R. v. Malkowski
Ontario Court of Justice
Date: August 7, 2014
Court File No.: Orangeville 12-505
Parties
Between:
Her Majesty the Queen
— AND —
Michael Adam Malkowski
Court Information
Before: Justice J.W. Bovard
Heard on: June 26, 2014
Reasons for Sentence released on: August 7, 2014
Counsel:
- D. Garbaty, counsel for the Crown
- M. Morris, counsel for the accused Michael Adam Malkowski
BOVARD J.:
Introduction
[1] This is the sentencing of Michael Malkowski for dangerous driving causing death. The Court convicted him after a trial.
Facts of the Offense
[2] This offence occurred on Airport Road at the entrance to Caledon East Village. It was 8 p.m. on St. Patrick's Day, Saturday, March 17, 2012 during March break.
[3] The victim, 13 year old Sarah Harding, was walking along the gravel shoulder of Airport Road with her older brother, Evan and her girlfriend, Michayla Robinson. They were on their way to an ice cream shop in the Village.
[4] Suddenly, for no apparent reason and without warning, Sarah darted across the road. At the same time, Mr. Malkowski, with his brother in the passenger seat, was driving down Airport road at 152 kph, three times the speed limit, and he hit and killed her.
Position of the Crown
[5] The Crown asks for 18 months incarceration, probation with substantial community service work and a five year driving prohibition.
Position of the Defence
[6] The defense submits that the maximum period of incarceration should be six months. The defense agrees with a period of probation and substantial community service work.
Analysis
Aggravating Factors
[7] Mr. Malkowski hit and killed Sarah Harding as he was entering Caledon East Village. He was driving three times the posted speed limit, it was 8 p.m. and already dark on a Saturday night during March break. One would expect there to be people milling about. This exacerbates the danger that he created.
[8] In addition, he endangered the life of his brother who was sitting in the passenger seat.
[9] Susan Fisher-Harding, Sarah's mother, read her victim impact statement in court. She spoke of "the complete sadness and never-ending grief of losing a child". She said that she will never heal and will never be the same. Their family has changed forever.
[10] She stated "I was grieving so badly my children had to remind me that they are still alive. They still need me".
[11] Her business "has suffered profusely" because she does not have the mental strength to deal with "daily matters and situations". She tires easily. She no longer cooks. She said "I have no ambition to do much". She has been diagnosed with post-traumatic stress disorder.
[12] At times, her depression and anxiety have been crippling. She sometimes vomits and has body pains. At one point she could not raise her arms above her head. She feels her body is shutting down to protect itself.
[13] She said that "Night time and going to sleep is the absolute worst time". She has to take sleeping pills.
[14] She said that Sarah was her "special angel" and that even though "Sarah was young she understood and accepted me the way I am. She never tried to correct my grammar, tell me I'm overweight, or belittle me in any way. I called her my soul mate. I miss her painfully… People say how strong I am. I am not strong. I am numb".
[15] Paul Harding, Sarah's father, read his victim impact statement in court. He said that he and his wife are dealing with unimaginable grief. He does not care about things anymore and has lost much of the ambition he once had.
[16] He and his wife are both small business owners. They could not shut down their businesses because their livelihoods were at stake. Work was more difficult and deadlines were not met. He stated "I found it extremely difficult to concentrate on anything".
[17] Remarkably, Mr. Harding stated "I am not a vindictive man and I desperately hope some good can come from this event. Perhaps an option could be some community speaking programs given by the defendant, in lieu of some jail time? I don't know but I think Sarah would've wanted that".
[18] Kathy Fisher, Sarah's aunt, filed a victim impact statement. She wrote that Sarah's "passing has left a knot in my stomach and a hole in my heart". She stated, "I have no children so Sarah was like my own".
[19] Debra Thompson, Sarah's godmother, filed a victim impact statement. She said that "I have no daughters...Sarah was my daughter. I am no longer a Godmother. My daughter is gone forever..."
[20] Ms. Thompson wrote that she does not think as clearly as she used to. She lost the drive that she always had toward work. She lost her job. She is sad and depressed.
