R. v. Morady Date:, 2014 BCPC 282

Citation: R. v. Morady Date: 20141024 2014 BCPC 0282 File No: 58573-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. FARSHID MORADY REASONS FOR SENTENCE OF THE HONOURABLE JUDGE CHALLENGER Counsel for the Crown: G. Oh Counsel for the Defendant: P. Rankin Place of Hearing: North Vancouver , B.C. Date of Hearing: October 24, 2014 Date of Judgment: October 24, 2014 [ 1 ] THE COURT: These are my reasons on sentence. Farshid Morady was found guilty after trial of an assault with a weapon,

being a motor vehicle, contrary to s. 267(

a) and uttering threats contrary to s. 264.1(1)(a). The offence occurred on August 15th, 2012, inNorth Vancouver. The Crown proceeded summarily. The maximum sentences are 18 months and six months' imprisonment,respectively. A conditional sentence is an available penalty for both offences. Circumstances [2] The victim was a traffic control person, often referred to as a flagger, who was working in a lane behind a construction site. Mr. Morady wished to make a delivery to a store which backed onto that lane which was closed to traffic.

He approached the flaggerrequesting that he be permitted to pass and make his delivery and was told he could not do so. He drove away and returned severaltimes. [3] He became angrier and more frustrated each time he was told he could not drive down the lane and began yelling at theflaggers. Mr. Morady drove his van up to the victim who was wearing a safety vest and holding a sign in one hand with the "Stop" sidetoward Mr. Morady and his other hand up with his palm toward Mr. Morady. He was continuing to tell Mr. Morady he could not drivedown the lane. [4] Mr.

Morady threatened to punch the victim in the face if he did not move out of his way. When the victim did not move, Mr.Morady drove his car forward into the victim. He accelerated for only a brief moment and bumped into the victim. The victim had hisleft arm up to protect himself from the impact and to maintain his balance. His left wrist was injured and, "He had a clot." He said thathe still has a bump. His knees buckled, but he did not fall. Mr. Morady drove away and was found within minutes by the police double-parked on the street in front of a store. Antecedents of the Offender [5] Mr.

Morady is 39 and has no criminal history. He is Kurdish and emigrated from Iran 13 years ago. He is trained as anelectrician; however, due to being electrocuted, he no longer works in that trade. He operates a store with a partner and needs his car tomake deliveries. There are a number of letters filed which support that this incident was out of character for Mr. Morady. Heacknowledges he acted immaturely and lost his temper. He advised the court the incident had been "a hard lesson learned" and that he isremorseful.

Positions of Counsel [6] The Crown submitted that a jail penalty is appropriate as denunciation and general deterrence should be given significantweight for an offence of this nature which they equate to road rage. It was also submitted that the sentence should serve to specificallydeter Mr. Morady and to encourage him to accept responsibility. [7] Defence counsel submitted that there is no need to separate this offender from society and that the court should consider theprinciple of restraint as set out in s. 718.2(e). Mr. Rankin says that protection of the public and any rehabilitation of Mr.

Morady couldbe better achieved through the imposition of a probation order with a term requiring him to attend anger management counselling. Denunciation and general deterrence could be addressed through the imposition of a fine. The defence says that Mr. Morady does acceptresponsibility for his offending behaviour and this is supported by the letters filed on his behalf. Aggravating and Mitigating Factors [8] The aggravating factors are the intentional risk Mr.

Morady took in striking the victim with his vehicle and that he did so solelybecause he had been thwarted in his desire to make a delivery to the rear of the store. The mitigating factors are his previous goodcharacter, his acceptance of responsibility, and remorse. Range of Sentence [9] There are very few cases dealing with the assault of flag persons. Regina v. Winkler, 2008 BCPC 269 , 2008 BCPC0269, involves a very similar offence but with a more serious impact and resulting injuries.

The reasons for sentence were not available,but the court was provided with the JUSTIN record which shows that a nine-month conditional sentence and three months' drivingprohibition was imposed for the offences of assault with a weapon, assault causing bodily harm, and failure to stop at the scene of anaccident. There was also a restitution order for $1,000. [10] Regina v. Dawydiuk, 2010 BCCA 411, is a decision upholding the imposition of an 18-month jail sentence for assault with aweapon, being a motor vehicle; criminal negligence causing bodily harm; and failure to stop at the scene of an accident.

The accusedhad become involved in an altercation outside a bar as a result of his earlier behaviour toward some females inside the bar. There were anumber of people on the sidewalk who had been involved in the altercation or who had watched it. [11] The accused got into his truck and drove it onto the sidewalk. The vehicle went slowly, but then he revved his engine leavingtire marks on the sidewalk as he accelerated and hit one of the females who had complained about his conduct. She was knocked to theground. Others had to jump out of the way and one male was briefly pinned against a pole.

