R. v. Vroegop Date:, 2012 BCPC 484

Citation: R. v. Vroegop Date: 20120716 2012 BCPC 0484 File No: 58661-3C Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CURTIS HARRY VROEGOP ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE DICKEY Counsel for the Crown: J.D. Hempstead Counsel for the Accused: K. Beatch Place of Hearing: Chilliwack , B.C. Date of Hearing: July 5, 2012 Date of Judgment: July 16, 2012 [ 1 ] THE COURT : Curtis Vroegop appears before me for sentencing after having pled guilty to a count of leaving the scene of an

accident to escape civil or criminal liability and a count of dangerous driving causing bodily harm to Edmund Fechner. [ 2 ] Crown and defence have classified this as a joint submission, but disagree on the length of the sentence and the length of the driving prohibition. Submissions [ 3 ] The Crown submits that a custodial sentence towards the higher end of 15 to 22 months is appropriate with a probation of two years and a three - to four - year driving prohibition.

Defence agrees with the range proposed by the Crown, but submits that the sentence should be towards the lower end and the driving prohibition should be one year in duration. Circumstances [ 4 ] On January 19, 2011, at approximately 7:15 p.m., a vehicle driven by Mr. Vroegop drove through a stop sign without slowing and entered into an intersection striking a van driven by Edmund Fechner. [ 5 ] There is no agreement on the speed that Mr. Vroegop's vehicle was travelling at the time of the accident. A variety of speeds were estimated by witnesses and the Crown submitted from these speeds that Mr.

Vroegop's vehicle was travelling at 80 to 90 kilometres per hour. The defence did not agree on the estimated speed. [ 6 ] I think from the evidence what can be said about the speed of the Vroegop vehicle is that it was travelling at such a speed that it forced the Fechner vehicle across the intersection and sidewalk and into the front yard of a residence, causing a significant amount of damage to the Fechner vehicle. There was no evidence of braking by the Vroegop vehicle. The Vroegop vehicle struck the Fechner vehicle on the driver and passenger door. [ 7 ] Mr.

Vroegop was seen to run from the accident scene and was located by the police a short distance away. Mr. Vroegop was taken to hospital and admitted to consuming alcohol. [ 8 ] Witnesses attended the scene and advised that Mr. Vroegop had been observed shortly before the accident to enter the driver's seat of his vehicle, strike an apartment complex with his vehicle while backing up, and then leave the area and drive towards where the accident occurred. [ 9 ] Mr. Vroegop had consumed alcohol prior to the collision.

I am advised that his blood alcohol level at the time of the accident was in excess of double the legal limit, which is an aggravating factor on sentencing, pursuant to s. 255.1 of the Canadian Criminal Code, R.S.C., 1985, c. C-46 [Code]. [ 10 ] The victim is Edmund Fechner. He was 80 at the time of the collision. He has little memory of the accident. He was taken to the Chilliwack General Hospital and then shortly after to the Royal Columbian Hospital in New Westminster. He remained in hospital until May 2011.

He suffered injuries to the left side of his body, including fractured clavicle, cervical ribs, and pelvis, collapsed lung, heart bruises, and now must use a colostomy bag. He still has shooting pain, but not on a regular basis. He continues to receive aid, and at times uses a walker or a cane. His family describes his recovery as miraculous, which I think is an apt description for the injuries that he suffered. [ 11 ] I have read a victim impact statement prepared by a daughter of Mr. Fechner. It outlines the impact of this accident and the tragic consequences it has had on Mr.

Fechner and his family. [ 12 ] I am happy to say that Mr. Fechner at the sentencing hearing was able to walk to the front of the courtroom and speak on his behalf. He met and spoke with Mr. Vroegop prior to the sentencing hearing. I think that meeting was good for both of them. It gave both of them the opportunity to see the humanity of the other. Mr. Fechner advised the court that he had forgiven Mr. Vroegop for this accident. [ 13 ] Mr. Vroegop in open court again expressed to Mr. Fechner and his family his remorse for what had happened. I have read a letter authored by Mr. Vroegop to Mr. Fechner.

