R. v. Donnelly Date:, 2017 BCPC 426

Citation: R. v. Donnelly Date: 20170315 2017 BCPC 426 File No: 51151-1 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HUGH MARTIN DONNELLY REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HEWSON Counsel for the Crown: M. Cissell Counsel for the Defendant: N. Jacob Place of Hearing: Vernon , B.C. Date of Hearing: February 8, 2017 Date of Judgment: March 15, 2017

Introduction [ 1 ] Mr. Donnelly has pled guilty, without a trial, to two counts of failing to stop and offer assistance after a vehicle he was operating struck two bicyclists. The victims were Hannah Mehain, and her mother, Roberta Hooper. The offence occurred on May 6, 2016 on Buchanan Road in Coldstream, British Columbia. [ 2 ] I must determine what will be a fit sentence for Mr. Donnelly, in the circumstances of this case. [ 3 ] The Crown asks that Mr. Donnelly be placed on a Conditional Sentence Order for a term of 9 months, including a period of house arrest.

The Crown is not seeking probation, or a driving prohibition. [ 4 ] Counsel for Mr. Donnelly agrees that it is appropriate to place Mr. Donnelly on a Conditional Sentence Order, but argues that the term of the order should be no more than six months. Circumstances of the Offence [ 5 ] Around sunset on May 6, 2016, Ms. Mehain and Ms. Hooper were riding together on Buchanan Road. Buchanan Road is a secondary road, with a grassy shoulder and no fog line. Ms. Mehain is a competitive cross-country skier, and her mother was her summer training partner.

Both of them are very committed to maintaining their health and physical fitness. [ 6 ] Mr. Donnelly was driving alone in his pickup truck. All three were traveling west. The setting sun blinded Mr. Donnelly, and he failed to see the two bicyclists on the right-hand side of the roadway. He struck them, and they suffered serious injuries. [ 7 ] Mr. Donnelly was aware that he had accidentally struck someone, but he panicked. In a decision that I am sure he regrets to this day, he continued driving away from the scene and failed to stop and offer assistance. [ 8 ] Mr.

Donnelly had not been consuming alcohol or drugs, he was not distracted by any handheld device and he was driving his truck at or below the posted speed limit. There is no allegation that he was driving dangerously, within the meaning of the Criminal Code . This was a simple case of not stopping to render assistance, uncomplicated by any other criminal offences. [ 9 ] Ms. Hooper was knocked off her bicycle and into a ditch strewn with large rocks. She suffered an injury to her spine, and a concussion. She has no memory of the accident.

Following her release from hospital, she was unable to work or train for three months. [ 10 ] Ms. Mehain was, fortunately, not hurt as badly, although she suffered the emotional trauma of being left alone with her badly injured mother in the ditch. [ 11 ] Ms. Mehain is a cross-country skier, and a member of the Canadian National Junior Team. She was able to continue training again within days of the accident. [ 12 ] The police and the ambulance responded quickly. [ 13 ] Mr. Donnelly continued driving until he reached his home.

As the realization of what he had done sunk in, his conscience compelled him to go to the police and identify himself as the driver of the vehicle that struck the bicyclists on Buchanan Road. He did that on the second day following the accident. The police had no suspect, and Mr. Donnelly would have never been charged had he not identified himself. Circumstances of the Offender [ 14 ] Although still a young man, Mr. Donnelly has five children between the ages of four and eleven years old. He has been married for eleven years, and is the primary breadwinner in his family.

His educational background includes high school and vocational training. He is employed as a forklift operator at a fiberglass plant in Armstrong, British Columbia. [ 15 ] Like the victims, Mr. Donnelly is an athlete, although perhaps at a different level. He plays goaltender for his community hockey team, and his children are active in sports. The Donnelly family attends church together. [ 16 ] Mr. Donnelly has no criminal record. He has one offence on his motor vehicle drivers’ record. He received the ticket for failing to produce a driver’s licence.

I am told that after the traffic stop, he found the drivers licence on the floor under the driver’s seat, when he arrived at his destination. Impact on the Victims [ 17 ] Mr. Donnelly's crime was leaving the scene of the accident without offering assistance to Ms. Mehain and Ms. Hooper. For the purposes of criminal sentencing, it is the impact of that conduct that I must consider. Compensating the victims for the serious physical injuries resulting from the accident must be left to the civil justice system. [ 18 ] Ms. Hooper and Ms.

Mehain both suffered the emotional trauma of having been left injured at the side of the road. In her Victim Impact Statement, Ms. Mehain emphasized, “As I watched, on my side, the truck accelerated up the hill, away from the incident, I felt angry that someone would ram into us on our bikes.” The underlining is hers. She found herself talking to others, including her mother, with an angry tone of voice. [ 19 ] Ms. Hooper has suffered periodic bouts of depression.

