2016 MBPC 5, 2016 MBPC 5

Cite # 2016 MBPC 5 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Manoja Moorthy for the Crown ) - and – ) ) Avarinder Singh Sandhu ) Roberta Campbell for the Accused ) ) ) Decision on Sentence Judgment delivered: ) January 29 th , 2016 M. P. Thompson, P.J. Introduction [ 1 ] After hearing sentencing submissions from counsel on November 16 th , 2015, I reserved decision on sentencing to January 29 th , 2016. These are my reasons and decision for sentencing. [ 2 ] Mr.

Sandhu, a 34 year old man, born and raised in Winnipeg, MB has pled guilty to two charges. 1) The Criminal Code offence of driving over .08 causing bodily harm, S. 255 (2.1) ; and 2) A Highway Traffic Act offence of operate a motor vehicle while a novice driver with alcohol in his blood. [ 3 ] Both offences arise from the same incident in Winnipeg. Facts [ 4 ] On September 12, 2013 at 9 p.m. the accused drove his motorcycle at a high rate of speed while northbound on McPhillips Street, in Winnipeg.

A witness told police in her statement that she was stopped at the intersection of Mountain Avenue and McPhillips Street at a red light. She was in the middle lane. There were cars stopped on lanes to her right and her left at the red light. She heard the revving of an engine and when the light changed to green, a motorcycle coming from behind squeezed between the lanes of cars, going so fast she quickly lost sight of it.

She subsequently came upon the accident scene, further down McPhillips Street. [ 5 ] Witnesses estimated the speed of his motorcycle to be excessive; 130 kms per hour, 120 kms per hour, and 80 kms per hour were the various eye witness estimates of his speed. These estimates are largely consistent with the opinion evidence of the accident reconstruction expert who placed Mr. Sandhu’s speed at a minimum of 82 kms per hour to a maximum of 120 kms per hour, based on a 200 metre drag mark left by his motorcycle on the road. [ 6 ] McPhillips Street has a posted speed limit of 60 kms per hour. Mr.

Sandhu’s motorcycle struck a cyclist crossing McPhillips Street at Machary Avenue. According to the Crown, there is a school on one corner of that intersection, although it would not have been in session at that time of day. [ 7 ] The impact of the collision was so forceful it broke the bicycle in half and knocked the shoes off the cyclist. The cyclist, Tyrone Roulette, suffered a broken ankle and serious bruising throughout the left side of his body. The accused, Mr.

Sandhu himself was seriously injured as a result of the collision and remained in hospital for an extended period of time with broken bones and a brain injury. [ 8 ] Paramedics at the scene reported signs of the accused’s impairment to police. A blood sample was obtained and the accused’s blood alcohol level was found to be .121 % mg. The accused held a class 6 licence with a 0% blood alcohol content restriction while operating a motorcycle.

[ 9 ] Some three months later, when the accused was arrested upon being discharged from the hospital, he told police he believed it was “God’s will” that the cyclist was hit, that he had 2 drinks on the day in question and that he was a casual drinker; none of which was accurate. Mitigating Factors Include: [ 10 ] The accused’s guilty plea. [ 11 ] The fact the accused suffered serious injuries himself.

According to his doctor’s assessment, the accused’s injuries included fractures to his basilar skull, odontoid right clavicle, first and second ribs, right scapula face, sphenoid temporal lobe and multiple facial fractures as well as a full facial nerve palsy. Mr. Sandhu is still suffering from severe memory and executive functioning deficits which clearly impact his daily life. Mr.

Sandhu continues to struggle with occasional episodes of intermittent bilateral headaches and decreased hearing in his right ear since the accident. [ 12 ] The accused’s catastrophic injuries required a lengthy period of hospitalization and rehabilitation; two weeks in a coma and three months in hospital. [ 13 ] The accused is married and describes his wife and family as major supports for him. Subsequent to the accident, the accused has begun an education program on a part time basis, as his recovery allows, in an effort to complete his grade 12.

Aggravating Factors Include: [ 14 ] The accused’s prior related criminal record. [ 15 ] He was previously convicted of impaired driving on June 10, 2009.