[21] Ms. Thompson is more depressed than she used to be. She has more anxiety and more fear. She is afraid that these feelings will never go away.
Mitigating Factors and Personal Circumstances
[22] Mr. Malkowski was 21 years old when he committed this offense. He is now 23 years old. He does not have a criminal record.
[23] He lives with his parents with whom he has a good relationship. They are very supportive of him.
[24] He does not have any dependents. He is in a long-term relationship with his girlfriend, Ms. Amanda Mohammed. She is also very supportive of him.
[25] Mr. Malkowski graduated from high school with honours. In 2011 he went on to complete the Truck and Coach Technician program at Centennial College. He graduated with high honours.
[26] In September 2013 he completed his apprenticeship as a Truck and Coach Technician, and obtained his certification from the Ontario College of Trades in December 2013.
[27] He is also a recipient of the Mack Truck Award.
[28] Mr. Malkowski has worked steadily since completing his education. While working, he continued his training and obtained his Ozone Depletion Prevention Certification.
[29] He currently works for Wajax Power Systems where he earns $28 an hour. He will lose his job as a result of the Court's sentence.
[30] He pays between $200 and $500 each month to his parents for rent. He is paying his legal fees for this case. Mr. Malkowski does not have any substance abuse problems.
Pre-Sentence Report
[31] Mr. Malkowski's Pre-Sentence Report is quite positive. It states that he was "polite and cooperative". He went to the interview prepared with proof of employment, schooling, therapy and multiple character references.
[32] Mr. Malkowski is extremely remorseful. In December 2012, he completed 100 hours of community service work for the Salvation Army. He did this of his own accord because he wanted to give back to the community.
[33] He admitted that it was hard to talk about the offense and that the experience has "scarred him". He has a hard time sleeping. Ms. Mohammed stated that he suffers from regular nightmares and calls her daily at 3 a.m. because he cannot sleep. Mr. Malkowski said that he lacks interest in activities in which he used to be involved.
[34] The Pre-Sentence Report states that Mr. Malkowski "is understanding of any sentence given by the Court." He is concerned with "the thought of a custodial sentence". He is willing to comply with any conditions imposed by the Court.
[35] Although his employer has accommodated his current driving restrictions, Mr. Malkowski is concerned how a license suspension might affect his employment in the future.
[36] In June 2012, shortly after the accident, he began to see Ms. Alla Arshakyan, a psychotherapist/psychometrist. Ms. Arshakyan has a master's degree in education, and a master's degree in Counselling Psychology. He continues to see her once or twice a month.
[37] Ms. Arshakyan provided a report regarding Mr. Malkowski. She believes that a custodial sentence will be detrimental to him.
[38] She states that Mr. Malkowski "has been addressing symptoms of mixed Anxiety and Depression Disorder and unresolved trauma". He is receptive to therapy and is making progress. He will continue to see her on a long-term basis. She states that the incident has changed him and the experience has been very hard for him and his family.
[39] Ms. Arshakyan reports that "…no punishment can be bigger than his self-condemnation and that deep sorrow and sadness he is experiencing, and will continue to experience throughout his life".
[40] She states that Mr. Malkowski needs support in his "attempts to redeem himself, to recuperate successfully from depression and post-traumatic symptoms, and to be a good citizen".
[41] Ms. Arshakyan states that "if he is detached from his family and professional help and put into stressful circumstances of imprisonment, it will be really difficult for him to regain his belief in life and people, and to progress… Besides, no punishment can be bigger than his self-condemnation and that deep sorrow and sadness he is experiencing, and will continue to experience throughout his life".
[42] Mr. Morris, defense counsel, submitted approximately 45 character reference letters on behalf of Mr. Malkowski. They cover all aspects of his life: personal, school, and work. They are from persons who have known him for several years and from persons who have known him almost all of his life.
[43] Without exception they describe a person of high moral character. He cares for others. He helps friends and strangers in need. He works hard in school, and is a valued employee. Many of the letters state that Mr. Malkowski is extremely remorseful.
