IN THE PROVINCIAL COURT OF NOVA SCOTIA
R. v. Sullivan, 2015 NSPC 40
Date: June 26, 2015
Docket: 2667007, 2667009
Registry: Halifax
BETWEEN:
Her Majesty the Queen
v.
DENNIS CHRISTOPHER SULLIVAN
DECISION ON SENTENCE
JUDGE: The Honourable Judge Anne S. Derrick
HEARD: June 22, 2015
DECISION: June 26, 2015
CHARGES: 249(3) x 2 Criminal Code
COUNSEL: Ronald Lacey, for the Crown
Joel Pink, Q.C., for Dennis Sullivan
By the Court:
Introduction
[1] On April 13, 2015, Dennis Sullivan pleaded guilty to two charges of dangerous driving causing bodily harm, arising out of the same motor vehicle crash. This is my decision on his sentence.
[2] The facts indicate that on September 20, 2013 Mr. Sullivan lost control of his truck while travelling northbound near the Fairview overpass and crossed the centre line into oncoming traffic. This caused an accident that involved three other vehicles, a 2001 Saturn, a 2013 Honda Civic, and a 2009 Volkswagen Jetta wagon, injuring the four occupants of those vehicles.
[3] A witness, driving a transport truck behind Mr. Sullivan, saw a silver car make a lane change from the centre lane into the right lane where Mr. Sullivan was driving. According to the witness, Mr. Sullivan’s red truck appeared to react as if it had been cut off by the car, changed into the centre lane, and accelerated to pass. The silver car also accelerated and then the red truck lost control.
[4] An analysis of the data box recorder in the red truck indicates it was travelling at 107 kilometers per hour five seconds before the collision. At one second pre-crash the truck had slowed to 17 kilometers an hour. The distance travelled during the five seconds pre-crash was 109 meters.
[5] The posted speed limit in the area was 60 kilometers per hour.
[6] A mechanical inspection of Mr. Sullivan’s truck by police traffic analysts determined that it was in very poor condition for its age. Rust was a major problem and some of the rear left springs were broken. The analysts determined that some of the springs had been broken prior to September 20. There is no expert evidence to indicate if this contributed to Mr. Sullivan losing control of the truck.
[7] All four vehicles involved in the crash were very extensively damaged. The Saturn, the Honda Civic, and Mr. Sullivan’s truck were effectively destroyed. The photographs (Exhibit 1) depict the mangled wrecks. No one was killed, as could have happened, but there were serious personal injuries:
• Lino Depetris, 32 years old, had to be extracted from his car by the Jaws of Life. He spent a week in hospital and needed 15 stitches to his elbow and 18 stitches to his right knee. He underwent two surgeries. He went to physiotherapy for 3 to 4 months. A tile installer, he was off work for 5.5 months and still experiences soreness everyday in his knee, arm and shoulder.
• Janina Minkus, aged 66, sustained a cut on her forearm that detached tendons. This was due to her hand being forced through a side window of her car. She required surgery and had many stitches. She still has problems with her right hand including difficulty lifting. She has experienced psychological effects and is afraid of other drivers.
• Stacey Guye, aged 47, and Kimberley Bellefeuille, aged 33, and Michael Minkus, were taken to hospital with pain and stiffness and released. Mr. Guye was unable to work for 6 months having experienced vertebral fractures. His lower back is still sore. Ms. Bellefuille experienced left hip and neck pain and went to physiotherapy off and on for six months. She missed time off work and is now a very anxious driver.
[8] Mr. Sullivan was himself badly injured, sustaining multiple facial lacerations and bilateral nasal bone fracture. It appeared on assessment that he also had small pieces of glass embedded in his earlobe, brow and forehead. Cuts to his face had to be sutured. Medical records indicate he experienced a period of unconsciousness and has no memory of what happened.
[9] Mr. Sullivan’s guilty pleas are to charges of dangerous driving causing bodily harm to Mr. Depetris and Ms. Minkus. The Crown submits the injuries to Mr. Guye and Ms. Bellefeuille are an aggravating feature of the offences.
Positions of Crown and Defence
[10] The maximum sentence for dangerous operation of a motor vehicle causing bodily harm is a term of imprisonment not exceeding ten years. There is no mandatory minimum sentence. A conditional sentence is not available.
[11] The Crown is seeking a sentence in the range of 12 to 24 months, a DNA order, and a five (5) year driving prohibition. It is the Crown’s submission that the Defence recommendation of an intermittent sentence for Mr. Sullivan inadequately reflects the principles of denunciation and deterrence which must factor prominently in a dangerous driving case.
