R. v. Precup

Reasons for Sentence – Lalonde, J.

THURSDAY, MARCH 12, 2015

REASONS FOR SENTENCE

LALONDE, J. (Orally):

Mr. Precup was found guilty on December 1st, 2014 of a charge of dangerous driving causing the death of Mitchell Anderson, and failing to remain at the scene of the collision caused on July 13th, 2008 at the intersection of Colonel By Drive and Rideau Street in the City of Ottawa.

The Facts

The convictions against Mr. Precup stem from an incident that occurred when he took a late night drive with his girlfriend, Sz-Lin Yu, and that we have called here in Canada Christy Lu, in the ByWard Market area of the City of Ottawa. Mr. Precup was stopped at a red light at the intersection of Colonel By Drive and Rideau Street, when an intoxicated pedestrian, Mitchell Anderson, wandered in front of Mr. Precup’s vehicle, a red Mazda RX-8. Mr. Anderson passed his hand over the hood of the car, admiring the car. It appears that he stood in front of the car and touched the hood or kissed his hand and petted the hood of the car. Mr. Anderson did not approach the driver, Mr. Precup, or his girlfriend.

When the traffic light in front of Mr. Precup’s car turned green, he drove away through the

intersection at a high rate of speed. When Mr. Precup left the intersection, his vehicle fishtailed, the tires screeched and the car appeared momentarily out of control.

Mr. Anderson was struck by Mr. Precup’s car. On impact Mr. Anderson was thrown in the air and fell to the ground, striking his head. Tragically, Mr. Anderson died in the hospital from his head injuries shortly after the collision took place.

Through persistent efforts, the police, over a period of several months, discovered that the driver of the Mazda RX-8 that caused the death of Mr. Mitchell, was Mr. Precup. Mr. Precup had twice denied responsibility for the incident during police interviews, and during a third interview admitted that he was the driver of the red Mazda RX-8 the night of the fatal accident, but claimed that he had not hit Mr. Anderson.

Following a nine-day trial, Mr. Precup was found guilty of both charges.

Personal background

Mr. Precup is 39 years of age, and following high school he graduated with a technical college degree. He held several jobs following his graduation, and by June 2008 he had been working as a long-distance truck driver. He quick that job prior to the incident that led to his convictions because of the long hours that he had to put in and the night driving he had to do. At the date of the incident, he was living with Ms. Lu whom he married in 2009 and who has since been deported to Taiwan after she pled guilty to obstructing the course of justice as a result of the investigation in this matter.

Education

Taken from the pre-sentence report of Ross MacIntosh of June 27th, 2011 I note the following education for Mr. Precup: Mr. Precup recalls adjusting to the Canadian scholastic system fairly well overall. He had to repeat – and this is a quote – “Grade 7 and quit school during Grade 10 with only a few credits completed in that grade. Mr. Precup states he began associating with a delinquent peer group in Grade 8 and truancy was a problem for him in his last few years of schooling. When Mr. Precup was in his early twenties he realized the value of an education and went to Algonquin College, completed a pre-requisite mathematics course, then began taking upgrading correspondence courses. After finishing two years of study, he graduated with his General Education Development Certificate. Mr. Precup reports he followed that up by taking a one year Computer Systems Technology program at Herzing College in Ottawa. He finished his studies in 2000. Mr. Precup proudly relates that his grade point average was 3.7 out of 4.0.”

Dealing with his marriage

Again taken from Mr. MacIntosh’s pre-sentence report. In 2006 he was introduced to Christy Lu who was 29 years of age at that time, a foreign student from Taiwan, through her host family. Soon after, they began dating. In 2007 Christy moved in with Mr. Precup and they married on June 2nd, 2009. Subsequent to the current criminal charges laid, the pair decided to return to live with Mr. Precup’s parents. The subject says he and his wife are good together and he likes that she cooks for him. He admitted to one incident of violence against his spouse, but says it was related to a bad reaction to a new medication, Wellbutrin, which made him agitated and aggressive. Mr. Precup immediately spoke to his doctor about these side effects and a prescription change was quickly made.

Later in the meeting, he mentioned having arguments with his partner that resulted in them going to see a priest for a few couples therapy meetings in 2010. In his interviews with Dr. Kunjukrishnan, for his psychiatric report, Mr. Precup spoke of further violence within the marriage and that his spouse had also received psychiatric treatment in the past.

