R. v. Hoelzley, 2023 BCPC 181

Citation: R. v. Hoelzley 2023 BCPC 181 Date: 20230802 File No: 43835-1 Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. CHRISTOPER STEPHEN DAVID HOELZLEY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. HERMANSON Counsel for the Crown: M. Crisp Counsel for the Defendant: R. Yeo Place of Hearing: Courtenay , B.C.

Date of Hearing: July 5, 2023 Date of Judgment: August 2, 2023 Introduction [ 1 ] Christopher Hoelzley comes before me for sentencing after entering a guilty plea to one count of driving a motor vehicle without due care and attention under Section 144 (1) (

a) of the Motor Vehicle Act . [ 2 ] In brief, the inadvertence that led to the charge and the guilty plea was fleeting but the result devastating and long lasting. As a result of Mr. Hoelzley crossing a double yellow line, Melissa Stathers was killed and parents, siblings, family, students and the extended community lost a loved one. No words can adequately capture what has transpired. Tragedy is an understatement. [ 3 ] The Crown and Defence propose a sentence of a $1,200 fine plus a 15 % victim fine surcharge for a total of $1,380.

In addition, they jointly propose 25 hours of community service work that is to be monitored by a probation order under the Offence Act and what was originally an 11 month driving prohibition that I now calculate to be a 10 month driving prohibition. The Circumstances of the Offence [ 4 ] As highlighted by the Crown, the circumstances are as simple as they are tragic. Mr. Hoelzley was returning from Campbell River where he had been attending school. It was after 4 in the afternoon. He was travelling by himself south bound on highway 19A, locally referred to as the old island highway. Ms.

Stathers was travelling north bound, also the sole occupant of her vehicle. [ 5 ] When the vehicle driven by Mr. Hoelzley entered a slight corner, inexplicably Mr. Hoelzley’s car crossed the double yellow line and struck Ms. Stathers’ vehicle. [ 6 ] I say inexplicably as Mr. Hoelzley is unable to provide any explanation for his moment of inattention. There is no suggestion of intoxication, excessive speed or aggressive driving on his part. There is no suggestion that weather or road conditions played a role. Mr.

Hoelzley is left to speculate as to what transpired but he is unable to provide any answers. [ 7 ] What is clear is the devastation that followed. Mr. Hoelzley struck Ms. Stathers’ car causing both cars to spiral and crash. Mr. Hoelzley would walk away with minor injuries. Ms. Stathers died at the scene. [ 8 ] Turning then to the impact of Ms. Stathers’ death. [ 9 ] Ms. Stathers was a 29 year old fiancé, daughter, sister, niece, cousin, friend, teacher, coach, colleague, mentor and so much more.

The Court has been provided victim impacts from students, colleagues, friends, cousins, aunts, uncles and her mother and father. They, in eloquent and moving terms, describe heartbreaking loss. [ 10 ] They also speak of a remarkable individual, integral to her extended family, who served her community and mentored young female athletes. I will do my best to try to capture the victim impact contents. Please know I have read the victim impact statements multiple times. [ 11 ] Six previous student athletes provided a description of the positive impact Ms. Stathers made in their lives.

Two of these young women were able to address the Court, a testament to their strength. These young women continue to struggle, all knowing that their coach and friend would want to see them excel, to live full lives but at the same time impacted daily by a loss they still cannot comprehend. [ 12 ] Through her previous colleagues and her father, also an educator, a picture was painted of a dedicated teacher and coach. She was loved by staff and students alike. [ 13 ] Ms. Stathers had a large extended family. All of the victim impacts prepared by family members speak of what could have been. As Ms.

Stathers’ mother wrote “when I think about what we all have lost, Melissa lost so much more.” [ 14 ] Her immediate family was made up of her brothers Jordan and Geoff, her father Dave and her mother Carol. Ms. Stathers’ father spoke of how difficult it is for him to use the past tense when referring to his beloved daughter. The past tense is hard to comprehend when it comes to someone so young, vital and full of promise and dreams. Ms. Stathers was only months away from her own marriage.

A common thread through the victim impact statements is the difficulty of living with the fact that the plans and hopes of Melissa Stathers will never be realized. [ 15 ] Her immediate family and extended family speak of an incredible hole in their lives. A hole where Melissa Stathers should be. They speak of the impact of the loss felt most acutely at family gatherings. Where previously they would be celebrating now they continue to grieve. [ 16 ] While Ms.

