Docket: CACR2255 Her Majesty the Queen Appellant - v. -, 2013 SKCA 63

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 63 Date: 2013-06-05 Between: Docket: CACR2255 Her Majesty the Queen Appellant - and - Sheldon Darren Bighead Respondent Coram: Jackson, Richards and Herauf JJ.A. Counsel: Anthony Gerein for the appellant Peter A. Abrametz for the respondent Appeal: From: Provincial Court Heard: June 5, 2013 Disposition: Appeal allowed (orally)

Written Reasons: June 11, 2013 By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Richards Herauf J.A. [1] In this sentence appeal the Crown seeks to overturn a fine of $750 imposed upon Mr. Bighead following a guilty plea to a chargeof operating a motor vehicle while disqualified pursuant to s. 259(4) of the Criminal Code.

The Crown also seeks a mandatory order ofprohibition for a period of one year under s. 259(1) of the Criminal Code. [2] In an oral decision, this Court granted the Crown leave to appeal and imposed an intermittent sentence of 60 days. The Courtalso imposed the mandatory prohibition order under s. 259(1) of the Criminal Code for a period of one year from June 5, 2013. TheCourt undertook to reduce our reasons for doing so to writing. These are those reasons. [3] Mr. Bighead has four prior offences for driving while disqualified as well as four prior convictions for drinking and drivingoffences.

At the sentencing hearing, the Crown sought an unspecified term of custody. It did not file any notice to seek greaterpunishment. Mr. Bighead had previously received a conditional sentence order (which he breached) for a charge of driving whiledisqualified. The sentencing judge acknowledged Mr. Bighead’s “horrendous record for driving while disqualified”. He alsoacknowledged that the Crown was seeking a jail sentence. The sentencing judge imposed a fine since a jail sentence would “create allsorts of havoc for [Mr. Bighead] and his dependents”. Mr.

Bighead was gainfully employed at the time of sentencing and supporting hispartner and five dependents. [4] Mr. Bighead was self-represented at his appearance in Provincial Court. His reason for driving on the date in question wasbecause his spouse had to take care of a sick child and he drove a vehicle to get home. [5] The sentencing judge did not impose the mandatory driving prohibition but indicated that “the Province might suspend yourlicence further”. Counsel for Mr.

Bighead, on the appeal, rightfully acknowledged that a mandatory period of prohibition should havebeen imposed by the sentencing judge. [6] This Court has repeatedly stated that drivers who continuously ignore driving prohibitions imposed in the context of drinking anddriving offences must be deterred by the imposition of a significant custodial term. Denunciation and deterrence in situations of thisnature become the guiding sentencing objectives. For example, see R. v. Kakakaway (1998), (SK CA), 168 Sask. R.306 (Sask. C.A.), R. v. Bear, (SK CA), [1994] 9 W.W.R. 1 (Sask. C.A.) and R. v.

Quewezance, 2011 SKCA 123, 375Sask. R. 320. [7] A period of incarceration was clearly warranted in this situation. The Crown, in this Court, however, felt obligated to recommenda short period of incarceration as that is what it had requested before the sentencing judge. If not for this concession, we would haveimposed a lengthier period of incarceration. Mr. Bighead’s criminal record consists of many Criminal Code driving offences. He hasreceived fines, a conditional sentence and a short period of incarceration for prior driving offences.

However, at the same time, Mr.Bighead was not impaired when he was stopped and he offered an explanation which had the flavour of necessity to explain what he haddone. He was also working and supporting a large family. In all of these circumstances, we were persuaded that an intermittent sentenceof 60 days would be appropriate. [8] In conclusion, leave to appeal is granted, the Crown appeal is allowed and the sentence below is set aside. Mr.

Bighead issentenced to an intermittent sentence of 60 days beginning Friday, June 7, 2013, at 7:00 p.m. until Monday, June 10, 2013, at 7:00 a.m.and continuing on every weekend thereafter until completion of his sentence. A mandatory period of prohibition is imposed for a periodof one year to run from June 5, 2013.