) ) HER MAJESTY THE QUEEN ) K. Basarab ) for the Crown - v. - ), 2016 MBPC 22

2016 MBPC 22 THE PROVINCIAL COURT OF MANITOBA WINNIPEG CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) K. Basarab ) for the Crown - and - ) ) DUSTIN HIEBERT ) A. Steigerwald ) for the Accused Accused. ) ) Judgment Delivered: ) May 6, 2016 ) SLOUGH, P.J. INTRODUCTION [ 1 ] For the fifth time in 20 years, the accused, Dustin Hiebert, has driven in either a dangerous manner or while intoxicated or a combination of both. For the second time, his conduct has resulted in serious injuries to a member of the public. Three previous penitentiary sentences for similar offences have not resulted in a change in behaviour.

This decision will deal with the appropriate sentence for such an offender. CIRCUMSTANCES OF THE OFFENCES AND THE OFFENDER [ 2 ] On September 17 th , 2014 at approximately 4 p.m. Dustin Hiebert, was in possession of 2008 Ford Escape motor vehicle. This vehicle had been stolen a few hours earlier. The accused was traveling on Pacific Avenue in a residential area in the north end of Winnipeg. Witnesses indicated that the accused’s vehicle was traveling between at an estimated 80 kilometres to 100 kilometres per hour, in a 50 kilometre speed zone. The accused failed to stop for a stop sign at Cecil Street.

The victim was traveling north on Cecil Street and the accused’s vehicle collided with the driver side of the victim's vehicle. The victim suffered serious injuries and had to be taken to the hospital for surgery. The force of the collision drove the victim's vehicle into a parked car causing significant damage. [ 3 ] After the collision, the accused got out of his vehicle and attempted to leave the scene. Two witnesses told the accused to remain at the scene, but the accused continued to walk away.

At this point, these witnesses blocked his path, in response, the accused pulled a knife and attempted to stab both witnesses. Ultimately, one of the witnesses was able to gain control of the accused’s arm and the accused was disarmed and held until police arrived. [ 4 ] When the police arrived they noted that the accused had a strong odor of liquor on his breath, slurred speech and blood shot eyes. They were advised by witnesses as to the circumstances of the collision and that the accused admitted that he had consumed a significant amount of alcohol prior to the collision and was intoxicated.

A record check revealed that the accused was subject to 3 lifetime driving prohibitions. Given the severity of the collision, the accused was taken to hospital and admitted overnight. While at the hospital the

police were able to obtain samples of the accused’s blood. Subsequent analysis of the blood revealed a blood alcohol reading of .158, almost twice the legal limit. [ 5 ] The police left the accused at the hospital. Due to a mix up, the police were not notified of Mr. Hiebert’s release from hospital and the accused was not re-arrested until August 10 th , 2015. [ 6 ] The accused has remained in custody since his arrest. He has entered guilty pleas to 2 counts of assault with a weapon; possessing goods obtained by crime; and driving while impaired by alcohol causing bodily harm.

IMPACT ON THE VICTIM [ 7 ] Tyler McManus was the driver of the car struck by the accused’s vehicle. A victim impact statement dated February 21, 2016, filed in court, outlines the devastating short term and long term impact of the accused`s criminal acts on the victim. The victim was taken to hospital in critical condition requiring extensive surgery. At the hospital he was diagnosed as having suffered a broken left clavicle, two broken ribs; one rib puncturing his lung, and the other rib puncturing his small intestine. His spleen was ruptured and had to be removed.

Clearly, the victim was fortunate to survive. [ 8 ] The victim remained in hospital for seven days. Upon his release he was placed on powerful pain medication. Notwithstanding the use of that medication, for months after the accident he was unable to stand up, use the bathroom, wash his face or dress without requiring assistance. He required extensive physiotherapy in order to regain normal movement in his shoulder, back and neck. [ 9 ] Eighteen months after the collision, he continues to have pain in his upper body, including back pain which continues to impact his ability to sleep.

He is unable to lift heavy objects or carry his children without suffering back pain. He continues to receive physiotherapy and indicates that the prognosis is that he will require treatment for the foreseeable future. [ 10 ] In terms of economic impact on Mr. McManus he indicates that prior to the collision he had been employed, at different times, as a roofer and a logger, as well as doing home renovations and construction. Because of his physical condition, he is no longer able to work in any of these occupations. As a result he has incurred substantial debt while trying to support his family.

