DATE: 20060921
DOCKET: C44461
COURT OF APPEAL FOR ONTARIO
GOUDGE, SHARPE and BLAIR JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Andrew Cappell for the respondent
Respondent
- and -
TONYA KUTSUKAKE
David M. Humphrey for the appellant
Appellant
Heard: August 25, 2006
On appeal from the sentence imposed by Justice Donald J. Halikowski of the Ontario Court of Justice, dated October 17, 2005
SHARPE J.A.:
[1] The appellant pleaded guilty to criminal negligence causing death and was sentenced to twelve months imprisonment, two years probation, and a five-year driving prohibition. Before this court, she seeks leave to appeal the custodial portion of her sentence. She submits that the sentencing judge erred by failing to give adequate consideration to a conditional sentence and asks this court to allow the appeal and substitute a conditional sentence.
Circumstances of the Offence
[2] The deceased, Derek Cameron, aged fifteen, was a close friend of the appellant’s brother and a friend of the appellant. During the afternoon of March 23, 2005, the appellant made arrangements to pick up Derek Cameron in her four-door Dodge Neon and then to get cigarettes. Calem Clark was a passenger in the appellant’s vehicle. Derek was wearing roller blades. After picking up Derek and the cigarettes, the appellant returned to the residential street where Derek lived. The posted speed limit was 40 kilometres per hour. Derek got out of the car and asked the appellant to tow him down the street. Derek went to the driver’s side of the vehicle while it was slowly moving and interlocked arms with the appellant grabbing the pillar by the driver’s window with his left hand. The appellant drove down the street at approximately 50 kilometres per hour towing Derek at the side of her car. Derek eventually let go and continued down the road while the appellant made a U-turn. On the return trip on the same street but in the opposite direction, Derek grabbed the pillar with both hands because the appellant had bruised her arm during the first encounter. The appellant accelerated, rolled down the window and yelled out the speed she was reaching, eventually 80 kilometres per hour. Derek, apparently enjoying the thrill of the ride, yelled to the passenger: “Calem, look.” Derek then fell and was run over by the vehicle. He was taken immediately to the hospital where he was pronounced dead as a result of severe blunt force trauma to his head.
[3] Derek’s tragic death has had a devastating impact upon his family and friends. He was bright, cheerful, and positive with a wide circle of friends and activities. The victim impact statements filed by his parents and the evidence they offered at the sentencing hearing provide moving and poignant testimony of the irreparable loss they have suffered.
Circumstances of the Offender
[4] The appellant was twenty years old at the time of the offence with an unblemished record. She and her family had been close friends with Derek and his family. A pre-sentence report provided a positive review of the appellant’s family background and developmental history. The appellant has a younger brother and had a happy and stable childhood, although there may have been some tension in her relationship with her father because of the long hours he worked. The appellant’s mother indicated that the appellant had a tendency to make poor judgment calls with her friends and that she would do anything to please her friends. The report from the appellant’s psychologist suggested that these past transgressions were within the range of normal adolescent behaviour and that any lack of judgment would improve with age and experience. The appellant had no other history of behavioural problems and took school and work seriously. She graduated from secondary school in 2004. At the time of sentencing she was enrolled in a two-year Human Services Counsellor program at Durham College. Since graduating from high school, she had consistently maintained employment. At the time of sentencing she was working part time as a customer service associate at Home Sense where she had received three awards for outstanding service.
[5] In his reasons for sentence, the sentencing judge described the appellant in the following terms:
Tonya Kutsukake by all accounts is a typical young Canadian female. Her pre-sentence report reveals her upbringing to have been stable. Her parents are hardworking individuals who have always tried their best to raise their two children while maintaining as comfortable a lifestyle as they could possibly do for them.… The accused is young, intelligent and presents a good future. She is presently in college and works part-time at a local retail store, the manager of which has assessed her performance as good to outstanding and speaks highly of her integrity and congeniality. Letters confirm her good character. Put succinctly there is simply no articulable reason why Tonya Kutsukake should find herself before this court facing this kind of charge and yet here she is. Her actions have devastated the lives of the Cameron family as shown in the victim impact statements of Derek Cameron’s mother and father.
