COURT FILE NO.: 12-10000511-0000

DATE: 20140424

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JOSEPH ZARB

Defendant

Helen Song, for the Crown

Anthony Marchetti, for the Defendant

HEARD: June 5, 6, 7, 10, 11, 12, & 13, 2013

r.f. goldstein j.

reasons for sentence

1. Overview

1. Overview

1On June 13 2013 a jury convicted Mr. Zarb of three counts of dangerous driving causing bodily harm, and three counts of failure to stop at the scene of an accident with intent to escape civil and criminal liability. He now comes before the Court for sentencing.

2. The Facts

(a) Circumstances of the offence

2. The Facts

2On July 27 2011 Mr. Zarb was driving a Mini Cooper automobile eastbound on Highway 401. It was a sunny summer day. The highway was clear and dry. What witnesses described as aggressive driving and mutual cutting off occurred between his vehicle and a Jeep Cherokee driven by Stan MacDonald. The aggressive driving and mutual cutting off commenced in the express lanes near Yonge Street and continued eastbound. The Mini and the Jeep were driven at speeds well above the limit. Crown counsel accurately described Mr. Zarb and Mr. MacDonald as “driving like idiots”. In the area of Nielson Road Mr. Zarb the Jeep moved in front of Mr. Zarb’s car. The two vehicles were travelling near the barrier separating the eastbound and westbound express lanes. Witnesses described the Mini moving to go around the Jeep to the right. As it did so, the Mini’s front bumper came into contact with the Jeep’s rear bumper. The contact caused the Jeep to rotate into the concrete barrier separating the eastbound and westbound express lanes. The Jeep then rolled over across the express lanes, hit a concrete post, and came to rest up against the concrete barrier separating the eastbound express lanes from the collector lanes.

3There were two passengers in Mr. MacDonald’s car: Joseph Vig and Richard Guerin. Mr. MacDonald was ejected from the vehicle. Mr. Vig and Mr. Guerin remained in the Jeep but were both injured. Mr. MacDonald was catastrophically injured and is in a state where he was unable to testify.

4Constable Steven St. Amand is an officer with the Highway Safety Division of the Ontario Provincial Police. He was qualified by the Court to give expert evidence in accident reconstruction. He gave evidence before the jury. His report was made an exhibit. He examined tire marks, transfer marks, and gouge marks in the highway. He also examined blood, vehicle debris, and fluid. He also examined the Jeep and the Mini. He concluded that the front bumper of the Mini was in contact with the trailer hitch on the back of the Jeep. It was that contact which caused the Jeep to hit the concrete barrier and subsequently roll across the highway. In my view, the jury must have accepted the evidence of Constable St. Amand regarding the manner in which the Mini came into contact with the trailer hitch of the Jeep. Constable St. Amand also examined the seat belts and concluded that Mr. MacDonald was not wearing his at the time of the accident. I accept this evidence.

5The Mini was seized from Mr. Zarb and examined. There were home-made repairs made to the front bumper and the licence plate. The bumper was re-touched with blue paint that was different from the factory paint.

6After hearing the evidence and the jury’s verdict, I make the following findings of fact about the evidence:

• The front bumper of Mr. Zarb’s vehicle touched the back bumper of the Jeep, specifically the trailer hitch;

• That touching caused the Jeep to rotate into the concrete barrier separating eastbound and westbound traffic;

• After touching the barrier the Jeep rolled over and across Highway 401;

• The jeep came to rest touching the concrete barrier separating the eastbound collector and express lanes;

• Mr. Zarb drove through the debris as pieces of the Jeep came off;

• Mr. Zarb was aware that the Jeep had impacted the barrier and rolled across the highway and he was aware that the front bumper of his vehicle had come into contact with the rear bumper of the Jeep;

• Mr. Zarb attempted to cover up the damage to his vehicle;

• Mr. MacDonald was ejected from the vehicle while it rolled over; he was not wearing his seat belt;

• Mr. MacDonald suffered catastrophic injuries;

• Mr. Vig suffered serious injuries;

• Mr. Guerin suffered significant injuries but not as serious as the injuries sustained by Mr. Vig or Mr. MacDonald;

• Mr. Zarb either knew or was wilfully blind to the fact that the occupants of the Jeep suffered bodily harm.

