hearing: September 12, 2012 Date of Judgment: October 10, 2012

INTRODUCTION [ 1 ] The offender, Vincenzo Moscato Peragine, pleaded guilty to leaving the scene of an accident knowing that bodily harm or death was caused and that he did so with the intent of escaping criminal or civil liability contrary to s. 252 (1.3) (

b) of the Criminal Code . [ 2 ] Counsel agree that a custodial sentence is appropriate. The central issue is whether or not a conditional sentence order is available. Circumstances of the offence [ 3 ] On January 21, 2010, at approximately 3:30 p.m. the offender was driving south on Willingdon Avenue in Burnaby, at the time southbound traffic was busy. Willingdon Avenue is an arterial route connecting north and south Burnaby.

The speed limit is 50 kilometers per hour and the area is surrounded by residential housing, parks, and retail shops. [ 4 ] Travelling with the offender were, Christina DEFAZIO and Brian MCVEIGH. When the offender was between Willingdon Avenue and Brentlawn Drive his vehicle collided with Ms. Virginia Itubay who was a pedestrian. At this location Willingdon Avenue was four lanes; two north, and two south. [ 5 ] When the collision occurred the offender heard a loud bang. Rather than stopping he continued driving. DEFAZIO, who was in the backseat looked out of the rear window and saw someone lying on the road.

She told the offender what she had seen and he responded by looking back. He saw a person lying on the road with a second individual going forward to assist. [ 6 ] The offender continued driving and after travelling approximately 400 meters he turned into a parking lot. The offender got out of his car and he inspected it for damage. During this inspection the offender noticed damage to the front end, as well as, a bag that was lodged in the grill. The offender removed the bag and placed it in the trunk of his car.

He did this to conceal his involvement in the accident. [ 7 ] While in the parking lot DEFAZIO repeatedly suggested to the offender that he return to the accident. The offender did not accept these suggestions and he repeatedly told DEFAZIO and MCVEIGH that no one can know about the accident and to forget that it happened. [ 8 ] Ms. Itubay was taken to hospital and on the following day she tragically succumbed to her injuries. [ 9 ] Defence submissions and materials filed establish the offender left the scene because he wanted to avoid civil consequences and because he was afraid.

There is no evidence suggesting that the accused was at fault for the accident. [ 10 ] Police commenced an intensive investigation. They focused their efforts on locating the driver and the vehicle. After media appeals the police received information causing them to focus their attention on the offender. [ 11 ] On February 1, 2010, the policed stopped the offender and they questioned him about the obvious damage to his vehicle. The offender falsely attributed all of the damage to two previous accidents. He also denied any involvement in the accident with Ms.

Itubay and in support of his false assertion he offered to take a polygraph examination. [ 12 ] The police had no further contact with the offender until January 2012. At that time he was contacted by an undercover operator. During recorded conversations the offender admitted involvement in the accident. [ 13 ] The offender was arrested on January 9, 2012. At that time he provided a warned statement wherein he admitted his involvement in the accident. [ 14 ] The offender sold his vehicle in late 2011 to an associate of his father. The police located the vehicle and they examined it.

The examination revealed that all of the damage caused by the accident with Ms. Itubay had been repaired. The evidence is insufficient to support a finding that the offender had any involvement in repairing the vehicle or that he sold it in order to distance himself from the evidence. In fact, the evidence satisfies this court that he sold his vehicle because it was no longer working and therefore of little value to the offender. Offender’s background: [ 15 ] The offender is 30 years old. He is not married and he lives with his parents.

The offender comes from a close family and he has the support of family and friends. The offender attended Catholic elementary school, and thereafter he attended at and graduated from Notre Dame Regional Secondary School. He excelled in academics receiving a 4.0 grade point average and the Governor General’s Academic Medal. [ 16 ] While at high school that offender was involved in athletics. He received several awards and was the valedictorian of his graduating class. Upon graduation he received a soccer scholarship.