Although she has no memory of the accident, it seems reasonable to infer that at least some of her depression is related to the knowledge that she was left injured in the ditch.

[20] In addition, Mr. Donnelly's failure to stop and identify himself would have complicated the police investigation. Objectives of Sentencing [21] The most fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence, and to thedegree of the responsibility of the offender. A fit sentence will contribute to respect for the law, and the maintenance of a just peacefuland safe society by imposing sanctions that have one or more specific objectives. [22] Four sentencing objectives are important in this case. The first is rehabilitation.

This can be the best protection the communityhas, and is usually the main objective for youthful or first-time offenders. The second is deterrence. Deterrence is an attempt todiscourage others from committing the same offence in the future. The third is denunciation, which is the condemnation of conduct thathas encroached on our community's basic values. The fourth important objective is the promotion of a sense of responsibility inoffenders. This objective includes an acknowledgment of the harm done to victims and to the community. Decisions in Similar Cases [23] The sentence imposed on Mr.

Donnelly should be similar to sentences imposed on similar offenders in similar circumstances. The consideration of similar cases is complicated by the amendments to the Criminal Code that took effect on November 20, 2013. Forsome time before that date, conditional sentence orders were not an available sentence if the offence was characterized as a “seriouspersonal injury offence.” [24] In R. v. Marthinus, 2016 BCSC 1016, the offender pled guilty to impaired driving causing bodily harm and failing to stop at thescene of an accident.

On December 20, 2013, the offender was driving too fast for the slippery road conditions, and struck a pedestrianfrom behind. The pedestrian was thrown up on the hood of the vehicle, and the offender drove another 50 feet before suddenly stopping. The victim flew forward another 10 feet and struck her head. The offender drove away several hundred meters, ignoring people whowere telling him not to leave the scene of the accident, before being stopped by police.

At the time of the offence, the offender had ablood alcohol concentration of over 100 mg of alcohol in 100 mL of blood. [25] Kelleher J. sentenced the offender to six months imprisonment for impaired driving causing bodily harm, and to a consecutivesix-month conditional sentence order for failing to stop. The conditional sentence order included a period of house arrest. Thosesentences were to be followed by probation for a term of one year. [26] Kelleher J. reviewed a large number of similar cases.

The range of sentence runs from three months incarceration at the low-end, to 18 months incarceration at the higher end. Some of the sentences were Conditional Sentence Orders. [27] In R. v. Harrison, 2015 BCPC 126, the offender accidentally struck a bicyclist with his vehicle. He was not speeding or underthe influence of alcohol or drugs. The victim was thrown up onto the hood of the offender's vehicle, before sliding off. The offender didnot stop to offer assistance.

At para 112, MacCarthy PCJ held that the range of sentence was from three months to eighteen months, andhe sentenced the offender to a conditional sentence order with a term of six months, with no probation. [28] The range of sentences is similar in other jurisdictions. In R. v. Brousseau, 2006 NLTD 104 , the accused was drivinga pickup truck and struck a pedestrian. The accused drove on, turned back toward the scene, and then drove on again. When stopped bythe police, the accused denied driving the vehicle, and denied any knowledge of the accident.

When the police told the accused that apiece of light lens found at the accident scene matched the broken light lens on his pickup truck, he became cooperative, and nine daysafter the accident he gave a second cautioned statement in which he admitted being the driver. The accused had an unrelated, datedcriminal history.

Following the accident, because of his medical condition, the accused ceased driving. [29] The sentencing judge described it as a “clear case of not stopping to render assistance” and imposed a conditional sentence orderwith a term of eight months, with four months house arrest and four months curfew. [30] In R. v. Clements, 2002 PESCTD 7, Mr. Clements hit the victim’s motorcycle with his vehicle causing severe injury to thevictim. Due to his many Highway Traffic Act convictions, Mr. Clements panicked, and fled the scene. Mr.

Clements was a 30-year-old,low-functioning illiterate who had custody of one of his five children. He had no criminal record. The court suspended the passing ofsentence, and put the offender on probation for two years, with a requirement that he perform 100 hours of community service. Therewas also a one-year driving prohibition. [31] Provincial Courts in other provinces have found that the range of sentence stretched from two months to 15 monthsincarceration, but that suspended sentences were available in exceptional cases. See, for example, R. v. Cook, 2013 SKPC 161.

Aggravating and Mitigating Circumstances [32] A sentence should be adjusted to account for any aggravating or mitigating circumstances relating to the offence or theoffender. [33] The single most compelling mitigating factor is the offender's post offence conduct. Following the accident, the police had nosuspect, and no prospect of identifying Mr. Donnelly. His conscience demanded that he identify himself to the police, and accept theconsequences of his actions. This sort of behaviour is remarkably rare.

