Court File and Parties
Court File No.: Central East – Newmarket – 13-09061 Date: 2016-02-10 Ontario Court of Justice
Between: Her Majesty the Queen — and — Valentin Krivenko
Before: Justice P.N. Bourque
Counsel:
- S. Renaud, for the Crown
- M. Simrod, for the accused Valentin Krivenko
Reasons for Sentence
Released on February 10, 2016
Overview
[1] After the completion of one day of trial, the defendant changed his plea and has pled guilty to 3 counts arising from the events of December 10, 2013. I have found him guilty of impaired driving, 253(1)(a), assault with intent to resist arrest 270(2), and driving while disqualified 259(4) of the Criminal Code.
[2] In summary, the defendant, with a young child as a passenger, drove a motor vehicle into a parking garage. He was seen by a civilian to be parking in the wrong spot and when confronted, drove to another spot. The defendant had urinated in the garage, and smelled of alcohol. The defendant was subsequently confronted by two police officers who noted that as he was holding his child, he was swaying and he had to be assisted in walking out of the garage. While he was being walked out of the garage, he kicked a police officer in the leg. There were no injuries. Subsequent breath test results place his alcohol blood concentration between 125 and 175 milligrams of alcohol in 100 millilitres of blood at 9:41 p.m. At the time of these offences, the defendant was subject to several disqualification orders including a lifetime provincial ban.
[3] Between the time of the plea and this sentencing, the defendant, on December 16, 2015, was apprehended while operating a stolen car while disqualified and was in breach of two release conditions. He has also pled guilty to these offences before me and I include them in this sentencing.
Pre-trial Custody
[4] From the original offences, the defendant was in custody for 9 days before his release. He was on a restrictive bail, including a requirement that he be in his home except in the presence of his surety. From the second offence, the defendant has been in custody since December 16, 2015 until the day of this sentencing, February 10, 2016 (56 days).
Criminal Record
[5] Filed as Exhibit Number 2 is the criminal record of the defendant. There are 11 sentencings and 18 convictions for various Criminal Code offences. Of most importance to me are the following entries for driving offences:
- Two previous impaired driving offences (November 22, 2005, June 19, 2013)
- Two previous dangerous driving offences (November 22, 2005, June 19, 2013)
- One previous drive disqualified offence: (June 19, 2013)
[6] The conviction for the count of impaired driving is the defendant's third conviction for a drinking and driving offence. The Crown has proven the statutory notice and the minimum terms of imprisonment under section 255(1)(a) are applicable. This being the third drinking and driving offence, the minimum period of imprisonment for this offence is 120 days. The Crown has proceeded by summary conviction on the charges from December 10, 2013 and has proceeded by indictment for the offences from December 16, 2015.
Circumstances of Defendant
[7] The defendant is 38 years old. He was born in Russia but is now a Canadian citizen. I am informed by his counsel that before he manifested an addiction to alcohol, he was an expert on the refurbishment and sale of automobiles. He has two children. He is estranged from his wife (because of his alcohol and legal problems) but he is hopeful of reconciliation. While he pled part-way through the trial for the offences from December 10, 2013, I still accept that plea as a sign of remorse, as indeed the pleas to the offences from December 15, 2015. He also addressed the court and I accept his words as expressing remorse.
Position of Crown
[8] The Crown seeks the following punishment:
| Charge | Sentence |
|---|---|
| Charges from December 10, 2013 | |
| Impaired Driving | 160 days |
| Drive disqualified | 90 days |
| Assault Police | 30 days |
| All sentences to be served consecutively to all other offences for a total of 280 days incarceration, less the pre-trial custody (9 x 1.5) = 14 days; 280 – 14 = 266 days | |
| Charges from December 16, 2015 | |
| Possession of stolen property over $5000 | 30 days |
| Breach of Recognizance (house arrest condition) | 30 days |
| Breach of Recognizance (operate auto) | 30 days concurrent breach of recognizance |
| Drive While Disqualified | 120 days |
| A total of 6 months less pre-trial custody of (56 x 1.5) = 84 days; 180-84 = 96 days |
[9] The Crown is therefore seeking a total period of incarceration of just over 15 months, less the periods of time for pre-trial custody.
Position of Defence
[10] The defence wishes me to impose a total sentence of 6 to 7 months, less the time served.