He then attended at SFU where he received a Bachelor’s degree in Kinesiology. [ 17 ] While at SFU the offender played on the varsity soccer team. While playing soccer he managed to maintain a high grade point

average. [ 18 ] The offender has worked in retail sales, labour work and performance coaching. In 2007 he started working with Canada Post as a letter carrier. [ 19 ] In January 2010 the offender suffered from depression. He had difficulty sleeping which he attributes to the accident. He began using Percocet for insomnia and later became addicted to the drug. With the assistance of a family doctor the offender detoxified and is no longer using drugs. [ 20 ] The offender’s pre-sentence report noted remorse and victim empathy. At page 4 the writer noted: Vince appears to be remorseful. He expresses victim empathy.

He concedes for selfish reasons, failed to render aid and take responsibility at the time. Vince observes that he will have to carry this burden for the rest of his life. And at page 5: Vince appears genuinely remorseful of his behavior. The incident has already taken a personal toll on him and no doubt will probably linger on in his mind for years to come. He wants the victim’s family to know “I am truly sorry”. He reportedly had prepared an apology letter to be expressed in person to the victim’s family [ 21 ] The offender does not have a criminal record. He has a lengthy record of driving infractions.

Position of the Crown: [ 22 ] The Crown argues that a fit and appropriate sentence is incarceration for a period of between 12 and 15 months and probation for 2 years. In addition, Crown seeks a three year driving prohibition and an order that the offender provide a sample of his DNA. [ 23 ] The Crown opposes the offender serving his sentence in the community by way of a conditional sentence of imprisonment. Crown’s argument is that a conditional sentence of imprisonment is not available because the offender’s actions constituted a “serious personal injury” offence as defined in s. 752 of the Criminal Code .

Crown also argues that a conditional sentence of imprisonment would not satisfy the fundamental purposes and principles of sentencing. Position of the defence: [ 24 ] The defence argues that a conditional term of imprisonment would satisfy the purposes and principles of sentencing. Defence maintains the offender’s conduct did not constitute a serious personal injury offence because shortly after the accident someone was going to the aid of Ms.

Itubay. [ 25 ] If it is determined that a conditional term of imprisonment is not available, defence submits a 90 day intermittent sentence would be a fit and appropriate sentence. Purposes and principles of sentencing [ 26 ] The purposes and principles of sentencing are set out in ss. 718 , 718.1 and 718.2 of the Criminal Code .

According to s. 718 the fundamental purpose of sentencing is to contribute along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful society by imposing just sanctions that have one or more of the following objectives: denunciation, specific and general deterrence, the protection of society, rehabilitation, reparations for the harm done and promotion of a sense of responsibility in the offender. [ 27 ]

Section 718.1 requires that a sentence must be proportionate to the gravity of the offence and the degree of responsibility in the offender.

Section 718.2 directs that a sentencing court must (amongst other considerations) increase or decrease a sentence based on any aggravating or mitigating factors, consider all available sanctions other than imprisonment that are reasonable, that similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances, and that an offender should not be deprived of his liberty, if less restrictive sanctions are appropriate.

Gravity of the offence and degree of responsibility [ 28 ] Leaving the scene of an accident with the intent of escaping liability is not only an extremely serious offence, but it is also morally reprehensible in that the conduct is solely within the control of the offender: R. v. Lisi , [2001] BCCA 559 at para. 7, R. v. McAndrew , [2004] Carswell BC 3291 (BCSC) at para. 11 . The gravity of the offence is also reflected in that the maximum penalty is imprisonment for life.

Paramount sentencing objectives [29] With respect to the offence before the court, the jurisprudence is clear that the paramount sentencing objectives aredenunciation and deterrence: See: R. v. McAndrew, 2004 BCCA 368, R. v. Lisi (2001), 2001 BCCA 559 , 157 B.C.A.C. 263,R. v. Sidhu, (BCCA). [30] Denunciation was explained in R. v. M (C.A.) 1996 1.

S.C.R. 500, at para. 81 where Lamer C.J., stated: In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offenders conduct should bepunished for encroaching on our society’s basis code of values as enshrined within our substantive criminal law. As Lord Justice Lawtonstated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77 “society through the courts, must show its abhorrence of particular types ofcrime, and the only was in which the courts can show this is by the sentences they pass”.

Accordingly, the rational for denouncing the offender’s conduct is the need to express society’s condemnation and abhorrence, throughthe sentence imposed. [31] With respect to deterrence, it is hoped that the sentence imposed will communicate that an offender who leaves the scene of anaccident knowing that someone is seriously injured or dead will be dealt with firmly by the courts.