It is clear that Mr. Vroegop is truly remorseful for what occurred because of the consequences to Mr. Fechner and his family. [ 14 ] The truest sign of remorse in an individual is when they are prepared to follow a long and difficult path to ensure that they never make the same mistake again. I find that Mr. Vroegop has started down that path. [ 15 ] I am advised that Mr. Vroegop's upbringing was difficult, with his parents separating when he was age seven, resulting in him residing with different family members.

He eventually lived with his father and brother, but because his father was a truck driver, he had little supervision for six to seven years. [ 16 ] He started using marihuana when he was 11 and crystal methamphetamine from ages 15 through 20. At one point, he attended at Maple Ridge Treatment Centre and was clean for one year. Following this period he began to consume alcohol, starting when he was approximately 20 years of age. [ 17 ] He stopped drinking in August 2011 and again entered Maple Ridge Treatment Centre from September to October 2011.

After that, he went to a recovery house called Barb's from October to February 2012. He now attends AA on a weekly basis and has a sponsor. [ 18 ] Mr. Vroegop is presently 27 years of age. He was 25 at the time of the accident. He has an unrelated criminal record. [ 19 ] He has a lengthy driving record, which the Crown argues is aggravating. I agree.

His driving record includes related convictions for excessive speed times two, leaving the scene of an accident, not stopping at a red light at an intersection, driving without consideration for others, driving while prohibited, speeding times two, failure to yield to a pedestrian, and a 12- and 24-hour suspension

that were alcohol related. [20] He has numerous superintendent and two court imposed driving prohibitions. He was most recently prohibited from driving byme, as a term of his recognizance on these charges on January 21st, 2011. There are no allegations that he has breached this term or anyother term of his bail. [21] I am advised that he has strong family and community support, which was confirmed by the attendance of a number of theseindividuals in court at the time of sentencing. [22] A number of letters of support were provided, which I have reviewed.

Common threads among those letters are that Mr.Vroegop is a compassionate and caring individual, has expressed remorse and has grown and matured since this incident. [23] Counsel for Mr. Vroegop asks me to consider as mitigating the strict bail conditions placed on Mr. Vroegop over the last yearand one-half. The defence relied upon two cases for the proposition that strict bail conditions can be considered as mitigating. R. v.Downes, (ON CA), [2006] O.J. No. 555, (Ont. C.A.) [Downes]; and R. v.

Perreault, 2005 BCCA 226 [Perreault]. [24] The court in Perreault held that it could consider both the length of the delay in conjunction with the strictness of the bail termsin determining if the circumstances would have a mitigating effect on sentence: (para. 12). [25] I do not find however, in the case before me, that the bail conditions were overly onerous. There was no house arrest. The termsinclude a curfew originally from 7:30 p.m. to 6:00 a.m., which was extended to 11:00 p.m. to 5:00 a.m. in February 2012. I accept thatthis may have affected Mr.

Vroegop's ability to socialize, especially on the weekends, and I take this into account in my determination ofsentence. The most onerous condition is that he was not allowed to drive, which I am not prepared to find as mitigating, in that I intendon giving him credit for this period in my assessment of the appropriate driving prohibition. I also do not consider it onerous in thecircumstances of this case, the abstention clause and not to attend liquor outlets. I find his restriction on contact with his best friend andothers to be only slightly mitigating.

In both Perreault and Downes the offender was on house arrest, and both cases are thereforedistinguishable from the case before me. [26] Defence also asks that I consider as mitigating the delay in having this matter proceed to trial. This argument is closely alignedwith the preceding submission, except that it extends beyond the terms of bail to other factors, which may result in prejudice to theoffender. [27] The defence referred me to the decision of R. v. Purchase, 2012 BCSC 208, and the reasons for sentence handed down onFebruary 9, 2012. In this case N. Brown J. followed R. v.