Stathers is referred to in the past tense, their extraordinary pain is spoken in the present and future tense. [ 17 ] What is also spoken of in the present and future tense is the impact that Ms. Stathers had on her family and in her extended community. What is spoken of in the present and future tense is the overwhelming love her family and friends have and will continue to hold for Ms. Stathers. [ 18 ] The sentence that I impose today will not address the profound loss and the lives that have been changed forever as a result of Mr. Hoelzley’s lack of attention or momentary inattention.

The law is not equipped or designed to address the exceptional loss and

corresponding emotional pain. Indeed nothing can address that loss. We cannot make Melissa Stathers loved ones whole. [19] I must now turn to the circumstances of Christopher Hoelzley [20] Mr. Hoelzley is a 21 year old man attending school at North Island College with the ambition to be a red seal pipefitter. He doesnot have a criminal record. In fact, I am told, that he does not have a motor vehicle record. There is no criminality in his background.There is no suggestion that he was or is an aggressive or indifferent driver. [21] Mr.

Hoelzley is described as an introverted individual who suffers from social anxiety. He lives with his parents and spends histime reading and playing chess online. I am told, that he has been looking for an apprentiship but with the expected loss of a driver’slicense, his opportunities have been limited. [22] I am told through counsel, that it has always been Mr. Hoelzley’s intention to enter a guilty plea. The early guilty plea and hisremorse are mitigating. Ms. Stathers’ death is something he will carry for the remainder of his life. Analysis [23] As set out by the Honourable Judge Sutherland in R. v.

Sidhu, 2023 BCPC 77 the overriding sentencing consideration is tocontribute to respect for the law and the protection of society and the community. I find that Mr. Hoelzley does not pose a risk to thepublic. He has no criminal record and more telling he does not have a driving record. From submissions of counsel, I accept by nature heis risk adverse and his guilty plea was based on his momentary inadvertence. There was no intentional act. Mr. Hoelzley is beingsentenced for his momentary absence of thought.

There was no intentional risk taking. [24] There are no aggravating factors attributable to the decisions or actions Mr. Hoelzley took on May 11, 2022. As noted, neitherspeed nor intoxicants were involved. This was a moment of inattention that resulted in a failure to negotiate a slight turn. Theconsequences were horrific but the consequences are not a factor in determining his moral blameworthiness. [25] The tragic consequence is however the major aggravating factor on sentence. Ms.

Stathers’ death is a staggering consequencethat can never be properly addressed by the sentence I impose. [26] The mitigating factors include the lack of both a criminal record and a driving record. Mr. Hoelzley’s extremely early guilty pleais also a mitigating factor. [27] While sentencing is always an individualized process, when imposing a fit sentence one of the main considerations is parity. TheCriminal Code in

Section 718.2 (

b) sets out parity as follows: A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [28] The Honourable Judge Harris in the case of R. v. Campbell, 2019 BCPC 11 reviewed a significant number of sentencing casesfor driving without due care and attention under the Motor Vehicle Act where death resulted from momentary inadvertence. I repeat herethe synopsis created by the Judge Harris in regard to the cases that factually are most similar to the case at hand. In R. v.

Cameron 2004 BCPC 500 , 2004 BCPC 0500, the offender was sentenced for driving without due care and attention.The sentence imposed was a $1,200 fine and the issue of a driving prohibition was left to the Superintendent of Motor Vehicles. Thecircumstances of the case are; the offender was driving at night and she rear-ended a motorcycle killing the rider. The offender was 43, aschool teacher, and she had two children. She did not have a criminal record, nor, did she have a driving record.

The sentencing judgerecognized that deterrence was an important sentencing principle and he also recognized that the driving and the offender’s moralblameworthiness was at the low end of the spectrum. In R. v. Kowalewich 2005 BCPC 634 , 2005 BCPC 0634, it appears that the offender was convicted after trial for a motorvehicle offence involving an accident. The accident occurred when the offender turned in front of an oncoming cyclist. A collisionoccurred and the cyclist was killed. The offender was 67 years old. He had one entry on his driver’s abstract.