As such, it is hoped that theconsequences imposed will send a message discouraging those inclined to commit similar offences. [32] To some extent, the charges, conviction and criminal record has already contributed to the principles of denunciation anddeterrence. In R. v. D.E.S.M. (1993), (BC CA), 80 C.C.C. (3d) 371, at p.376 of the judgement, the Court said: By convicting him, society has already stigmatized him as a person who has committed a serious offence, and has denounced his offence.

Quite recently, the Supreme Court of Canada has expressed itself quite strongly on the importance of stigma as a consequence ofcriminal proceedings. The court has been saying what most lawyers and criminologists have known all along, that a public charge, trialand conviction for a serious offence brands a person for life, constitutes serious punishment, and is an important part of the way societybrings offenders to account for their misconduct. As such, this court appreciates that in the circumstances of this case, denunciation and deterrence has to some measure been achieved.

SENTENCES IMPOSED FOR SIMILAR OFFENCES [33] I have read and considered all of the cases submitted by counsel. As to the range of sentence I find the following to be helpful. [34] In R. v. Sanghera, 2009 BCPC 24, the accused struck and killed a pedestrian and then fled the scene. The police commencedan investigation trying to identify the driver and the vehicle responsible. Sometime later the police stopped the accused and he deniedinvolvement in the accident. He also lied when explaining the damage to his vehicle. Eventually the accused was charged and hepleaded guilty. The accused was 30 years old.

He had no criminal record and he did not have a history of motor vehicle infractions. Hewas sentenced to a six month conditional sentence and a 1 year driving prohibition. [35] In R. v. Arruda, [2001] O.J. No. 6288, the accused pleaded guilty to an offence under s. 252(1) (

a) of the Criminal Code afterbeing involved in a fatal pedestrian accident. The accused left the scene and abandoned his vehicle in a parking lot. He surrendered tothe police a few days after the accident. He was 25 years old at the time of sentencing and he had a 4 year old son. He had an unrelatedcriminal record. The accused was sentenced to 9 months jail, 12 months probation and a 2 year driving prohibition. [36] In R. v. Crutchley, [1990] B.C.J. No. 317 (B.C.C.A), the accused appealed a sentence of imprisonment for 18 months and a 3year driving prohibition.

When the accused was 28 years old he was involved in a motor vehicle accident with another vehicle. Afterthe accident the accused went to the other vehicle and he saw that the other driver was unconscious. The accused thought the driver wasdead and he left the scene. The accused tried to establish an alibi and he reported his vehicle stolen. The accused had a motor vehiclerecord with one of the offences being failing to remain at the scene of an accident. Leave to appeal was granted and the appeal wasdismissed. [37] In R. v. Dhaliwal, 2008 BCPC 451, the accused struck a pedestrian who subsequently died.

Immediately after the accident theaccused left the scene only to return a short time later. At that time the accused did not see any emergency personnel, nor, did he see thepedestrian. This was because the force of the impact had knocked the pedestrian under a parked car and he was discovered well after theaccused had left the scene. Several months after the accident, passengers that had been with the accused told him that they would go tothe police. This led to the accused eventually giving a statement to the police. Once charged the accused pleaded guilty. The accusedhad no criminal record.

He was a professional driver. The accused was sentenced to six months imprisonment and a three year drivingprohibition. [38] In R. v. Lisi, 2001 BCCA 559, the accused appealed his sentence of three months imprisonment and a 12 month drivingprohibition. The accused struck a pedestrian who subsequently died. After the accident the accused left the scene and went home where

he consumed a quantity of liquor. At trial the accused was convicted of refusing to provide a breath sample and leaving the scene of anaccident. There were substantial mitigating factors and the sentencing judge viewed the sentence as being at the low end of the range. Leave to appeal granted but the appeal dismissed. [39] In R. v. McAndrew, [2004] Carswell BC 3291 (BCSC), the accused was involved in a single vehicle accident. The passenger inthe accused’s vehicle struck her head. The accused removed the passenger from the vehicle and laid her on the ground beside hisvehicle. The accused then left the scene.