(b) Circumstances of the offender

(b) Circumstances of the offender

7Mr. Zarb has significant mental and physical health issues. Tragically, he has been diagnosed with Huntington’s Disease. He is 45 years old, has never been married, and has no children. The pre-sentence report is disturbing. Mr. Zarb indicated to Ms. Summers, the probation officer, that he and his sisters were malnourished as children while his father kept his own fridge in the basement. He said that he weighed 86 lbs in high school. He said that his sisters abused him and that his father and the rest of the family want him to be in financial despair. He said that his mother was abused by his father. His parents divorced in 1983. His mother was diagnosed with Huntington’s chorea in 1983 and died in 1995. Mr. Zarb’s sister (who is also his surety) denied all of these allegations. She said that the Huntington’s was making him paranoid. Their father has tried to help Mr. Zarb and offered to assist him financially.

8Mr. Zarb is a pastry chef by profession. He had his own bakery for almost 20 years. He sold the bakery to a sister and his sole income is the $1200 payment he receives per month. His financial situation, as set out in the pre-sentence report, is difficult as he also has taken a bank loan that he must repay.

9Mr. Zarb was injured while riding his bicycle in 2008 and has been diagnosed with post-traumatic stress disorder. He suffered significant physical injuries and has been unemployed since then. His psychiatrist, Dr. Omoruyi, indicated in his report that Mr. Zarb suffers from major depressive disorder; recurrent anxiety disorder; alcohol abuse, Huntington-related paranoia; onset of Huntington depression; Huntington’s chorea; and declining cognition. Dr. Omoruyi believes that suicide prevention counselling is required. Dr. Fung, another psychiatrist who examined Mr. Zarb, noted in contrast that Mr. Zarb denied any suicidal or homicidal ideation. Mr. Zarb is on the anxiety medication Celexa. It was Dr. Omoruyi’s opinion that incarceration would greatly increase hardship from his medical condition. In his testimony, however, he agreed that he had limited exposure to institutional settings and no real knowledge of the facilities available in prison, although he was aware that Canadian custodial institutions have psychiatric care available.

10Mr. Zarb is something of a recluse. He has no friends and his only companionship comes from his dogs. His only exercise is walking his dogs.

11The pre-sentence report is disturbing, not only for the prognosis faced by Mr. Zarb, but also because of the behaviour that it describes. In addition to the paranoia noted by Mr. Zarb’s sister and Dr. Omoruyi, Ms. Summers, the probation officer, observed that Mr. Zarb is under stress, cries uncontrollably, apologizes incessantly, remains suicidal, suffers from weight loss, and claims to have limited support from his family. Ms. Summers, whose report I found to be extremely helpful, is concerned that he lacks the skills necessary to defend himself in jail appropriately. Ms. Summers also noted that his decline in cognitive functioning was apparent.

12Mr. Zarb has what can only be described as a terrible driving record as I relate below. In my view, he had no business being behind the wheel of a car on July 13 2011. There is no suggestion that Huntington’s disease played any role in the offences.

(c) Impact on the victim and the community

(c) Impact on the victim and the community

13It is not an exaggeration to say that a car crash like this one destroys many lives, even where there have been no fatalities. All members of society depend on the roads. Highways like the 401 are extremely important socially and economically in our society, but they are also potentially very hazardous. Travelling at high speeds is an ordinary activity but also inherently dangerous. The actions of a few can cause great harm to many innocents. We all depend on each other to drive lawfully and properly.

14Mr. MacDonald’s life is virtually destroyed. He will never be a functioning, productive member of society. His family is now burdened with caring for him. He has severe brain damage. According to his wife’s victim impact statement he has severe mood swings and the emotional empathy of a five-year old, although he is 39. He can not walk properly and will require a walker for the rest of his life. He is in pain and requires constant care. He cannot play the sports he once enjoyed.

15The impact on Mr. MacDonald’s family has been emotionally and financially catastrophic. His wife has to constantly care for him, and, as a result, she lost her job. Mr. MacDonald obviously cannot work either. Mr. MacDonald no longer has a real relationship with his son.

16It, must, however, be pointed out that Mr. MacDonald is to a very large degree the author of his own misfortune, as he played as large a role in the dangerous driving as Mr. Zarb. Additionally, he foolishly and inexplicably failed to wear his seat belt. There is no evidence as to what Mr. MacDonald’s condition would have been had he worn his seat belt. I believe, however, that I can draw the inference that he likely would have suffered less significant injuries if he had been wearing his seat belt, as he likely would not have been ejected from the car.

