ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 20140620

BETWEEN:

HER MAJESTY THE QUEEN

– and –

OLIVER KARAFA

Marnie Goldenberg, for the Crown

Maurice Mirosolin, for Mr. Karafa

HEARD: June 13, 2014

TROTTER J.

reasons for sentence

[1] On May 21, 2014, I found Oliver Karafa guilty of impaired driving causing death, causing death while “over 80”, dangerous driving causing death and criminal negligence causing death: see 2014 ONSC 2901.

The Offences

[2] The circumstances of these offences are set out in my previous Reasons for Judgment: 2014 ONSC 2901. In short, during the evening hours of April 2, 2012, Mr. Karafa went drinking with two of his friends, Ayla Ozkaratay and David Chiang. While Ms. Ozkaratay did not drink much, the two men shared a considerable amount of beer, and they both had a couple of shots of hard liquor. Shortly after last call at 2:00 a.m., the three walked to Mr. Karafa’s nearby condo building. Ms. Ozkaratay had left her car in the underground parking lot and Mr. Karafa was going to let her out by proceeding through the exit with his vehicle first.

[3] Mr. Karafa and David Chiang got into Mr. Karafa’s Land Rover. Mr. Karafa drove to the garage door and it opened. He proceeded through the door and up the ramp, followed by Ms. Ozkaratay. Mr. Karafa stopped his car outside of his building. Ms. Ozkaratay drove past and went home. She thought that David Chiang would be taking a taxi that night. She had just told Mr. Karafa not to drive Mr. Chiang home because he (Mr. Karafa) had been drinking.

[4] For reasons that are unclear, Mr. Karafa decided to take a drive in his Land Rover. Twenty minutes later, David Chiang was dead. He was 24 years old. Travelling at twice the speed limit, Mr. Karafa lost control of the vehicle and crashed into a pole. Mr. Chiang was killed instantly. Mr. Karafa walked away from the destroyed vehicle with a few cuts and scrapes that did not require hospitalization.

[5] Mr. Karafa was arrested at the scene and was dealt with by numerous police officers. As I found in my previous Judgment, Mr. Karafa was clearly impaired. He provided a breath sample that produced a reading of 205 mgs of alcohol in 100 ml of blood. Projected back to the time he was driving, his blood-alcohol concentration would have been between 200 to 270 mgs of alcohol in 100 ml of blood.

David Chiang

[6] David Chiang was 24 years old when he was killed. He was a son. He was a brother. He was a friend. He was a personal trainer. Mr. Chiang is missed terribly by his family. In their Victim Impact Statements (VIS), his sister and brother explain the sorrow they feel at the loss of their dear brother. As his sister said, “Our home is now broken and missing a vital piece of our family.” Mr. Chiang’s sister idolized her brother and feels lost without him.

[7] Similarly, Mr. Chiang’s younger brother has endured the same profound loss. As he said in his VIS: “Being my older brother and best friend, I always looked up to him and always wanted to be like him....There has not been a day since he’s been gone that I have not thought of him….Life as I knew it will never been the same.”

[8] Lastly, and perhaps most sad, is the VIS of Mr. Chiang’s mother. Mrs. Chiang has struggled since losing her son. She has trouble doing many things because she unexpectedly and frequently bursts into tears. Mrs. Chiang reports that she has been unable to tell David’s grandmother that he is dead because of her age and fragility. Consequently, every time she visits her own mother, Mrs. Chiang must endure and field questions about David’s wellbeing. It is difficult to imagine anything more painful and tormenting for a mother to bear.

Mr. Karafa’s Circumstances

[9] Mr. Karafa is young. He was 19 years old at the time of his offences. He is now 21. Mr. Karafa has no prior criminal record.

[10] Mr. Karafa is originally from Slovakia. The family (Mr. Karafa, his sister and his parents) immigrated to Canada in 2001, settling in Windsor, Ontario. Mr. Karafa returned to Slovakia in 2007 and his sister moved to Toronto. Mr. Karafa came back to Canada in 2009. By all accounts the family is very close and they are incredibly supportive of Mr. Karafa.

[11] On Mr. Karafa’s behalf, Mr. Mirosolin filed a book of materials concerning Mr. Karafa’s character. There are 15 letters of reference, 1 commendation and 2 certificates of achievement. One of the letters of reference is not particularly helpful because it is really about Mr. Karafa’s sister, rather than him. The other letters (from friends, former employers, business associates and others) speak glowingly of Mr. Karafa’s character and personality. The adjectives “kind”, “polite”, “honest”, “respectful”, “caring” and “hard-working” are repeated in these letters. They are a testament to his good character, displayed in different facets of his life. A couple of the letters speak to the dramatic effect that the death of David Chiang has had on Mr. Karafa and how sorry he is for what he has done.