The Law
[11] The defendant is not a youthful first offender. He has a criminal record from April, 1996 through to June, 2013, of some 18 offences. He is a recidivist with a variety of offences including several thefts, breaches of recognizance and as already pointed out, two previous drinking and driving offences, two previous dangerous driving offences and a previous drive while disqualified. The only explanation offered for these offences is the defendant's reliance upon alcohol. I am not sure whether the probation orders from his previous probationary terms contained some provision for alcohol counselling. Perhaps they did, and perhaps he has taken some counselling. I have not been given any information that the defendant has been taking any serious efforts to do something about his alcohol addiction. In addition, notwithstanding the several prohibition orders, he insists on continuing to drive. In both of these situations, while he was operating a motor vehicle, he could not have been insured.
[12] In my opinion, the most serious offence of these 7 counts is the offence of impaired driving. The charge of impaired driving for a third offence is a minimum period of incarceration of 120 days (4 months). The maximum sentence for impaired driving is 18 months as the Crown has proceeded summarily. As stated in R. v. McVeigh, [1985] O.J. No. 207:
The variations in the penalties imposed for drinking and driving are great and increasing sentences for offences at the "lower end" would emphasize that it is the conduct of the accused, not just the consequences, that is the criminality punished. If such an approach acts as a general deterrent then the possibilities of serious and tragic results from such driving are reduced. No one takes to the road after drinking with the thought that someone may be killed as a result of his drinking. The sentences should be such as to make it very much less attractive for the drinker to get behind the wheel of a car after drinking. The public should not have to wait until members of the public are killed before the court repudiation of the conduct that led to the killing is made clear. It is trite to say that every drinking driver is a potential killer.....General deterrence in these cases should be the predominant concern, and such deterrence is not realized by over-emphasizing that individual deterrence is seldom needed once tragedy had resulted from the driving.
[13] With regard to this defendant, a previous sentence of 60 days in custody (intermittent) has not been a sufficient deterrent to stop him from driving when he is prohibited from doing so, and it has been insufficient to stop him from driving while impaired. I note in this case that not only did he put his own life in danger on December 10, 2013, but he had his child in the car with him.
[14] The potential for serious harm which this man represents is mind numbing. A serious amount of incarceration may not deter him in the future, but if not, what other tools are left to us?
[15] In assessing the penalties to be imposed for all of these offences, I am mindful of the principle of totality, that is, I will not just be adding up all of the appropriate sentences for each of the offences. While I will express a sentence for each offence, I will keep in mind throughout, the totality principle.
[16] The Crown and defence, in the total sentence are very far apart. In my opinion, the sentences suggested by the Crown are at the bottom end of the range of sentences that I believe would be appropriate. The range of sentence proposed by the defence does not, in my opinion, adequately reflect the seriousness of these matters.
Conclusion
[17] In totality, I believe that a sentence, before taking into account pre-trial custody of approximately 15 months is the appropriate sentence.
[18] I would assess it in terms of the Crown's submissions, except I would impose sentences of 15 days each for the breaches of recognizance from December 16, 2015, and all of the sentences will be served consecutively.
[19] Therefore the following sentence will apply:
1. Charges from December 10, 2013:
(i) Impaired Driving - 160 days (ii) Drive While Disqualified - 90 days (iii) Assault Police - 30 days
All sentences to be served consecutively to all other offences for a total of 280 days incarceration, less the pre-trial custody.
280 – (9 x 1.5 = 14 days) = 266 days
2. Charges from December 16, 2015:
(i) Possession of stolen property over $5000 - 30 days (ii) Breach of recognizance (house arrest condition) - 15 days (iii) Breach of recognizance (operate auto) - 15 days (iv) Drive while disqualified - 120 days
All charges to be served consecutively to all other offences for a total of 180 days less pre-trial custody
180 - (56 x 1.5 = 84 days) = 96 days
[20] The total period in custody from this date forward: 96 + 266 for a total of 362 days.
Further Orders
[21] I made an order under section 110 of the Criminal Code for a period of 5 years from today's date. He will also be prohibited from operating a motor vehicle anywhere in Canada for life.
[22] I also make an order of forfeiture of property seized in the investigation as per the draft order submitted.
Signed: "Justice P.N. Bourque"
Released: February 10, 2016