The sentence imposed wasa $1,500 fine and a six month driving prohibition. At paragraph 10 of the sentencing decision, the judge placed emphasis on too manyinstances of motorists failing to look out for cyclists. He also noticed that the offender did not appreciate what he could have done toavoid the accident. In R. v. Chisholm 2009 BCPC 23 , 2009 BCPC 0023, the offender was sentenced to a fine of $1,300 after he was convicted attrial of driving without due care and attention.

In this case, the offender momentarily took his eyes off the road to adjust his stereo or airconditioner and when he looked up he saw that the car in front of him had stopped. The offender was unable to stop and he collided withthe car in front of him. The collision caused a fire, killing the driver and injuring the passenger. The offender was in his early twenties,working part-time and attending college. In imposing sentence, the judge recognized the driving was a momentary inadvertence and,thus, less blameworthy. In R. v.

Lineker 2013 BCPC 353 , 2013 BCPC 0353, the offender pleaded guilty to driving without due care and attention. Theplea occurred mid-trial on related criminal driving charges. The offender was sentenced to a $2,000 fine and an 18 month drivingprohibition. In this case, the offender rear-ended another vehicle causing it to enter into an intersection where it collided with a thirdvehicle. Two people were killed and one seriously injured. The offender was 36 years of age.

He had a dated criminal record for drugpossession and his driving abstract showed 14 driving infractions with his last offence being 4 years prior to sentencing. In consideringthe matter, the sentencing judge highlighted the need for denunciation and deterrence and he found the offender’s driving historyaggravating. In R. v. Ward 2017 BCPC 40, the offender was convicted of driving without due care and attention and she was sentenced to a $1,400fine. In this case, the offender entered an intersection heading east with the intention of turning left.

In the process of making her turn,she failed to see a motorcyclist traveling from her left. A collision occurred and the motorcyclist was killed.

In R. v. Gordon 2017 BCPC 56 , the offender pleaded guilty to driving without due care and attention and a $1,200 fine was imposed. In this case, the offender stopped her vehicle in an area known for significant pedestrian traffic. The offender was exiting her vehicle and in doing so she failed to set the brake or place her vehicle in “park”. When the vehicle started to roll, the offender accidently stepped on the accelerator, rather than the brake. This caused the vehicle to race in reverse striking and killing a pedestrian.

The offender was a single, 56 years old and living with her daughter. [ 29 ] From the above cases, I find that the sentence proposed of a $1,200 fine, 25 Community Work Service hours and a driving prohibition is similar to sentences imposed on similar offenders in similar circumstances. The sentence captures the moral blameworthiness associated to inadvertence as well as addressing deterrence. [ 30 ] The sentence that I impose does not reflect the harm caused or reflect in anyway the value of Ms. Stathers’ life or the indescribable suffering Ms.

Stathers family and friends have had to endure and will continue to endure. [ 31 ] Mr. Hoelzley please stand. [ 32 ] What I am required to do is balance the considerations I have outlined, consider your moral blameworthiness for an event that you did not intend, that can not be attributable to intentional risk taking on your part, to fashion a sentence similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 33 ] I find that the joint position is a fit and proportionate sentence and I sentence you to a fine of $ 1,200.

In addition, there will be a 12 month probation order under the Offence Act and a 10 month driving prohibition. [ 34 ] The terms of the probation order are the mandatory conditions of:

a) keep the peace and be of good behaviour;

b) appear before the court when required to do so;

c) notify the probation officer; i. in advance of any change in the defendant’s name or address, and ii. promptly of any change in the defendant’s employment or occupation. [ 35 ] In addition, I impose the following conditions:

d) you must report in person to a probation officer at 420 Cumberland Road, Courtenay, BC, by 3 pm today August 2 nd and after that, you must report as directed by your probation order;

e) your reporting ends when you have satisfied your probation officer that you have completed all your community service work and your probation officer has told you that you are no longer required to report; and

f) you must complete 25 hours of community work under the direction of your probation officer. Your community service work must be completed by Dec 31, 2024. [ 36 ] There will be a driving prohibition of 10 months pursuant to s. 98 of the Motor Vehicle Act. [ 37 ] There will be a victim fine surcharge. ________________________________ The Honourable Judge J. Hermanson