Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Samgar Probaharan

Before: Justice A.J. Hall

Heard on: February 25 and 27, 2014

Reasons for Judgment released: March 4, 2014

Counsel:

• Dennis Theman for the Crown
• Robert Tomovski for Samgar Probaharan

HALL J.:

[1] Introduction

The accused Mr. Samgar Probaharan entered a plea of guilty to the charge of dangerous operation of a motor vehicle on 25th February 2014 before me. He now appears before me for the purpose of sentencing.

The Facts

[2] Incident Details

On December 10, 2012 at approximately 8:25 p.m., the accused was driving a 2000 Honda Civic northbound on Brimley Road in Toronto. There were two passengers in the car: Mr. Marvin Stephens in the front passenger seat and Mr. Joshua St. Louis in the rear seat behind the front passenger.

[3] Loss of Control and Collision

The accused was driving significantly above the speed limit of 60 km per hour when he lost control of the motor vehicle. The motor vehicle mounted the boulevard and the front right bumper struck a tree. The "damage sustained by the front end of the vehicle on his right side coupled with the forces acting on the vehicle during the collision caused the vehicle's engine and other vehicle parts to dislodge and be projected in a northward direction on Brimley".

[4] Speed Estimation

It was estimated the motor vehicle was traveling at speeds between 84 km/h and 122 km/h. There is no suggestion that alcohol or drugs were involved in the collision. There was agreement that the central factor responsible for the collision is speed.

[5] Passenger Account

The passenger Mr. Marvin Stephens told the police that just before the collision, the accused asked him if he wanted to go faster. He responded no, but despite that the accused drove the vehicle northbound on Brimley Road at a high rate of speed and the collision occurred.

[6] Witness Observations and Admission

There were a number of witnesses who observed the vehicle to be traveling at a significantly high rate of speed on the day in question. At the scene of the collision, the accused admitted to the police he was the driver and the car was "flying".

[7] Post-Collision Conduct

The accused tried to help extricate the passengers from the vehicle at the scene of collision. He was also quite cooperative from the very early stages with the police investigation.

[8] Injuries

The three occupants of the vehicle were taken to hospital. Mr. Marvin Stephens suffered serious injuries: blood pooling in the abdomen, lower left leg fracture, ankle fracture and lacerations to the head. Mr. Joshua St. Louis suffered a cut to the back of the head and pain to his leg. There is no submission to me that the driver suffered any injury. Fortunately there were no permanent injuries.

[9] Relationship and Remorse

The accused and both passengers, Mr. Marvin Stephens and Mr. Joshua St. Louis, are exceptionally good friends. The accused visited Mr. Marvin Stephens on a number of occasions when he was in hospital, and the accused has apologized to both passengers. The apology was accepted by both passengers as genuine and sincere. The accused has seldom driven a motor vehicle since the incident in 2012.

Background of the Accused

[10] Employment and Age

The accused is a young man 26 years of age without a criminal record. He has a full-time job with Canadian Credit Reporting Limited, working as a junior business information specialist since July 2013.

[11] Education and Driving Record

He resides with his family in the city of Toronto and graduated from Ryerson University with a Bachelor of Commerce degree in finance. He plans to pursue a career as an accountant. The accused's driving record has three convictions for speeding under the Highway Traffic Act: one entry in 2010 and two other entries in 2012.

Position of the Parties

[12] Crown's Position

Mr. Theman for the Crown urges me to impose a suspended sentence, a period of probation of between 18 and 24 months, and a driving prohibition for two years. As well, the accused should be directed to perform 40 to 50 hours of community service and take counselling as per the direction of the probation officer. The Crown recommends also that the accused seek and maintain employment.

[13] Defence Position

Mr. Tomovski on behalf of the accused submits the appropriate sentence is that of a conditional discharge to be followed by a probationary period for 18 to 24 months, in addition to a driving prohibition for two years. On behalf of the accused, counsel submits the accused has exceptional prospects for rehabilitation. A conditional discharge, counsel submits, would be in the interests of the accused and not contrary to the public interest, especially if members of the public were fully informed of the accused's personal circumstances.

