R. v. Lukat, 2023 BCPC 78

Citation: R. v. Lukat 2023 BCPC 78 Date: 20230324 File No: 69540-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. ANDRE MATTHEW LUKAT ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HAMILTON Counsel for the Crown: K. Masse and J. Jarvis, Articled Student Counsel for the Defendant: M. Mines Place of Hearing: North Vancouver , B.C. Dates of Hearing: November 25, 2022 and February 27, 2023 Date of Judgment: March 24, 2023 INTRODUCTION

INTRODUCTION [ 1 ] THE COURT: Andre Lukat is before the court today for sentencing, having pled guilty to impaired driving causing the death of Marcelina Agulay, and impaired driving causing bodily harm to her husband, Leonilo Agulay. The tragic fatal collision occurred March 2, 2021, so roughly two years ago. The Crown and Mr.

Lukat, through counsel, have placed before me a joint recommendation that I impose a 40-month jail sentence to be followed by a seven-year driving prohibition. [ 2 ] Before I go further with my decision, I want to make some comments to everyone who is in this Court for this sentencing hearing. First, what do we call what happened on March 2, 2021? A tragic car accident? A tragic fatal car accident? A tragic fatal car collision? A tragic fatal criminal collision? Some may feel calling what happened was an accident, but my view is that does not capture the true scope of what happened.

My point is that, throughout this room, people will view what happened March 2, 2021 in different terms. Let me be clear, I do not view what happened on March 2, 2021 to be an accident or a fatal car collision. What happened March 2 was a crime and today is the day that our justice system delivers punishment and accountability for that crime. [ 3 ] Secondly, I cannot improve upon what Mr. Masse said at the opening of today's hearing. These are very difficult cases.

Nothing I do today will ever change the tragedy, pain, and suffering felt by everybody here today, but also the harm done to society generally. [ 4 ] Connected to my last point, the extent of the suffering and the magnitude of the loss of Marcelina Agulay on March 2, 2021, and Leonilo Agulay a few short months later is impossible for me to capture in words.

The victim impact statements written by family and friends of the victims paint a picture of the Agulays that I cannot replicate. [ 5 ] Leomar Agulay, you showed remarkable courage and strength of character today as you shared the pain and suffering you and your family have endured in this loss. Your comments today had a real impact on all of us, and I thank you for showing us your strength of character. [ 6 ] Fourth, seeing you, Mr. Lukat, stand before us all and read out your apology was difficult to watch.

It left me with no doubt of your profound remorse and the sorry you feel for having committed these crimes. [ 7 ] My last point, for those of you here who are not too familiar with the legal principles involved in today's hearing, you may be thinking that the joint recommendation of 40 months in jail is not enough time in jail to hold Mr. Lukat to account for his crimes. Others may feel 40 months in jail is too long given the person Mr. Lukat is as expressed in the letters of support and the 3 reports I have read. I will return to the law concerning joint recommendations later in this decision.

What I want all of you to know is that I understand the different feelings that may be out there about whether 40 months in jail is a fit sentence, but I am bound by the law that gives sentencing judges, in this case, me, direction on what to do when faced with a joint recommendation on sentence. Background [ 8 ] Exhibit 1 was filed in this sentencing hearing and it is a book of admissions of fact. I am just going to briefly summarize the admissions because they have been carefully dealt with by counsel today. On March 2, 2021, Mr. Lukat had attended a business meeting in Fort Langley.

During the course of the evening, Mr. Lukat consumed in excess of a bottle of wine, then got into his car to drive home to North Vancouver. Mr. Lukat was impaired by alcohol when he got behind the wheel of his car, an Audi S8. Mr. Lukat entered North Vancouver and was driving along the Lower Level Road at approximately 11:07 p.m. He was driving in excess of 180 kilometres an hour in a 60-kilometre-an-hour zone. He drove through a large curve in the road and struck the Agulay vehicle head on. [ 9 ] The damage to the two vehicles is difficult to look at. Carnage would be a good word to describe it. Ms.

Agulay passed away before getting to the hospital. Mr. Agulay was severely injured. He was in and out of consciousness. He sustained a severe brain injury. He was discharged from the hospital on April 29, 2021, nearly two months after he sustained his injuries. [ 10 ] Mr. Lukat also sustained injuries that kept him hospitalized for approximately 10 days, followed by another week or so at the Hope Centre, a psychiatric and psychological facility connected with Lions Gate Hospital. ANALYSIS The Circumstances of Mr. Lukat [ 11 ] Mr. Lukat is 47 years old.