He was fined $2,000 with a victim surcharge of $300 and was prohibited from driving for one year by the Court. [ 16 ] The accused also has a lengthy record of driving violations under the Highway Traffic Act: • 1999- Drive imprudently • 2000- Drive without a licence • 2001 – careless driving HTA accident ($2000 fine) • 2002 – drive with obstructed view • 2002- speeding • 2002- drive with obstructed view • 2002- drive while suspended ($250 fine) • 2003 – drive while suspended ($700 fine) • 2006-imprudent driving • April 2008 – speeding • April 2008- disobey traffic control device • August 2008 – speeding • November 2008 – proceed before safe to do so • The Crown provided additional convictions however the dates of those convictions inexplicably took place while the accused was incapacitated in hospital in November 2013, leading me to question the reliability of that portion of his Highway Traffic Act record. [ 17 ] This leaves a reliable record of a total of 13 HTA convictions.

Fines were imposed on each of these offences. [ 18 ] Additional aggravating factors include the accused’s risk taking and reckless attitude towards driving. Many of his Highway Traffic Act convictions relate to imprudent driving, speeding and driving while suspended. [ 19 ] On the date of this accident, the accused was speeding significantly and was operating a motorcycle while impaired, despite his driver’s licence 0% blood alcohol content restriction. [ 20 ] This dangerous behaviour occurred at 9 p.m. on a busy main urban thoroughfare in Winnipeg.

The victim, Tyrone Roulette, suffered serious injuries both physical and psychological that have had a lasting impact on him. From the Victim Impact Statement, we are aware of the following:

[21] Mr.

Roulette lost his construction job because of his broken ankle and resulting tendinitis made it impossible for him to work. [22] He went from being fully employed to being on social assistance as a direct result of this accident. [23] He has a six year old son whom he is no longer able to financially provide for. [24] Physiotherapy and pain medication were required. [25] As of June 27th, 2015, when interviewed by the Crown, he still had some restriction with his left foot and was still tootraumatized to ride a bicycle, an important mode of his everyday transportation. [26] His sleeping position has been affected by the ongoing pain in his foot. [27] He has ongoing pain in his left shoulder whenever he attempts to lift an object. [28] Mr.

Roulette’s bicycle was a total loss having been broken into two parts. [29] His clothing, which had to be cut off at the hospital, was also a total loss. [30] Mr. Roulette believes that he almost died in the accident. He believes what happened to him has negatively affected his abilityto have empathy for others. [31] The Crown correctly points out that the victim in this case, Mr. Roulette who was 23 years old at the time, has been deeplyimpacted by the accused’s actions.

He lost his job, went on social assistance for the first time, turned to alcohol, broke up with hisgirlfriend, is experiencing anger issues and can no longer provide for his six year old son. [32] In short, this collision has changed his entire life. Sentencing parameters: [33] Parliament, through legislation in the Criminal Code, has mandated a minimum penalty for a second offence impaired driving. The accused meets the criteria requiring a mandatory minimum penalty. In this case, Parliament has prescribed a mandatory minimumpenalty of 30 days in jail. The maximum penalty prescribed by law is ten years.

Position of the Crown: [34] The Crown’s position is that a 15 month jail sentence and a year of supervised probation with no contact with the victim isrequired in addition to a three (3) year driving prohibition. [35] The Crown submits that the accused, based on comments on the Presentence Report, lacks victim empathy and insight into hisactions. He does not display remorse. As well, he deflected and minimized the effects on the victim, choosing to focus on his ownsuffering. The Crown also points out the accused had a stable upbringing with no remarkable hardships.

He quit school which theCrown submits is most likely as a result of a lack of motivation. He has a history of risk taking, being addicted to cocaine in the past andhas some criminal acquaintances whom he referred to as “gangsters” he knows from high school. [36] In the presentence report submitted to the Court, the accused states “that he used to be an alcoholic”. He has taken no substanceabuse assessment or treatment. He is on an undertaking to abstain from the consumption of alcohol as a result of these pending charges,yet admits he is still drinking.

The Crown submits this demonstrates not only a lack of insight but a disregard for the law and questionswhether the accused has learned anything from this incident. They point out the accused’s assessment as a medium risk to re-offend. Inthe presentence report, he minimized how problematic his use of alcohol has been and indicates he is focused on his own injuries ratherthan thinking about the victim. [37] His reckless behaviour involved driving an unlicensed motorcycle in violation of licence restrictions that required him to have0% blood alcohol in his system. He was speeding and he had no insurance.