[12] It is the submission of the Defence that the appropriate sentence for Mr. Sullivan falls between a 60 day intermittent jail sentence and six (6) months in jail. Mr. Pink submitted in his written brief that Mr. Sullivan should receive a sentence on “the very low end of the recommended sentence range…because many of the aggravating features present [in the case law] are absent on the facts” in this case. At the sentencing hearing, Mr. Pink said the appropriate sentence would be a 60 or a 90 day jail sentence, served intermittently, followed by two years of probation.
[13] Mr. Pink indicated no disagreement with the Crown’s submission for a 5 year driving prohibition and left the issue of a DNA order for what is a secondary designated offence, up to the court.
Aggravating and Mitigating Factors
[14] The Crown identifies the following as aggravating factors:
• Mr. Sullivan’s convictions for provincial offences – speeding (1 – 15 km/h over the posted limit); failing to obey a red light; operating a motor vehicle while not wearing a seat belt; and illegal possession of liquor.
• Mr. Sullivan’s elevated speed, well over the posted limit;
• Mr. Sullivan’s reaction to the silver car and his perception that he had been cut off, causing him to accelerate;
• The poor condition of Mr. Sullivan’s truck;
• The injuring of four people, two of them seriously.
[15] The Crown describes Mr. Sullivan’s guilty pleas as the only mitigating factor.
Pre-sentence Report
[16] Mr. Sullivan is 47 years old. He is single and lives with his mother, an arrangement his mother describes as mutually beneficial and positive. Mr. Pink indicated at the sentencing hearing that Mr. Sullivan financially supports his mother.
[17] Mr. Sullivan has various trades qualifications having completed a two-year auto body program and apprenticeship through the Nova Scotia Community College, Akerley Campus in 1991. In 1996 or 1997 he completed a three or four month burner mechanics program at NSCC, Institute of Technology campus.
[18] In 2009 Mr. Sullivan completed a two-week school bus driver training program with Stock Transportation and in 2014, he completed a three-month basic operator training program with Metro Transit. He has also undergone job-related training in various employment contexts.
[19] Mr. Sullivan has worked as a truck driver and industrial forklift operator, a bus driver, a food distributor with Feed Nova Scotia, a longshoreman deckhand, as a labourer, and in various other jobs. Recently he was offered employment as a Warehouse Worker with MacFarlane’s Rental however a driver’s abstract was requested for the position. (Mr. Pink advised at the sentencing hearing that Mr. Sullivan is now employed with MacFarlane’s.)
[20] In 2012 or 2013 Mr. Sullivan declared bankruptcy. He has limited expenses currently and no debts.
[21] Mr. Sullivan’s health is reasonably good. He suffers from two leg ulcers and must wear compression stockings at all times. A motorcycle accident in 2005 which was not his fault resulted in the development of carpal tunnel syndrome in both wrists. His teeth were all removed in 2013 and he now has dentures.
[22] There have been some past mental health issues of depression and anxiety with Mr. Sullivan reporting that psychological counselling might be beneficial as he continues to deal with anxiety. Mr. Sullivan has had no substance abuse issues.
[23] It was apparent from the pre-sentence report that Mr. Sullivan carries a lot of guilt for having caused the crash, injuring the victims. When asked by the author of the pre-sentence report about his interests or hobbies, Mr. Sullivan “expressed his belief that it would be “selfish” to enjoy such leisure activities in light of the victims’ injuries and commented that he does not deserve to be happy.”
[24] The pre-sentence report notes that Mr. Sullivan “(was) not one hundred percent sure what happened” on September 20. It appeared to the author of the pre-sentence report that Mr. Sullivan minimized his actions. It may be that this is related to Mr. Sullivan emphasizing he did not act deliberately and his questioning the severity of the victims’ injuries on the basis of “discrepancies between the initial police report and the subsequent disclosure information.” I note that amnesia and possible loss of consciousness are indicated in Mr. Sullivan’s hospital records from September 20.
Character References
[25] The reference letters provided for Mr. Sullivan’s sentencing describe him in glowing terms. He is said to be caring, sincere, gentle, loyal, and honest. The letters indicate that Mr. Sullivan is viewed by his friends and neighbours as responsible and kind-hearted. His family doctor describes Mr. Sullivan as having been consistently kind and positive over the 17 years he has known him. He notes that Mr. Sullivan is “conscientious, transparent, and acknowledges his mistakes.” Mr. Sullivan is known to be helpful to friends and neighbours as evidenced by his hands-on support of a friend experiencing a concussion, giving drives to friends who did not have a car, providing property maintenance, transportation and snow removal for a neighbour whose husband was deployed at sea on naval duties, and helping out seniors in his neighbourhood. Mr. Sullivan’s consideration of others has extended over many years. His concern and care for his elderly mother is noted. A neighbour concludes her letter by saying: “He has a heart of gold and is very highly regarded in this neighbourhood.”