[6] The appellant took responsibility for her actions and pleaded guilty. Her psychologist’s report indicated that, as a result of Derek’s death, the appellant had shown signs of acute stress disorder and post-traumatic stress disorder and that she was experiencing strong feelings of guilt. The appellant expressed her remorse at the sentencing hearing. Moreover, the psychologist’s report, the pre-sentence report, and the arresting officer all indicated that the appellant was genuinely remorseful for her actions. The sentencing judge found that the effects of the appellant’s actions “have been brought home to her by various means” and that “[s]he has accepted responsibility for what she has done and this act was a singular act of recklessness – instantly regretted.”
Reasons for Sentence
[7] At the sentencing hearing, the appellant’s counsel submitted that a conditional sentence of imprisonment of two years less a day was appropriate. Crown counsel submitted that the court should consider a sentence of eighteen months imprisonment, followed by two years probation, and a five to seven year driving prohibition.
[8] The sentencing judge gave relatively detailed reasons for the sentence he imposed. He found that the appellant “clearly knew the danger to which she was exposing this young man and for reasons that are only known to her, she recklessly chose not to maintain that level of danger but to increase it by travelling even faster on the second run.” On the other hand, the sentencing judge was satisfied that the accused “is not dishonest and she is not physically aggressive” and that “[s]he poses no danger to society in her day-to-day dealings”. The sentencing judge further concluded that the appellant “does not now and will not within the next two years pose a danger to the community.”
[9] He found that the nature of the offence, the absence of alcohol, and the “young age of the accused” all militated against a penitentiary term. The sentencing judge determined, however, that the actions of the accused “must be sharply denounced to deter other like-minded people from following the same tragic route.” He added:
The sentence must also acknowledge, in no uncertain terms, the effects that such a crime has on the victims. For not only has Derek Cameron lost his life, but his family, friends and society generally have been altered and redirected in such a fashion as to cause great emotional trauma and a sense of waste for opportunities that now have been lost.
[10] The sentencing judge gave only the following reason for concluding that a conditional sentence was not appropriate: “this court finds that a conditional sentence will not satisfy the requirements for denunciation, deterrence and the recognition of the effects of this crime on the victims.”
[11] While the appellant eventually was released on bail pending appeal, as of the date of the hearing, she had served forty-one days in custody.
Analysis
[12] It is well established that the sentence imposed by the sentencing judge is to be accorded deference on appeal and that this court will not interfere unless the sentence is demonstrably unfit or the sentencing judge’s reasons reveal an error of law or an error in principle.
[13] With respect, I have concluded that in the tragic circumstances of this case, the sentencing judge erred in principle: (1) by failing to consider seriously whether or not a conditional sentence could satisfy the needs of denunciation and general deterrence; and (2) by failing to give any weight to the established principle that when sentencing a youthful first offender the primary objective should be rehabilitation and specific deterrence.
[14] I will deal first with the appropriateness of a conditional sentence to satisfy the needs of denunciation and general deterrence. On the findings of the sentencing judge, the statutory prerequisites for a conditional sentence are met in this case: (i) there is no minimum term of imprisonment, (ii) the appropriate sentence is of two years less a day or less, and (iii) the safety of the community would not be endangered by the offender serving her sentence in the community.
[15] In the leading case of R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.), the Supreme Court of Canada directed that where the statutory criteria have been considered, “serious” consideration must be given to determine whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing. The Supreme Court of Canada held, at para. 114, that even in the presence of aggravating factors which might indicate the need for denunciation and deterrence, “a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance”. Writing for the court, Lamer C.J.C. added at para. 100:
A conditional sentence can achieve both punitive and restorative objectives. To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2(d) and (e), which militates in favour of alternatives to incarceration where appropriate in the circumstances.
[16] Lamer C.J.C. also stated, in para. 115, that “it would be a mistake to rule out the possibility of a conditional sentence ab initio simply because aggravating features are present. I repeat that each case must be considered individually.” The Supreme Court of Canada specifically stated, at para. 41, that a conditional sentence is capable of achieving the objectives of denunciation and deterrence, “particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls.”