The accused then sped away from thescene. He hid his vehicle and denied being the driver when confronted by the police. The offender did not have a criminal history andwas of otherwise good character. [12] At paragraph 18, the court noted that the sentencing judge: ... emphasized the principles of deterrence and denunciation because of the nature of the offences and the offender: the offences resultedfrom the deliberate, conscious, and highly dangerous acts of a member of the community with whom many ordinary citizens canidentify.

It is when such citizens step outside the bounds of acceptable into criminal behaviour, harming others in the process, thatgeneral deterrence through the imposition of a jail sentence may have a deterrent effect. Such an offender and others like him are capableand more likely to contemplate the consequences of such offences, as compared to some of the other offenders seen in the justice system.

[ 13 ] The Court of Appeal found that the sentencing judge did not err in finding a high degree of moral culpability in the circumstances of the offence, in particular, that the offence involved ongoing and deliberate dangerous conduct rather than "a few seconds of careless or negligent conduct." [ 14 ] Regina v. Gray , 2011 BCSC 1834 , is a sentencing decision following a guilty plea to charges of dangerous driving causing bodily harm and failing to stop at the scene of an accident. Mr. Gray and the victim had earlier been involved in a fight over a theft.

The offender encountered the victim as he was waiting on the street by his vehicle for a friend. He became verbally aggressive and brandished a golf club. The victim ran away on foot. [ 15 ] Mr. Gray got into his vehicle with his friend and followed. He told his friend he wanted to beat the victim up. He found the victim and, in order to cut him off proceeded the wrong way down a one-way street. The victim was directly in front of the offender's vehicle with his hands on the hood when the accused moved his car forward striking his leg.

The victim fell backwards and hit his head on the ground and suffered a massive head injury resulting in permanent brain damage. Mr. Gray then drove away. [ 16 ] The offender did not have a criminal history, but did have a driving record which had resulted in two administrative prohibitions by the Superintendent of Motor Vehicles. He had been abused as a child and suffered from a number of physical and psychological conditions including chronic pain. He was not employed and had some substance abuse issues.

A conditional sentence was not available. [ 17 ] The court found that the principles of denunciation and general deterrence followed by rehabilitation of the offender were to be given the greatest weight. The court determined that in the circumstances, a suspended sentence would not meet the principles of denunciation and general deterrence and imposed a custodial term of 12 months followed by a two-year probationary period and a four- year Criminal Code driving prohibition. [ 18 ] Regina v.

Biemans , 2012 BCPC 75 (reasons for conviction) involved a very similar incident to the one before the court; see paragraphs 42 to 47. The offender approached a flagger and threatened to run him over if he did not move out of the way. When the flagger did not move, the offender bumped into him with his truck. The reasons for sentence are reported at 2012 BCPC 95 .

The victim suffered "with mild but nevertheless not trifling physical consequences" and was traumatized to some extent. [ 19 ] The offender had a dated and unrelated criminal history and one more recent conviction for uttering threats for which he received a conditional discharge that had become absolute. He was found not to be remorseful or to have accepted responsibility. He also had a recent entry on his driving history for driving without due care and attention.

Judge Woods observed at paragraph 28: I think it is fair to say that his behaviour reflects a sense of entitlement, a sense of being above the law, a sense of an ability to force his agenda forward at the expense of others. [ 20 ] The court in Biemans had the benefit of the sentencing decision in Dawydiuk as well as the decision on appeal. In that matter, the Crown submitted a suspended sentence was appropriate. A sentence of seven days' jail and one-year probation was imposed. Analysis and Determination of Sentence [ 21 ] Flag persons are clearly in a vulnerable situation while performing their duties.

Those duties are important for the safety of the public and for the safety of those working on or around public highways. Any motor vehicle, and in this case it was a small van, is capable of causing significant injury even as a result of a low velocity impact with a person. Indeed, the facts in R. v.

Gray illustrate the obvious risk of very serious and lasting harm which can result from any impact between a motor vehicle and a person. [ 22 ] Frustration arising from momentary inconvenience as a result of a lane or road being closed does not in any way justify aggression towards those who are tasked with ensuring safety around construction sites.

The acting out of that frustration by intentionally driving a vehicle into a flag person with the clearly foreseeable risk of causing serious bodily harm cannot be tolerated and must be strongly denounced and deterred. [ 23 ] I find that in the circumstances of this offence and this offender that the principles of denunciation and general deterrence can be met only by the imposition of a period of imprisonment.

I also find this to be a proportionate penalty given the high degree of moral culpability of this offender and the gravity of the offence. [ 24 ] I recognize that there is no need to specifically deter this offender and that his rehabilitation can be achieved through anger management counselling.

However, as was noted in Dawydiuk , this offender is of otherwise good character and the sentence imposed must be capable of deterring others like him from engaging in such senseless and highly dangerous conduct toward workers whose jobs are to protect others from the hazards of construction activities and who must perform those duties from a most vulnerable position. I find that a short jail term such as that imposed in Biemans is a fit and proper sentence. [ 25 ] I have considered that Mr. Biemans had a more troubling history and did not accept responsibility for his offending.