He indicates that his partner has had to take on substantial duties, that prior to the accident he performed. He also suffered psychological damage. In

summary, the impact of the accused`s conduct can only be described as catastrophic and long lasting; extending beyond the victim to his wife and children. [ 11 ] It should also be noted that Mr. McManus’s vehicle was written off by Manitoba Public Insurance. (No monetary value was provided for this vehicle.) In addition, the stolen vehicle the accused was driving was written off by Manitoba Public Insurance with an insured value of $8,042. The parked vehicle, struck by Mr. McManus’s vehicle, was written off to a value of $6,185. Total property damage caused by the accused is in excess of $14,000.

CRIMINAL RECORD [ 12 ] The accused's criminal record dates back more than 25 years consisting of 45 previous convictions. It would be fair to describe the accused as a career criminal. In terms of related convictions , the accused has 12 prior convictions for possessing goods obtained by crime, four convictions for theft and three convictions for break enter and theft or break enter with intent to commit crime.

His record also includes convictions for assault and assault causing bodily harm. (The court was advised that following the accused’s mistaken release in September 2014, the accused became re-involved in Alberta, being convicted of assault with a weapon and receiving a sentence totalling 7 months.) [ 13 ] Two other aspects of his record demand particular attention. Firstly, he has a substantial and related record for serious driving offenses: 1. In 1996 as a result of a conviction for the dangerous operation of a motor vehicle causing bodily harm he received a sentence of three years. 2.

In 2000 he was convicted of dangerous operation of a motor vehicle and received a six-month sentence. 3. In 2002 he was convicted of dangerous operation of a motor vehicle and received a sentence of two years.

4. In 2009 he was convicted of dangerous operation of a motor vehicle receiving a sentence totaling 32 months. [ 14 ] Accordingly, the offense before the court will be his fifth conviction for a serious driving offense and the fourth penitentiary sentence for this type of offence. [ 15 ] Secondly, it is noteworthy that since 2002, the accused has received four different penitentiary sentences. His record demonstrates that every time he has been released on parole, he has violated parole within a few months of his release.

THE PRE-SENTENCE REPORT [ 16 ] I have had the benefit of a pre-sentence report detailing the accused’s background including consideration of his aboriginal heritage or Gladue factors as they are commonly known. The report indicates that the accused is 39 years of age and has been involved in the criminal justice system for over 25 years. His criminal activity has been relentless and serious. [ 17 ] The probation officer spoke with corrections officials who indicated that the accused is generally quiet and compliant within the institution.

However, it was noted that the accused has not taken advantage of the many opportunities to receive treatment while in custody. The probation officer noted that in 2009, the accused did complete a program dealing with substance abuse but has not completed any programming in recent years. That being said, the accused acknowledges that he has a significant drinking problem and indicated a desire to get treatment. [ 18 ] In terms of the offense before the court, the probation officer concluded that the accused displays very little victim empathy and was unable to articulate how his actions impacted the victim.

The probation officer indicated that the accused focused on the impact of the offences on his situation rather than on the impact to the victim. (I would note, however, that in court the accused expressed what appeared to be sincere remorse regarding the victim’s condition.) [ 19 ] The pre-sentence report describes the accused’s difficult and troubled upbringing. Specifically, the accused was apprehended by Child and Family services when he was five or six years of age and spent considerable time in foster homes. Overall, the accused has had limited contact with his biological family.

In terms of education, the accused completed grade 9 and has some grade 10 credits. To date, while incarcerated the accused has not furthered his education, although he indicates that once he is sentenced he intends to upgrade his education while in the penitentiary. The accused has a very limited work history. [ 20 ] In terms of substance abuse, the report indicates that the accused is clearly addicted to alcohol. In addition, he has at various times in his life used methamphetamine (crystal meth), LSD, ecstasy and various pharmaceuticals.

He indicated to the probation officer that he used crystal meth more often than other illegal drugs. The report indicates that when the accused was released from the penitentiary on statutory release in 2010 he was readmitted within two weeks due to his use of crystal meth and alcohol. [ 21 ] The accused indicates that he is of aboriginal heritage as his father is Ojibway. The accused stated that while incarcerated he has taken steps to acquaint himself with his aboriginal culture and history, although it appears that the steps have been somewhat limited in nature.