17Mr. Vig and Mr. Guerin have also suffered significant problems but they have not been harmed to the same degree as Mr. MacDonald. They were both passengers in Mr. MacDonald’s vehicle and did not participate in the foolish driving. They carpooled to work with him. Mr. Vig had expressed concerns about Mr. MacDonald’s driving prior to the accident, although Mr. Guerin did not.

18Mr. Vig was off full-time work for 18 months. He suffered several broken bones and tissue damage. His normal sleep pattern has been disrupted. His spine was broken in two places. He is seeing a psychologist once per week and a chiropractor twice per week. His family his suffered as he can no longer do the chores that he once did, and can no longer lift heavy objects. He has suffered some financial loss as he is unable to work as many hours and as he used to.

19Mr. Guerin did not provide a victim impact statement but he testified at the trial that he suffered from a broken shoulder and fractured ribs. He was off work for four months.

3. Legal Parameters

3. Legal Parameters

20The maximum penalty for an offence contrary to s. 249(1)(3) of the Criminal Code is ten years. The maximum penalty for an offence contrary to s. 252(1.2) of the Criminal Code is ten years. It is a necessary implication of the jury’s verdict that Mr. Zarb knew or was wilfully blind to the fact that bodily harm resulted. Although the word “knew” is the term used in s. 252(1.2), wilful blindness is the equivalent of knowledge: R. v. Sansregret, 1985 79 (SCC), [1985] 1 S.C.R. 570 at paras. 21-23.

21Counsel agree that a conditional sentence is not available for these offences. I agree. In R. v. Cepic 2010 ONSC 561, [2010] O.J. No. 1247, 93 M.V.R. (5th) 129, 2010 CarswellOnt 1821 (Sup.Ct.) Wein J. analyzed whether dangerous driving causing bodily harm is a “serious personal injury” offence and thus excluded from consideration for a conditional sentence. She found that it was. I respectfully adopt Wein J.’s reasons. I note that at least one provincial court of appeal also agrees: R. v. O’Keefe, [2011] N.J. No. 203, 2011 NLCA 41, 309 Nfld. & P.E.I.R. 253 (C.A.)

4. Positions of the Crown and Defence

4. Positions of the Crown and Defence

22Crown counsel suggests that there are few, if any, mitigating factors in this case. She argues that Mr. Zarb’s deteriorating health is not a mitigating factor as it can be dealt with in prison. She points instead to many aggravating factors: Mr. Zarb’s poor driving record, the great injuries sustained by Mr. MacDonald, and the heedless manner in which Mr. Zarb drove. She suggests a sentence in the penitentiary of four to six years on the three dangerous driving causing bodily harm counts. She further suggests that a sentence of one to two years in relation to the fail to remain counts is appropriate, consecutive to the dangerous driving counts.

23Crown counsel filed an affidavit from Ian Irving, the Regional Manager of Clinical Services of Correctional Services Canada in the Ontario Region. He described the various services in place in federal correctional facilities to deal with offenders with physical and psychiatric problems. Crown counsel also filed an affidavit from Jeremy Mills, the Regional Manager of Institutional Mental Health for Correctional Services Canada in the Ontario Region. Mr. Mills described the services and facilities in federal correctional institutions that deal specifically with offenders with psychiatric problems. He reviewed Mr. Zarb’s psychiatric and neurology reports. He indicated that Correctional Services has treated inmates with similar and more severe symptoms than Mr. Zarb. He believes that Mr. Zarb can be accommodated in a federal custodial facility.

24Mr. Marchetti argues that the range set out in the cases relied on by the Crown is too high. Although he does not trivialize the harm to Mr. MacDonald, and does not diminish Mr. Zarb’s moral culpability, he argues that it should not be forgotten that Mr. MacDonald was substantially, if not equally at fault here. He disagrees with the Crown that there are no mitigating factors. He points to Mr. Zarb’s physical and mental health. He says that every day Mr. Zarb is in jail will be disproportionately harsh given his deteriorating condition. He also relies on the comment in the pre-sentence report that Mr. Zarb will have great difficulty defending himself in jail. He suggests that a more appropriate range is ten months to two years less a day in the reformatory.

5. Case Law

5. Case Law

25The Crown relied on R. v. Regier, 2011 ONCA 557, [2011] O.J. No. 3749, 282 O.A.C. 392, 16 M.V.R. (6th) 20, 2011 CarswellOnt 8338 (C.A.). The offender had a lengthy record of Highway Traffic Act offences. Two people were killed as a result of his driving, and a third driver badly injured. The Court upheld a sentence of six years.