However, I find that due to the more lasting injury caused to the victim in this matter, that the penalty should be greater and I find that 14 days is fit. This is a sentence which, of course, can be served intermittently. [ 26 ] I must now consider whether this jail penalty could also be served by way of a conditional sentence and still meet the principles of denunciation and general deterrence. I may increase the term of a conditional sentence over that which would be served in an institution in order to achieve these ends. [ 27 ] It is clear that Mr. Morady can safely serve any sentence in the community.

I also find that with the appropriate terms such as house arrest and community work service, a conditional sentence in these circumstances can meet all the principles of sentence as set out in s. 718 to 718.2 of the Code . However, in order for a conditional sentence to be enforceable and meaningful, it must be for a period of at least 30 days. Mr. Morady will also be bound by probation for six months to follow with the requirement that he attend and complete anger management counselling.

[ 28 ] Mr. Morady, I am giving you the option of serving an intermittent sentence of 14 days which will probably be -- [ 29 ] MR. RANKIN: Three weekends, Your Honour. [ 30 ] THE COURT: -- three weekends or so, or the 30-day sentence without having to go to an institution except for being classified today. Do you want a moment to speak to Mr. -- [ 31 ] MR. RANKIN: Do you want to serve your sentence as a 30-day house arrest or a 14 days on weekends? [ 32 ] THE COURT: I can stand down, Mr. Rankin -- [ 33 ] MR. RANKIN: I think so. [ 34 ] THE COURT: -- so that you can have a chat with him about. [ 35 ] MR.

RANKIN: I think he is probably -- do you know what you want? [ 36 ] THE ACCUSED: House arrest. [ 37 ] MR. RANKIN: Yes, I think he would prefer the house arrest option. [ 38 ] THE COURT: Okay. [ 39 ] MR.

RANKIN: Thank you. [ 40 ] THE COURT: You can be seated. [ 41 ] So there will be a 30-day conditional sentence. [ 42 ] The terms of the conditional sentence will be the statutory terms, that you keep the peace and be of good behaviour and appear before the court when required to do so by the court. [ 43 ] You are to report by no later than 4:00 p.m. today in person to a conditional sentence supervisor at 100, 233 West 1st Street in North Vancouver and, thereafter, as and when directed by the conditional sentence supervisor. [ 44 ] You are to remain within the Province of British Columbia unless written permission to go outside the province is obtained from the court or the conditional sentence supervisor. [ 45 ] You are to have no contact direct or indirect with Nygel Ladouceur. [ 46 ] You are not to attend to any residence or place of employment or place of education at which you know Nygel Ladouceur to work, reside, or attend. [ 47 ] You will be bound by a house arrest curfew.

You must be continually inside your place of residence save and except for reporting to your conditional sentence supervisor as your supervisor requires or for attending to any medical emergencies for yourself or any member of your immediate family. [ 48 ] Your supervisor may give you written permission to be outside your residence for the purpose of attending any employment, performing community work service, or attending any counselling or programming. [ 49 ] You may be outside your home with the permission of your supervisor for three hours twice each week to attend to personal errands. [ 50 ] You must present yourself at the door of your residence upon demand of any peace officer or your supervisor to determine compliance with the curfew condition of this order. [ 51 ] You must abstain absolutely from the possession or consumption of alcohol or any drugs or substances scheduled in the Controlled Drugs and Substances Act , save and except according to a medical prescription and then only according to the dosage prescribed. [ 52 ] You are not to possess any weapons or imitation weapons as defined by the Criminal Code of Canada. [ 53 ] I am going to decline to order community work service because I do not think that you will be processed fast enough to get that done within that period of time. [ 54 ] Following that, you will be placed on probation. [ 55 ] The terms will be that you will keep the peace and be of good behaviour and appear before the court when required to do so by the court. [ 56 ] You must report within 72 hours of the conclusion of your conditional sentence as directed to a probation officer at 100, 233 West 1st Street in North Vancouver, B.C., and report thereafter as and when directed for the purpose of completing any anger management counselling. [ 57 ] You are to provide your residential address to the probation officer and not change that without their prior written permission.

[ 58 ] You are to have no contact direct or indirect with Nygel Ladouceur. [ 59 ] You are not to attend any residence or place of employment or place of education at which you know Nygel Ladouceur to reside, work, or attend. [ 60 ] You are to attend for, accept, and complete to the satisfaction of your probation officer an anger management program. [ 61 ] You are not to be found in possession of any weapons or imitation weapons as defined by the Criminal Code . [ 62 ] That period of probation will be for a period of six months, and that is simply to allow you an opportunity to take the anger management course.

Is he able to pay the victim fine surcharge? [ 63 ] MR. RANKIN: Yes, he is. [ 64 ] THE COURT: It is a $50 victim fine surcharge for this. [ 65 ] MR. RANKIN: Yes. Perhaps for a time to pay to the end of -- one month, that will be plenty, I think. [ 66 ] THE COURT: Sure, okay. So we will give you to November 30th, time to pay. [REASONS FOR SENTENCE CONCLUDED]