Court File and Parties
Ontario Court of Justice
Date: 2018-07-11
Court File No.: Newmarket 17-02833
Between:
Her Majesty the Queen
— and —
Lerrell Stennett
Reasons for Sentence
Submissions Heard: 11 July, 2018
Delivered: 11 July, 2018
Counsel:
- Mr. Philip Hsiung, counsel for the Crown
- Ms. Susan Pennypacker, counsel for the defendant
KENKEL J.:
Introduction
[1] Mr. Stennett left a nightclub and drove across Highway 7 at a speed far in excess of that which was safe for those conditions. He lost control of the car and it rotated then left the roadway. The car hit and cut down two light poles then continued into a car sales lot. It hit several parked trucks with great force moving several trucks together. Mr. Stennett's car was almost completely destroyed. The front seat passenger suffered life threatening injuries. Mr. Stennett was very seriously injured as was another passenger. Mr. Stennett was convicted at trial of Impaired Operation Causing Bodily Harm and Dangerous Operation Causing Bodily Harm.
[2] There are two issues for decision. First, does the rule in R v Kienapple regarding multiple convictions for the same delict apply on the facts in this case? Second, what is an appropriate sentence for a youthful first offender of good character who caused a violent crash resulting in life-altering injury to one of his passengers?
Rule Against Multiple Convictions
[3] In R v Kienapple, [1974] SCJ No 76, the Supreme Court explained that the res judicata principle in some cases applies to preclude multiple convictions arising from the same delict or wrongful act. The defence submits that the rule applies here to prevent convictions on both Impaired Driving Causing Bodily Harm and Dangerous Driving Causing Bodily Harm arising out of the same driving conduct. In R v Ramage, 2010 ONCA 488 at paragraph 64, the Court of Appeal explained that the offences are distinct. Impaired driving focuses on the accused's ability to operate a motor vehicle and dangerous driving focuses on the manner of driving. Here the accused drove far in excess of the speed that was safe resulting in a series of violent crashes causing extensive damage to property and numerous vehicles and causing significant injury. The accused's impairment may explain why he drove in that dangerous manner, but it's not an element of the dangerous operation offence. The two offences both address road safety, but do so by focusing on different risks – Ramage at para 64. I find Kienapple does not apply in this case.
Sentencing Submissions
[4] The Crown submits that a custodial sentence of 2 years less one day is required along with a 3-5 year driving prohibition and a DNA order.
[5] The Defence submits that a sentence of 15 months should be imposed with a 3 year driving prohibition. The defence takes no position on the Crown's request for a DNA order.
Aggravating Circumstances
[6] There are several important aggravating circumstances:
The speed of the vehicle which caused the trail of violent collisions as shown in the photographs of the damage to property and vehicles and as shown by the complete destruction of the accused's car and the severe injuries to those inside.
The injuries caused to Mr. Stennett's two passengers are a central aggravating circumstance but unfortunately there is limited information on this point. Both of his friends have declined to provide detailed victim impact information. With respect to the front passenger, she had life-threatening injuries and a brief agreed statement of fact filed on sentence states that two years after the incident she still has difficulties communicating verbally. She resides with her parents and requires daily assistance from a nurse.
The accused's driving posed a high degree of risk to all persons in that area that evening. The extensive damage and injury that resulted shows how lucky it is that no other car or pedestrian happened to be nearby at that moment on that major roadway. The photos of Mr. Stennett's car show how lucky it was that none of the three persons in that car were killed.
At the time of the crash, Mr. Stennett was not licensed to be operating a motor vehicle after having consumed alcohol. He had a restricted G2 license. Worse, five weeks prior to this incident he had received an important warning about drinking and driving with a G2 license – a roadside suspension and a provincial charge for operating a vehicle having consumed alcohol.
Mitigating Circumstances
[7] Mr. Stennett is a young man, 24 years old, with no prior criminal record. There are several further circumstances identified in the Pre-Sentence Report and the submissions of counsel:
Mr. Stennett is otherwise a person of good character.
Despite a difficult childhood Mr. Stennett completed high school.
Mr. Stennett has been steadily employed since leaving high school.
There's no evidence of drug or alcohol addiction which would pose further risk.
He has a supportive family.
He suffered significant injury as a result of his driving which is not a mitigating factor R v Suter, 2018 SCC 34, but it provided him with direct insight into the injuries suffered by his two passengers. His expression of remorse for the injuries he caused is thus informed and significant.
[8] There are also circumstances related to the offence and the trial that mitigate sentence:
Mr. Stennett's blood alcohol level was conservatively estimated to have been between 66mgs to 96mgs at the time of operation. That level was plainly sufficient to impair his judgment and other mental faculties necessary to safely operate a vehicle as described by the toxicologist, but when compared to many of the cases cited, it's at the lower end of that range. With respect to the impaired count that distinguishes his moral blameworthiness from other cases where there were higher blood alcohol levels.