Nasogaluak, 2010 SCC 6, which found that excessive delay causing prolongeduncertainty, although it may not be a breach of the accused's Charter rights, may still be mitigating on sentence. [28] The defence does not allege that there has been a breach of Mr. Vroegop's Charter rights by this delay. The evidence before meon this issue is limited. I believe the original information was sworn shortly after the offence date. The trial was set on May 9, 2011 forfour days, commencing June 25, 2012.

The defence says that they were always motivated to resolve this matter, but it appears that theposition of the Crown in 2011 for the resolution of this matter was not acceptable to the defence. I find the delay on the evidence doesnot prove that it was "excessive" and therefore do not find the delay to be mitigating. [29] Both the Crown and defence agree that the guilty plea is mitigating, saved this Court at least four days, and potentially more, ofcourt time. The witnesses were not required to go through the difficult process of appearing as witnesses, and reliving the events of theincident.

The Crown and defence also note that there were triable issues on the charges before the court. Length of Sentence [30] The length of sentence is determined by the principles and purposes of sentencing set out s. 718 to 718.2 of the Code. Section.718.2(

b) sets out that: (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [31] On the issue of the length of the appropriate sentence, the Crown referred me to three decisions which they argue have somesimilarity to the case before me. In R. v. Gill, 2010 BCCA 388 [Gill], the appellant was convicted of dangerous driving causing bodilyharm and failing to stop his vehicle and offer assistance.

He received a sentence in Provincial Court of 12 months incarceration on thedangerous driving, plus a two-year driving prohibition, and 18 months consecutive for leaving the scene. [32] The circumstances in Gill was the offender had a period of seconds of inadvertence resulting in his vehicle crossing a number oflanes to strike a vehicle head on, that was travelling in the opposite direction. An occupant in the other vehicle suffered facial injuries,including fractures of facial bones and severe lacerations, fracture to the pelvis and a traumatic brain injury with permanent profounddifficulties. Mr.

Gill was aware of the injuries to the victim but instead of assisting her, left the scene and returned to a party. The courtheld that it was appropriate for the sentences to be consecutive, following the decision in R. v. McCrea, 2008 BCCA 227, and that thelength of the sentence was not demonstrably unfit. The driving in Gill is less serious, but leaving the scene is much more aggravated thanthe case before me. [33] In R. v.

Cohen, 2007 BCCA 276 [Cohen], the appellant drove in an exceedingly erratic and dangerous manner over a three-kilometre stretch, including two collisions with motor vehicles, a near accident with a bus, and a collision with a cyclist. The appellantdid not stop for any of the collisions. The appellant was found to have three-and-one-half times the legal limit of alcohol in his blood. Hewas convicted of six offences arising from this incident. He received a global sentence of three-and-one-half years. The court held thatthe global sentence was excessive and reduced it by six months.

The circumstances of Cohen are significantly more aggravated than thecase before me. [34] The third case referred to by the Crown on the issue of length of sentence is R. v. Obleman, 2009 BCPC 155 [Obleman]. The

offender pled guilty to care and control while impaired; and occurring on a separate date, impaired causing injury to two complainants. He had a record for drinking and driving offences. The Honourable Judge MacKay held that general deterrence and denunciation are the principles of sentencing most important in a case such as this. The second of these two offences was the most serious. While the first matter was outstanding, the offender drove a vehicle at an excessive speed, crossing the centre line and striking the victim's vehicle head on. The driver and passenger were both injured.

The driver suffered soft tissue injuries, including abrasions, contusions, and bruising. The passenger suffered from headaches, blurred vision, sore ankles and bruised knees. Both suffered emotionally from the accident. [ 35 ] The offender was sentenced to 60 days in custody on the first offence, and 30 months consecutive on the second, with a driving prohibition for three years following his incarceration, (see s. 259(2)(a)) under the Code , and for ten years in B.C. under the Motor Vehicle Act , R.S.B.C. 1996, c. 318 [ MVA ].

