Court Information

Ontario Court of Justice Central West Region

Her Majesty the Queen -and- Carl Hutchinson

Proceedings conducted: 2015, at Brantford, Ontario Decision and Reasons issued: September 23, 2015

Appearances

Hawkes, V. for the Prosecutor Renwick, J. for the Defendant

Statutes Considered or Cited

Decision of the Court

Conviction and Charges

[1] This is a case before me for sentencing on five counts under the Highway Traffic Act. Mr. Hutchinson was convicted after entering informed pleas of guilty to the offences of drive while license suspended, being the owner of a motor vehicle and driving that motor vehicle without insurance, failing to notify the Ministry of Transportation within six days of becoming owner of a motor vehicle, using a plate on a motor vehicle for which that plate was not intended, and not having a currently validated permit.

Sentencing Positions

[2] The prosecution seeks a period of custody for Mr. Hutchinson in relation to two of the counts: drive suspended and use plate not authorized. In relation to the insurance offence, the prosecution seeks a monetary penalty in the amount of fifteen to twenty thousand dollars. The prosecution suggests that any penalty for the remaining charges be stayed.

[3] In support of its position, the prosecution relies on the defendant's record of driving convictions, which includes nine convictions for drive suspended, six convictions for owning and operating a motor vehicle without insurance, and eight plate infractions.

[4] The defence argues that the defendant was recently convicted of charges under the Criminal Code of Canada for offences which arise out of the same circumstances and investigation that resulted in these charges. For those matters, the defendant was sentenced cumulatively to forty three months in custody, which will be served in a federal penitentiary. As a result, and asserting that the Court ought not eliminate any "faint hope" of rehabilitation for this defendant, the defence would not oppose the custodial dispositions sought by the prosecution, however, sought an order that any sentences be served concurrently with the sentences for convictions under the Criminal Code. Further, the defence argues that this proceeding is simply a "second kick at the can" in relation to the charges faced by the defendant, and is simply an effort to get what the prosecution was otherwise unable to achieve through the sentencing for the criminal matters. Further, defence argues that the defendant will have no prospect of income while incarcerated and thus would be unable to pay any fine imposed.

[5] In response, the prosecution relies on s.64[1] of the Provincial Offences Act for the proposition that any sentence imposed ought to be consecutive to the sentencing for the criminal matters.

Issues and Analysis

Burden of Proof for Concurrent Sentencing

[6] The burden of establishing that I should make an order that any sentence imposed be served concurrently rests, as I understand it, on the defence, pursuant to s. 47(3) of the POA[2].

Driving Record

[7] A review of Mr. Hutchinson's driving record confirms the nine convictions for driving while suspended, although the most recent is in 2010. In addition, Mr. Hutchinson has four convictions for driving with an improper class of licence or without a licence (most recently 2013), as well as for driving while disqualified, under the Criminal Code of Canada. Finally, he also has two entries for failing to produce a licence.

[8] In addition to the seven convictions for owner operate motor vehicle without insurance (the most recent in 2002), he has entries for failing to produce proof of insurance.

Sentencing Range and Penalties

[9] It is clear that the custodial dispositions sought by the Prosecutor are at the upper end of the range. The minimum fine for the insurance conviction is ten thousand dollars (this being subsequent to a first conviction) and likewise the maximum is fifty thousand dollars. Thus, the penalty sought is in the low to mid-range of available penalty. Other than the monetary penalty set out above, there are only limited additional sanctions that could be imposed in relation to this offence.

Pre-Sentence Report and Criminal Sentencing

[10] The Court inquired into the availability of both the pre-sentence report prepared in relation to the criminal matters, as well as the reasons of the sentencing judge, in the hope they may shed light on the reasons for the length of the sentences and any aggravating or mitigating factors, as well as potentially providing some assistance in applying the principle of totality. Those were requested and provided to the Court.

[11] From those, it is clear that the allegations are unrelated in nature to the charges before this Court. The sentencing judge considered the criminal antecedents, and the optimistic changes that may be emerging in the defendant's life. In that regard, the sentencing judge observed "You have a new partner. You have business prospects in the community." More specifically, the pre-sentence report indicates that:

the subject served his custodial time [ed. note: for prior convictions on criminal matters] and was released. Shortly thereafter he met his current wife who had custody of her young, vulnerable grand-daughter at that time. The subject purchased a home in Brantford, started his own renovation business and they were married on April 13, 2013…

At the time of his arrest for the current charges [ed. note: exclusively focussing on the criminal matters], the subject was self-employed. He started Hutchinson Renovation and Handyman Services in 2013 and reported that he has been successful. For the most part, when not incarcerated, the subject has been able to secure employment as a general labourer in construction, factory and carpentry… The subject rarely accessed social assistance. Ministry of Community Safety and Correctional Services file information confirms the subject's general history of employment.

