ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. Dubovina, 2015 ONSC 1518
COURT FILE NO.: CR-11-1504-00
DATE: 20150306
B E T W E E N:
HER MAJESTY THE QUEEN
V. Aujla, for the Crown
- and -
LJUBOMIR DUBOVINA
B. Pearson, for the Accused
HEARD: February 4, 2015
REASONS FOR SENTENCE
André J.
[1] A jury convicted Mr. Dubovina of the offence of dangerous driving causing bodily harm. The Crown now seeks a sentence of two years less a day in jail, a lengthy period of probation and a five year driving prohibition. The defence submits that an appropriate disposition is either a suspended sentence or alternatively, an intermittent sentence.
[2] I must therefore decide what is the appropriate sentence in this case having regard, pursuant to s. 718.1 of the Criminal Code, to the gravity of the offence and the degree of responsibility of Mr. Dubovina.
BACKGROUND FACTS
[3] During the evening of September 29, 2010, Mr. Dubovina was operating his motor vehicle in a residential neighbourhood in Brampton. He had a verbal altercation with Mr. Keith Higham after he witnessed an incident involving Mr. Higham and a young lady. Later that evening Mr. Dubovina was driving in the same neighbourhood when he saw Mr. Higham. There was a verbal exchange between the two men. Mr. Higham walked in the middle of the road towards Mr. Dubovina’s car in an aggressive manner. Two independent persons heard Mr. Dubovina’s engine revving. They then saw the car move directly towards Mr. Higham and struck him. One of the witnesses testified that the vehicle travelled at approximately 30 kph and made no attempt to avoid Mr. Higham. There was a distance of approximately 42 feet from the point where Mr. Dubovina revved his engine to the point of his vehicle’s impact with Mr. Higham.
[4] Following the contact, Mr. Dubovina drove about one hundred metres and called 911. He was very emotional when police officers arrived at the scene.
INJURIES
[5] Mr. Higham suffered a skull fracture, a crushed right hand, and one of his legs was broken in two places. He required 60 staples to close a wound to his head. As a result of the incident, he suffers from cognitive impairment and faces the daunting prospect that he may become paralyzed on account of three displaced vertebrae he suffered as a result of the accident.
PRE-SENTENCE REPORT
[6] Mr. Dubovina was born in Canada but his parents returned with him to their ancestral country, Serbia, where they lived for approximately 10 years.
[7] Life in Serbia, which was wracked by a bloody civil war, had a profound emotional impact on Mr. Dubovina, according to the Pre-Sentence Report. Upon his return to Canada, Mr. Dubovina was exposed to three unrelated but tragic incidents which exacerbated his emotional fragility on account of his experience in Serbia. At his high school, he had to cope with the emotional fallout when one of the teachers was murdered at the school by her husband. Second, a young man who resided in his apartment building was murdered while a few years ago, he lost a close friend to cancer.
[8] The report indicates that outside of his close knit family and his girlfriend, Mr. Dubovina does not socialize. He is scheduled to complete a course at Sheridan College in June of this year and aspires to study economics at university.
ANALYSIS
[9] Both the Crown and defence concede that the sentence which I impose in this case must be proportionate to the gravity of the offence and the moral blameworthiness of Mr. Dubovina. They concede that in analyzing these two factors, I must assess the aggravating and mitigating factors in this case.
Aggravating Factors
[10] The Crown submits, and I accept, that the aggravating factors in this case are as follows:
(1) Whether or not Mr. Dubovina intended to strike Mr. Higham with his vehicle, as opposed to merely frightening him, he intentionally placed Mr. Higham at risk by driving at him.
(2) Mr. Higham suffered serious and permanent injuries. He has suffered memory loss which has affected his ability to read. His speech is now partly slurred on account of his injuries.
Mitigating Factors
[11] The parties concede that the mitigating factors are:
(1) Mr. Dubovina does not have a criminal record or outstanding charges.
(2) Mr. Dubovina has the full support of members of his family who have diligently appeared in court whenever he was scheduled to be there.
(3) Mr. Dubovina has had a difficult childhood and had had to deal with significant emotional trauma on account of the violence he was exposed to.
(4) The Pre-Sentence Report is very positive and indicates that Mr. Dubovina is a good candidate for a community based disposition.
