R. v. Chaudhary, 2019 MBPC 53

CITATION: R. v. Chaudhary , 2019 MBPC 53 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) M. Bettencourt and M. Serbin ) ) for the Crown - and – ) ) ) Ayush Chaudhary ) ) B. Gladstone for the Accused ) ) ) Reasons for Decision ) Delivered: September 27, 2019 CORRIN, P.J. INTRODUCTION [ 1 ] Ayush Chaudhary has pled guilty to operating a motor vehicle impaired cause bodily harm ( s. 253(1) (

a) of the Criminal Code ). The primary sentencing issues with respect to this case are denunciation, deterrence and rehabilitation. CIRCUMSTANCES OF THE OFFENCE [ 2 ] On July 4 th , 2018, the accused and his cousin Mr. Antriksh Saini consumed considerable quantities of beer and rye. Mr. Chaudhary told the preparer of the pre-sentence report that he had drank two king cans (usually 750 millilitres) of beer and a single “rye cocktail” while his cousin provided police with more detail, that they had each consumed one-half of a 375 millilitre (13 ounce) bottle of rye and two king cans of beer.

Regular size beer bottles are usually around 355 millilitres each. A blood sample taken at the hospital later that evening, some time after the offence incident, revealed a .28 grams of alcohol in 100 millilitres of his blood, a very high concentration of alcohol. The legal limit being .08. [ 3 ] After drinking, Mr. Chaudhary, who did not have either a driver’s license or learners permit, decided to practice driving. His cousin went along for the ride. At just after 7:00 p.m. the vehicle veered across the west bound lane of Hamilton Avenue onto the sidewalk on the north side of the street.

The vehicle then collided with a bus bench and subsequently, after continuing east on the sidewalk for a few hundred metres, struck a couple of parked cars that were facing west on Hamilton. The passenger sustained a fractured right femur. The fracture necessitated casting and physiotherapy. The prognosis for recovery related a likelihood that Mr. Saini would suffer chronic aches and pains at the injury site with possible accompanying long term muscle weakness.

A medical report authored by his treating physician suggested a likelihood of 6 to 12 months healing time. [ 4 ] The accused was uncooperative with police as he refused to provide a sample of his breath after speaking to counsel. He was initially charged with “refusal” in this respect. An officer interacting with the accused at the hospital shortly after 7:30 p.m. described him as having bloodshot watery eyes and slurred speech. THE OFFENDER [ 5 ] Mr. Chaudhary has no prior criminal record. He was 30 years old at the time of the incident.

He expressed remorse respecting the incident. [ 6 ] The accused completed a 3 year Bachelor of Arts in accounting and also a subsequent accounting certification course prior to coming to Canada from India approximately six years ago. He is now hoping to upgrade his accounting education in order to obtain accreditation in Canada.

He has held a number of jobs since coming to Canada including a teller’s position at CIBC bank and a position at Associate Contact Services (ACS), a mail order pharmaceutical company catering primarily to American customers. [ 7 ] He has also acted as an interpreter serving the Manitoba justice system since 2015.

A colleague at ACS described him as a “good man” and expressed surprise that “he was in trouble like this.” A close relative, a sister in-law, described him as being a “caring, reliable and a trustworthy person.” Another person providing a character reference, a former colleague, described him as “a decent, hardworking and responsible person.” Yet another reference described him as being trustworthy and reliable, a person he could “rely on”

when he had a problem, stating that the offender was “approachable, responsible and honest.” [8] The Community Corrections pre-sentence report (PSR) stated that Mr.

Chaudhary posed as a “low risk to re-offend” and“presents as a suitable candidate for community supervision.” Although there was no history of alcohol abuse, the report’s preparerthought it prudent, “(D)ue to the nature of the offence” to have an addictions assessment “via an organization like Addictions Foundationof Manitoba (AFM)” in case “the organization” (the AFM) “may direct the subject in an appropriate direction.” POSITION OF THE PARTIES [9] The Crown did not recommend a range of sentence but rather chose to specifically seek a 15 month period of incarcerationalong with a two year driving prohibition and a two year supervised probation order.

The Crown’s position was principally based on itsperceived need for denunciation and general deterrence, the need to send a message to the public that drinking and driving will not betolerated by the courts. The Crown relied on several cases in support of its recommended sentence: • R. v. Smoke, 2014 MBCA 91 • R. v. Anderson, 2017 MBCA 31 • R. v. Ramissoon, 2014 ONSC 1316 • R. v. Whalen, 2017 NLTD 100 [10] The first two cases, from our Court of Appeal, discuss sentencing ranges for this offence. The recommended ranges have risenover the last 20 years, and now stand at 6 to 24 months.

The Crown’s recommended sentence is exactly mid-point between the two. Insupport of its recommendation, the Crown emphasized the following aggravating factors in its submissions: • that the blood alcohol reading suggests that the accused was likely to have been quite intoxicated at the time of the accident; • that the injury incurred by the offender’s cousin was quite serious in nature; • that driving with a passenger in the vehicle was inherently dangerous because of the accused’s intoxication and lack of drivingexperience and had exposed Mr. Saini to considerable risk; • that Mr.

Chaudhary was a totally unlicensed driver insofar as he didn’t even possess a learner’s permit; • that the circumstances of the single vehicle accident spoke to Mr. Chaudhary’s likely high degree of intoxication and recklessness. [11] Defence argued for a 90 day intermittent jail sentence. He didn’t oppose the two year driving prohibition or the probation order.Defence relied on his client’s general good character and lack of any criminal history. He reminded the Court that the Supreme Court, inR. v.