He has been an auto mechanic throughout most of his adult life. He has two young children with his former spouse. He lives with his current partner in a one-bedroom apartment in Yaletown, I believe. At the time he committed these offences, Mr. Lukat was under considerable stress related to his strained relationship with his ex-wife and some restrictions on his visitation with his children. He was depressed and seeing medical professionals for help, including prescribed medication. [ 12 ] Mr. Lukat comes before the Court with no criminal record, but a very concerning driving record.

He has three previous, albeit dated, alcohol-related 24-hour driving prohibitions. He has been convicted once previously for driving without due care and attention and has 13 convictions for speeding, including two dated convictions for excessive speed. These convictions for traffic offences span 25 years, July 1995 to September 2020. Of note, over seven months during the year prior to this crime, that being between February 2020 to September 2020, Mr. Lukat was convicted of four separate driving offences, two speeding offences and two offences for failing to produce a driver's licence or insurance.

I think it would be fair to characterize Mr. Lukat as a menace on the road. [ 13 ] As I have indicated, Mr. Lukat has expressed deep genuine remorse for his crimes. He has undertaken, on his own, private counselling with Dr. James Browning and extensive counselling through a counselling agency called Stepping Stones. He remains committed to further his rehabilitation while serving his jail sentence and once released back to society. Aggravating and Mitigating Factors [ 14 ] Starting first with the aggravating factors, Mr. Lukat's blood alcohol concentration at the time of these crimes was at or near two

times the legal limit. Next, the sheer level of the risk taken, consuming alcohol in Fort Langley to the point of becoming impaired and then getting behind the wheel of his vehicle to drive home to North Vancouver. That is obviously an unacceptable and criminal risk. Next, his excessive speed. He was driving over three times the speed limit at the scene of the crime. Next, the seriousness of these offences. Society takes impaired operation of a motor vehicle extremely seriously.

Society expects, no, it demands, that when impaired operation of a motor vehicle leads to death or serious bodily injury, the offender will be dealt a significant penalty. [ 15 ] The impact on the victim. I can do no better than what I have already said. The loss of Marcelina and later Leonilo Agulay has dealt a permanent catastrophic wound to their family and friends. [ 16 ] Lastly, in terms of aggravating factors, Mr. Lukat's prior driving record which I have already reviewed. Mitigating Factors [ 17 ] First, Mr. Lukat's early acceptance of responsibility for these crimes. This case was never set for trial.

There was an early guilty plea saving resources for trial, but more importantly, saving the Agulay family having to live through that trial. [ 18 ] Next, Mr. Lukat's own steps towards rehabilitation which I have already noted. [ 19 ] Next, Mr. Lukat's genuine and profound remorse for his crime. That was evident when he read his apology to all of us in this courtroom. [ 20 ] Next, Mr. Lukat comes before the court with no criminal record. [ 21 ] Next, he has the strong support of family and friends, some of whom are here today. [ 22 ] Lastly, the collateral consequences of this crime.

I am told, there are or will be civil liability for damages caused by this crime. Determination of a Fit Sentence [ 23 ] As I have indicated, I have had placed before me a joint recommendation for a 40-month jail sentence followed by a seven-year driving prohibition. I have had the benefit of reviewing the cases placed before me in a joint Book of Authorities. Those cases establish a range of sentences for these crimes at the low end, two years in jail, to a higher end of eight years in jail.

The recommended sentence before me is three years and four months in jail, so well within the recognized range. [ 24 ] Sentencing hearings or sentencing judges have to apply specific sentencing principles that are set out in the Criminal Code . I am just going to briefly review those.

Firstly, denunciation: the sentence imposed must reflect that society does not accept criminal behaviour and the harm crimes do to society. [ 25 ] Deterrence: the sentence must send a message to the offender and to society generally that, if you commit this crime, you will be punished, and the hope is that the threat of punishment will stop the offender or member of society from committing that crime in the future. [ 26 ] Next, separating the offender from society where that is necessary.

In this case, that separation is necessary. [ 27 ] Rehabilitation: rehabilitating the offender involves remedial steps to fix whatever led to the crime in the first place. Steps towards rehabilitation have already been taken by Mr. Lukat. [ 28 ] The next principle is to provide reparations for harm done to victims or community. My view is that that sentencing principle does not have much application in this case. [ 29 ] Lastly, the sentence must promote a sense of responsibility in the offender, and I have no doubt that Mr.