26The Court in Regier relied principally on the earlier decision in R. v. Boukchev, 2003 26654 (ON CA), [2003] O.J. No. 3944, 177 O.A.C. 119, 2003 CarswellOnt 3954 (C.A.). The egregious facts of that case were summarized by the Court as follows:

On September 16, 2002, at 10:45 p.m. the respondent ran a red light at a high rate of speed, flashed his high beams to get people out of his way as he continued to drive at an excessive rate of speed, came to another well-lit intersection, ran over the 20 year old victim while he ran another red light and dragged her about 190 meters north of where she was first struck. There was no evidence that the respondent applied his brakes at any time before or after striking the victim. Even though the respondent's windshield was shattered and the front end of his van was severely damaged, he drove on without stopping. This, despite knowing he had caused the victim's death and that he had left her body lying in the middle of the road.

27The Crown appealed the 21-month sentence. The Court of Appeal agreed that the sentence was manifestly unfit. The Court imposed a sentence of five years less nine months of pretrial custody. The Court stated:

The appellant submits that the sentence is demonstrably unfit and does not achieve an appropriate level of denunciation and deterrence. We agree. Sentences have tended to increase in severity for these types of offenses because of the heightened recognition of the need for general deterrence and protection of the public.

28In R. v. Balcha, [2003] O.J. No. 4721 (Sup.Ct.) the accused and his girlfriend were walking down the street when someone threw a beer bottle at him. He was hit and injured. He got into his car and pursued the person who threw the bottle. He deliberately ran down a person whom he mistakenly thought was the assailant, causing severe injuries although the victim made an excellent recovery. He was convicted by a jury. He received a positive pre-sentence report. Grossi J. imposed a sentence of two years less a day on the dangerous driving causing bodily harm count and one year concurrent on the fail to remain count. He also ordered a five year driving prohibition. A conditional sentence was available for this offence at that time but Grossi J. declined to order one. The Court of Appeal upheld the sentence (see: R. v. Balcha, 2004 396 (ON CA), [2004] O.J. No. 1217, 184 O.A.C. 256, 184 C.C.C. (3d) 1, 6 M.V.R. (5th) 159 (C.A.)) but varied the driving prohibition to one year.

29In Cepic, which I referred to earlier, the offender crossed three lanes of traffic. He cut off several vehicles and struck another vehicle. The other vehicle was carrying a family of four. Three of the four suffered significant injuries. The offender was very remorseful and pleaded guilty, apologizing to the victims and to the court. There was a positive pre-sentence report. Wein J. found that the paramount consideration was general deterrence. She sentenced the offender to 184 days in jail with credit of 98 days (49 days at two-for-one). She then imposed a sentence of the remaining 84 days to be served intermittently, along with a 2 ½ year driving prohibition.

30The Crown also relied on R. v. Hekmati, [2011] O.J. No. 3703 (Sup.Ct.). The offender was convicted of impaired driving causing bodily harm and criminal negligence causing bodily harm. He was driving with more than twice the legal limit for alcohol when he struck the victim’s car at more than 100 km/h in a 60 km/h zone. The victim, who suffered catastrophic brain injuries, was driving his wife and son to a Christmas concert at the son’s school. The offender had three previous convictions for “over 80”. Garton J. concluded that a sentence of five years was appropriate. She credited the offender with two years of pre-trial custody and imposed a further year.

31In R. v. Kresko, 2013 ONSC 1631, [2013] O.J. No. 1213, 42 M.V.R. (6th) 224, 2013 CarswellOnt 2981 (Sup.Ct.) the offender was convicted by Himel J. of refusing to provide breath sample causing death, refusing to provide breath sample causing bodily harm, two counts of failing to stop at the scene of an accident causing bodily harm, and driving while disqualified. He was impaired when he collided with another vehicle. He killed a woman and severely injured a child. He had a previous conviction for “over 80” and a terrible driving record. After an extensive review of the cases Himel J. imposed a sentence of five years (with credit for time served) and a lifetime driving prohibition.