(5) The incident occurred when Mr. Dubovina was only 24 years old.
[12] It is beyond question, as the Ontario Court of Appeal noted in R. v. Rawn, 2012 ONCA 487, 2012 O.J. No. 3096 (Ont. C.A.) at para. 33, that in cases of this nature, general deterrence and denunciation are the paramount sentencing considerations in the determination of an appropriate sentence. A proportionate sentence, while addressing the circumstances of Mr. Dubovina, must reflect the gravity of the offence and must deter others who may choose to act in the same way as Mr. Dubovina.
[13] Two factors make this offence a very serious one. First, Mr. Dubovina, based on the evidence of the two witnesses, intentionally drove his vehicle in Mr. Higham’s direction. Second, as a result of Mr. Dubovina’s intentional act, Mr. Higham suffered serious and permanent injuries. Even if, as defence counsel suggests, Mr. Higham behaved in a provocative and aggressive manner, that does not alter the fact that Mr. Dubovina intentionally drove his vehicle at Mr. Higham.
[14] Prior to the legislative changes in the Criminal Code in 2007, the acceptable range of sentence for cases involving impaired driving or dangerous driving causing bodily harm cases was between a conditional sentence and two years less a day: Rawn, at para. 43; R. v. Van Puyenbroek, 2007 ONCA 824, 231 O.A.C. 146 at paras. 59-61.
[15] The 2007, s. 742.1 amendments to the Code however, eliminated the availability of conditional sentences for serious personal injury offences, thereby signalling that Parliament intended that the penalty for this type of criminal behaviour should be more severe than before.
[16] In my view, the intentional nature of Mr. Dubovina’s driving, the injuries suffered by Mr. Higham, and the paramount sentencing considerations involved in cases of this nature collectively dictate that a period of custody is warranted in this case. A suspended sentence would be a totally inadequate sentence in that such a sentence would not reflect the gravity of the offence and the corresponding need to deter others.
[17] What then, would be the appropriate length of incarceration given the gravity of the offence and the moral blameworthiness of Mr. Dubovina? The Crown relies on a number of cases for its contention that a period of incarceration of two years less a day is required in this case.
[18] I disagree for the following reasons.
[19] In Rawn, the Court of Appeal set aside a non-custodial disposition for an offender who appeared to have been involved in street racing while reaching speeds three times the legal limit. In the ensuing collision, one passenger suffered serious injuries which required hospitalization for two months. The victim was bedridden for one year. The offender, who had no record, was convicted following a trial. The Court of Appeal substituted a sentence of nine months jail and a five year driving prohibition to run concurrently with the mandatory one year licence suspension.
[20] In R. v. Gray, [2011] B.C.J. No. 2625 (B.C.S.C.), the accused pled guilty to dangerous driving causing bodily harm. He drove his vehicle directly at a male with whom he had had a previous altercation. The victim tried unsuccessfully to brace Mr. Gray’s car with his hands. The car struck him causing his head to hit the sidewalk. The victim suffered some permanent brain injury after being comatose six days and spending four months in a hospital. The case involved prolonged dangerous driving by Mr. Gray who intentionally ran down the victim. The court concluded that the lower end of the sentencing range was 16 months jail, but nevertheless sentenced Mr. Gray to nine months in jail for the offence of dangerous driving causing bodily harm.
[21] In R. v. Currie, [2004] O.J. No. 5196 (Ont. C.A.) the accused drove on a dock at a considerable speed as a prank, with the intention of frightening his passengers by stopping at the edge of the dock. The vehicle however, ended up in the water and one of the vehicle’s passengers drowned. The first time offender was sentenced to two years less a day and received a five year driving prohibition, a sentence which was upheld on appeal.
[22] In R. v. Belanger, 2009 ONCA 867, [2009] O.J. No. 5242 (Ont. C.A.), the 60 year old accused struck a motorist by the side of the road, causing her to lose a leg. The trial judge sentenced the accused to sixty days jail after the latter had pled guilty to dangerous driving causing bodily harm. In addition to losing her leg, the victim suffered fractures to her pelvis, back and right wrist and damage to the ligaments in her left knee. She also suffered from pain in her back, and arthritis. On appeal, the Court of Appeal held that the sentence was demonstrably unfit but refrained from incarcerating the accused on account of his age, lack of a criminal record, health problems, the fact that he had already served his sentence and was the sole provider for his wife.