It was in the same report that Ms. Lu expressed frustration with the time it took, namely years, to get Mr. Precup on the right medication and dosage to work best for his schizophrenia.

The medical history

Starting in 1996, Mr. Precup was hospitalized at the Royal Ottawa Mental Health Centre. He was then 19 years of age. He was diagnosed with acute paranoid psychosis and substance abuse. He was treated with an antipsychotic medication Haloperidol.

Next he was hospitalized at the Royal Ottawa Mental Health Centre in 2004, diagnosed with chronic schizophrenia, disorganized type and cannabis abuse. The medication prescribed for him was Olanzapine together with an antipsychotic medication.

Over the years Mr. Precup’s medication involved antipsychotic medication such as Clopixol injection and Olanzapine.

At the time of writing his report, dated April 17th, 2011, Dr. Kunjukrishnan, psychiatrist, established that Mr. Precup was prescribed the following medications: Abilify 4 milligrams; Seroquel XR 400 milligrams; second Seroquel 50 to 100 milligrams, this one to be taken twice daily as opposed to bedtime; Olanzapine Zydis 15 milligrams, and Cymbalta 60 milligrams, to be taken in the morning.

Mr. Precup had stopped taking Wellbutrin for an anger management problem when this report was written.

Dr. Kunjukrishnan concluded his 2011 report by giving the diagnosis that Mr. Precup suffered from chronic paranoid schizophrenia. He also said, “His symptoms are partially controlled. He denies/minimizes some of the symptoms he might be experiencing, including paranoia.”

This morning, defence counsel called Dr. Carlos Miura to give evidence. He has worked in Ottawa as a psychiatrist at the Royal Ottawa Mental Health Centre since 1984. Although Mr. Precup has been treated at the Royal Ottawa since 1996, Dr. Miura has had Mr. Precup as a patient since 2010 only.

Dr. Miura testified that in 2001 he had seen Mr. Precup briefly but had assessed him as not ready for rehabilitation therapy. By 2010 Mr. Precup’s schizophrenia illness had improved substantially compared to the improvements noted during Mr. Precup’s first 10 years of treatment. There had not been any acute admissions to the Royal Ottawa Mental Health Centre for violence while he treated Mr. Precup from 2010 until his trial in December of 2014.

Dr. Miura spoke eloquently of the Brockville Health Unit where patients like Mr. Precup are kept in a secure location and are treated individually or in group by a multi-disciplinary mental health team. He stated that such a facility would be ideal to treat Mr. Precup’s mental illness.

Wellbutrin is a medication that has a side effect to cause a patient to become irritable. Mr. Precup stopped taking it and the medication was replaced by Abilify and Seroquel. Dr. Miura stated that if a patient such as Mr. Precup is angry, it is partly caused by a schizophrenic condition. Once Mr. Miura was shown records of Mr. Precup’s violent episode, he stated that psychosis in this case was responsible for it. He had to admit from what is stated in the records, that the day after the incident as well as one month before the incident, Mr. Precup had no psychosis, denied having any problems and that his judgment was good.

Victim witness statement

Mr. Precup filed a letter from Cynthia Clark, a person who was employed by the Schizophrenia Society of Ontario. Since 1999 she has been very involved in programs and projects in Ottawa to improve family support for those who face the daily challenge of caring for a loved one with mental illness. Her own son was diagnosed with schizophrenia when he was 15 years of age. She states, “Recovery from serious mental illness is possible with appropriate ongoing therapy and support. The harsh reality was that clinical services for people struggling with schizophrenia remain very limited and difficult to access. Without appropriate treatment, many people with schizophrenia live in various states of illness and have a diminished quality of life. Impairments and executive brain functioning contribute to difficulties in making wise choices. Unwise actions lead to legal problems. Appropriate therapy is offered at the Secure Treatment and Forensic Unit at the Brockville Mental Health Facility. At this facility, patient treatment focuses on reduced recidivism that ultimately leads to ensuring successful reintegration in the community.” She poses the question to be decided in this case, namely whether it would be in society’s best interest to return Mr. Precup in society following intensive treatment in a state of wellness that would increase Mr. Precup’s chances to live an independent and fruitful life.