32Mr. Marchetti relied on R. v. Gouldreault, 2004 34503 (ON CA), [2004] O.J. No. 4307, 191 O.A.C. 72, 190 C.C.C. (3d) 19, 7 M.V.R. (5th) 163 (C.A.). The offender was convicted of impaired driving causing bodily harm after striking another vehicle from behind and injuring the driver. It was his fourth conviction for a drinking and driving related offence. The trial judge imposed a sentence of sixty days, two years probation, and a four year driving prohibition. Labrosse J.A. held that the sentence was a marked departure from the appropriate range of sentence. Nonetheless, he upheld the sentence on the grounds that the lengthy period of the probation and driving prohibition offset the leniency of the period of incarceration.

33Both Ms. Song and Mr. Marchetti referred to R. v. Rawn, 2012 ONCA 487, [2012] O.J. No. 3096, 294 O.A.C. 261, 2012 CarswellOnt 8424 (C.A.). Ms. Rawn and the driver of another vehicle engaged in very aggressive driving. The two cars eventually collided. Seven people were injured. The other driver pleaded guilty to one count of dangerous driving causing bodily harm and received a suspended sentence and 18 months of probation as well as a one year driving prohibition. After a jury trial Ms. Rawn was convicted of seven counts of dangerous driving causing bodily harm. The trial judge, having regard to the parity principle, imposed a suspended sentence and a two year driving prohibition. Epstein J.A. found that the trial judge gave excessive weight to the parity principle and failed to give sufficient weight to the principles of general deterrence and denunciation. She noted that the range of sentence was up to two years, although sentences could be higher. Epstein J.A. emphasized the serious nature of dangerous driving causing bodily harm and emphasized that a period of incarceration was generally necessary as well as a significant driving prohibition. She imposed a sentence of nine months with a five year driving prohibition. Ms. Song obviously emphasizes Epstein J.A.’s strong language about the need to send a message that the courts will not tolerate driving behaviour that endangers us all. Mr. Marchetti obviously emphasizes Epstein J.A.’s comments about the range of sentence available.

34My review of the cases indicates that sentences tend to be far more severe in cases where death has occurred or where alcohol has played a role. The most severe sentences are reserved for cases where there has been a combination of death and impairment due to alcohol. The most recent decision of the Court of Appeal in Rawn seems to indicate that general and specific deterrence must play an important role. Sentences in the upper reformatory to lower penitentiary range are the norm for a first offender with no significant criminal or driving record who has been convicted of dangerous driving causing bodily harm. Cases for fail to remain appear to attract sentences in the lower to mid reformatory range.

6. Mitigating and Aggravating Factors

6. Mitigating and Aggravating Factors

35In this case the critical mitigating factor is the deteriorating state of Mr. Zarb’s health. I accept the evidence of Dr. Omoruyi regarding Mr. Zarb’s mental health. I accept his evidence that the time span from diagnosis of Huntington’s disease to death is 15 to 25 years. Mr. Omoruyi testified that he suspected that Mr. Zarb had Huntington’s disease when he first started treating him. This means that Mr. Zarb may be close to half-way through the 15-year period at the low end of that particular range. I am aware that Mr. Zarb has denied suicidal ideation, but I also accept Dr. Omoruyi’s opinion, based on his five years as Mr. Zarb’s psychiatrist, that suicide prevention counselling is required.

36From what I can see, Mr. Zarb is not fully remorseful. It was his right to have a trial. He told Ms. Summers different things about the incident. He eventually told Ms. Summers that he took full responsibility for his actions. It is obviously not an aggravating factor that he had a trial. Although I ultimately agreed with the jury’s verdict, I also agree with Mr. Marchetti’s observation that there were legitimate triable issues of causation. That said, Mr. Zarb does not have the mitigating benefit of a guilty plea and an expression of remorse.

37Regrettably, Mr. Zarb’s deteriorating mental and physical health mean that he has not been gainfully employed for some time and is unlikely to ever be gainfully employed. It is difficult to say this, but he does not face a hopeful future and has few prospects. Unlike other cases where individuals with lengthy criminal records have destroyed their own chances through anti-social behaviour, most of Mr. Zarb’s future difficulties stem from his declining mental and physical health. I find this to be a mitigating factor.

38The aggravating factors in this case are obvious: the circumstances of the offence were very egregious. Mr. Zarb caused a horrific accident, knowingly left the scene, and then attempted to cover it up both by making a home-made repair to his car and by misleading the police. It is also highly aggravating that Mr. Zarb has an unenviable driving record. His record dates back to 1992. He has consistently operated a motor vehicle without insurance, which was noted in Ms. MacDonald’s victim impact statement. He has multiple convictions for careless driving, speeding, unsafe lane changes, and disobeying legal signs. His last conviction was for racing or stunt driving. He was convicted in 2012 for behaviour from 2009, although there were other convictions for driving offences for behaviour after 2009. Overall, as I indicated earlier, Mr. Zarb had no business being behind the wheel of a car on July 13 2013. His licence had been suspended and then expired. His awful driving should have been enough to keep him off the road alone. In my view it is highly aggravating that Mr. Zarb was driving with a suspended licence, without insurance, almost exactly a year after being convicted of racing/stunt driving.