[12] When given an opportunity to address me following the submissions of counsel, Mr. Karafa expressed his deep regret for his actions. I accept his statement as an expression of genuine remorse.

THE POSITION OF THE PARTIES

[13] On behalf of the Crown, Ms. Goldenberg submits that, based on her review of the applicable authorities, a sentence of six to seven years’ imprisonment is appropriate. She also asks me to impose a driving prohibition for life.

[14] For Mr. Karafa, Mr. Mirosolin submits that a sentence of 18 months to 2 years less a day should be imposed. He submits that a prohibition for a shorter duration would be appropriate.

ANALYSIS

The Multiple Convictions Issue

[15] As a preliminary matter, counsel addressed the issue of multiple convictions. Applying the principles in R. v. Prince, 1986 40 (SCC), [1986] 2 S.C.R. 480, they jointly submit that I should enter conditional stays on Count #2 (causing death while “over 80”) and Count #4 (dangerous driving causing death), but enter convictions on Count #1 (impaired driving causing death) and Count #3 (criminal negligence causing death). I agree.

The Appropriate Sentence

[16] The principles that must be applied in this case are not in dispute. Drinking and driving cases that result in death must be met with sentences that emphasize the aims of general deterrence and denunciation. This approach is not new. It can be traced back approximately 30 years to the decision of the Court of Appeal for Ontario in R. v. McVeigh (1985), 1985 115 (ON CA), 22 C.C.C. (3d) 145 (Ont. C.A.).

[17] In R. v. Bernshaw (1995), 1995 150 (SCC), 95 C.C.C. (3d) 193 (S.C.C.), Justice Cory explained the impact of drunk driving in our communities. As he said at pp. 204-205:

Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country.

The social cost of the crime, great as it is, fades in comparison to the personal loss suffered by the victims of this crime through the death and injury of their loved ones.

[18] These observations are just as valid today. Courts of all levels have repeated these concerns and continue to stress the importance of deterrence and denunciation. Moreover, sentences in this area have tended to increase over the years: R. v. Linden (2000), 2000 15854 (ON CA), 147 C.C.C. (3d) 299 (Ont. C.A.), at p. 300; R. v. Reiger (2011), 2011 ONCA 557, 282 O.A.C. 392, at para. 2; R. v. Boukchev (2003), 2003 26654 (ON CA), 177 O.A.C. 119, at para. 6; and R. v. Junkert (2010), 2010 ONCA 549, 259 C.C.C. (3d) 14 (Ont. C.A.), at p. 24. In R. v. Kummer (2011), 2011 ONCA 39, 266 C.C.C. (3d) 32 (Ont. C.A.), MacPherson J.A. reiterated this theme and said at p. 37: "As the dangers of impaired driving have become increasingly evident and as this problem has continued to demonstrate its intractability, the sentences imposed where impaired driving results in death have increased." Rejecting the argument that two of the Court's previous decisions (R. v. Ramage (2010), 2010 ONCA 488, 257 C.C.C. (3d) 261 (Ont. C.A.) and Junkert) capped the maximum sentence for these offences at four to five years, MacPherson J.A. observed that the maximum sentence for impaired driving causing death is life imprisonment. Consequently, he said (at p. 39): "It must remain within the realm of possibility that a life sentence could be imposed for this crime." The Court upheld a sentence of 8 years’ imprisonment in a case involving 3 deaths. See also R. v. Luskin (2012), 2012 ONSC 1764, 282 C.C.C. (3d) 542 (Ont. S.C.J.), in which Kummer was followed and the same sentence was imposed in another horrific 3-death case.

[19] To a degree, Kummer was focused on locating the high end of the range of sentence. The task at hand is to locate this case within that range. Plotting the outside limits of the range defies exact precision. Mr. Mirosolin has identified some cases where upper reformatory to low penitentiary sentences were imposed: see, by way of example, R. v. Brisson (2006), 34 M.V.R. (5th) 211 (Ont. C.A.), R. v. Doust (2001), 20 M.V.R. (4th) 123 (Ont. S.C.J.), R. v. Persaud (2002), 2002 44931 (ON CA), 159 O.A.C. 134 (C.A.) and R. v. Rabolt, [2009] O.J. No. 3925 (S.C.J.). Ms. Goldenberg’s authorities included some examples of lengthier sentences, between eight to ten years in the penitentiary. Some of these are mentioned above. Others include: R. v. Gucciardi, [1996] O.J. No. 5170 (Ont. Gen. Div.), R. v. Purtill, 2013 ONCA 692, [2013] 53 M.V.R. (6th) 22 (Ont. C.A.), R. v. Davies, 2008 ONCA 209, [2008] O.J. No. 1128 (C.A.). In R. v. Hall, [2004] O.J. No. 6176 (S.C.J.), Molloy J. imposed a sentence of five years’ imprisonment, after observing, at para. 52, that the range was imprisonment for four to eight years.