[23] In my view, the above cases do not justify the period of incarceration suggested by the Crown. In Rawn, the driving was much more egregious than the driving in this case. Furthermore, the victim’s injuries were sufficiently serious that it resulted in the victim being bedridden for one year. In Gray, the accused deliberately drove for a prolonged period in search of the victim after an initial altercation, unlike the chance encounter between Mr. Dubovina and Mr. Higham. The victim’s injuries were also more serious in Gray than those suffered by Mr. Higham and yet after considering the mitigating factors, the court sentenced the accused to nine months in jail. Similarly, in Currie, the accused, whose driving resulted in the death of one of his passengers, received a jail sentence equivalent to that being sought by the Crown in this case. Finally, in Belanger, the Court of Appeal held that the 60 day intermittent sentence imposed on the 60- year old accused was demonstrably unfit given the injuries suffered by the victim and the significance of general deterrence and denunciation.
[24] While these cases do not support the Crown’s contention that the appropriate sentence is two years less a day, those relied upon by the defence similarly do not support a non-custodial disposition.
[25] In R. v. Probaharan 2014 ONCJ 118 (O.C.J.) for example, the accused lost control of his vehicle while speeding and struck a tree. One of its passengers suffered serious injuries including a leg fracture, ankle laceration and head lacerations. The 26 year old first offender pled guilty. The court suspended the passage of sentence and placed the accused on probation for eighteen months.
[26] In R. v. Wilson, [2005] O.J. No. 5867 (O.C.J.), the 51-year old accused reversed his vehicle at a high rate of speed, striking two pedestrians, one of whom suffered serious injury. The court convicted the accused following a trial but gave him a suspended sentence and two years’ probation.
[27] The reasons for this sentence however, are absent in this case. The accused suffered from multiple sclerosis and his condition had deteriorated since the incident to a point where he was not living independently. The court also found that his actions, while dangerous, were not deliberate.
[28] The appellate decision in R. v. Markozashvili, 2010 ONCA 52, in which the Court of Appeal upheld a 90-day intermittent sentence and a two year driving prohibition, is of limited significance given that there is a paucity of information about the antecedents of the accused and of the injuries suffered by the two victims. The decision merely indicates that the “appellant ran two red lights at well-travelled busy intersections”.
[29] The decision in R. v. Rayner, 2014 ONCJ 246, where the court imposed a 60 day intermittent sentence on a first offender, following her plea of guilty to dangerous driving causing bodily harm, is distinguishable from this case. The accused lost control of her vehicle which was travelling in excess of the posted speed limit and struck the victim who was trimming weeds in a ditch. The victim suffered a compound fracture of his left femur and an injury which required surgery. His spleen was lacerated. However, unlike the case at bar, the victim did not suffer any permanent injury.
[30] These cases do not persuade me that a suspended sentence or an intermittent sentence is appropriate in this case. In Probaharan and Rayner, the accused pled guilty. The victim in each case did not suffer permanent injuries. In Wilson, there were exceptional circumstances that militated against the imposition of a custodial sentence. There is insufficient information in Markozashvili that would enable this court to assess the factors relied upon by the sentencing judge.
[31] In my view the appropriate sentencing range, in this case, is six to twelve months in jail.
[32] The appropriate sentence, in my view, should be towards the lower end of the range, given the mitigating factors. These include the lack of a criminal record, the support Mr. Dubovina enjoys in his family, the tragic experiences he was exposed to and his prospects for rehabilitation.
[33] The appropriate sentence will be as follows:
(1) Mr. Dubovina is sentenced to six months in jail.
(2) He will also be on probation for two years. In addition to the statutory conditions he is ordered to take such counselling as his probation officer may recommend and upon completion of any such probation, he is to present proof to his probation officer that he has done so.
(3) He is prohibited from driving a motor vehicle anywhere in Canada for five years.
(4) The victim fine surcharge will apply.
André J.
Released: March 6, 2015
COURT FILE NO.: CR-11-1504-00
DATE: 20150306
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
LJUBOMIR DUBOVINA
REASONS FOR SENTENCE
André J.
Released: March 6, 2015