The circumstances of this case are more aggravated than the matter before me, as it involves an individual with a related record, two separate incidents with the latter occurring while the offender was facing similar charges. [ 36 ] In analysing the principles and purposes of sentence most applicable to this matter, I agree with Judge MacKay in Obleman that denunciation and general deterrence are the purposes of most importance. I find that the objective of rehabilitation has been mostly satisfied by the steps taken in this area by Mr. Vroegop.

I also find that it appears from his clear and significant remorse, not only expressed through apologies, but also by taking steps to ensure this type of offence does not occur again, that he has been specifically deterred from committing further offences. A sentence, however, must also deter others from committing similar offences. [ 37 ] In

summary, I find the following factors to be mitigating: his guilty plea, his significant remorse, family and community support, and the steps he has taken to ensure that he does not commit further offences.

I find the bail terms and specifically his inability to have contact with his best friend to be only slightly mitigating. [ 38 ] The following factors I find to be aggravating: the circumstances of the offence, including that his blood alcohol level was twice the legal limit, his apparent speed in travelling through the intersection and his terrible driving record. [ 39 ] Weighing both the mitigating and aggravating factors, and considering the submissions of both Crown and defence, I find the appropriate sentence to be as follows. [ 40 ] Just stand up, please, Mr.

Vroegop. [ 41 ] The sentence with respect to the dangerous driving count will be 12 months in custody. The sentence on leaving the scene of the accident will be three months in custody, and that is to run consecutive. [ 42 ] With respect to a probationary period, there will be a probationary period of two years. The terms of that probation will be: 1. The mandatory conditions. 2.

You shall report in person to a probation officer within 72 hours of your release from custody to the office of the Chilliwack Community Corrections, 45960 Wellington Avenue in Chilliwack, B.C. and you shall thereafter report as and when directed by your probation officer and in the manner directed by your probation officer. 3. You shall inform your probation officer of your present residential address and telephone number and not change that address or telephone number without prior written notice to your probation officer. 4.

You shall not possess or consume any alcohol or controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act , S.C. 1996, c. 19, except as prescribed by a licensed physician. 5. You shall attend for, participate in and complete to the satisfaction of your probation officer any counselling or program as directed by your probation officer and without limiting the generality of this condition, such counselling or program may in the discretion of your probation officer include counselling for alcohol or drug abuse. [ 43 ] Mr.

Vroegop, you will be prohibited from driving a vehicle on any street, road, highway, or other public place for two years plus any period of imprisonment. I am taking into account the year and one-half that you have not driven while on bail. [ 44 ] With respect to the Crown's request for a DNA order, it is a primary designated offence, and therefore I will make the order that while in custody you will provide a sample of your DNA for inclusion into the National DNA Data Bank, and that will be taken in accordance with the provisions of

Part XV of the Code . [ 45 ] With respect to the victim fine surcharge, it is waived. [ 46 ] Mr. Vroegop, good luck. [ 47 ] THE CLERK : (Indiscernible). [ 48 ] THE COURT : It will be on the dangerous driving. [ 49 ] MR. HEMPSTEAD : Thank you. Crown directs a stay on the remaining counts and informations with respect to this defendant before the court. [ 50 ] THE COURT : The probation is on both counts, Madam Clerk. [ 51 ] THE CLERK : And the driving on both? [ 52 ] THE COURT : The driving is on both, and it is under the Criminal Code .

[ 53 ] THE CLERK : Count 1 for the DNA. [ 54 ] MR. HEMPSTEAD : It is under both, but it is consecutive. It is not consecutive, it is concurrent. [ 55 ] THE COURT : Sorry. The sentence is consecutive. The 12 months and the three. [ 56 ] MR. HEMPSTEAD : The driving. [ 57 ] THE COURT : Yes. [ 58 ] MR. HEMPSTEAD : Is that under both the Motor Vehicle Act and as well the Criminal Code ? [ 59 ] THE COURT : Just doing it under the Criminal Code , two years. [ 60 ] MR. HEMPSTEAD : And the length of probation? [ 61 ] THE COURT : Two years. [ 62 ] MR. HEMPSTEAD : Thank you. _____________________ R.C. Dickey J.