The Crown submits that Mr. Sandhu is the author of hisown misfortune and that Mr. Roulette was simply an innocent bystander. In the Crown’s view, in light of the accused’s previousconviction for impaired driving as well as his prior record of Highway Traffic Act violations, deterrence and denunciation are paramountprinciples when sentencing this accused. [38] Case law provided by the Crown and defence was helpful to the Court. In particular, the case of R. v.

Smoke, 2014 MBCA 91, adecision written by Justice Beard and concurred in by Justices Monnin and Steel is argued by the Crown to be a binding precedent fromthe Manitoba Court of Appeal. At paragraphs 50 & 51 of that decision, our Court of Appeal provided guidance to trial courts as to therange of sentence for impaired driving causing bodily harm: [50] ...In R v. MacDonald (J.K.) (1999), (MB CA), 138 Man. R. (2nd) 194, this court found that the range ofsentence for impaired driving causing bodily harm was 3 to 18 months.

Twaddle J.A., for the court, also noted that sentences had beentrending towards the higher end of that range. (See paras. 13-14.) [51] In Ruizfuentes, this court determined that the range of sentence for impaired driving causing death had increased since theearly to mid-2000s from that of 1 to 4 years to that of 2 to 5 years. (See para. 22.) It is reasonable to assume that the range of sentencefor impaired driving causing bodily harm should undergo a similar increase, putting the range at 6 to 24 months. (emphasis added)

[39] Typically this range is suitable for a first offender, or at least one with a very limited and unrelated record. [40] Justice Chartier, as he was at that time, in R. v. Ruizfuentes, 2010 MBCA 90 made the following statements regarding thetreatment of first time offenders versus those who have prior related criminal records: 15 I also separated the cases into two groups: those involving first offenders, where the accused has no prior record for drinkingand driving or serious personal injury offences, and those involving second or subsequent offenders, where the accused had a prior recordfor such offences.

The reason for so doing is simple. Section 255(1) of the Code compels a harsher minimum punishment for second orsubsequent offenders than for first offenders. As a result, different ranges of sentences have evolved for the two categories of offenders. [41] Further, Justice Chartier set out the principle of proportionality as it relates to the responsibility of the offender: 37 The last step of the sentencing process requires the sentence to respect the fundamental principle of sentencing: proportionality.

The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This requires anexamination of the accused’s degree of guilt or moral blameworthiness with respect to the offence committed and the harm done to thevictim to ensure that the sentence is in line with his “moral culpability, and not greater than it” (see Nasogaluak, at para. 42). As wasexplained by Steel J.A. in R. v.

Eckert (J.J.), 2006 MBCA 6 , 201 Man.R. (2d) 175, when conducting this assessment, althougha judge must not lose sight of the harm done, it is the accused’s level of culpable behaviour that needs to be scrutinized (at para. 16): In passing sentence, the judge must assess the moral blameworthiness involved in each case. It is not sufficient to look only at the tragicconsequences when determining the seriousness of a crime. The function of a court is not to exact revenge, but, in this case, a sentenceshould express society’s denunciation of the conduct involved.

Therefore, the nature of the blameworthy conduct that led to theconsequences must be considered. 38 Here, in terms of the moral blameworthiness of the accused, though he did not intentionally set out to kill someone that night, heclearly was at fault and responsible for the death of the victim. To assess the extent of moral culpability in a particular case, due regardmust be given to “the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative characterof the offender’s conduct” (see R. v.

M. (C.A.), at para. 80). 39 I will begin with the normative character of his conduct. Although his HTA record does show an improvement in conduct duringthe five years preceding this offence, it remains that he has a long history of not respecting traffic control devices. This driving recordspeaks volumes as to the accused’s expected pattern of behaviour. I need not comment any further on the intentional risk-taking of theaccused and the consequential harm that he caused other than to restate that this was no fleeting failure in judgment.

By speeding anddriving through three intersections against red lights, he was continuing his prior manner of driving and he demonstrated anunwillingness to correct the offending conduct. That there would be tragic consequences was a near certainty. On the spectrum of moralblameworthiness for impaired driving causing death, the accused clearly registers at the high end.

Position of the Defence: [42] Counsel for the defence asks the Court to impose a 90 day jail sentence, the maximum allowable sentence to be eligible for anintermittent sentence to be served on weekends. [43] Defence counsel points out that, while Mr. Roulette reports in his Victim Impact Statement that he has bleeding in his brain, thatdiagnosis is not confirmed by the hospital.

