Court of Appeal for Ontario

Date: 2019-10-16 Docket: C66199

Feldman, Trotter and Zarnett JJ.A.

Between

Her Majesty the Queen Respondent

and

Adam Simeunovich Applicant/Appellant

Counsel: Jessica Zita, for the appellant Catherine Weiler, for the respondent

Heard and released orally: October 16, 2019

On appeal from the sentence imposed on August 24, 2018 by Justice Peter C. West of the Ontario Court of Justice.

Reasons for Decision

Introduction

[1] The appellant entered pleas of guilty to the following offences: possession of a counterfeit mark (i.e., a fake driver's licence) (contrary to Criminal Code, R.S.C. 1985, c. C-34 s. 376(2)(d)); operation of a motor vehicle while disqualified (s. 259(4)); criminal negligence causing bodily harm (s. 221); and fail to stop at the scene of an accident knowing that bodily harm had been caused (s. 252(1.2)). The appellant received a total sentence of 10 years' imprisonment, less enhanced credit for pre-sentence custody, at a rate of 1.7:1, amounting to 3 years. He appeals his sentence.

Background

[2] The appellant, who was 40 years old at the date of the offences, is a serious serial recidivist of driving offences under the Criminal Code. On April 12, 2017, at 11:45 a.m., while driving his truck, he was stopped at a light when he saw a police cruiser with its emergency equipment activated. The cruiser came up behind the appellant's truck and honked its horn. Being subject to numerous driving prohibitions, the appellant believed that the police were after him. In fact, the cruiser was being driven to an emergency at a nearby public school. Nevertheless, the appellant fled, and drove in a highly reckless manner, putting many motorists and pedestrians at risk. For example, in order to cut a corner, he drove through a gas station parking lot at 45 km/h. He drove through a red light. He weaved through traffic at a high rate of speed (up to 138 km/h), sometimes moving into on-coming traffic lanes. Finally, the appellant sped through another red light and collided with a smaller vehicle, seriously injuring the other driver.

[3] The appellant immediately got out of his truck and ran away. He was located with the assistance of a police dog hiding in a wooded area. He had a fake driver's licence on his person.

[4] The sentencing judge found that the driver of the other car sustained serious injuries, including: a broken collar bone; six broken ribs; and two fractures of his pelvis. He suffered internal abdominal bleeding and considerable trauma to his head, causing a loss of hearing in his left ear and blurred vision in his left eye. He required the services of a personal support worker for some period of time.

[5] The appellant has a horrendous and mostly related criminal record, spanning 20 years and including 51 convictions for: dangerous driving (x 7); fail to stop (x 3); flight from police (x 3); drive while disqualified (x 14); fraud under (x 9); and breaches of various court orders (x 10). At the time of these offences, he was subject to 7 lifetime driving prohibitions.

[6] The trial judge provided extensive reasons for sentence. Referring to the appellant's record, the trial judge said:

His criminal record can only be described as that of a recalcitrant recidivist who has never been deterred from committing criminal offences. It is clear from his record that he has little or no regard or concern for the laws of this country, and anything other than his own selfish motivations.

[7] The trial judge considered all of the relevant aims of sentencing, including the appellant's prospects for rehabilitation, which were reasonably assessed as being poor. Understandably concerned about public protection, the trial judge said:

This is a case where the public needs to be protected from [the appellant], which can only be achieved by a lengthy penitentiary sentence. His offences are grave and need to be denounced by a jail sentence that will send a message and deter other like-minded individuals. There is also a tremendous need to specifically deter [the appellant], as up to this point, nothing has been able to deter his criminal conduct.

The Grounds of Appeal

[8] The appellant submits that the trial judge committed errors in principle that resulted in a sentence that was too harsh.

[9] The appellant argues that the trial judge erred by considering the offence elements of criminal negligence causing bodily harm as an aggravating factor. He also argues that the trial judge erred by treating the appellant's possession of a fake driver's licence and his decision to leave the scene of the collision as aggravating factors. We disagree.