[20] Each case is unique, making sentencing anything but automatic or mechanical. After all, general deterrence and denunciation are only two of the relevant goals of sentencing. Rehabilitation and specific deterrence are also very important. The individual circumstances of the offences and the offender must be examined to determine the appropriate sentence. Typically, this is achieved by characterizing the relevant facts and circumstances as aggravating or mitigating.

[21] Outside of the features that actually define some of the offences, there are numerous aggravating factors in this case, including the following:

• Mr. Karafa’s blood-alcohol concentration was projected to be between 200 to 270 mgs of alcohol in 100 ml of blood at the time of driving. On the assumption that the lower level is the most accurate, Mr. Karafa had 2.5 times the legal limit of alcohol in his system. This is a statutory aggravating factor in s. 255.1 of the Criminal Code;

• Just before the tragic crash, Mr. Karafa had been told not to drive by Ms. Ozkaratay;

• Mr. Karafa’s driving conduct was egregious. He drove in a residential area at least two times the posted speed limit of 50 km/h; and

• Driving while over the legal limit is always dangerous and forbidden. However, the fact that Mr. Karafa was driving when this tragedy occurred was utterly senseless. The driving occurred after Mr. Karafa had already returned home and the crash happened at a location that was not en route to Mr. Chiang’s home.

[22] On the other side of the equation, there is much to be said in favour of Mr. Karafa, not about his behaviour that night, which was obviously disgraceful. Instead, the mitigating factors relate to Mr. Karafa’s background and circumstances. These include:

• Mr. Karafa has no previous criminal record;

• Mr. Karafa is a person of otherwise good character;

• Mr. Karafa enjoys the support of his sister, as well as his parents;

• Mr. Karafa has the support of many members of his community, who are saddened and/or shocked by what happened in this case;

• Mr. Karafa is a youthful first offender, being only 19 years of age at the time of the offences; and

• Mr. Karafa is remorseful for his behaviour that night.

[23] All of these factors, both aggravating and mitigating, must be balanced within the framework of the range of sentence identified already. I have determined that the aggravating features of this case prevent me from sentencing Mr. Karafa to a sentence at the bottom end of the range. The case is just far too serious to be approached in this manner. Mr. Karafa’s blood-alcohol concentration was extremely high and his driving conduct was egregious. By virtue of his conviction on the count of criminal negligence causing death, I have already determined that Mr. Karafa showed a wanton and reckless disregard for the safety and lives of others, including his friend, David Chiang.

[24] In all of the circumstances, and in light of the observation in Kummer that sentences for impaired driving causing death have been increasing over the years, I have determined that a sentence of five years’ imprisonment is warranted in this case. I accept that this sentence is very significant for someone who offended so young, who is otherwise of good character and who has tremendous potential for a very bright and productive future. I take this into account in reaching my conclusion. However, the consequences of Mr. Karafa’s conduct that night are as grave as they are permanent. A fine young man in our community lost his life in the most senseless and preventable manner. The sentence I impose attempts to reflect this overwhelmingly important factor and express society’s abhorrence for what Mr. Karafa has done.

[25] Mr. Karafa spent 5 days in custody after being arrested. Mr. Karafa’s bail was revoked on May 26, 2014, leading to another 25 days in custody. On a 1.5:1 basis, I credit Mr. Karafa with 45 days in pre-sentence custody.

[26] Mr. Karafa has been subject to a house arrest condition since his release. There has been no indication of any breaches. However, the condition permitted many exceptions. There were no attempts to vary or loosen this condition of release, a reflection of the fact that it did not cause undue hardship to Mr. Karafa. Many of the letters of reference indicate that Mr. Karafa made good use of these exceptions by throwing himself into working in the family business. In all of the circumstances, I give no credit for time spent on house arrest.

CONCLUSION

[27] Consequently, on Count #3 (criminal negligence causing death), I impose a sentence of five years’ imprisonment. From this, I deduct 1 month and 15 days for pre-sentence custody. On Count #1 (impaired driving causing death), I impose a concurrent sentence of four years’ imprisonment.

[28] In terms of the driving prohibition, I impose an order of 15 years’ duration. Mr. Karafa will also provide a sample of his DNA.

[29] I thank counsel for their excellent assistance on this difficult case.

TROTTER J.

Released: June 20, 2014

DATE: 20140620

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
– and –
OLIVER KARAFA

REASONS FOR SENTENCE

TROTTER J.

Released: June 20, 2014