[17] The sentencing judge declared that denunciation and deterrence ruled out a conditional sentence but he failed to explain why. In my view, the sentencing judge made the very error identified by the Supreme Court, at para. 115, namely, he “rule[d] out the possibility of a conditional sentence ab initio simply because aggravating factors are present.”
[18] I turn to the second point, namely the principle established by this court in R. v. Stein (1974), 1974 1615 (ON CA), 15 C.C.C. (2d) 376 (Ont. C.A.) and R. v. Priest (1996), 1996 1381 (ON CA), 110 C.C.C. (3d) 289 (Ont. C.A.), that the primary objectives in sentencing a youthful first offender are individual deterrence and rehabilitation. A sentence imposed on a youthful first offender should constitute the minimum necessary sanction that is adequate, community-based dispositions must be considered, and more serious forms of punishment imposed only where necessary. These principles have since been codified in ss. 718(c), 718.2(d) and 718.2(e) of the Criminal Code. While the sentencing judge took into account the appellant’s age in deciding that a lengthy penitentiary sentence was not called for, his reasons indicate that he did not give any weight to her age and unblemished record when considering whether to impose a conditional sentence.
[19] In view of these errors, it is open to this court to impose what we deem to be an appropriate sentence. In s. 718 of the Criminal Code, Parliament directs us to consider the following objectives when imposing sentence:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
As already mentioned, the principle adopted in s. 718.2(d) is also applicable here: “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”.
[20] In my view, the only purpose to be served by requiring the appellant to serve her sentence in an institution would be denunciation of the unlawful conduct. That factor does not, in the circumstances of this case, outweigh the other factors that point to a conditional sentence. Moreover, I am of the view that denunciation of the unlawful conduct can be achieved without the appellant returning to jail. She has seen the inside of a prison and has served forty-one days in custody. I am persuaded that an additional sentence to be served in the community under the conditions described below will serve as sufficient denunciation of her conduct, consistent with the principles established in Proulx, supra.
[21] I am satisfied that a custodial sentence is not required for specific deterrence. The appellant has certainly learned her lesson and does not pose a risk of re-offending.
[22] Turning to general deterrence, there is no doubt that the lethal risks posed by excessive speed and thrill seeking on the part of young drivers make this an important consideration in this case. We must do what we can to bring this message home. The appellant suggests that an appropriate term of a conditional sentence would be a requirement that she speak at schools and to young people about the dangers of thrill-seeking conduct of the kind in which she engaged and the devastation it can bring. In my view, that would have a much more powerful deterrent effect on other young people than having the appellant serve a further period of incarceration.
[23] The appellant does not pose a risk of re-offending and it is not necessary, therefore, to separate her from society. Her rehabilitation would plainly be better served by a conditional sentence. With respect to reparation, no sentence we can impose could ever make up for the devastating loss of Derek Cameron. The promotion of a sense of responsibility would, in my view, be served by a sentence that requires the young person who caused his death to acknowledge publicly her wrongdoing through a form of community service that will warn others of the devastating consequences of participating in reckless thrill-seeking behaviour.
[24] Accordingly, I would grant leave to appeal and allow the appeal against the sentence of twelve months imprisonment. In its place I would substitute a conditional sentence of eighteen months, taking into account the fact that the appellant has already served forty-one days in custody. The first nine months of the conditional sentence are to be served in the form of house arrest, the appellant being permitted to leave her house only as may be required for employment, school, medical or legal appointments, and religious observance, and between the hours of 9 a.m. and 12 noon on Saturdays to attend to personal shopping and other needs. The remaining nine months are to be served under the compulsory statutory conditions prescribed by s. 742.3(1). In addition, I would require the appellant to perform 240 hours of community service as directed by her probation officer and direct that, to the extent possible, a significant portion of that community service be in the form of speaking at schools or other like institutions about the dangers of her conduct. I would not interfere with the two years probation or with the five year driving prohibition.
“Robert J. Sharpe J.A.”
“I agree S.T. Goudge J.A.”
“I agree R.A. Blair J.A.”