[44] Renata Malkowski, Mr. Malkowski's mother, stated in her letter that "Michael has been more of a sad person since the accident; it is visible that he feels a lot of pain… The fact that a girl passed away in this accident will never leave him. I hear him praying for Sarah every night. Michael will not go to bed without praying and not once will he not pray for Sarah, she will always be in his heart".
[45] Mr. Malkowski read his letter to the Harding family in court. He expressed his sincere apology for what he did. He stated "I cannot fathom the type of pain that your family is going through…"
[46] He said that he was "undyingly remorseful for this tragedy" and that from the bottom of his heart he is truly sorry.
The Law
[47] Section 249(4) of the Criminal Code states that everyone who commits the offense of dangerous driving and causes the death of someone is guilty of an indictable offence and is liable to imprisonment for a term not exceeding fourteen years.
[48] With regard to the principles of sentencing, s.718 of the Criminal Code declares that:
The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(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.
[49] Sentences must be "proportionate to the gravity of the offence and the degree of responsibility of the offender" (s.718.1).
[50] In s.718.2, the Criminal Code directs that "a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender…". It lists certain factors as aggravating circumstances. The one that is relevant to the case at bar is:
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health…
[51] The section further states that:
a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
[52] In addition to the Criminal Code, I must consider the jurisprudence with regard to sentencing for dangerous driving causing death. Counsel referred to several cases.
[53] I thank counsel for this assistance. In a general sense it helps me to comply with the direction of the Criminal Code that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances".
[54] But no two cases are the same, and the similarities are often too general to assist the Court in determining the appropriate sentence in a specific case.
[55] I must sentence Mr. Malkowski according to the facts of his case, not simply copy what others have done in generally similar, but different cases.
Disposition
[56] Mr. Malkowski is a stellar young man who demonstrated unbelievably poor judgment on the night of March 17, 2012. He drove three times the speed limit as he was entering Caledon East Village. And in so doing, he committed the offense of dangerous driving and killed Sarah Harding.
[57] As he stated in his letter to the Harding family, the pain that he caused them is unfathomable. It will last their whole lives.
[58] In addition, Mr. Malkowski caused enormous pain and suffering to his family.
[59] Mr. Malkowski has not escaped pain and suffering either. As one of his friends stated in his letter, no matter how the court sentences him, he will always be in jail in his mind.
[60] There is nothing that the Court can do to Mr. Malkowski that will change what happened. There is no way to compensate the Harding family.
[61] Mr. Malkowski's otherwise exemplary life, the remorse he has shown, and his continuing counselling, lead me to conclude that individual deterrence is not a concern.
[62] However, general deterrence is an important factor. The Court must denounce the offense and deter others because this type of offense is all too common.
[63] The Court must keep in mind that it is not appropriate to pass a sentence that crushes Mr. Malkowski. He is a young man with a bright future and has tremendous support in the community.
[64] However, it is in society's interest that Mr. Malkowski pay a just and reasonable price for what he did. But it is also in society's interest that the Court sentence him in a way that enables him to live the rest of his life as a contributing member to society.
[65] Therefore, after considering all of the circumstances, the law, and counsels' submissions, the Court sentences Mr. Malkowski as follows:
[66] Mr. Malkowski will serve a period of incarceration of 9 months. This will be followed by a period of probation of 24 months.
[67] In addition to the statutory conditions, the Court orders Mr. Malkowski to comply with the following conditions:
Report to a probation officer as soon as possible after you are released from jail and after that as directed.
Perform 175 hours of community service work as directed by your probation officer.
Show proof of the completion of your community service work to your probation officer as directed.
Sign any releases of information required by your probation officer so that he or she can monitor your compliance with this order.
Mr. Malkowski will be prohibited under s. 259(2)(b) of the Criminal Code from driving for 18 months.
[68] The court would like to thank everyone involved in this trial for their assistance in dealing with this very difficult case.
Released: August 7, 2014
Signed: Justice J.W. Bovard