Her Majesty the Queen - v. -, 2013 SKPC 41

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 041 Date: March 12, 2013 Information: 24501554 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lyle Ashley Howells Appearing: Cst. Shymr For the Crown Mr. Todd Parlee For the Accused SENTENCING DECISION I.J. CARDINAL , J [ 1 ] On February 12, 2013, Mr. Howells pled guilty to a charge of operating a motor vehicle with a blood alcohol content of over 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1) (

b) of the Criminal Code . He also pled guilty to driving while disqualified contrary to s. 259(4) (

b) of the Criminal Code . The Crown proceeded by way of

summary conviction on both matters. [ 2 ] The criminal record of the accused was tendered and indicates he has 27 convictions since his record began in 1991. Six of those convictions are driving offences. He was convicted in June 1992 for impaired driving and driving over 80 and received short periods of incarceration for each of those offences and a six month driving prohibition. He was convicted in September 2001 for

impaired driving and received a $600.00 fine and a one year driving prohibition. His last convictions on May 4, 2004 were in regards to driving while impaired, flight while pursued by a peace officer and driving while disqualified. He was sentenced to 90 days on each charge concurrent, probation of six months, and a one year driving prohibition. [ 3 ] Mr.

Howells is before the Court to be sentenced for his fifth conviction for driving while under the influence of alcohol and a second conviction for driving while disqualified. [ 4 ] The Crown and defence have put forward a joint submission of a fine and surcharge of $2,875.00. A two year driving prohibition is suggested. Neither Crown nor defence filed any case law in support of their position but were given leave to do so prior to sentencing today. No cases were filed by either of the parties. [ 5 ] I adjourned this matter to March 12, 2013 for sentencing and advised Mr.

Howells that he should be prepared to be sentenced to a period of incarceration. FACTS [ 6 ] On November 3, 2012, at approximately 10:55 p.m. the police were conducting a traffic stop in the City of Melfort. A vehicle failed to stop and the police believed the driver was Mr. Howells. They stopped Mr. Howells later that evening driving a vehicle, but he denied being the driver who failed to stop at the traffic stop. The police observed indicia of impairment such as slurred speech and glassy eyes and found the accused was disqualified from driving.

They arrested him, gave him the rights to counsel, police warning and breath demand and attended to the local detachment. The accused blew 140 and 150 and was subsequently charged. [ 7 ] Mr. Howells is 40 years old, has three children, and is gainfully employed. He admits his criminal record but submits it is dated and that a fine is appropriate in the circumstances for each of the offences. [ 8 ] Counsel stated Mr. Howells had been drinking earlier in the day as he was upset over the loss of his dog. He drank a lot and rode into Melfort with another person who then left the accused with the vehicle.

The accused decided to drive to a friend’s house and was subsequently stopped by the police. [ 9 ] Mr. Howells told the Court that he made a bad decision that day and is remorseful for his actions. ANALYSIS [ 10 ] Mr. Howells is subject to a maximum sentence of 18 months incarceration concerning the over 80 offence coupled with a minimum one year driving prohibition to a maximum three year driving prohibition pursuant to s. 259(1). He is also subject to a maximum six months incarceration on the drive while disqualified offence and the same driving prohibition as for the over 80 offence.

The Crown has not tendered a Notice of Intention to Seek Greater Punishment. [ 11 ] In R. v. Yuzicappi , 2011 SKCA (SentDig) 4, the 42 year old male with a lengthy criminal record was sentenced to 17 months incarceration for the offence of over 80. The police observed a car southbound on a street in Regina driven by the accused. He was swerving in and out of the left-hand driving lane and at one point nearly bumped into the centre median. When the police stopped the vehicle, they noted a strong odour of alcohol on his breath and noticed he was having a hard time staying awake.

He was slurring his words and rambling. The police had difficulty understanding him. He staggered from side to side and had difficulty standing without assistance. He was arrested for impaired driving and provided a breath sample which indicated his blood alcohol concentration was 270 milligrams percent. The accused had significant alcohol and drug addictions. Prior to the commission of this offence, he managed his addiction with some success for approximately four years and had not committed a driving offence for nine years.

His record included 6 convictions for impaired/over 80 and 6 convictions for drive while disqualified.