I appreciated the letter of Reverend Dr. Vinito Baker of Ambassador Ministries in Covenant. I did set out earlier the number of hospitalizations Mr. Precup underwent, the different medications and dosages prescribed. Dr. Baker underlines this in his letter when he states, “I understand that Vlad’s medications have been changed several times, and as you may be aware, it takes time for the right dosage and effects to manifest themselves with perhaps several trial and error components built in. I was shocked when I read the accounts of the hit-and-run in the paper in which Vlad was involved, realizing that the closeness of the man on the street to his car frightened him and he just wanted to get away. I do not know that with a diagnosis of schizophrenia, unless it well managed by the right drug at the right dosage over a period of time, you can never be sure when the next psychotic episode will occur. Vlad is one of many living in our society who is in need of emotional and psychiatric help in order to live a life that gives him some semblance of normalcy.”

Reverend Aurel(ph) Bicilai(ph), parish priest at St. Matthews Armenian Orthodox Church wrote to me to underline Mr. Precup’s willingness to help others.

Further letters of support from family members were filed together with 15 other letters of support from family friends, including one from Fern Richer, who offers to employ Mr. Precup in his garage. I acknowledge that Ana Precup and John Precup have had their hands full in trying to help their son with his illness since it was declared during their son’s teenage years.

There is no doubt from the Royal Ottawa Mental Health Centre interdisciplinary progress notes dealing with Mr. Precup for periods extending from November 17th, 2006 to April 21st, 2011, that: (1) Mr. Precup was capable of violence and that he was at times violent towards his mother, his wife and his co-workers; (2) that he did hide his symptoms from his medical assessors; (3) that presumably when the medications Mr. Precup was taking worked, he was pleasant and cooperative; and (4) that he often denied periods of depression or having any problems.

I noted the reports from the Royal Ottawa Mental Health Centre to balance the many letters of members of his family and friends who described him as polite, honest and non-violent. Christy Lu in her letter to the court for this sentencing states, “I have my greatest sympathy for the family of Anderson and would like to apologize for our irresponsible actions. We were in panic and fear to face the fact that someone had died in the accident we were involved. Because of our carelessness and selfishness, the Anderson family suffered, and the investigation hit a stumbling block for months. We weren’t aware of Mr. Anderson’s condition and consequently caused an irretrievable harm. Moreover, we made a terrible mistake denying the involvement in this matter. What we have done was unacceptable and disgraceful. I genuinely am sorry and sincerely beg for their forgiveness.”

The victim’s daughter’s witness statement

Twenty-four-year-old Christine Da Costa is the only daughter of the victim, Mitchell Anderson. In a two-page letter, she tells me of the victim’s last moments at the hospital, and of being torn emotionally. Since she has lost her father, she states, “My whole life has been nothing but pain, sorrow, depression, anger, despair, sense of powerlessness, emptiness, devastation, loneliness and a long life of trauma.” She cannot, it seems, recover from, and she states that because nothing – and she states that this is because nothing will bring her father back to her. She writes that Mr. Precup did not only take her father away from her but took a son, a brother, and a grandfather to her son.

Previous criminal record

Mr. Precup has no previous criminal record but has an impressive driving record for offences under the Highway Traffic Act, stretching from 1992 to 2008, and this is the summary: The 1992 investigations did not – that involve collisions, did not give him demerit points, but in 1995 speeding 69 kilometres in a 40-kilometre zone gave him three demerit points. Again in 1995 he did not have an insurance card with him. In 2001 he was speeding 120 kilometres in a 100-kilometre zone. He got three demerit points. In 2004 he was speeding 65 kilometres in a 50-kilometre zone. No demerit points were taken. At that particular time he failed to have an insurance card again and he failed to have his licence plates plainly visible. In 2005 he also was found speeding at 115 kilometres in a 100-kilometre zone. He did not lose any demerit points there. In 2008 in February he failed to come to a stop at an intersection and he lost three demerit points. In April of 2008 he was speeding 80 kilometres in a 60-kilometre zone. He lost three demerit points. On the 27th of May, a month before this incident in 2008, in an out-of-province conviction, he was speeding and he got six demerit points.

The law

I will set out the principles of sentencing that I will consider in imposing my sentence on Mr. Precup. I point out for the persons in attendance that I am bound to follow the range of sentence established by higher courts for this type of offences, bearing in mind that the facts upon which sentences are imposed, differ from case to case.

As stated at paragraph 14 of Madam Justice Fuerst’s decision in R. v. Murchison, reported in 2013 for the Ontario Superior Court at page 1943,

“Section 718.1 of the Criminal Code of Canada provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.”

The purposes and principles of sentencing are set out in section 718, 718.1 and 718.2 of the Criminal Code of Canada. 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 R. v. Rawn, at [2012] Ontario Judgment No. 3096 – it is from the Ontario Court of Appeal - that deterrence and denunciation are the primary principles of sentencing to be applied in dangerous driving cases.