Finally, the report indicates:

According to the subject, he and his mother hold the mortgage on his home and he is concerned about the financial strain on his mother should he not be in a position to assist her at the time of renewal. Short term goals include finishing his grade 12 diploma and obtaining his plumbing certificate while incarcerated. Upon release, the subject's goals include making his marriage work and maintaining the home and life he has built in Brantford.

[12] It would appear from the reasons referenced above that the penalty imposed was in the mid-range and also gave credit for the guilty plea and acceptance of responsibility for the acts that form the basis of the conviction.

[13] There is nothing in the reasons that assists in consideration of how the totality principle might apply, as clearly the sentencing judge was unaware of these still outstanding matters.

Coordination Between Courts

[14] The Court is mindful and raised with the parties the principles set out in its recent decision in R. v. Robinson [2015] O.J. No. 2909. Notwithstanding that decision, the parties agreed that it was appropriate to proceed at the Brantford municipal partner court. The defence lamented, as do I, that the prosecution failed to respect the provision of that Memorandum that could have resulted in these matters being addressed in a court operated by the Ministry of the Attorney General, and, one imagines, likely at the same time as the criminal matters.

[15] That aside, and recognizing that no cases were lead before me to assist in assessing how the principle of totality might apply to the issues before me, I am left in something of a vacuum.

Sentencing Principles

[16] This, then, recommends that I apply the general principles of sentence, being to achieve general and specific deterrence.

[17] In this case, I have no allegations apart from the charges as particularized on the Information and the defendant's record. I have no additional information that would assist me in assessing any aggravating or mitigating factors (aside from the guilty pleas themselves, which entitle him to some favourable consideration). I have no information regarding prior penalties imposed on this defendant in relation to earlier convictions.

Consecutive vs. Concurrent Sentencing

[18] With regard to the question of whether any custodial sentence should be served consecutively or concurrently, I find no reason to order that the sentence be concurrent. The facts related to the drive suspended are in no way necessarily connected with the Criminal Code of Canada convictions, except for timing. There is no reason to believe that its commission was a necessary element of the Criminal Code of Canada offences or visa-versa.

[19] Perhaps, more importantly, directing that the sentence I impose be served concurrently effective renders such sentence as meaningless. In effect, it becomes a "gimme", in spite of the appalling history that this defendant presents.

[20] I am mindful of and encouraged by the positive changes in the defendant's life and would be happy to strike a balance that would foster rehabilitation and advancement towards his goals on release. I am also mindful of the strain that extending the period of incarceration might place on the defendant's mother.

Sentencing Decision

[21] Notwithstanding that, I will adopt the range proposed by the parties in regard to the drive suspend, however, in light of the plea, I will sentence at the low end of that range and impose a period of custody of four months, to be served consecutive to the other, already imposed sentences. This defendant must understand that driving while suspended cannot be tolerated and hopefully this period of extended custody will drive that message home.

[22] Likewise, I will adopt the prosecution position in relation to the plate infraction, and impose a sentence of fifteen days, however, this is to be served concurrently with the sentence for drive suspended.

[23] In relation to the insurance offence, it is clear that the defendant will have no hope of paying any fine I impose while in custody. Further, I have no information about the total amount of fines that the defendant may have outstanding, if any. Against that, I have the recognition that he has assets and income potential. It certainly flows logically from the period of custody that this defendant faces results in will be unable to pay such a fine while in custody.

[24] In this light, and given the limited options available to me to impose other forms of sanction for this offence, and having regard to the number of prior convictions, I find it appropriate to impose the minimum sentence established by law, that being ten thousand dollars. For obvious reasons, I will afford the defendant an initial period of sixty months from today's date to commence payment and will anticipate that counsel will appropriately advise his client in regard to making future payments and requests for extension of time to pay.

[25] Finally, I will suspend sentence on the remaining two matters.

Issued at Brantford, Ontario, 23 September, 2015

His Worship Donald Dudar Justice of the Peace

Footnotes

[1] S. 64 provides "Where a person is subject to more than one term of imprisonment at the same time, the terms shall be served consecutively except in so far as the court has ordered a term to be served concurrently with any other term of imprisonment."

[2] S. 47(3) reads "The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information."

R. v. Hutchinson, 2015 ONCJ 524

Case Summary