39Because Mr. Zarb was apparently driving without insurance, it means that victims of the accident will be compensated from the provincial accident fund. In other words, the financial consequences of his behaviour will fall on the taxpayers. This, too, is an aggravating factor.

7. Principles of Sentencing

7. Principles of Sentencing

40The purposes and principles of sentencing are set out in s. 718, 718.1, and 718.2 of the Criminal Code. The court must always balance the prospects of rehabilitation with the need for general and specific deterrence. Denunciation may also play a role. I am guided by the Court of Appeal’s decision in Rawn that deterrence and denunciation are the primary principles of sentencing to be applied in dangerous driving cases.

8. Ancillary Orders

8. Ancillary Orders

41Ms. Song and Mr. Marchetti both agree that I should impose a ten year driving prohibition, the maximum permitted by s. 259(2)(b) of the Criminal Code. In submissions, Mr. Marchetti indicated that Mr. Zarb never intends never to drive again, and would prefer a lifetime ban. I cannot impose a lifetime ban, obviously, so there will be a ten year driving prohibition. Mr. Zarb’s deteriorating physical and mental health may well impose a lifetime driving prohibition in any event.

42Ms. Song also requested a DNA order because Mr. Zarb was convicted of fail to remain, which is a secondary designated offence. The fail to remain charge raises questions about the potential for future criminal activity, although I do not rate that possibility as high given that all of Mr. Zarb’s offences are confined to driving. Nonetheless, Mr. Zarb’s attempts to make home-made repairs to the vehicle after the accident suggest that he tried to cover up his participation in the accident. I left it to the jury as possible post-offence conduct. In my view, it was post-offence conduct that could give a clue to future activity. In this case, I agree that there should be an order for Mr. Zarb to provide a sample of his DNA.

43Mr. Marchetti agrees that the Mini Cooper, which was seized by the police, should be forfeited. He says that Mr. Zarb never wants to see it again.

9. Final Decision

9. Final Decision

44I am extremely concerned about sentencing a man with the physical and mental difficulties of Mr. Zarb to a lengthy term of imprisonment. There is certainly evidence regarding the facilities in federal institutions, but no particular evidence before me of facilities at provincial institutions. I share Dr. Omoruyi’s concern about possible suicidal ideation, despite Dr. Fung’s observations. Dr. Omoruyi has been Mr. Zarb’s attending psychiatrist since 2009, whereas Dr. Fung has examined him once and conducted tests. Both psychiatrists, however, noted the declining cognitive function and increasing paranoia and other symptoms associated with Huntington’s disease. That said, I am aware, as the Crown points out, that correctional authorities are required to care for physically and mentally ill prisoners. Furthermore, the Court of Appeal has instructed that the state of a prisoner’s health is a matter for the correctional authorities: R. v. Shahnawaz (2000), 2000 16973 (ON CA), 51 O.R. (3d) 29 (C.A.).

45In my view, Mr. Zarb’s deteriorating mental and physical health must be balanced against the need for general deterrence and denunciation. I believe that the appropriate sentence here is a global sentence of 18 months to be served in the reformatory. I will make a recommendation that he serve his sentence in a prison hospital facility, if possible. A copy of these reasons will be sent to the correctional authorities, so that they can understand the reasons for my recommendation. In determining the fitness of sentence, I take into account Mr. Zarb’s terrible driving record, his engagement in what some witnesses described as a “road rage” incident, and his health. I also take into account Mr. MacDonald’s not inconsiderable degree of responsibility for the severity of his own injuries.

46Thus, the following sentence will be imposed:

• 18 months incarceration;

• a ten year driving prohibition;

• forfeiture of the Mini Cooper;

• on order that Mr. Zarb provide a sample of his DNA.

47The 18 months will be apportioned as follows: 18 months concurrent on Counts 1, 3, and 5 (the dangerous driving counts) and 12 months concurrent on Counts 2, 4, and 6 (the fail to remain counts).

R.F. Goldstein J.