The passenger later died. Five hours after the accident the accused turned himself in to thepolice. The accused was 19 at the time of the accident. He had a criminal record for motor vehicle offences and he had a convictionunder the Motor Vehicle Act for failing to remain at the scene of an accident. The accused was sentenced to imprisonment for sixmonths and a three year driving prohibition, upheld on appeal. [40] In R. v. Helton, 2007 BCPC 383 , 2007 BCPC 0383, the accused struck and killed a pedestrian. After the accident theaccused fled the scene.

Investigation revealed that the accident was not the accused’s fault. The accused was arrested a year after theaccident and at that time he gave a statement to the police. The accused was 21 years old when the accident happened. He did not have acriminal record and he had a minor driving record. He was sentenced to a conditional term of imprisonment for a period of 12 monthsand a three year driving prohibition. [41] In R. v. Bruce, 2012 ABPC 8, the accused was sitting in his vehicle in a parking lot when he was approached by a male whowas threatening and aggressive.

The accused tried to leave the area and while manoeuvring his vehicle he struck the male. The accusedleft the scene and the male died of his injuries. The accused was arrested a few days after the accident. He pleaded guilty to failing toremain at an accident scene knowing that a person had suffered bodily harm or been killed. The accused was 24 at the time of theoffence. He had no criminal record and one Traffic Safety Act violation. On arrest the accused was cooperative.

The accused wassentenced to imprisonment for 5 months and a 2 year driving prohibition. [42] This court finds that the range of sentence is incarceration between three months and 18 months. The term of incarcerationmaybe served by a conditional sentence of imprisonment provided the requirements of s. 742.1 of the Criminal Code are satisfied. [43] According to s. 742.1 a conditional sentence of imprisonment is not available if this court finds that the offender’s conductconstitutes a serious personal injury offence as defined in s. 752. CONDITIONAL SENTENCE OF IMPRISONMENT

Section 742.1 states: If a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752, a terrorism offence or acriminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or anoffence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and issatisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent withthe fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may for the purpose of supervising theoffender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’scompliance with the conditions imposed under

section 742.3. SERIOUS PERSONAL INJURY OFFENCE [44] The definition of a serious personal injury offence is set out in s. 752: “serious personal injury offence” means (

a) an indictable offence, other than high treason, treason first degree murder or second degree murder, involving (

i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychologicaldamage on another person, and for which the offender may be sentence to imprisonment for ten years or more, or… [45] The issue of a serious personal injury offence in the context of leaving the scene of an accident knowing that someone had beenseriously injured or killed was discussed in the following cases: R. v. Ali, [2010] A.J No. 1475, R. v. Dhaliwal, [2012] M.J. No. 194, R.

v. Foley, 2010 NSSC 449, R. v. Eichler, 2012 ONCJ 480 , [2012] O.J. No. 3390, R. v. Schmitt, 2011 ONCJ 546 ,[2011] O.J. No. 4961 and R. v. Goulet, 2011 ABCA 230. [46] Whether an offender’s conduct constitutes a serious personal injury offence is not determined by simply looking at the elementsof the offence for which the offender has been convicted. Rather, consideration must be given to all the circumstances including actionsthat do not form the requisite elements of the offence such as, the context within which those actions occur: R. v. Dhaliwal, [2012] M.J.No. 194, R. v.

Goulet, 2011 ABCA 230. [47] It is this court’s view that a contextual analysis will always involve the consideration of whether there are persons who arenearby or offering assistance, however, care must be taken to consider the entire context of the matter and not resolve the issue simply onwhether or not persons are nearby or offering assistance. [48] In considering the entire context of the instant case some of the key factors are; the nature of the roadway, the amount of trafficactually on the road at the time of the incident, the positioning of the injured party (on the road or off the road), and whether or notsomeone was actually helping the victim.

ANALYSIS [49] After considering the context of the offender’s conduct there is no doubt his actions likely endangered the safety of Ms. Itubay. My conclusion is based on the following: Ms. Itubay was left lying near the centre of a four lane roadway with a speed limit of 50kilometres per hour. The road was an arterial route connecting north and south Burnaby. At the time of the accident traffic was busy forthe southbound traffic. [50] With respect to the person apparently going to the aid of Ms. Itubay, the offender did not know anything about this person ortheir intentions.