The fact of a trial plays no role in sentence, however, I find there is some mitigation here in the fact that this trial was very focused. The defence made numerous helpful admissions that saved trial time and permitted the court to concentrate on the evidence that was important to both parties.
Analysis
[9] This case is like many others where a person of otherwise good character made a series of decisions that resulted in significant harm to others. It's likely that little more need be done to specifically deter Mr. Stennett from committing similar offences in the future. He suffered significant injury as a result of his actions and worse, he knows he caused terrible injury to his two friends. If specific deterrence were the only objective, the lengthy custodial sentence discussed by both parties would not be required.
[10] Specific deterrence is just one of many important objectives of sentencing. The sentence imposed must protect society by denouncing the unlawful conduct and acknowledging the harm done to the victims and the risk to the community. The sentence must not only deter Mr. Stennett but must also be such that it deters others from making the same mistake. The sentence must bring home to Mr. Stennett his responsibility for his actions and the harm he caused. It must also provide for his rehabilitation. Overall, the sentence must be proportionate to the gravity or seriousness of the offence and the degree of Mr. Stennett's responsibility or moral blameworthiness for the offence and its consequences.
[11] Both parties acknowledge that the fact that Mr. Stennett is a person of otherwise good character with no prior record does little to distinguish him from others who have been sentenced for similar offences. It is a feature of these offences that they are often committed by otherwise law abiding citizens – R v Gejdos, 2017 ABCA 227 at para 45.
[12] General deterrence, denunciation and acknowledgement of the harm done to the victims are the most important sentencing objectives in this case – R v Clouthier, 2016 ONCA 197. Both counsel agree with the general range set out in that case from mid-to-upper level reformatory to a lower-end penitentiary term.
[13] The driving as described above was plainly dangerous and posed great risk to everyone in that vehicle and everyone around it. The front passenger's injuries were life-threatening. If not for the prompt medical attention provided to all three things might have been even worse. The level of risk posed and the impact on the victims are significant aggravating factors.
[14] It's unfortunate that there are so few details about the impact on both victims. Even on the limited information that was provided, it's plain that the incident has substantially altered the life of one passenger. Her injuries have detracted from her ability to speak and she requires daily nursing care. There's no evidence about her future prognosis and it would further aggravate sentence if there were evidence that these changes were permanent, but after two years one must conclude that the gravity of the offence and its effects on others requires a significant custodial sentence.
[15] I agree with the defence that the low blood alcohol readings puts Mr. Stennett's blameworthiness on the impaired count at the lower end of the range. However, the fact that he was not licensed to drive after drinking alcohol and that he'd recently been warned about that conduct through a roadside suspension and provincial charge increases his responsibility for that offence. Otherwise, Mr. Stennett's age and the many mitigating features in his personal background support a request for a sentence reflecting restraint.
[16] Local conditions are also relevant – R v Lacasse, 2015 SCC 64. It's of note that two of the leading cases mentioned by counsel during submissions – R v Muzzo, 2016 ONSC 2068 and R v Ramage, 2010 ONCA 488 – were from York Region. Despite these very public tragedies, driving offences including drinking and driving offences have not diminished and continue to pose a threat to public safety.
Sentence
[17] I find the least restrictive sentence that could address all of the factors discussed above is a custodial sentence of 18 months followed by a period of probation. Mr. Stennett is sentenced to 18 months on the offence of Dangerous Driving Causing Bodily Harm. He's sentenced to 12 months concurrent for the offence of Impaired Driving Causing Bodily Harm.
[18] He'll be placed on probation for 18 months. In addition to the statutory conditions, the following terms will apply:
Report to probation as required
Not possess a license to operate a motor vehicle
Not occupy the driver's seat of any motor vehicle
[19] I'm aware that the province requires a drinking and driving counselling program along with Interlock installation and other conditions before Mr. Stennett will be permitted to drive. I don't find further counselling as a condition of probation is necessary in this case. I do not disregard the extensive damage to public and private property but there was no request for restitution and no information on sentence on which such an order could be made.
[20] Mr. Stennett will be prohibited from operating a motor vehicle anywhere in Canada for a period of 3 years.
[21] Dangerous Driving Causing Bodily Harm and Impaired Driving Causing Bodily Harm are both secondary designated offences under s.487.04. Considering the circumstances of these offences, the role that DNA can play in the investigation of like offences particularly where significant bodily harm is caused, the public interest in those investigations and the minimal intrusion on Mr. Stennett's privacy given the many limitations and protections in the databank system, I find it necessary in the public interest to order that Mr. Stennett provide a sample of his DNA for registration on the national databank.
[22] There is a mandatory victim fine surcharge with respect to each count. Considering his custodial sentence, Mr. Stennett will have 24 months to pay those amounts.
Delivered: July 11, 2018
Justice Joseph F. Kenkel