As regards the maximum sentence spelled out in the Criminal Code, they are: The maximum penalty for an offence contrary to section 249.1(4) of the Criminal Code is 14 years for dangerous driving. The maximum penalty for an offence contrary to section 252(1.3) of the Criminal Code is life imprisonment for leaving the scene of an accident when a fatality occurs to a person.

It is a necessary implication of my verdict that Mr. Precup was wilfully blind to the fact that bodily harm or death ensued in this case. Although the word “knew” is the term used in section 252(1.3)(b), wilful blindness is the equivalent of knowledge, and this is borne out by the decision in R. v. Sansregret, a Supreme Court of Canada decision reported in [1985] 1 Supreme Court Report 570 at paragraphs 21 to 23.

Counsel agree that a conditional sentence is not available for these offences. I agree. In R. v. Cepic, a 2010 Ontario Judgment 1247, Justice Wein 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 Justice Wein’s reasons and I note that at least one provincial Court of Appeal also agrees in R. v. O’Keefe, a 2011 decision of the Newfoundland Court of Appeal reported in their Judgment No. 203.

Section 724.1 of the Criminal Code of Canada was amended by parliament on December 1st, 2007. It is noted that these offences involving Mr. Precup happened on July 13th, 2008, after the amendment that precludes the imposition of a conditional sentence for serious personal injury offences, and I will read for you section 752 that defines serious personal injury.

“It is an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (i) the use or attempted use of violence against another person, or; (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict several psychological damage upon another person; (iii) and for which the offender may be sentenced to imprisonment for 10 years or more.”

Dangerous driving causing death under section 249.1(4) of the Code carries with it a maximum sentence of imprisonment of 14 years.

I accept the Crown’s position that when sentencing an offender for a driving offence as well as failing to remain at the scene of the collision, the sentences must be consecutive to one another as opposed to concurrent sentences. In R. v. Gummer, a 1983 decision reported in Ontario Judgment No. 181, at paragraphs 12 to 14, the Ontario Court of Appeal ruled it to be an error to impose concurrent sentences as the offence of failing to remain at the scene of a collision touches on a different societal interest than the offence of dangerous driving. The offence of dangerous driving exists to protect society from a specific type of driving. The offence of failing to remain at the scene of a collision imposes a duty on a person having the care of a motor vehicle that has been involved in a collision, irrespective of fault, to remain and discharge the duties imposed upon them in such circumstances. To fail to remain at the scene of a collision is to fail to comport with the standards of humanity and decency. Where a person takes active steps to obfuscate an investigation by concealing evidence and misleading police and the court, that failure to comport with such standards is all the more vexing.

The defence position

A period of incarceration of less than two years is within the appropriate range of sentencing according to Mr. Crystal. He argues that at his first sentencing hearing, Mr. Justice Kealey sentenced Mr. Precup to two years less a day, and three years’ probation, and imposed a three-year driving prohibition. While he considered Mr. Precup’s post-offence conduct to be an aggravating factor, he found his background and the facts that he is a first offender and that he suffers from schizophrenia to be mitigating factors. He also cited numerous cases from the years 1996 to 2013 to support that proposition.

Defence counsel also argues that Mr. Precup is no danger to the safety of the community. Allowing Mr. Precup to serve his sentence in the community would not endanger the community in any way. He has no criminal record and has abided by the terms of his judicial release orders for the past six and a half years. Furthermore, any perceived risks that may exist in regard to his driving behaviour can be adequately addressed through the imposition of a driving prohibition.

The defence submits that there is little need for specific deterrence, given that Mr. Precup shows no signs of being a repeat offender. Furthermore, the goals of denunciation and specific and general deterrence can be achieved through the imposition of strict conditions and a driving prohibition. While there has been a great deal of public outcry in regards to his case, the defence submits that the public interest will be best served by permitting Mr. Precup to serve his sentence in a way that will best promote his rehabilitation and reintegration into society.

Counsel for Mr. Precup claims that a number of mitigating circumstances exist in this case. Mr. Precup is a young man and a first-time offender. He suffers from a very serious mental illness. He has abided by the conditions of judicial release orders for the past six and a half years. During this time he obtained the Crown’s consent to travel to and from Taiwan to visit his wife twice. He has a college diploma in computer studies and worked as a truck driver until very shortly before the offence. He has a very close relationship with his mother and father who are upstanding, hardworking people. Mr. Precup also receives strong support from members of his extended family and family friends. Since the accident, Mr. Precup has been married, and despite the fact that his wife, Ms. Lu, is currently living in Taiwan, they remain in close contact. They speak regularly and Mr. Precup has visited Taiwan.