Lacasse, 2015 SCC 64, had related that ranges were only guidelines not straight jackets (referring to the oft cited paragraph 57), thatthey should be perceived as “historical portraits” by sentencing judges “who must still exercise their discretion in each case.” [12] Defence emphasized that the offender had made a very bad, alcohol induced decision where he elected to drive but he had nowfully recognized his mistake and as such permanently changed his behaviour for the better, that it was unlikely that the criminal courtswould ever see him again. [13] Defence cited a number of cases where similar dispositions had been made: • R. v.

Audy, 2010 MBPC 55 • R. v. Mosher, 2012 MBPC 24 • R. v. Gomez, 2013 MBQB 43 • R. v. George, 2016 NSCA 88 [14] In Gomez, McKelvey J. sentenced a youthful first-time offender with a .180 reading to a 90 day intermittent sentence eventhough a number of persons were injured due to his impaired driving. In George, the Nova Scotia Court of Appeal altered a suspendedsentence to four months with respect to a 22-year-old offender with a minor but unrelated criminal record.

PURPOSE AND PRINCIPLES OF SENTENCING [15] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions. [16] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Here the offenceof impaired driving causing bodily harm is one of significant seriousness in our community and is one for which the first-time offenderaccepts full responsibility. [17]

Section 718 of the Criminal Code sets out a number of objectives a sentencing judge should bear in mind when sentencing. Theobjectives of the sentence in this case include: (

a) denouncing unlawful conduct; (

b) deterring the offender and other persons from committing offences; and

(

c) assisting in rehabilitation efforts. [ 18 ] In this case the primary sentencing objectives, as set out in the Crown’s cases, are denunciation and deterrence. [ 19 ] A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [ 20 ] The mitigating factors in this case include: • a guilty plea; • expressed remorse and regret by Mr.

Chaudhary; • a Corrections assessment that he is a very low risk to re-offend; • no prior criminal or driving record; • a generally positive PSR; • being employed on a full-time and part-time basis at two jobs and his reputation as a respectful and hardworking employee; • being on release for approximately a year without incident. [ 21 ] The aggravating factors in this case are: • engaging in driving after knowingly consuming a substantial amount of alcohol reflecting a high degree of moral blameworthiness; • a fairly significant injury suffered by the complainant.

THE LAW RELATING TO OUT OF RANGE SENTENCING [ 22 ] Paragraph 58 of Lacasse gives guidance respecting this subject matter as follows: There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation.

It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case. LeBel J. commented as follows on this subject: A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing.

Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit.

Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. ( Nasogaluak , at para. 44) ANALYSIS [ 23 ] I have had an opportunity to review the case law provided with respect to this matter and, of course, must emphasize that denunciation and deterrence are the most significant sentencing principles to be considered when it comes to the offence of impaired driving cause bodily harm. [ 24 ] The question in this case is whether or not the circumstances of this case, in relation to both the offender and the incident, warrant a departure from the usual sentencing range. [ 25 ] The Court is very concerned about both the nature of the accused’s driving as well as the accused’s complete disregard for public safety.

He was, after all, unlicensed and as such untested and therefore not entitled to drive at all, not in any circumstances! In this Court’s opinion, an intermittent 90 day sentence, even with probation, cannot be considered proportionate for the deliberate act of driving in these circumstances. The highly intoxicated offender created what can only be described as an obvious and serious hazard to all persons using the roadways or nearby. He created inherent danger to other motorists, their passengers as well as pedestrians.

For this reason, the Court has no difficulty accepting the Crown’s argument that a 90 day sentence is unfit. There are cases where departure from the guidelines is warranted but this is not one of them. Accordingly, I feel it appropriate to sentence the accused within the guidelines. [ 26 ] Mr. Chaudhary, although a first-time offender, is not a particularly youthful offender. At 30 years of age he certainly should have known better. As mentioned, general deterrence requires a jail sentence of a suitable length to promote respect for the law.

But in my view, this is a case where the lowest end of the normal range can be considered. That having been said I do not think that more than a six month sentence is necessary to promote the objectives of sentencing. In my opinion, an appropriate sentence in these circumstances is therefore six months imprisonment. [ 27 ] I also impose a two year driving prohibition from the date of his release pursuant to s. 259 of the Criminal Code .

I also order that he provide samples of his bodily fluid that are reasonably required for the purpose of DNA analysis pursuant to s. 487.051 of the Criminal Code . [ 28 ] Upon his release, he will also be subject to a probation order for a period of one year. The terms of that order are as follows: 1. Keep the peace and be of good behaviour;

2. Appear before the court when required to do so; 3. Notify the court or probation officer in advance of any change of name or address; 4. Promptly notify the court or the probation officer of any change of employment or occupation; 5. Report within two working days from his release from jail to a probation officer as directed and thereafter to his supervising probation officer as directed; 6. Abstain from the purchase, consumption or possession of alcohol; 7.

Attend and actively participate in any substance abuse assessments and/or rehabilitative programs for alcohol abuse as may be recommended by the probation supervisor; 8. Execute any personal privacy release that the supervisor requires to determine compliance with this order. [ 29 ] The Court also makes a stand alone restitution order in the amount of $10,179.34 in favour of the Manitoba Public Insurance Corporation. Finally, as required, the Court pronounces a 10 year

section 109 Criminal Code weapons prohibition. “Original signed by:” CORRIN, P.J.