[26] Also described in the reference letters is Mr. Sullivan’s remorse for the accident. A long-standing friend includes the following in his letter: “He has told me countless times how sorry he was for bringing any harm to anyone in that accident without looking at the hurt he also brought on himself.” Another friend describes Mr. Sullivan’s offences as “totally out of character” and says he is “totally remorseful.” A friend of approximately 23 years states: “…I know Dennis is very sorry that persons got hurt. He also was hurt, but was more concerned about the other persons than he was for himself.”
Remorse
[27] Mr. Sullivan has written apology letters to Mr. Depetris and Ms. Minkus advising them that he had pleaded guilty and was “very sorry” for their injuries and everything they have had to endure as a result of the accident.
[28] The reference letters and Mr. Sullivan’s apologies to Mr. Depetris and Ms. Minkus indicate his remorse, his pro-social character, and his history of contributing in a consistently positive and generous manner to the lives of others.
[29] At the sentencing hearing Mr. Sullivan expressed how deeply remorseful he is for having injured the victims in this case. I am satisfied Mr. Sullivan feels genuine remorse for the accident he caused and the injuries suffered by Mr. Depetris, Ms. Minkus, Mr. Guye and Ms. Bellefeuille.
Governing Legal Principles
[30] In sentencing Mr. Sullivan I am guided by the sentencing provisions of the Criminal Code. Section 718 of the Criminal Code sets out the objectives a sentence must achieve: denunciation, deterrence – both specific and general, separation from society where necessary, rehabilitation of the offender, reparations by the offender, and the promotion of a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
[31] Sentencing is a highly individualized exercise. (R. v. Ipeelee,[2012] S.C.J. No. 13, paragraph 38; R. v. Wust, [2000] S.C.J. No. 19 paragraph 21; R. v. M. (C.A.), [1996] S.C.J. No. 28, paragraph 92; R. v. Shropshire, [1995] S.C.J. No. 52) In determining a fit sentence, “…the sentencing judge should take into account any relevant aggravating or mitigating circumstances (s. 718.2(a) of the Criminal Code), as well as objective and subjective factors related to the offender's personal circumstances.” (R. v. Pham, [2013] S.C.J. No. 100, paragraph 8; R. v. Nasogaluak, [2010] S.C.J. No. 6, paragraph 44)
[32] As the Supreme Court of Canada has said in Ipeelee,
Despite the constraints imposed by the principle of proportionality, trial judges enjoy broad discretion in the sentencing process. The determination of a fit sentence is, subject to any specific statutory rules that have survived Charter scrutiny, a highly individualized process. Sentencing judges must have sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and the particular offender… (paragraph 38)
[33] Assessing moral culpability is a fundamental aspect of determining the appropriate sentence: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. (section 718.1, Criminal Code) Proportionality is “closely tied to the objective of denunciation”, promotes justice for victims, and seeks to ensure public confidence in the justice system. The principle of proportionality “ensures that a sentence does not exceed what is appropriate, given the blameworthiness of the offender”, and serves “a restraining function” to achieve a just sanction. (Ipeelee, paragraph 37)
[34] Sentencing for dangerous driving causing bodily harm emphasizes denunciation and deterrence. For example, in R. v. Rawn, 2012 ONCA 487, the Ontario Court of Appeal observed: “Dangerous driving puts the public at great risk. The crime is all the more egregious when people, often innocent members of the public, are injured.” (paragraph 41) The Court went on to say that satisfying the principles of denunciation and deterrence required the sentence for dangerous driving causing bodily harm to,
…clearly reflect the seriousness of the conduct and its consequences, both actual and potential. To meet the requirements of denunciation, it is necessary that there be absolutely no ambiguity in the message that such conduct is completely unacceptable. (paragraph 45)
[35] However the Court also noted that, “It goes without saying that a fit sentence must be ascertained on an individual basis. It is therefore inappropriate to allow the parity principle, a principle that by definition considers another sentence imposed on another offender, to dominate the determination of a fit sentence.” (paragraph 29) The parity principle is concerned with similar sentences for similarly-situated offenders.
[36] It is essential in sentencing to properly apply the principle of proportionality. In R. v. Priest, Rosenberg, J.A. of the Ontario Court of Appeal had the following to say about proportionality:
The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good. ([1996] O.J. No. 3369, paragraph 26)
[37] The use of incarceration to achieve denunciation and deterrence is tempered by section 718.2(e) and (f) which provide that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”, and “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders…”
Cases Supplied by Crown and Defence
[38] Mr. Lacey and Mr. Pink have each submitted sentencing cases for dangerous driving causing bodily harm which show the close attention paid by courts to the principles of denunciation and deterrence in the context of the facts of the offences and the circumstances of the offenders.