The defence submits that the most appropriate sentence would be two years less a day and requests that a recommendation that this sentence be served in the Brockville Mental Health Centre, which is the facility recommended by Cynthia Clark, a former employee of the Schizophrenic Society of Ontario, as seen in her letter filed with this court.

The defence bases its submission relying on the prior decision of Justice Kealey, the large number of mitigating factors that exist in this case, and the cases of R. v. Zarb, a 2014 decision of this court reported in Judgment No. 2585; R. v. Goudreault, [2014] Ontario Judgment No. 4307, a Court of Appeal decision; R. v. Rawn, a 2012 Ontario Judgment No. 3096, another Court of Appeal decision.

Justice Kealey sentenced Mr. Precup to 18 months for dangerous driving causing death and to six months for leaving the scene of an accident resulting in death, to be served consecutively, for a global sentence of two years less a day.

Defence counsel relies on the decision of Justice Goldstein in R. v. Zarb that I just mentioned. He summarizes the facts and similarities as follows:

In R. v. Zarb, the accused received 18 months imprisonment in a reformatory for three counts of dangerous driving causing bodily harm and a concurrent sentence of 12 months imprisonment for three counts of failure to remain at the scene of an accident resulting in bodily harm. Mr. Zarb was driving aggressively and he and another driver were cutting each other off on the road. Eventually, the accused’s vehicle collided with the other vehicle.

The subsequent accident resulted in serious injuries to the passengers and the other driver’s life was virtually destroyed. He suffered brain damage to such an extent that he could never again be functioning as a productive member of society. He could not walk properly and was in constant pain. His family was burdened with constant care for him and, as a result, his wife lost her job.

There were a number of aggravating factors in the Zarb case. The accident was caused by egregious behaviour and had horrific consequences. Following the accident, the accused fled the scene, made efforts to conceal his involvement by misleading police and making homemade repairs to his car. Moreover, Mr. Zarb had a terrible driving record. He consistently drove without insurance, had been convicted of offences involving careless driving, speeding, unsafe lane changes, disobeying legal signs and racing or stunt driving. His licence had been suspended and was expired at the time of the accident. Furthermore, Justice Goldstein found that Mr. Zarb was not fully remorseful.

Justice Goldstein found that the most significant mitigating factor was that Mr. Zarb suffered from significant mental and physical health issues, including Huntington’s disease. Furthermore, the pre-sentence report, which Justice Goldstein found extremely helpful, stated that Mr. Zarb lacked the skills necessary to defend himself in prison.

The defence submits that given the large number of similarities between Zarb and the instant case, a similar sentence is warranted. Both cases involved bad driving behaviour that resulted in tragic outcomes. Both accused fled the scene, tried to evade responsibility for the accident. Both accused had poor driving records, though that of Mr. Zarb was significantly worse than that of Mr. Precup. Both accused suffer from serious mental illnesses. However, in both cases, it was determined that the mental illness did not play a role in the offences.

Defence counsel pointed out that Justice Goldstein in R. v. Zarb relied on R. v. Goudreault, a 2004 decision of the Ontario Court of Appeal involving a case of impaired driving causing bodily harm. Last fall, I wrote a decision in R. v. Maxime Morin Leblanc, reviewing many cases, showing that prison terms have been increased in 2010 and 2011 for such cases, to four and five years’ imprisonment by the Ontario Court of Appeal. My decision is reported in [2014] Ontario Supreme Court Report Judgment No. 2056 for court file No. 12-A 2247. Mr. Leblanc was an upright citizen with a good work record with the federal government and his mistake was to drive late at night in a one-way street, reversing the one-way, and in dodging cars, he hit a pedestrian, and he received three years in prison for impaired driving causing death and three years also for negligent driving concurrent and one year consecutive in prison for failure to give a breathalyser sample.

My conclusion is that I can rely on R. v. Zarb for some principles but I do not endorse its entire reasoning. The Goudreault case today is out of synch with the appropriate range of sentences for similar incidents.

