COURT OF APPEAL FOR ONTARIO

Date: 2003-10-16

Docket: C39596

Re:

Her Majesty the Queen (Appellant) – and – Vancho Boukchev (Respondent)

Before:

Weiler, Gillese and Armstrong JJ.A.

Counsel:

Nadia Thomas

for the appellant

Michael W. Caroline

for the respondent

Heard:

September 26, 2003

Released Orally:

September 26, 2003

On appeal from the sentence imposed by Justice Russell J. Otter of the Ontario Court of Justice dated February 3, 2003.

ENDORSEMENT

[1] This is a Crown appeal from a sentence of 21 months incarceration concurrent for one count of dangerous driving causing death and one count of failing to remain at the scene of an accident contrary to s. 249(4) and 252 (1.3) respectively of the Criminal Code. In addition, a driving prohibition of five years was imposed plus a DNA order.

[2] On September 16, 2002, at 10:45 p.m. the respondent ran a red light at a high rate of speed, flashed his high beams to get people out of his way as he continued to drive at an excessive rate of speed, came to another well-lit intersection, ran over the 20 year old victim while he ran another red light and dragged her about 190 meters north of where she was first struck. There was no evidence that the respondent applied his brakes at any time before or after striking the victim. Even though the respondent’s windshield was shattered and the front end of his van was severely damaged, he drove on without stopping. This, despite knowing he had caused the victim’s death and that he had left her body lying in the middle of the road. The respondent circled around various side streets then abandoned the van just south of the collision. About three hours later the police found the abandoned van and traced it to the respondent at his parents’ home. During this time he did not report the accident. When investigated, the appellant gave a statement that two female hitchhikers had stolen his van that night after he had stopped at a variety store to buy a pack of cigarettes. When alcohol was detected by the investigating officer on the respondent’s breath, the respondent told police he had consumed some alcohol after arriving at his parents’ apartment. Later he gave a videotaped statement to the same effect at the police station. The respondent was on bail for unrelated offences at this time. Ultimately, however, the respondent pled guilty to the offences for which he was sentenced.

[3] In sentencing the respondent, the sentencing judge gave the respondent credit for four and a half months pretrial custody on the usual two for one basis, or nine months. Thus, the sentence is effectively a sentence of thirty months. The respondent is 59 years old and has accumulated a lengthy record for driving offences. In a fifteen year span between 1982 to 1997, the respondent was convicted of driving offences in all but three of those years. He had two prior convictions for careless driving in 1983 and 1987 and seven convictions for either driving while his licence was suspended or driving while disqualified. During this time, the longest single period of incarceration that the appellant served for these offences was six months. In May of 1998, the appellant was given a medical suspension of twenty-two months and his licence reinstated in March of 2000. Following this, until the date of the accident there were no convictions.

[4] The respondent had two driving-related criminal convictions: one for impaired driving (September of 1992) and another for driving while disqualified (February of 1993). In addition, he has prior criminal convictions for assault, assault causing bodily harm, obstruct peace officer (x 2), fail to appear and fail to comply with recognizance.

[5] At the sentencing hearing Crown counsel suggested a sentence of 7 years less pre-trial custody, plus a lifetime driving prohibition and a DNA order. The defence suggested a sentence in the range of 24-30 months, less pretrial custody, plus a five-year driving prohibition. The sentencing judge did not give reasons respecting the driving prohibition.

[6] The appellant submits that the sentence is demonstrably unfit and does not achieve an appropriate level of denunciation and deterrence. We agree. Sentences have tended to increase in severity for these types of offences because of the heightened recognition of the need for general deterrence and protection of the public. Having regard to the decisions in R. v. Routsis, [1995] O.J. #543, (Ont. C.A.); and R. v. Rij, [1994] O.J. # 2850 (Ont. C.A.), we are of the opinion that a fit sentence is five years less nine months credit for pre-trial custody for a sentence of four years and three months. In light of the horrendous driving record of the respondent and the respondent’s flagrant disregard for prior driving prohibitions and licence suspensions we also impose a lifetime driving prohibition.

[7] The appeal as to sentence is allowed and a sentence of four years and three months plus a lifetime driving prohibition is imposed.

“Karen M. Weiler J.A.”

“E.E. Gillese J.A.”

“Robert P. Armstrong J.A.”