[39] The Crown has submitted the following cases, which I have summarized:
• R. v. Rawn
2012ONCA 487 Dangerous driving causing bodily harm – 7 counts
Sentence: Nine months in jail, 5 years’ driving prohibition.
Facts and Injuries: Seven people were injured in a crash that occurred after Ms. Rawn’s vehicle sped through a residential neighbourhood for 1.3 kilometers and reached speeds of 137 km/hr.
Prior to the crash, Ms. Rawn had been socializing at a bar for a few hours with a friend and had consumed some alcohol. The posted speed limit on the residential street was 50 km/hr. Although not found to have been street racing, Ms. Rawn had been driving in tandem with another car, the two cars eventually colliding.
Ms. Rawn’s passenger suffered very serious injuries and was in hospital for two months, followed by a year spent in bed. She sustained permanent damage to her right arm. The occupants of the other car sustained lacerations, concussions, bruising and broken bones.
Aggravating and Mitigating Factors: Ms. Rawn was 40 years old with no criminal record, went to trial and minimized her role in the accident.
• R. v. Muise
[1990] N.S.J. No.267 Criminal negligence causing bodily harm – 1 count
Sentence: 6 months in jail substituted for a 90-day intermittent sentence.
Facts and Injuries: Mr. Muise drove his car at excessive speed through a four-way stop intersection, colliding with a car making a lawful left-hand turn.
Aggravating and Mitigating Factors: At the time of the accident, Mr. Muise was disqualified from driving. He was intoxicated, operating a mechanically defective vehicle and not wearing a seat belt.
Prior record for dangerous driving; refusal of a breathalyzer demand; driving with a BAC over .08; and three Motor Vehicle Act violations for driving while disqualified.
Mr. Muise had a “generally unfavourable pre-sentence report” indicating a good work record but reflecting “a long-standing addiction to alcohol and a general disrespect for the law.”
Pleaded guilty
• R. v. Vitello
[1988] N.S.J. No.333 Dangerous driving causing bodily harm
Sentence: The Nova Scotia Court of Appeal upheld a sentence of 12 months incarceration.
Convicted after trial. No description of the offence or the offender.
• R. v. Machek
[1994] N.S.J. No. 541 Dangerous driving causing bodily harm – 3 counts
Sentence: 9 months in jail followed by two years’ probation; 3 year driving prohibition
Facts and Injuries: Drove in an agitated state at a high rate of speed after an argument with his girlfriend. No headlights. Drove through two stop signs in “a dense residential area” and collided with a pickup truck, injuring its three occupants.
The victims had serious injuries that included for one victim a broken arm and ribs and an undisplaced pelvic fracture, and for the other two victims, undisplaced fractures of the cervical spine.
Aggravating and Mitigating Factors: Mr. Machek had had five previous motor vehicle accidents and convictions under the Motor Vehicle Act, including for failure to obey traffic signs and speeding. He also had a criminal record for possession of a narcotic and theft.
A report from a psychologist presented at sentencing described an “overactive person who is prone to emotional lability, impulsivity and counterproductive activity with a low frustration tolerance.” (paragraph 6)
Mr. Machek’s conduct was described as “bordering almost on the deliberate…”
Pleaded guilty; 19 years old, had not consumed alcohol and was a licensed driver.
• R. v. Field
2011ABCA 122 Dangerous driving causing bodily harm – 2 counts
Sentence: 15 months in jail substituted by Alberta Court of Appeal for 90 day intermittent sentence.
Facts and Injuries: Mr. Field lost control of his vehicle during a high speed chase against a companion vehicle along 1.5 km of a “heavily travelled” Calgary thoroughfare, driving approximately 80 km/hr over the posted speed limit of 60 km/hr
The victims were seriously injured: one victim suffered bruising, ligament injuries and sprains, day surgery for a bone fragment in her knee. The other victim sustained a dislocated right shoulder, a cut to his head requiring 35 stitches, a sprained foot and miscellaneous cuts and bruises.
Aggravating and Mitigating Factors: Mr. Field was 18 years old and had spent most of the night partying with friends and consuming alcohol.
The offence was described as “thrill seeking, and not just momentary.” Mr. Field had been drinking the night before, had inadequate sleep and had disregarded his passenger’s concerns about racing. Street racing was described by the Alberta Court of Appeal as having “a high degree of moral blameworthiness both on the side of gravity of the offence and the degree of responsibility of the offender.” (paragraph 23)
Mr. Field had a relatively positive pre-sentence report indicating he had a good relationship with his family and was a “solid wage earner.”
Pleaded guilty
• R. v. Belanger
2009ONCA 867 Dangerous driving causing bodily harm – 1 count
Sentence: 60 day intermittent jail sentence, two years’ probation and three year driving prohibition described by the Ontario Court of Appeal as “demonstrably unfit.” In the Court’s view, a non-intermittent custodial sentence was warranted. No further incarceration ordered as Mr. Belanger had served his intermittent jail sentence. Driving prohibition increased to five years. The Court said: “In a case such as this one, a lengthy driving prohibition, not incarceration, is a more meaningful way to promote general deterrence and denunciation.” (paragraph 7)
Facts and Injuries: Mr. Belanger was speeding when he cut across the main highway to the collector lanes. Crashed into the victim who was standing outside her vehicle. The collision severed the victim’s leg, fractured her pelvis, back and right wrist and damaged the ligaments in her left knee. The victim also experienced significant psychological effects.
Aggravating and Mitigating Factors: Mr. Belanger had consumed “a considerable amount of alcohol” although the evidence “fell short of establishing that he was over the legal limit.”
No criminal record but 10 previous speeding convictions.
Pleaded guilty
• R. v. Gill
2010BCCA 388 Dangerous driving causing bodily harm – 1 count
Sentence: Sentence of 12 months in jail and a two year driving prohibition upheld on appeal.
Facts and Injuries: Crossed four lanes of traffic and collided head-on with another vehicle. At the time, Mr. Gill was reaching out with a lighter in his right hand, trying to get his passenger to take it and light his cigarette. This involved Mr. Gill taking his eyes off the road and being “unaware of the path of travel of his truck” for a period of at least 3 to 5 seconds but not more than 15 seconds.
Mr. Gill’s conduct was described by the sentencing judge as “completely unrelated to the act of driving a motor vehicle, not an instance where mere seconds of inattention resulted in him driving dangerously.” (paragraph 23)
Victim rendered unconscious and bleeding with soft tissue injuries, extensive and severe facial lacerations, fractured facial bones, an injury to the musculature of one eye, and fractures to her pelvis. She also lost several teeth, suffered a traumatic brain injury and “was left with a variety of permanent profound difficulties.” Mr. Gill did not phone for help or provide any assistance to the injured victim.
Aggravating and Mitigating Factors: Mr. Gill was 51 years old. No criminal record. A good driving record, first as a professional truck driver and later as a municipal bus operator.
Pleaded guilty
• R. v. Vanmerrebach
2008 NSSC 50 Dangerous driving causing death (1 count) and dangerous driving causing bodily harm (1 count)
Sentence: Sentence of two years’ less a day imposed for the dangerous driving causing death and for the charge of dangerous driving causing bodily harm, to be served as concurrent conditional sentences; a four year driving prohibition.
Facts and Injuries: Mr. Vanmerrebach driving at a highly excessive speed on winding rural highway and lost control as he exited a curve. His car slid sideways and slammed into a utility pole with enormous force.
Mr. Vanmerrebach’s best friend was killed and another friend was seriously injured.
The sole cause of the accident was the excessively high rate of speed at which Mr. Vanmerrebach was intentionally driving on a curved roadway. Mr. Vanmerrebach was speeding over the protests of his passengers.
Aggravating and Mitigating Factors: Mr. Vanmerrebach was 23 with a generally favourable pre-sentence report. Fairly steadily employed and certified to work as a forklift and overhead crane operator. Strong support from family who spoke highly of his character.
Mr. Vanmerrebach accepted responsibility and was very remorseful and experiencing grief over the death of his best friend.
No prior criminal record. No driving record as an adult and nothing of consequence in his youth driving record.
[40] The cases provided by Mr. Pink fall within the range of 60 days intermittent jail time to six months incarceration:
• R. v. Rayner
2013ONCJ 246 Dangerous driving causing bodily harm – 1 count
Sentence: A 60 day intermittent jail sentence, followed by 3 years of probation; a driving prohibition of 3 years.
Facts and Injuries: Ms. Rayner was late for work and speeding in excess of the 50 km/hr posted speed limit. Drove too fast over two speed bump/traffic calming devices with 20 km/hr suggested speed limits. Failed to stop at a stop sign. Lost control of her vehicle and hit a man trimming weeds in a roadside ditch. According to Ms. Rayner she had been travelling 90 kilometers an hour in an 80 km/hr zone where there was a 60 km/hr advisory sign for the bend in the road she had failed to negotiate.
The victim suffered serious injuries: a compound fracture of his left femur with a 16 centimeter wound. Surgery was required to insert a 38 cm long pin into his leg. His spleen was lacerated. At the time of sentencing the victim was still experiencing pain and had some mobility limitations.
Aggravating and Mitigating Factors: High rate of speed.
No criminal record. No “moving violations” on her driving record
Guilty plea
Ms. Rayner was 42 years old. She had almost sole responsibility for two daughters, one of whom was 10 years old. She was described as a devoted mother.
A Registered Early Childhood Educator, she was highly regarded by her employer. She had no substance issues.
Ms. Rayner’s pre-sentence report indicated she was remorseful and expressed “concern over the physical and emotional impact on the victim.” She said she took full responsibility for her “poor decision” to drive over the speed limit. She was also injured and off work on medical leave for a month.
• R. v. Cepic
2011ONSC 561 Dangerous driving causing bodily harm – 3 counts
Sentence: 6 months in jail, which with pre-trial custody deducted left 86 days to be served on an intermittent basis. A driving prohibition of 2.5 years was imposed taking into account the fact that Mr. Cepic had not been driving for 1.5 years.
Facts and Injuries: Mr. Cepic crossed three lanes of traffic, cutting off other vehicles and turned left, colliding with the victim’s car, physically injuring three members of the same family. Mr. Cepic panicked and left the scene of the accident but later turned himself in to police.
The three victims sustained serious injuries: the father had spleen damage, a collapsed lung, and back and wrist injuries. He spent 16 days in hospital. The mother had a broken pelvic bone and whiplash. She continued to experience physical effects from the accident. The daughter had a concussion and facial injuries requiring surgery.
Aggravating and Mitigating Factors: Mr. Cepic was genuinely remorseful and provided letters of apology to the injured family and made an apology to the court.
His pre-sentence report “paints an exceptionally positive picture”. There was no indication of substance abuse, he provided “remarkable” letters of support and had no criminal record.
Guilty plea
• R. v. O’Keefe
2012NLCA 41 Dangerous driving causing bodily harm – 2 counts
Sentence: 6 months in jail on each count, concurrent, upheld by NL Court of Appeal
Facts and Injuries: Speeding with a fully loaded (perhaps overloaded) car; an elevated noise level; the distraction of four passengers; drinking from a bottle of beer while driving and then either carrying it in his hand or between his legs.
Two pedestrians sustained serious injuries: leg injuries requiring surgery and physiotherapy, and chest and rib injuries
Convicted of dangerous driving causing bodily harm after Crown conceded at trial that criminal negligence causing bodily harm could not be proven
Aggravating and Mitigating Factors: Excessive speed, 50 – 55 km/hr in a 30 km/hr zone.
Had a prior conviction for open alcohol in a vehicle
Remorseful, favourable pre-sentence report, however, minimized responsibility saying it was an accident and he could not have prevented it from happening.
• R. v. Sparks
[2011] N.J. No. 404 Dangerous driving causing bodily harm – 1 count
Sentence: 6 months in jail followed by two years of probation.
Facts and Injuries: High rate of speed, hit the shoulder and lost control; no alcohol involved.
Injuries to passenger: 8 fractured ribs, bruised and lacerated spleen, and a collapsed lung, no use of his right arm.
Aggravating and Mitigating Factors: Criminal record for impaired driving (2002); assault (2009); and operating a motor vehicle with a BAC over .08, failing to appear (x2), and breach of a recognizance (2011)
Mr. Sparks was 29 years old, a “good dad”.
Pleaded guilty
• R. v. Smith
[2007] N.J. No. 312 Dangerous driving causing bodily harm - 4 counts
Sentence: 6 months incarceration; two year driving prohibition
Facts and Injuries: Driving too fast after drinking.
Passengers sustained broken bones, lacerations, and soft tissue injuries. One passenger lost teeth, one had broken facial bones, one had to have glass removed from his scalp.
Aggravating and Mitigating Factors: Dated criminal record: failure to attend Court, two assaults, a theft, and a breach of probation.
Pleaded guilty
• R. v. Gray
2011BCSC 1834 Dangerous driving causing bodily harm – 1 count
Sentence: For the dangerous driving causing bodily harm - 9 months of incarceration followed by two years’ probation. 4 year driving prohibition.
Facts and Injuries: Pursued victim through a stop sign and the wrong way on a street, then striking victim with vehicle causing him to fall and strike his head. Victim was comatose for six days and spent four months in hospital. Left with permanent brain damage.
Aggravating and Mitigating Factors: Driving record for speeding violations (2007, 2008, 2009).
Difficult life, no prior criminal record, positive character references indicating the love and support of family and friends, and a positive pre-sentence report.
Pleaded guilty, remorseful
Determining the Fit and Proper Sentence for Mr. Sullivan
[41] As stated in Rawn, “A motor vehicle can, in a moment of recklessness, be transformed into an object capable of destroying lives.” (paragraph 48) I think it is fair to say that this is what Mr. Sullivan now profoundly regrets, the moment or moments of recklessness that led to the injuring of four people who were simply going about their usual business.