The Law

[14] Conditional and Absolute Discharges

The scheme known as absolute and conditional discharges is contained in section 730 of the Criminal Code, which reads:

where an accused, other than an organization, plead guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for 14 years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order directing that the accused be discharged absolutely or on condition prescribed in a probation order made on the section 731(2).

[15] Sentencing Considerations

In deciding the appropriate sentence I must consider the aggravating and mitigating factors.

[16] Aggravating Factors

The aggravating factors are as follows:

• The speed at which the accused was driving the motor vehicle.
• The driving occurred in a residential neighbourhood.
• Three convictions for speeding under the Highway Traffic Act.
• Injuries to the passengers as a result of dangerous operation of a motor vehicle.

[17] Mitigating Factors

Mitigating factors are as follows:

• The accused is young, being 26 years of age.
• He has no criminal record.
• The accused entered a plea of guilty without the necessity for a trial, saving court resources and the need for witnesses to testify at trial.
• The accused was cooperative with the police investigation.
• The accused wanted to enter a plea of guilty quite early in the proceedings.
• The accused has significant support from his family and from members of the larger community.
• Letters of reference that demonstrated the accused is a decent, kind human being and is remorseful.

Analysis

[18] Consideration of Defence Submissions

I have considered very carefully the submissions of defence counsel, Mr. Tomovski, that a conditional discharge is appropriate in this case. I've also considered the circumstances of the offence and the personal circumstances of the accused.

[19] Remorse and Forethought

I find that the accused was very sincere and remorseful about the driving that night; however, I am mindful that this type of offence requires some forethought on the part of the accused to depart from the normal standard of a prudent driver, and that's what occurred in this case.

[20] Sentencing Principles

In these classes of cases, the principles of denunciation and specific and general deterrence must come into sharp focus in the sentencing analysis.

[21] Best Interests of the Accused

Given the circumstances of the accused, particularly his youthful age and the absence of a criminal record, I have no difficulty in concluding that a conditional discharge would be in the best interests of the accused.

[22] Public Interest Analysis

On the question of the public interest portion of the analysis, however, I am not of the view that a conditional discharge is in the public interest. The accused's driving record, the fact that the passengers were injured, and the circumstances of the offence lead me to conclude that a conditional discharge would not be in the public interest.

[23] Inadequacy of Conditional Discharge

I find a conditional discharge in this case would be contrary to the public interest. Such a disposition would not adequately address the public interest in deterring the offence of dangerous driving.

Sentence

[24] Suspension of Sentence

I suspend the passing of the sentence.

[25] Probation

The accused will be placed on probation for 18 months commencing today.

[26] Keep the Peace

He will keep the peace and be of good behaviour.

[27] Court Appearances

He will appear before the court when required to do so by the court.

[28] Notification Requirements

Notify the court and the probation officer in advance of any change of name or address and inform the court and the probation officer of any change in employment or occupation.

[29] Probation Officer Supervision

Report today in person to the probation officer and thereafter be under the supervision of a probation officer or person authorized by the probation officer to assist in your supervision, and report at such time and place as that person may require.

[30] Cooperation with Probation Officer

Cooperate with the probation officer and sign any consent or release necessary to permit the probation officer to supervise you and provide on request proof of compliance with any term of this order.

[31] Community Service

Perform 50 hours of community service. I've noted that you have already completed 35 hours; therefore you must complete an additional 15 hours. Community service hours must be completed at a rate no less than three hours per month for consecutive months and shall be completed to the satisfaction of the probation officer or designate.

[32] Driving Prohibition

The accused is prohibited from driving a motor vehicle on any street, road, highway or other public place for 24 months commencing today.

[33] Victim Fine Surcharge

The victim fine surcharge is waived.

Released: March 4, 2014

Signed: Justice Hall