The probation officer indicates that Stony Mountain penitentiary has a number of culturally appropriate programs that could treat the accused’s addictions. In addition, federal inmates can obtain a grade 12 diploma and receive vocational training. Overall, the probation officer found that the accused expressed an interest in changing his life and treating his problems. At this point, it appears Mr. Hiebert’s desire for change remains largely at the contemplative stage. [ 22 ] The probation officer assessed the accused as being a very high risk to reoffend.

Significant risk factors being alcohol and drug use, lack of education and employment history as well as a long history of criminal activity. [ 23 ] In conclusion, the probation officer states: “given the subjects very high risk to reoffend, current and past violent behavior, noncompliance with community supervision, and unaddressed risk factors, the subject could not be safely supervised in the community at this time...” ANALYSIS POSITION OF THE PARTIES

[24] I have had the benefit of thorough, articulate and thoughtful submissions by the Crown and counsel for the accused. Neitherparty referenced Manitoba sentencing precedents that dealt with an offender with the extensive related record of the accused, so to someextent, at least in a Manitoba context, we are in uncharted territory. [25] The Crown submits that given the accused’s lengthy criminal record combined with his propensity for committing serious drivingoffenses that protection of the public, denunciation and deterrence are the paramount factors in determining the appropriate sentence.

The Crown recommended a sentence totalling eight years of incarceration, minus time in custody, consisting of 7 years on the charge ofdriving impaired causing bodily harm; with an additional 1 year consecutive on the 2 charges of Assault with a Weapon. The Crownrecommended a concurrent sentence on the charge of possessing goods obtained by crime. [26] While appropriately conceding that the accused’s prior record could only be described as ”atrocious”, counsel for Mr.

Hubertstressed the accused’s difficult background, addictions, and the systemic issues relating to his aboriginal heritage in advocating for afour-year sentence, minus time in custody. Specifically, counsel noted that Mr. Hiebert had a very difficult and troubled childhood. Inaddition, the accused’s father was an alcoholic and the accused was exposed to a great deal of drinking and drunken behaviour in hishome.

Counsel suggested that the accused’s alcoholism is so powerful that once he starts drinking he loses control and undertakes thesort of conduct that resulted in the tragic events before the Court. [27] Counsel for the accused stressed the need for the Court to consider the relevant Gladue factors in imposing sentence. Mr.Hiebert’s father was a member of Peguis First Nation and when he was young his paternal grandmother taught him about his First Nationheritage and language.

While the accused has not retained a great deal of these teachings the accused told the probation officer he planson reconnecting with his culture once he is incarcerated in a Federal institution. [28] Overall, counsel for Mr. Hiebert, submits, that issues of poverty, addiction and Gladue factors, result in reduced moralblameworthiness and must be factored into the sentence imposed. APPLICABLE CASE LAW [29] The Manitoba Court of Appeal has provided considerable guidance with respect to the sentencing of offenders who commitserious driving offences resulting in death or bodily harm. The leading case is R. v.

Ruizfuentes 2010 MBCA 90 where at paragraph 22,Chief Justice Chartier stated: “As a result of the recent amendments and the review of the case law, I concluded that the regular range of sentences for offenderswho commit the crime of impaired driving causing death and who have no prior convictions for drinking and driving or serious personalinjury offences should be increased to a range of two to five years. For those who are second or subsequent offenders, it moves upwardsto a range of four to eight years.

As for driving prohibitions, the cases show that for first offenders, the range is three to ten years andfor second or subsequent offenders, from ten years to a lifetime ban.” [30] In R. v. Smoke 2014 MBCA 91 Justice Beard stated at paragraphs 50-51, that given the less serious nature of drive impairedcausing bodily harm, as opposed to cases involving death, the normal range of sentence would be as follows: “I would agree with defence counsel that a sentence of five years for each of the impaired driving causing bodily harm convictionsfar exceeds the range for this offence. In R v.

MacDonald (J.K.) (1999), (MB CA), 138 Man.R. (2d) 194, this courtfound that the range of sentence for impaired driving causing bodily harm was 3 to 18 months. Twaddle J.A., for the court, also notesthat sentences had been trending towards the higher end of that range. (see paras. 13-14.) In Ruizfuentes, this court determined that the range of sentence for impaired driving causing death had increased since the early tomid-2000s from that of 1 to 4 years to that of 2 to 5 years.

