R. v. Cohen

2006 BCSC 2030 R. v. Cohen IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Cohen, 2006 BCSC 2030 Date: 20061027 Docket: 23341 Registry: Vancouver Regina v. Alan Robert Cohen Before: The Honourable Mr. Justice Stewart Oral Reasons for Sentence October 27, 2006 Counsel for the Crown G.A. Weber, Q.C. Counsel for the Accused D. McLellan Place of Trial: Vancouver, B.C. [1] THE COURT: (Oral) The offender was found guilty on all six counts on the indictment. [2] I will take the indictment as read. [3] I incorporate by reference into these reasons for sentence what I said in paragraphs 12 to 19 of my reasons for judgment given in connection with my finding the accused guilty on all six counts on the indictment. I will take those reasons for judgment as read. [4] I know that the victim named in Count 1, Bradley Davidson, suffered bodily harm which harm included a traumatic brain injury. I accept that whatever his capacity was to function as an independent, useful human being before September 5, 2003 - whether it was great or little - it was adversely affected by the result for him of the offender's criminal conduct on September 5, 2003, in connection with Count 1. [5] The state of the evidence lets me say no more and for the purposes of the criminal law no more need be said. [6] Because of the content of the submission of counsel for the offender, I make it clear that I treat all else I was told about Bradley Davidson - be it his lifestyle before September 5, 2003, his criminal record, Exhibit 6, or his conduct after September 5, 2003 - as irrelevant. If that be wrong, my error will be clear on the record for the Court of Appeal. [7] Also, I treat as irrelevant for my purposes counsel's reference to Bradley Davidson's not wearing a helmet at the time of the collision on September 5, 2003, and therefore perhaps being contributorily negligent. [8] In my respectful view, all of the above follows ineluctably from the Court of Appeal's pronouncements on the element of causation in a line of cases that includes, but most certainly is not limited to: R. v. Andrew (1994), 91 C.C.C. (3d) 97. [9] The offender in the case at bar is now 23 years of age. He was 19, I am told, on September 5, 2003, the date of the offences in question. He has no criminal record. However, what his counsel told me about his lifestyle before September 5, 2003, combines with his B.C. driving record, Exhibit 2, to convince me that for a significant period of time before September 5, 2003, the offender knew he was a drunk and knew that driving while intoxicated would bring him into contact with the law. As he was then an adult with no known mental infirmity, I proceed on the basis that he knew that for him to drink and drive was fraught with danger, danger to himself and to others.* As of September 5, 2003, he was a person who chose to live a lifestyle that involved heavy drinking; and, for September 5, 2003, his blood alcohol reading says incredibly heavy drinking. On September 5, 2003, he was a person who, knowing all of the above, chose not to leave the car at home. [10] As noted above, the offender is now 23. He graduated from high school in June 2002 [sic] after the offences in the case at bar were committed. As noted * See R. v. Prasad, 2006 BCCA 470, para. 11. above, he has no criminal record, but he has a driving record, Exhibit S2. His background is more difficult than that of some people and less difficult than that of many others. I say there is nothing in it that could possibly affect what I do now. I know that in the past he has worked at various jobs and has taken various courses to improve his marketability as a worker. He is at present unemployed, lives with his mother and attends a college where he is taking two subjects, each course being of brief duration. He hopes some day to achieve the necessary so he can attend university. [11] He knows he was a drunk on and before September 5, 2003, but blames others for his decision to drink copious amounts of alcohol on a regular basis. He says he has got rid of the bad influences upon him and is prepared to take whatever alcohol counselling courses are ordered. But in my respectful view, the firm awareness that, whether he has cut down or not for now, he is the drunk - he is the problem - just is not evident. I pause to make clear that I read the letters passed up, Exhibit 4, and am alive to the offender's completing a St. John's Ambulance first aid course as detailed in Exhibit 3. The offender told me he apologizes for his conduct on the night in question and is sorry about what happened to Bradley Davidson. I note that the offender's claim that prior to driving on the night in question he was mugged is irrelevant. [12] The Crown urges me to impose a global sentence "in the range of two