[42] This was not however a road- or street-racing incident. It was not a “thrill-seeking” event as in Rawn where the Ontario Court of Appeal sought to express in “clear and convincing fashion” its “response to conduct such as this, where drivers deliberately choose to use the roads to satisfy their own thrill-seeking interests…” (paragraph 50)
[43] What the eye witness evidence does indicate is a reaction by Mr. Sullivan to apparently being cut off by another car. He changed lanes and accelerated. I do not find he is responsible for the fact that the other car also accelerated. What Mr. Sullivan is responsible for is his decision to accelerate to a high rate of speed. His speed and losing control of his truck led to an accident that could have been fatal. As it was four people were injured, two of them seriously enough to require surgery. It was a brief but objectively dangerous lapse in judgment.
[44] Mr. Sullivan’s over-reaction and speeding and the severity of the ensuing crash are aggravating features of this case. However I am not satisfied that Mr. Sullivan’s record for provincial offences or the condition of his truck can be characterized as aggravating.
[45] At the sentencing hearing Mr. Lacey provided the dates for Mr. Sullivan’s provincial offences: the speeding offence occurred on July 2, 2007; the failure to obey a red light occurred on September 22, 2002; the failure to wear a seat belt occurred on April 9, 1993; and the illegal possession of liquor was on August 24, 1990.
[46] Even the most relevant of the prior driving offences – the speeding violation – is quite stale, having occurred six years earlier. In other words, at the time of the September 2013 accident, Mr. Sullivan had no recent driving offences and nothing indicates any past history of being irresponsible or aggressive behind the wheel. To the contrary, he had had employment as a driver and one of his character references specifically notes that he was careful and prudent when driving.
[47] As for the condition of Mr. Sullivan’s truck, I find it relevant that, having bought it in June or July 2013, he had only owned it for a short period of time prior to the accident and was unaware of its rusted condition. The truck had been safety inspected and passed. Mr. Sullivan was entitled to rely on that. And importantly, while the truck’s deteriorated state may account for its disintegration on impact as shown in the scene photographs, there is no evidence that its condition contributed to the truck spinning out of control.
[48] As for mitigating factors, I find that the Crown’s identification of only one mitigating factor – Mr. Sullivan’s guilty plea – does not acknowledge others that should be considered in mitigation of Mr. Sullivan’s sentence.
[49] Mr. Sullivan has no criminal record. For 47 years he has been a law-abiding and pro-social member of the community. He is employed full-time for the summer and endeavouring to demonstrate to his employer his suitability for ongoing employment in the business. He has the support of family and friends and comes before the court with accolades from friends and neighbours about his generous and kind character.
[50] I also find that Mr. Sullivan is deeply remorseful. This has been evidenced by his statement to the court at sentencing, his comments to friends as indicated in two of the character reference letters, and in his written apologies to Mr. Depetris and Ms. Minkus.
[51] And although, as can be seen from the cases I reviewed earlier, the presence of alcohol is an aggravating factor, our Court of Appeal in Machek, referred to “the absence of the involvement of alcohol or drugs” as a “mitigating circumstance”. (paragraph 13) There was no alcohol involved in Mr. Sullivan’s dangerous driving.
[52] I find there is ample support for the Defence position that Mr. Sullivan’s sentence could fall within a range between a 60 day intermittent jail sentence and a 6 month jail sentence. The driving, and in most cases, the circumstances of the offenders and the injuries were more egregious in the cases relied on by the Crown for its position that Mr. Sullivan’s sentence should be one of 12 – 24 months (which I think the Crown clarified to mean an upper-end sentence of two years less a day.) Rawn and Field involved driving that was “thrill-seeking” in nature; Machek’s driving was described as “bordering almost on the deliberate” and he had a history of five previous motor vehicle accidents; Muise was intoxicated and speeding; Belanger had consumed alcohol and had a record for 10 previous convictions for speeding; Gill was focused long enough on getting his cigarette lit to be unaware he had crossed four lanes of traffic; and Vanmeerebach while not engaged in “thrill-seeking” behaviour with another driver, was driving at an “excessively high rate of speed” over some distance on a twisty road despite the protestations of his passengers, one of whom was killed.
[53] Mr. Sullivan is going to be incarcerated for making an objectively dangerous decision in reaction to another driver. He is going to lose his liberty and be placed behind bars. A jail sentence can only be understood as a repudiation of the offending conduct and a message that the injuring of other motorists as a result of driving dangerously will attract onerous consequences. Jail is a decidedly onerous consequence for a person who has no experience with the criminal justice system and its punitive aspects.