I accept that aggravating fact has not been proven by the Crown as no medical evidence wasprovided on this. [44] The defence takes a very different view of the sentencing options before the Court, pointing out that the accused’s executivefunctioning has been badly diminished by his brain injury. His executive functioning is ranked at a grade 5 equivalent and he has littleability to express victim empathy. [45] The accused, Mr. Sandhu, as a result of the accident was left in a coma for two weeks. He spent three months in hospital beforebeing released. Defence points out that he does not think like a normal person.

His mother advises that his insight comes and goes. Hehas had to take speech therapy, occupational therapy and two and a half years of appointments to get to the point where he can nowfunction in the community. Limitations on executive functioning means that he often only thinks about himself. [46] The accused’s own injuries are very serious. He cracked a vertebrae in his neck (skull fracture), had a brain injury andpermanent facial paralysis amongst other injuries. The defence presents Mr.

Sandhu as a changed man and that he is much different postaccident than he was prior to the accident. [47] When looking at risk assessment, defence urges me to consider that employment is no longer possible, he is working on hiseducation, and recreation is not possible as are companions other than family. Defence explained the accused’s admitted alcohol use asproof that he was obviously unaware of his bail conditions.

He was arrested the day he was released from a three month hospital stayand placed on conditions at that time. [48] He was still very much attempting to recover from his brain injury at the time of arrest. [49] Defence points to the very positive evidence from his educator, Ms. Fishman, the principal of the adult education centre whohas 42 years experience as an educator and principal for nine years. He is described as a different person achieving 98% in grade 9 mathand 80% in grade 9 English. He has transformed into an excellent student. He’s an active participant in class.

He is punctual and hasnot missed any classes. [50] Defence submits that he has transformed into someone who realizes he needs to change and adapt and is making tremendous

progress. He has been changing his assumptions and beliefs moving towards an evidenced based perspective. He is hoping he will be ready to attend university in the fall and wants to continue his education. Defence emphasizes that this is not the average accused and it is difficult to make a comparison to other offenders. While the Manitoba Court of Appeal in R. v. Smoke sets out a sentence range, it is still the trial judge’s task to decide what a fit and appropriate sentence is for the individual accused. Analysis and Decision: [ 51 ] The decision of R. v.

Smoke is a useful sentencing guide from our Court of Appeal. The range of sentence recommended for a conviction for impaired driving causing bodily harm is 6 to 24 months, for a first time offender. However the accused in this case is not a first offender, second offence notice is admitted, and he has multiple convictions for HTA offences, these aggravating factors suggest the higher end of that range is appropriate. [ 52 ] In addition the accused’s moral culpability or blameworthiness is high.

This was not an isolated mistake, rather the continuation of a pattern of reckless and risk taking conduct that was inevitable to result in tragedy. [ 53 ] I would expect of a sentence of 18 months would be warranted for the high moral culpability Mr. Sandhu bears in this case.

However, I must consider the circumstances of this particular accused, his severe injuries, both physical and cognitive and take into account that a lengthy jail sentence will impose special challenges and risks for him. [ 54 ] Having considered his personal circumstances, I am satisfied that an appropriate sentence that will hold him accountable is a one year jail sentence. There will be a concurrent sentence of 30 days on the HTA conviction. [ 55 ] In addition to the one year jail sentence he will serve, the accused will be placed on supervised probation for a period of one year.

Conditions are as follows: • Attend, Participate in, and successfully complete volunteer and/or educational programming through programs such as MADD Canada, AFM, MPI, or as directed by your Probation Officer to address Impaired Driving; • Abstain absolutely from the consumption and/or possession of alcohol, drugs, and medication not prescribed for you by a physician; • Attend the Addictions Foundation of Manitoba (AFM) for the purpose of an addictions assessment, and follow any recommendations resulting from that assessment; • Report to a Probation Officer when and as directed; and • Attend, participate in and successfully complete any programs/treatment as directed by your Probation Officer . • You are not to have contact or communication with the victim, Tyrone Roulette. [55] A driving prohibition of 3 years will be imposed together with victim surcharge of $200 and court costs of $2.

I will hear submissions on time to pay. “ORIGINAL SIGNED BY:” Murray Thompson, P.J.