The offender never confirmed that the person did in fact provide aid, and one person dealing with an injured person inthe middle of a four lane roadway without anyone helping to warn traffic is risky and further placed Ms. Itubay’s safety at risk. Moreover, the fact that others may have offered assistance is not determinative of the issue of endangerment: R. v. Goulet, 2011 ABCA230 at para. 20. [51] Accordingly, after considering the entire context, I find that the offender’s actions constituted a serious personal injury offenceas defined in s. 752 of the Criminal Code.

As such a conditional sentence of imprisonment is not available and therefore I will notaddress whether a conditional sentence of imprisonment would be consistent with the fundamental purposes and principles of sentencing. Mitigating factors [52] The offender comes before the court without a criminal history. [53] The offender entered a guilty plea. The significance of a guilty plea was explained in R. v. Duong, 2006 BCCA 325, [9] It is important to remember the legal consequences of a guilty plea.

A guilty plea involves an acknowledgement of all thelegal elements necessary to constitute the crime charged and is meant to be unequivocal: R. v. McNabb (1971), (SKCA), 4 C.C.C. (2d) 316 (Sask. C.A.); R. v. Lucas (1983), (ON CA), 9 C.C.C. (3d) 71 (Ont. C.A.). [10] Among other things, a guilty plea provides certainty and finality in the criminal proceedings against an accused.

When anaccused enters a plea of guilty and the trial judge accepts the plea, the court, the prosecution, and the public are led to believe that theaccused is accepting responsibility for having committed the offence. [11] In sentencing, a guilty plea may be considered by the trial judge as an admission of responsibility and, depending on thecircumstances, as an expression of remorse which invites leniency: R. v. Fegan (1993), (ON CA), 80 C.C.C. (3d)356 at 360–61, 13 O.R. (3d) 88 (C.A.).

A guilty plea may also follow plea discussions with the Crown from which an accused mayderive a substantial benefit through the withdrawal of additional charges or a more lenient sentencing recommendation from the Crown: R. v. Roberts, (ON CA), [1998] O.J. No. 461 (C.A.) (Q.L.), at para. 6. The offender is remorseful and he has demonstrated insight and victim empathy. Aggravating factors

[ 54 ] The offender’s lack of consideration for the passengers that were in his vehicle. In this regard, the offender’s actions forced the passengers to carry the secret of his involvement in the accident. [ 55 ] The offender’s willingness to deceive the police. Specifically, he initially lied about his involvement in the accident and he lied about the damage to his car. [ 56 ] The offender’s lengthy history of Motor Vehicle Act infractions. In this regard, between June 2003 and August 2009 he had 10 infractions. CONCLUSION [ 57 ] It is clear that Ms. Itubay was dearly loved and that she is sorely missed.

It is also clear that her death and the subsequent events caused great sadness for those close to her. I say this because the sentence that I impose is not designed to remedy the sadness felt. Moreover the sentence imposed is not a reflection of Ms. Itubay’s value as a sister, aunt and human being. No sentence can adequately reflect her value, nor, is that the purpose of sentencing. [ 58 ] The offender’s actions in relation to this matter were completely out of character for him. His actions were serious and he displayed a reprehensible disregard for a human being.

Despite this, he has no previous criminal record, he entered a guilty plea, he has shown remorse and he has the support of family and friends. In the circumstances, I see this case as closely paralleling the facts in Sanghera . Accordingly, and keeping in mind that Sanghera received six months to be served by a conditional sentence of imprisonment and a one year driving prohibition, I sentence the offender to imprisonment for 5 months.

Further, pursuant to s. 259 of the Criminal Code he is prohibited from driving for 2 years. [ 59 ] I decline to place the offender on probation as the pre-sentence report shows that he has been successfully addressing his personal issues through family and friends. [ 60 ] With respect to Crown’s application for a sample of the offender’s DNA, the offence of leaving the scene of an accident is a secondary designated offence. Accordingly, and pursuant to s. 487.051 (3) before a DNA order is made the court must be satisfied that it is in the best interests of the administration of justice to do so.

In considering this issue I have considered the offender’s background, the offence that he has pleaded guilty to and the circumstances of the offence and it is the conclusion of this court that a DNA order is in the best interests of the administration of justice. As such, I direct that a sample of the offender’s DNA be taken. The victim fine surcharge will remain. ____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia