R. v. Webster Date:, 2014 BCPC 359

Citation: R. v. Webster Date: 20141028 2014 BCPC 0359 File No: 58753-2C Registry: RICHMOND IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RYAN JEFFREY WEBSTER REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P. CHEN Counsel for the Crown: G. Nelson Counsel for the Defendant: V. Michaels Place of Hearing: Richmond , B.C. Date of Judgment: October 28, 2014

[ 1 ] The accused has pleaded guilty to two counts of operating a motor vehicle while his ability to do so was impaired by alcohol, causing the deaths of Shane Moses and of Jess Moses. [ 2 ] The Crown seeks a sentence of two to three years’ incarceration in a federal penitentiary.

The accused seeks a sentence of two years less a day in a provincial correctional institute, followed by a probation term of three years. [ 3 ] The facts of this case are straightforward and are set out in the Admissions of Fact filed in this proceeding. [ 4 ] On the night of May 11th, 2012, Shane and Jess Moses, two brothers, had a party in their home in Richmond, British Columbia. The accused arrived at the party at around 11:00 p.m. after he had completed his shift at a local gas station. Alcoholic beverages and marihuana were present and consumed by some of the partygoers, who were teenagers and young adults.

At the time, the accused was 20 years old. Shane Moses was 19 and Jess Moses was 16. [ 5 ] After the party ended at around 2:30 a.m., the accused went to his home across the street from the Moses residence. The accused obtained the keys to his mother's BMW and he and the Moses brothers got into the vehicle, with the accused driving. At approximately 2:50 a.m., the accused called 9-1-1 to report an accident and request an ambulance.

By the time the RCMP arrived, fire and ambulance crews were already on scene, and the Moses brothers had already been pronounced dead. [ 6 ] The accused has no memory of leaving the party or of anything afterwards until the point of the collision. He has little memory of what happened in the period immediately after the collision. [ 7 ] The accident reconstruction analysis report filed in this proceeding detailed that the accident occurred as a result of the BMW failing to negotiate a left-hand portion of an S-curve in the roadway on No. 4 Road south of Steveston Highway.

The calculated minimum speed of the BMW was 87 kilometres per hour, while the critical curve speed of the roadway was 72 kilometres per hour. The posted speed limit at that location was 30 kilometres per hour. [ 8 ] The BMW left the roadway and collided with a tree at the right front pillar and passenger's side.

The impact resulted in fatal head injuries to the Moses brothers who were sitting in the front and rear passenger seats on the right side of the BMW. [ 9 ] A forensic analysis of the accused's blood samples obtained after the accident show that the concentration of alcohol in his blood at the time of the accident was between 132 and 134 milligrams per 100 millilitres of blood, well above the 80-milligram threshold for this offence. [ 10 ] At the time of the accident, the accused held a learner's licence which restricted him to driving only in the company of a qualified supervisor over 25 years old, with only one passenger and only between 5:00 a.m. and midnight. [ 11 ] Prior to this accident, the accused had no prior criminal history and no history of driving violations. [ 12 ] I have considered the submissions of counsel and the case authorities presented.

I have read the materials that have been filed at this hearing, including the letters of reference in support of the accused. I have considered the Pre-Sentence Report and I have also considered the accused's address to the court at the close of submissions. [ 13 ] These are difficult cases. Two young and innocent lives, so full of hope and promise, have been lost. A mother, a stepfather, a father, siblings and grandparents have been left devastated. The accused himself is painfully aware of the damage he has wrought.

He himself has experienced the loss of two good friends he has lived across the street from since he was 11 years old. [ 14 ] Sadly, tragedies and heartaches such as this are repeated over and over again all across this country, because people continue to make the decision to drive after drinking too much alcohol. That is why Parliament has, in the effort to stop this senseless carnage, continued to increase the penalties for such conduct.

That is why the paramount sentencing principles to be addressed in such offences are those of denunciation, expressing the moral outrage of the community, and general deterrence, the attempt to deter others who might be tempted to engage in such conduct in the future.

Still, rehabilitation remains a sentencing principle that must also be addressed. [ 15 ] Given the lack of any criminal or driving violation history, the remorse demonstrated by the accused and his otherwise good character, there is no need for specific deterrence. [ 16 ] As in every sentencing, the duty of the court is to strike a balance between these principles.

This can only be done by considering the aggravating and mitigating circumstances of these offences and the circumstances of this offender. [ 17 ] The most aggravating circumstance, clearly, is the fact that two innocent young lives were needlessly lost as a result of the accused's actions that night. It is also aggravating that the accused was in violation of the conditions of his learner's licence at the time of the accident. [ 18 ] I have read the Victim Impact Statements of Derek and Tina Lim, parents of the victims. They have done their best to describe what is otherwise indescribable.

Their lives remain shattered by their loss. They have suffered, and are still suffering, physically, emotionally and financially. Both were unable to work in the period following the deaths of their sons. Tina Lim has now returned to work, but because of her prolonged absence, has had to accept a more junior position. Derek Lim returned to work for 13 months, but stopped again because of an emotional breakdown.

He has now given up returning to work and will be retiring on a pension lower than what he would have had as full retirement, as the family had originally planned. [ 19 ] Verne Moses, the biological father of Shane and Jess Moses, addressed the court at the close of the Crown's submissions. It was clear that he has been devastated by the loss of his two sons. He described it as the worst tragedy that anyone could ever suffer in their lives. However, he then made a heartfelt appeal to the court that I found quite moving. He stated that he was here to speak for his sons and for the accused.

He stated that he knew, were they here to do so, that his sons would have wanted him to try to help their

friend. On behalf of his sons, he requested leniency in my sentencing of the accused. [ 20 ] The mitigating circumstances in this sentencing are the early guilty plea prior to any trial date being set, the accused's lack of any criminal or driving violation history, and the accused's youthfulness.

He is 23 years old now and was 20 years old at the time of the accident. [ 21 ] I also accept that the accused's remorse, which he expressed again at the close of his submissions in his address to the court and to the family of the victims, is sincere. [ 22 ] With regard to the accused's personal circumstances, the letters of reference show that he has the benefit of strong support from his family and in the community. [ 23 ] The accused completed high school in 2009 and attended college until 2011.

According to defence counsel's submissions, the year between leaving college and the date of the accident were a difficult period in the accused's life. He worked at minimum-wage jobs, unable to make any commitment to his future.

He fell into a general malaise during which he suffered from symptoms of anxiety, low-level depression and low self-esteem, and began self-medicating with marihuana. [ 24 ] According to his counsel, after the accident, the accused was immediately overcome with feelings of shame, remorse and the guilt of a survivor who had walked out of his vehicle where his two friends lay dead. [ 25 ] Since then, the accused appears to have found a new resolve and a clearer focus on his future. The accused has been working both part time and full time at Costco.

He returned to college full time from September 2012 to April 2014, and is three courses short of a diploma in kinesiology. He had always been a C-student in the past, but by dint of his hard work, has attained a 3.3 Grade Point Average. He hopes to transfer to a degree program at UBC after his release. [ 26 ] He has met with the registered clinical counsellor at his college 11 times to work on his anxiety, relationship and self-esteem issues. The accused has also become involved in various volunteer activities in the community and has made a commitment to his physical fitness.

He joined the Grind for Kids Program, collecting over $2,000 in donations for charity. [ 27 ] In my view, the accused is a good candidate for rehabilitation.

Counsel has submitted case authorities where the range of available sentences for these offences is anywhere from 18 months to eight years’ incarceration. [ 28 ] After considering the aggravating and mitigating factors applicable to these offences and to this offender, it is my view that the proper balance between the principles of denunciation, deterrence and rehabilitation would be met by a sentence of two years in a provincial correctional institute, followed by three years’ probation. [ 29 ] There will be an abstinence condition in the probation order.

Whether the accused believes he has a problem with alcohol or not, clearly he did have a problem with it on the night and early morning hours of August the 11th and 12th, 2012. If he is to ever consume alcohol again, hopefully by then he will have learned that he is one of those people who has difficulty gauging or controlling his level of impairment and that he is capable of making the most terrible decisions once he is under the influence of alcohol. [ 30 ] Mr. Webster, please stand.

I sentence you to a term of imprisonment for two years less a day in a provincial correctional institute. [ 31 ] Upon your release from custody, you will be placed on a probation order for a term of three years. [ 32 ] The conditions of that probation order will be as follows: keep the peace and be of good behaviour, appear before the court when required to do so by the court, remain within the Province of British Columbia unless you have the permission of the court or the written permission of your probation officer to leave the Province, report in person within 72 hours of your release from custody to a probation officer at suite 210, 7577 Elmbridge Way, Richmond, British Columbia, and thereafter as, when and in the manner directed by your probation officer. [ 33 ] On your initial report to the probation officer, you will provide the probation officer with your residential address and any contact telephone numbers you may have, and do not change either your address or your contact telephone numbers without the prior written consent of your probation officer. [ 34 ] Abstain absolutely from the consumption of alcohol or any substances prohibited under the Controlled Drugs and Substances Act . [ 35 ] Do not drive any motor vehicle. [ 36 ] Attend, participate in, and successfully complete such counselling, treatment or similar programs, including substance abuse management, as you may be directed to by your probation officer. [ 37 ] Seek and maintain employment or enrol in a bona fide education program and provide confirmation of such employment or enrolment upon the request and to the satisfaction of your probation officer. [ 38 ] Perform 200 hours of community work service within the first 18 months of this order.

The places and times where such community work service hours are to be performed will be provided to you by your probation officer. [ 39 ] Pursuant to s. 259 of the Criminal Code of Canada , I prohibit you from operating any motor vehicle on any street, road, highway or other public place in Canada for a period of five years. [ 40 ] Pursuant to s. 487.05(1) of the Criminal Code of Canada , I order that you provide such samples of bodily substances as are reasonably required for forensic DNA analysis.

[ 41 ] As you will be incarcerated, I will waive the victim fine surcharge. [ 42 ] Any questions? [ 43 ] MR. MICHAELS: Not from the defence. [ 44 ] MS. NELSON: I'd like to just have a moment. No, Your Honour. [ 45 ] THE COURT: All right. Good luck. [ 46 ] MS. NELSON: The Crown will stay Counts 1 and 2. (REASONS FOR SENTENCE CONCLUDED)