[ 12 ] In R. v. Favel , 2009 SKCA (SentDig) 15, the 25 year old accused was sentenced to four months incarceration and a three year driving prohibition after pleading guilty to over 80. He was sentenced to 12 months incarceration on other non-driving matters for a total of 16 months. The police received a complaint of an impaired driver and subsequently found the vehicle with the accused in it parked near a driveway. The accused exhibited signs of impairment and was arrested, taken back to the detachment and provided samples of .180 and .190.

He had two previous convictions for impaired driving and one for over 80. The sentence was upheld on appeal. [ 13 ] In R. v. Marko , 2007 SKCA (SentDig) 5, a 52 year old accused was convicted of impaired driving and sentenced to one year incarceration which was upheld on appeal. His record consisted of one driving over .08, one care or control over .08, three impaired driving convictions, and four driving while disqualified convictions. The accused had a history of substance abuse and was rated as a high risk to re-offend. A three year driving prohibition was also imposed. [ 14 ] In R. v.

Paskimin , 2006 SKCA 141 , a 42 year old man was sentenced to 15 months incarceration and a three year driving prohibition on a charge of impaired care and control. The police responded to a call of a truck camper being driven erratically. They found the vehicle parked with the lights on and the accused passed out, slumped over the steering wheel. When he was awoken, his eyes were bloodshot, he was slurring his speech, and there was a strong odour of liquor in the vehicle.

His lengthy criminal record included two convictions for dangerous operation of a motor vehicle, four convictions for impaired/over 80 operation of a motor vehicle, one conviction for flight while pursued by a peace officer and four convictions for driving while disqualified. [ 15 ] In R. v. Pawliw , 2006 SKCA 51 , a 48 year old male was sentenced to nine months incarceration for driving while over 80. On appeal the Saskatchewan Court of Appeal increased his sentence to 18 months. He was also sentenced to six months concurrent for driving while disqualified arising from the same circumstances.

The police had been called to a vehicle being driven erratically on a major highway and found the accused driving a truck swerving across the centre line. The accused did not stop when the emergency lights were engaged but did eventually pull over. He had muffled speech, red glassy eyes and his breath smelled of alcohol. Readings at the police station were .16 and .14. The accused’s criminal record included one conviction for impaired driving, six for driving over 80 and one drive while disqualified.

The Court observed at paragraph 7: On many occasions, this Court has emphasized the need to protect the public from those persons who insist on drinking and driving, and doing so while prohibited from driving. This trend began, in particular, with this Court’s decisions in R. v. Bear (L.E.) , R. v. Duckworth (W.) , R. v. Whitehead (J.) , and R. v. Hotomanie . (Citations omitted) [ 16 ] In R. v. Cook , 2005 SKCA (SentDig) 49, a 31 year old male was convicted of operating a motor vehicle while over 80 and driving while disqualified.

His record consisted of, among other offences, one impaired driving conviction, one driving over 80 conviction, one fail/refusal to provide a breath sample, and one driving while disqualified. He was sentenced to one year incarceration on the over 80 and six months consecutive on the driving while disqualified, and a three year driving prohibition. His appeal was dismissed. [ 17 ] It is well recognized that joint submissions are an important aspect of the administration of justice in the criminal law context, as observed in R. v. Flanagan , 2012 SKCA 45 , at paragraph 12 .

This joint submission does not carry the same weight as it might have had an experienced Crown Prosecutor presented it and explained the reasons for the submission. Neither defence counsel nor the police officer have provided any significant reason why I should accept this sentencing submission other than the accused entering guilty pleas and the elapse of time since his last driving conviction. [ 18 ] Given the criminal record of the accused, and the circumstances of the current offence, fines are not appropriate.

In this case I consider the joint submission to be contrary to the public interest and find that if it is accepted, it would bring the administration of justice into disrepute. [ 19 ] This is the accused’s fifth conviction for over .08 and his second conviction for driving while disqualified, which now bring his criminal convictions for driving related offences to eight. It is an aggravating factor he was driving while prohibited and that his ability to do so was compromised by his consumption of alcohol. [ 20 ] I recognize he does have a break in his criminal record with his last conviction being in 2004.

However, that does not detract from the general principle that a period of incarceration is warranted in these circumstances.

[ 21 ] I sentence the accused to serve a period of incarceration of six months on count 2 and prohibit him from operating a motor vehicle for a period of two years. On count 3, I sentence the accused to three months concurrent for driving while disqualified and a two year concurrent driving prohibition. I.J. Cardinal, J