R. v. Muthoka, 2011 MBCA 40

Citation: R. v. Muthoka, 2011 MBCA 40 Date: 20110506 Docket: AR 10-30-07430 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Mr. Justice Richard J. Chartier Madam Justice Holly C. Beard BETWEEN: HER MAJESTY THE QUEEN ) S. B. Simmonds ) for the Appellant Respondent ) ) C. A. Vanderhooft ) for the Respondent- and - ) ) Appeal heard: ) April 8, 2011LUCY MUNYIVA MUTHOKA ) ) Judgment delivered: (Accused) Appellant ) May 6, 2011 CHARTIER J.A. 1 The accused pled guilty to two counts of dangerous operation of a motor vehicle causing death. She received a two-yearsuspended sentence with supervised probation and the maximum ten-year driving prohibition allowed under s. 259(2)(

b) of theCriminal Code. The conditions of her probation included, inter alia, that she complete 240 hours of community-service work, that sheattend counselling and that she provide a letter of apology to the families of the victims. 2 The accused now appeals her sentence, but only as it relates to the driving prohibition. 3 The accused was driving her vehicle out of a parkade. She proceeded up the exit ramp. When she reached the street level,the accused stepped on the gas rather than the brake pedal.

When, as a result, the vehicle suddenly accelerated at a high rate of speed,she panicked, causing her to lose control of the vehicle and hit the two victims. As a result of this momentary lapse of judgment, twolives were needlessly and prematurely taken away, with tragic results for their families and their community. 4 A court of appeal has limited powers when it is asked to review a sentence. As was stated in R. v. L.M., 2008 SCC 31 atpara. 14, [2008] 2 S.C.R. 163, an appellate court must show “great deference” when reviewing a sentencing decision.

It cannot interfereunless it is persuaded that the sentence is “demonstrably unfit” or that there is an error in principle (see R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227; R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500; R. v. Rezaie (1996), (ONCA), 112 C.C.C. (3d) 97 (Ont. C.A.); and R. v. Solowan, 2008 SCC 62 at para. 16, [2008] 3 S.C.R. 309). 5 The reason for this deference is that sentencing is an exercise in judicial discretion.

The decision on whether to impose adriving prohibition is also within the sentencing judge’s discretion and therefore merits the same degree of appellate restraint. 6 During their submissions on sentence, both the Crown and the accused remained silent on the issue of the drivingprohibition. The accused was then asked whether she wished to address the court. She did. After she spoke, the sentencing judge askedboth counsel if they had anything further to add. Both replied in the negative. A sentencing judge is required to give the parties anopportunity to make submissions prior to imposing sentence (see s. 723).

While that was done in this case, it would have beenpreferable for the sentencing judge to have called for submissions on the prohibition issue prior to ordering the maximum ten-yeardriving prohibition. 7 The accused submits that the ten-year term is outside an acceptable range and that, as a result, it is demonstrably unfit. TheCrown argues that appellate intervention is unjustified because the need to protect the public from such a poor driver was a valid and

paramount sentencing principle. 8 In my view, there is merit to the accused’s argument. Other than the admittedly tragic and deadly consequences arising from the accused’s dangerous driving, which are certainly acknowledged, the Crown was unable to point to any other aggravating factors. The sentencing judge noted the brevity of the offending conduct, as well as the lack of typical aggravating circumstances, stating: ....

While the momentary driving of [the accused] amounted to dangerous driving, as is defined in the Criminal Code , the aggravating factors that are so often present in cases of dangerous driving are not present here. She was not speeding, she was not driving erratically. She had not consumed any alcohol or non-prescription drugs.

She was not driving a vehicle that was poorly or inadequately equipped to be on the road. .... 9 The sentencing judge concluded by saying that “the dangerous driving was not the most egregious of its kind and certainly fell within a lower range of dangerous driving offences.” This reasoning should not have led to the imposition of the maximum period of driving prohibition. In my view, it falls outside an acceptable range for this offender and these offences. 10 The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (see s. 718.1).

This requires an examination of the accused’s degree of guilt or moral blameworthiness with respect to the offence committed and the harm done to the victim to ensure that the sentence is in line with her “moral culpability, and not greater than it” ( see R. v. Nasogaluak , 2010 SCC 6 at para. 42 , [2010] 1 S.C.R. 206 ). While this court recognizes the tragic results for the victims, their families and their community, the gravity of the offences must be balanced against the accused’s degree of moral blameworthiness, which in this case is low.

In my view, the term of the prohibition, which usually ranges from no prohibition to five years for similar offenders in similar circumstances, was harsh and excessive. 11 Let me say a word on the issue of the public safety concern that may arise from the accused’s future driving.

Other than the accused’s momentary lapse on this occasion, which to use the words of the Crown at the sentencing hearing, occurred in “not more than a handful [of] seconds” and, to repeat the words of the sentencing judge, “was not the most egregious of its kind,” there was no evidence before the judge to suggest that this was anything more than a brief but tragic isolated incident. The accused, who had been driving in Canada since 1999, albeit not on a regular basis, had no criminal or driving record.

In the end, the sentencing judge’s overemphasis on the public safety concern simply does not square with the evidence. 12 Upon ordering the ten-year driving prohibition, the sentencing judge stated, “Considering your age, I would assume this will mean that you will not be driving hereafter.” As I stated earlier, the Crown argued that, in doing so, the judge was protecting the public from a poor driver and that this was a valid and paramount sentencing objective. It is trite to say that the principal purpose of sentencing is the protection of society.

As a result, the public safety concern that may arise from an accused’s future driving is a valid one, and the imposition of a driving prohibition to address such a concern is perfectly legitimate. There are, however, several aspects to the public safety concern as it relates to drivers – including such things as attitude towards the use of the roads, the driving record, the use of alcohol and/or drugs and whether the accused is a competent driver in the sense that he or she knows how to drive a vehicle.

The issue of driving competence, in the sense of determining whether the accused has the knowledge of the rules of the road and the ability to actually drive a vehicle, is within the purview of the Registrar of Motor Vehicles and not the courts. Therefore, the imposition of a lengthy driving prohibition to address the question of driving competence is not to be encouraged, and such a question is best left to the Registrar. 13 In the result, leave to appeal sentence is granted and the sentence is varied by reducing the term of the driving prohibition from ten years to four years.

In all other respects, the sentence remains the same. J.A. I agree: J.A. I agree: J.A.