[10] The trial judge's characterization of the appellant's driving conduct recognized the reality that some episodes of criminally negligent driving behaviour are more serious than others. Like many criminal offences, the offence in s. 221 captures a wide range of conduct. The appellant's driving conduct was prolonged, multi-faceted, and endangered many different people. The trial judge did not err in relying on the seriousness of this conduct, and the serious consequences that almost inevitably followed from it.

[11] Moreover, the trial judge did not err in considering that the commission of the other offences at the same time was an aggravating factor. The cluster of offences committed by the appellant, when considered together, warranted an increased sentence. The overall context made each offence more serious. For example, the appellant used the fake driver's licence to purchase the vehicle that was used to commit the other offences. The trial judge was entitled to take these factors into account in crafting an appropriate sentence. The trial judge's use of these factors did not result in a sentence that was disproportionate. We dismiss this ground of appeal.

[12] The appellant submits that the trial judge erred in the manner in which he used the appellant's extensive criminal record. He contends that the trial judge placed too much emphasis on the record and effectively re-sentenced the appellant for his past crimes. We disagree.

[13] The appellant's extensive record was an important factor in this case. It impacted on the appellant's prospects for rehabilitation. It was relevant to specific deterrence. Moreover, the trial judge recognized that the appellant's incorrigibility engages public protection concerns. The trial judge properly used the appellant's criminal record in addressing the proper aims and objectives of sentencing. It did not result in a disproportionate sentence: R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728. We would dismiss this ground of appeal.

[14] The appellant argues that the total sentence violated the jump principle. He argues that, because the most serious previous sentence he has received was 30 months' imprisonment, a sentence of 10 years (less pre-sentence custody) was crushing. Again, we disagree.

[15] The appellant's behaviour has not been curbed by his many previous sentences. The appellant's most recent suite of offences demonstrate how intent he is on driving, despite multiple court orders that prohibit him from doing so. The offences also demonstrate how little regard the appellant shows for the lives and safety of others. Indeed, on this occasion, the appellant literally ran away after seriously injuring another driver. The trial judge was right to place public safety above the other sentencing aims and objectives. In light of his past, the appellant's offences required the imposition of a sentence that was considerably longer than the sentences that the appellant had previously received. We note that the sentencing position of defence counsel at trial (6.5 years' imprisonment, less pre-sentence custody) was also a considerable step up from previously imposed sentences. We see no error.

[16] Finally, the appellant applies to adduce fresh evidence to demonstrate that the impact of the appellant's conduct on the victim was not as serious as presented to the sentencing judge. During the sentencing proceedings, after hearing a recording of the victim's impact statement, the appellant's counsel attempted to file two affidavits from family law proceedings concerning the victim and his wife. The appellant wished to use these documents to demonstrate that the appellant's conduct was not the cause of the victim's marriage breakdown (as he claimed that it was) and that the victim was more mobile than he had suggested (i.e., not being able to travel abroad or pick up his young son). The trial judge refused to simply receive into evidence these affidavits that were created for separate proceedings. He asked the appellant's trial counsel if he wished to cross-examine the victim, an offer that was declined.

[17] The appellant now seeks to adduce this evidence on appeal. We dismiss the application. It was open to the appellant to pursue this issue in the manner suggested by the trial judge. It is evident from the record that defence counsel at trial made a tactical decision not to pursue the issue. There is no suggestion that the trial counsel's representation of the appellant was inadequate. Consequently, the appellant is unable to surmount the due diligence criterion established in Palmer v. The Queen, [1980] 1 S.C.R. 759.

[18] Moreover, the admission of these family law affidavits would not have had any impact on the sentence that was imposed: R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487. While the affidavits touched on some of the victim's claims about the extent to which the collision had affected his life, there can be no doubt that the victim suffered serious injuries and experienced terrible pain as a direct result of the appellant's driving conduct. These affidavits do not detract from this harsh reality. It would not have affected the sentence imposed by the trial judge.

[19] The application to adduce fresh evidence is dismissed.

Disposition

[20] Leave to appeal sentence is granted, but the appeal is dismissed.

"K. Feldman J.A."

"Gary Trotter J.A."

"B. Zarnett J.A."