years." The Crown submits that I should sentence the accused on Counts 1, 3, 4, 5, which have maximum available sentences of 10, five, five, and five years respectively, and enter a conditional stay on Counts 2 and 6. [13] Counsel for the offender refers me to s. 742.1 and the decision of the Supreme Court of Canada in R. v. Proulx, [2000] 1 S.C.R. 61, amongst other cases, and urges me to impose a sentence of less than two years and order that it be served in the community. [14] I pause here to note that there is no dead time here worth mentioning even if I do reach the stage where, under R. v. Fice, [2005] 1 S.C.R. 742, one takes such a thing into account. [15] In any event, I return to s. 742.1. [16] In my respectful opinion, in determining the applicable "range of sentence" as the Supreme Court of Canada puts it in R. v. Fice supra, at stage 1 of the analysis, I must recognize the cumulative effect of the following: I take Code s. 718, 718.1, and 718.2 as read; the offender's culpability under Count 1 is great - see above about the circumstances in which he chose to drive that night; he chose to drive a long way while drunk that night; his committing hit and run, under Count 4 and Count 5, were entirely separate things from all else, and the global sentence must reflect that fact; committing hit and run under Count 5 in connection with an incident involving a human being, here Bradley Davidson, is an egregious example of blameworthy, cowardly conduct and that must be reflected in the length of the global sentence; the refusal to comply with a demand pursuant to s. 254 for a sample of his blood came at the end of the events that evening and is a separate and distinct crime that must be punished and not treated as of no significance in the sentencing process; as confirmed by the Supreme Court of Canada in R. v. Proulx, supra, at paragraphs 128, 131, and R. v. Homer, 2003 BCCA 15 at paragraph 9, the concept of denouncing crime and deterring like-minded offenders makes perfect sense when one is dealing with offences of the kind committed by the offender in the case at bar, in other words, offences that have their head and source in voluntarily consuming alcohol and then getting behind the wheel of a car; yes, the offender has no criminal record; yes, there is no law that says an order under s. 742.1 necessarily cannot suffice. [17] At this stage of the analysis, a judgment call is involved. [18] In my opinion, considering the cumulative effect of what this case throws up, as above, a global sentence of anything less than three-and-a-half years imprisonment would not be fit. It would, in my respectful opinion, be woefully inadequate. I recognize that the Crown suggested a sentence "in the range of two years." So be it. Counsel make submissions, judges sentence. [19] In the result, I say that the global sentence must be at the minimum, as far as I am concerned, three-and-a-half years. It follows that under 742.1(a) a conditional sentence is not available as a matter of law. [20] In the result, I sentence the accused as follows. Count 1, two years; Count 4, six months consecutive to the sentence on Count 1; Count 5, one year consecutive to the sentence on Count 1 and concurrent with the sentence on Count 4; Count 3, six months consecutive to the sentence on Count 5. As noted, the global sentence is three-and-a-half years. [21] The offender having been convicted on Count 1 of an offence under s. 255(2), s. 259(2)(b) is available. I make an order prohibiting the offender from operating a motor vehicle on any street, road, highway, or other public place for a period of eight years, which period commences today and includes the three-and-a-half-years to which I have sentenced him to imprisonment. [22] Under s. 487.051(1)(b), I exercise my discretion in favour of ordering that the offender will provide DNA samples. The order will be in Form 5.04. I do so because a secondary designated offence is involved, s. 255(2), and under 487.051(3), I am satisfied that it is in the interests of justice to make the order. The only relevant things peculiar to the offender in the case at bar are his lack of a criminal record and his, I say, failure to recognize that he is the problem. Those things balance out. [23] Under s. 737(5), I say the offender will not have to pay a victim fine surcharge. He is unemployed. I assume he has no money to speak of at the moment. I infer that any payment would be made by his mother or his father or, indirectly, by the taxpayers. In the result, he is exempted from the application of 737(1). [24] At the invitation of the Crown, I enter a conditional stay of proceedings on Counts 2 and 6. The stay is conditional on the final disposition of the charge contained in Count 1. Here see R. v. Provo, [1989] 2 S.C.R. 3. "Stewart J."