It is reasonable to assume that the range of sentence for impaired drivingcausing bodily harm should undergo a similar increase, putting the range at 6 to 24 months.” [31] That being said, it is my view that Mr. Hiebert’s lengthy criminal record and his propensity for committing serious drivingoffences requires the imposition of a sentence well above the normal range. As Chief Justice Chartier further stated in Ruizfuentes at

paragraph 22: “Of course, these ranges are but guideline and, as was recently explained in R. v. McCowan (K.J.), 2010 MBCA 45, 251 Man.R. (2d) 295by Steel J.A. (at para. 11): Sentencing ranges are useful in promoting consistency and parity because they provide guidelines to sentencing judges for theimposition of similar penalties for similar offences of a similar nature involving similar offenders. See R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948. But they are nothing more than guidelines and are certainly not conclusive of the appropriate sentencein any given case.

The Supreme Court of Canada recently confirmed this basic principle in R. v. Nasogaluak, 2010 SCC 6, [[2010] 1S.C.R. 206] 251 C.C.C. (3d) 293, when it repeated that a judge can order a sentence outside of a guideline range so long as it is inaccordance with the principles and objectives of sentencing.

Thus, a sentence falling outside the regular range of appropriate sentencesis not necessarily unfit.” [32] Finally, I note Chief Justice Chartier’s statement, in Ruizfuentes at paragraph 37 that for these offences the paramount objectivesare denunciation and deterrence, keeping in mind that every sentence must respect the fundamental principle of sentencing:proportionality. “The last step of the sentencing process requires the sentence to respect the fundamental principle of sentencing: proportionality.

The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This requires anexamination of the accused’s degree of guilt or moral blameworthiness with respect to the offence committed and the harm done to thevictim to ensure that the sentence is in line with his “moral culpability, and not greater than it” (see Nasogaluak, at para. 42).” MORAL BLAMEWORTHINESS OF THE ACCUSED [33] While it is true that Mr. Hiebert did not set out to hurt anyone, his conduct was extremely dangerous and irresponsible.

In R. v.Ramage ONCA 488, at paragraph 76, Justice Doherty described similar behaviour in the following manner: “The danger created by the appellant's conduct is not unlike that created by drunken man walks down a busy street firing a handgun atrandom. The community, quite properly, demands that the courts denounce and deter such reckless and dangerous conduct. Significantincarceration is the remedy that most emphatically achieves those goals.” [34] The emphasis on denunciation and deterrence can only be compounded when the offender commits the same sort of offense overand over again.

In my view, the accused’s dangerous conduct and the harm caused in this case requires a sentence that will protect thepublic from someone who after 25 years in the criminal justice system, appears to be incapable of any degree of self-control or restraint. [35] While the authorities I have cited deal with the overarching principles that are to be considered in dealing with serious drivingoffences they do not deal with the appropriate sentence for someone who is a serial offender. For guidance on how to deal with such anoffender the decision of the Saskatchewan Court of Appeal in R. v.

Teed 2003 SKCA 105 provides direction on the appropriate range ofsentence for offenders who repeatedly drive in a manner that puts members of the public at risk. [36] No two cases are exactly the same; Teed’s criminal record was roughly comparable in terms of length of record and the numberof related offences (although in Teed’s case the 6 related offences were drive impaired or refusal “simpliciter” and the highest sentenceon those offences was 6 months) but also included serious sexual offences which does not form part of Mr. Hiebert’s background.

Inaddition, the facts in Teed were even more serious than the facts before the Court, involving repeated serious driving offences over aperiod of hours culminating in serious injuries to a pedestrian. Teed received a sentence totalling 7 years and 2 months. He appealedthat sentence. The Saskatchewan Court of Appeal in rejecting his appeal stated the following: “...the learned trial judge concluded that the appellant was a persistent and incorrigible offender.

Given his threat to public safety whendriving a motor vehicle, the trial judge reviewed the principles and “range” of sentences for this type of offender as articulated by thisCourt in authorities such as R. v. Hotomanie (L.) (2001), 2001 SKCA 65 , 207 Sask. R. 241 (C.A.) and R. v. Andres (2002),2002 SKCA 98 , 168 C.C.C. (3d) 372 (Sask. C.A.). In Andres this Court held that the appropriate range is five to nine years foran offender who persists in drinking and driving and who eventually causes serious injury as a consequence. Vancise J.A. speaking forthe Court at para. 33 stated: If one looks at Mr.

Andres’ record, every rehabilitative measure has been tried with no effect. This Court is left with no choice butto disable the respondent to protect society for such period of time as the law will allow. Parliament has provided for a term ofimprisonment of up to ten years for this offence... It is apparent that driving prohibitions have no effect on this individual and we are leftwith only once choice – to disable Mr. Andres for as long as the law will allow. In all the circumstances, we fix the appropriate sentenceat eight years.”