[54] I find that the Crown’s position on sentence focuses exclusively on the results of Mr. Sullivan’s actions – the serious injuries and destroyed vehicles. It does not factor in the restricted nature of his dangerous driving, that is, its short duration, the absence of alcohol, the fact that there was no “thrill-seeking” element. It fails to recognize Mr. Sullivan’s good character, his genuine remorse, or his driving record. It emphasizes denunciation and deterrence without consideration for the principle of restraint. It does not reflect the individualized nature of sentencing and disregards the principle of rehabilitation which has relevance even where denunciation and deterrence are to be given prominence.
[55] I find that Mr. Sullivan should be sentenced to 90 days in jail on both counts concurrently, to be served on an intermittent basis to enable him to continue in his employment and, but for the time he spends in custody, continue to assist his mother who is dependent on his support. [Mr. Sullivan will serve his intermittent sentence from Fridays at 7 p.m. until Mondays at 6 a.m., starting on Friday, July 3.] This is not a lenient sentence. Mr. Sullivan, who has never served any time behind bars before, will be serving 90 days in a jail cell, a sentence that will take some time to complete on an intermittent basis. This expresses an unequivocal message of denunciation and deterrence: that dangerous driving, even by someone who has been a law abiding, contributing member of the community, will attract the harsh result of a loss of liberty.
[56] I am also placing Mr. Sullivan on two years’ probation with the usual statutory conditions and any additional conditions recommended by counsel. [Conditions to include: reporting; attending for assessment, counselling or a program as directed by the probation officer; and participating in and cooperating with any such assessment, counselling or program.] I am imposing a two year probationary term on Mr. Sullivan because probation is primarily “a rehabilitative sentencing tool.” (R. v. Proulx, [2000] S.C.J. No. 6, paragraph 32) I am amply satisfied the securing Mr. Sullivan’s good conduct can be achieved by a probationary term of this length and that a longer term of probation is unnecessary.
[57] I was advised that, as of April 13, 2015, the Registry of Motor Vehicles revoked Mr. Sullivan’s driver’s licence for five years. I impose a driving prohibition in relation to the dangerous driving offences of five years.
[58] The Crown has requested a DNA order. Dangerous driving is a secondary designated offence under the DNA provisions of the Criminal Code. The making of the order is subject to judicial discretion: section 487.051(3)(b) provides that:
In deciding whether to make the order, the court shall consider the person’s criminal record, whether they were previously found not criminally responsible on account of mental disorder for designated offence, the nature of the offence, the circumstances surrounding its commission and the impact such an order would have on the person’s privacy and security of the person and shall give reasons for its decision.
[59] The Supreme Court of Canada in R. v. R.C., [2005] S.C.J. No. 62 has held that “Parliament has…drawn a sharp distinction between “primary” and “secondary” designated offences, which are defined in s. 487.04 of the Criminal Code. Where the offender is convicted of a secondary designated offence, the burden is on the Crown to show that an order would be in the best interests of the administration of justice.” (paragraph 20)
[60] As I noted earlier, Mr. Sullivan has no criminal record. He is a person of good character who has been regularly employed and complied with his release conditions. There has been no suggestion that Mr. Sullivan is likely to have further conflict with the law. Indeed, the Crown expressly stated that specific deterrence was not a consideration in this case. As I stated in R. v. Shields, [2014] N.S.J. No. 473:
[22] The objectives of the DNA provisions - the identification of persons alleged to have committed designated offences, deterring potential repeat offenders, detecting serial offenders, streamlining investigations, solving “cold cases”, and protecting the innocent by eliminating suspects and exonerating the wrongly convicted - could be used to ground the argument that every offender’s DNA should be collected. Parliament has expressly allowed for judicial discretion and crafted very specific criteria in the case of secondary designated offences. There is nothing in the legislation stipulating that only exceptional cases of secondary designated offences should be exempt from DNA sampling…
[61] The Crown has not shown me how it is in the best interests of the administration of justice to collect Mr. Sullivan’s DNA and intrude upon his constitutionally protected privacy and security rights. As noted by the Supreme Court of Canada in R.C., a DNA order is.:
…undoubtedly a serious consequence of conviction. This is evident from the comprehensive procedural protections that are woven into the scheme of the DNA databank. The taking and retention of a DNA sample is not a trivial matter and, absent a compelling public interest, would inherently constitute a grave intrusion on the subject’s right to personal and informational privacy. (paragraph 39)
[62] I decline to make a DNA order in this case. I invite counsel to address me on the issue of the victim surcharge. [Mr. Pink indicated Mr. Sullivan’s ability to pay the victim surcharge of $100 on each charge for a total of $200 with time to pay to July 31, 2015.]