Lukat has accepted, without reservation, responsibility for these crimes. [ 30 ] In my view, the recommended 40-month jail sentence strikes an appropriate balance between each of those sentencing principles. Sentences must also be proportionate to the offender's responsibility for the crime. As I have said, there are significant aggravating and mitigating factors that weigh in opposite directions in determining what is a proportionate sentence. Mr. Lukat's moral blameworthiness is very high.

He drove to Langley, drank wine to the point of getting impaired, put keys into the ignition of his car, drove to North Vancouver, and at the time of the offence, was driving three times the speed limit all with a significant aggravating driving record, including the three prior alcohol-related 24-hour driving prohibitions. But weighed against those factors are the facts that Mr.

Lukat has no criminal record; he has taken full responsibility for these crimes through his guilty plea; he has shown and continues to show significant remorse; he has taken significant and concrete steps towards rehabilitation. [ 31 ] Weighing and weaving all of these factors together, I find that the proposed 40-month jail sentence and seven-year driving prohibition is a proportionate sentence. [ 32 ] The last sentencing principle I want to mention briefly is parity with other cases. Similar crimes committed by similar offenders in similar circumstances should receive similar sentences.

The cases that have been put before me establish that the recommended sentence is on par or has parity with other similar cases. Joint Submissions [ 33 ] I am going to end my decision with a few comments about joint recommendations by Crown and defence at sentencing hearings. In the United States and many other jurisdictions, a joint recommendation on sentence is sometimes called, wrongly in my view, a plea bargain. Use of that phrase does a real disservice to what is actually happening when the Crown and defence make a joint recommendation on sentence.

The vital importance of joint recommendations on sentence has been stated by our Supreme Court of

Canada in a decision called R. v. Anthony-Cook 2016 SCC 43 , [2016] 2 SCR 204. I am going to refer briefly to a few passagesfrom this case which will probably mean a little less to those of you without legal background, but this is what the Supreme Court ofCanada said in Anthony-Cook at paragraph 1: [1] Resolution discussions between Crown and defence counsel are not only commonplace in the criminal justice system, they areessential.

Properly conducted, they permit the system to function smoothly and efficiently. [2] Joint submissions on sentence — that is, when Crown and defence counsel agree to recommend a particular sentence to thejudge, in exchange for the accused entering a plea of guilty — are a subset of resolution discussions. They are both an accepted andacceptable means of plea resolution.

They occur every day in courtrooms across this country and they are vital to the efficient operationof the criminal justice system. … not only do joint submissions “help to resolve the vast majority of criminal cases in Canada”, but “indoing so, [they] contribute to a fair and efficient criminal justice system” … [34] At paragraph 40: In addition to the many benefits that joint submissions offer to participants in the criminal justice system, they play a vital role incontributing to the administration of justice at large.

The prospect of a joint submission that carries with it a high degree of certaintyencourages accused persons to enter a plea of guilty. And guilty pleas save the justice system precious time, resources, and expenses,which can be channeled into other matters. This is no small benefit. To the extent that they avoid trials, joint submissions on sentencepermit our justice system to function more efficiently. Indeed, I would argue that they permit it to function.

Without them, our justicesystem would be brought to its knees, and eventually collapse under its own weight. [35] Lastly, paragraph 42: Hence, the importance of trial judges exhibiting restraint, rejecting joint submissions only where the proposed sentence would be viewedby reasonable and informed persons as a breakdown in the proper functioning of the justice system. [36] In short, there is an expectation that I will endorse the sentence recommendation unless I conclude that, by imposing therecommended sentence, an informed and reasonable member of the public would conclude that the justice system is broken.

I find thatthe recommended sentence put forth by the Crown and defence is fit and it will not bring the administration of justice into disrepute. [37] Mr.

Lukat, if you could stand briefly, please. [38] For the reasons I have given, I sentence you to 40 months in a federal penitentiary followed by a seven-year driving prohibition. [39] I am also waiving the victim fine surcharge. [40] You can just have a seat very briefly. [41] I just want to thank counsel for all of your hard work on this very difficult case. [42] THE SHERIFF: Stand up, please, your hands behind your back for me, please. [43] THE SHERIFF: Your Honour, do you want him to sign the driving prohibition before he leaves today? [44] THE COURT: If that can happen, sure. [45] THE SHERIFF: Okay, certainly, Your Honour. [46] CNSL K.

MASSE: And Crown directs a stay of proceedings on any remaining counts. [47] THE CLERK: Sorry, Your Honour, the driving prohibition is under what section? [48] CNSL K. MASSE: So 320.25 -- [49] THE CLERK: 320.24? [50] CNSL K. MASSE: One moment, please. 320.24(5)(a). [51] THE CLERK: Thank you. (REASONS CONCLUDED)