[ 37 ] In my view, given Mr. Hiebert’s persistent and incorrigible behavior, the range of sentence as suggested by the Saskatchewan Court of Appeal is appropriate in this case. CONCLUSION [ 38 ] Mr. Hiebert does not present as a vicious criminal. He faced great difficulties as a child and adolescent. I believe that the remorse he displayed in court was sincere and heartfelt. As counsel for the accused has emphasized Gladue factors are relevant. Mr.

Hiebert expresses a desire to connect with his indigenous heritage and to take the steps to improve his education so that he can find employment upon his release from prison. His offending behaviour arises from his intractable addiction to alcohol and drugs. Perhaps, after further incarceration and treatment an ability to resist his addictions will emerge. However, at present, Mr. Hiebert remains extremely dangerous. His repeated episodes of driving in a dangerous manner, while intoxicated, show no signs of abating. His inability to abide by the conditions of parole when released from prison is disturbing.

While I hope Mr. Hiebert follows through on his intentions of seeking treatment for his addiction, until he demonstrates an ability to change, the paramount consideration in imposing sentence must be the protection of the public. This is an extraordinary case that demands a strong response. [ 39 ] The sentence imposed must be proportionate to the harm caused and the degree responsibility of the offender.

Becoming grossly intoxicated and driving at a high rate of speed in a residential neighborhood, in the middle of the day, while disregarding stop signs is behaviour that almost certainly had to end in tragic consequences. In addition to the substantial property damage, the accused’s behavior profoundly altered the life of a young man and his family. [ 40 ] Taking into account these circumstances and what has been to date the accused’s persistent and incorrigible risk-taking and criminal activity, I believe the appropriate sentence with respect to the driving while impaired causing bodily harm is 6 years.

The Crown sought a consecutive sentence with respect to the two counts of assault with a weapon. This is not an easy issue, but in my view, one of the aggravating aspects of the driving offence is the accused’s attempt to leave the scene after having caused so much destruction and pain. The intervention of the two witnesses resulted in the accused pulling a knife; fortunately he was subdued without any injury to the victims. The accused’s actions after the collision are aggravating factors that I have considered in reaching my determination of the appropriate sentence for the driving offence.

I also believe that when considering totality, that 6 years (72 months) is the appropriate response to the accused’s criminal actions. Accordingly, I am sentencing the accused to 6 months concurrent on the charge of possessing the stolen car and 9 months concurrent on the 2 charges of assault with a weapon. [ 41 ] In accordance with current practice, the accused will receive credit for time in custody at a rate of 1.5 to 1. By my calculations he has spent 270 days in pretrial custody which will result in a credit of 405 days leaving him with 58 months and twenty days to serve.

In terms of ancillary orders, I order: • That the accused be prohibited from driving for 10 years. (This is the maximum duration of a driving prohibition for this offence.) • He is to provide a DNA sample within 60 days. • I am imposing a lifetime weapons prohibition pursuant to s. 109 of the Criminal Code . • Mandatory costs in the amount of $808, in view of his pending incarceration; he will have 7 years to pay these costs. [ 42 ] Before closing, I would like to make a final suggestion. I sincerely hope that Mr.

Hiebert will get the treatment he needs while he is incarcerated and that the threat he poses to the public will be alleviated. If that does not occur, the Crown can take certain steps upon the accused’s release to protect the public. I stress this is something that is solely within the discretion of the Crown and would only be done upon a careful review of Mr. Hiebert’s conduct while he is incarcerated.

If the Crown believes that public safety requires that the accused’s whereabouts and behaviour should be monitored, upon his release from prison, the Crown can seek an order pursuant to s. 810.2(1) of the Criminal Code . If a provincial court judge is satisfied such an order is appropriate the judge can make an order for up to 2 years in duration, requiring that the accused while in the community, follow a number of conditions including: 1. Report to correctional authorities. 2. Participate in a treatment program. 3. Reside in a particular area and not move without permission. 4.

Be subject to a curfew and electronic monitoring. 5. Abstain from alcohol and illegal drugs. 6. Not to possess weapons. I am aware that such orders are strictly enforced by a team of experienced probation officers and corrections personnel. Such an order, if

appropriate, would provide an added degree of safety to the public. __________________________ Judge D. Slough