While offenders sometimes identify themselves to the police, itis usually because they are concerned that the police will eventually discover them through further investigation, or that an accomplicewill turn them in. [34] In R. v. Chartrand, 1982 CarswellOnt 2187 (Ont. Dist. Ct.) the offender was sentenced for arson, after confessing to police thathe had started a fire that they had originally concluded started from natural causes. Instead of imposing a jail sentence, the sentencingjudge suspended the passing of sentence and placed the offender on probation. In R. v.

Cameron, 1987 CarswellNB 233 (NBCA), theNew Brunswick Court of Appeal reduced a global sentence of two years less one day for six separate counts of breaking and entering, to

a global sentence of nine months. The youthful offender's admission of having committed offences for which he was not suspected was described as a dominant consideration in the case, which should have been specifically dealt with by the sentencing judge. [ 35 ] Mr. Donnelly's post offence conduct should be given great weight.

It is a clear indication of true remorse, and compels a conclusion that the objective of rehabilitation has already been largely met. [ 36 ] There are many other mitigating factors, including his early guilty plea, his good character and absence of criminal convictions, his family obligations and his sincere remorse. [ 37 ] With respect to aggravating factors, Mr. Donnelly's failure to stop and offer assistance to Ms. Mehain and Ms. Hooper clearly caused them distress. However, failing to stop and offer assistance is the actus reus of the offence.

On its own, that criminal conduct should not be used as an aggravating factor to adjust the sentence upwards. [ 38 ] In this case, Ms. Hooper's injuries in particular were serious. She suffered a spinal injury, and a concussion. Mr. Donnelly's failure to stop and render assistance meant that she faced an increased risk of medical complications. That increased risk is an aggravating factor. Conclusion [ 39 ] I am satisfied, given Mr. Donnelly's good character and his post offence conduct, that the sentencing objective of rehabilitation has largely been met.

Furthermore, I am satisfied that the objectives of denunciation, deterrence and promoting a sense of responsibility can be satisfied by a short conditional sentence, including a condition that Mr. Donnelly tender an apology in a form acceptable to the Conditional Sentence Supervisor. [ 40 ] The term of the Conditional Sentence Order will be four months. [ 41 ] The conditions of the Order will be: You must keep the peace and be of good behaviour. You must appear before the Court when required to do so by the court.

You must notify the court or your conditional sentence supervisor in advance of any change of name or address and promptly notify the court or your conditional sentence supervisor of any change of employment or occupation. You must remain in British Columbia unless you have prior written permission from the Court or your conditional sentence supervisor to leave the province. You must carry the written permission when you are outside the province.

Except as contemplated by this order, you must have no contact or communication directly or indirectly with Hannah Mehain or Roberta Hooper without further approval of the court, except in the following circumstances: a. In the company of your conditional sentence supervisor or a mediator, or the Court for the purpose of a restorative justice meeting b. In writing to tender an apology to them. You must not go to any residence, school or workplace of Hannah Mehain or Roberta Hooper.

You must report in person to the conditional sentence supervisor at the Vernon Community Corrections Office by 3:00 PM tomorrow, March 16, 2017, and after that, you must report as directed by your conditional sentence supervisor. When first reporting to the conditional sentence supervisor, you must inform him or her of your residential address and phone number. You must not change your residence or phone number without written permission from your conditional sentence supervisor. For the duration of this Order, you must remain inside your residence between the hours of 10:00 PM and 6:00 AM each day, except: a.

With the written permission of your conditional sentence supervisor. Such permission is to be given only for compelling reasons. You must also carry the permission when you are outside your residence during the curfew hours. b. In the event of a medical emergency and then only while at a health facility, or when traveling directly to, or returning directly from a health facility. If requested, you must provide your conditional sentence supervisor with written confirmation that you went to the health facility, signed by a representative of the health facility to which you went.

You must present yourself immediately at the door to your residence and you must answer the phone when any police officer or conditional sentence supervisor attends at your residence or calls your phone to check your compliance with the curfew condition of this order. You must carry a copy of this order and permission slips with you at all times when you are outside your residence. If a police officer stops you for any reason, you must immediately provide the police officer with a copy of this order without being requested to do so. You must not occupy the driver's seat of any motor vehicle except: a.

For the purposes of employment and then only when immediately engaged in work or traveling directly to and from your place of employment. If requested, you must provide your conditional sentence supervisor with the particulars of your employment including the hours and location.

b. In the event of a medical emergency and then only when traveling directly to, or returning directly from a health facility. If requested, you must provide your conditional sentence supervisor with written confirmation that you went to the health facility, signed by a representative of the health facility you went to. You must immediately provide a copy of this order to any peace officer who asks to see your driver's licence.

Subject to the consent of Hannah Mehain and Roberta Hooper, you must participate in a restorative justice program at the direction of your conditional sentence supervisor. [ 42 ] The victim surcharge will be payable in the amount and at the time set by regulation. ____________________________ The Honourable Judge R. Hewson