Defence counsel urges me to give Mr. Precup a longer driving prohibition and a shorter term of imprisonment. Also counsel pointed out I have to give adequate consideration to Mr. Precup’s mental issues even though they did not cause or contribute to Mr. Precup’s criminal behaviour. I should allow Mr. Precup to access the treatment he requires, maintain positive familial ties and grant a sentence that will return him to society as a well- adjusted and law-abiding citizen.

The Crown’s position

Crown counsel argues that a global sentence of eight years’ incarceration followed by a 10-year driving prohibition is warranted. The reasons why Crown counsel is requesting that type of sentence are as follows: Mr. Precup has not shown any remorse nor acknowledgement of his errors, either at his first trial or during this one. He argues that Mr. Precup’s case is likely the worst case of dangerous driving causing death in Canadian jurisprudence.

Mr. Precup struck and killed a defenceless pedestrian in full view when he was at a complete stop at a well-lit intersection. This is not a scenario involving an “accident” in any sense of the word. The reasons for the conviction point out that Mr. Precup drove directly at the defenceless Mr. Anderson, out of anger, not inattention or from lack of consideration.

It is also likely the worst case of failing to remain at the scene of a collision in which a death occurred, given the active steps to evade liability, starting the night of the offence all the way through his cross-examination.

He misled police repeatedly for five months. He caused others to be suspected and investigated. He left a young woman to wonder just who was responsible for running over her father and leaving him to die in the middle of the road.

Mr. Precup lacks a criminal record, but his atrocious driving record alongside his extremely aggravating conduct, puts him at the highest end of the spectrum in terms of crafting an appropriate sentence.

It is difficult, says Crown Counsel, if not impossible, to conceive a more aggravating set of facts for both charges. There are no mitigating circumstances outside the fact that he is a first-time criminal offender. However, that must be seen in light of the seriousness of the crimes he chose to commit, and in the context of his driving record.

Dealing with health concerns, Crown counsel maintains that Mr. Precup’s offences and subsequent behaviour were unrelated to his health. It is to be noted that he has received and will continue to receive all psychiatric treatment that he may require while incarcerated.

The Ontario Court of Appeal has frequently noted that an inmate’s health is the responsibility of the incarcerating institution. In R. v. Shanawaz, a 2000 decision reported in Ontario Judgment No. 4151, the Court of Appeal found at paragraph 34 that “the state of any prisoner’s health while in custody is largely a matter for the correctional authorities.”

The Ontario Court of Appeal is aware of the services available at correctional institutions, the statutory requirements to treat offenders. It has had no difficulty in maintaining sentences that may even worsen an offender’s medical condition. Crown counsel cites five recent decisions to support that statement, namely: R. v. Weig, a 2009 decision Ontario Judgment No. 5237 at paragraph 5; R. v. Duncan [2005] Ontario Judgment No. 4804 at paragraph 4; R. v. B.S., a 2010 Ontario Judgment No. 107; R. v. Ross a 2004 Ontario Judgment No. 2104; R. v. Thomas [2007] Ontario Judgment No. 4756.

Crown counsel states that both the applicable federal and provincial legislation outline the responsibilities towards an inmate’s health falling squarely on the incarcerating institution’s shoulders. This includes a right to parole should one’s physical/mental health is likely to suffer serious damage on account of continued incarceration, and he maintains that this is to be found in both the Corrections and Conditional Release Act and the Ministry of Correctional Services Act.

It also includes consideration for hospitalization at psychiatric facilities if required. It is worth noting that Mr. Precup has not required any hospitalization on account of his mental health and has been living in the community with periodic visits to his psychiatrist who has had his symptoms under control for over a decade.

Ultimately, his crimes have nothing to do with his mental illness. He was under close supervision of his psychiatrist and receiving intravenous medication with positive results. His judgment is even listed as good at the time of the offence, as well as during the subsequent months when he misled police.

The issue, says Crown Counsel, that led to this conviction, is not illness. It is anger and pride. It is for that reason that deterrence and denunciation must be the primary concerns for this sentence.

Dealing with the sentence for the failure to remain at the scene of the collision, Crown counsel argues as follows: It is difficult to conceive a more aggravating set of facts than those for which Mr. Precup will be sentenced. Not only did he flee the scene, knowing he had struck Mr. Anderson, he took active steps to conceal and destroy evidence, and conspired with his wife to mislead police for nearly half a year and while completely innocent RX-8 owners of cars were being actively investigated.

When informed that the victim of his crime had died, Mr. Precup began taking active steps to hide and rid himself of the evidence, point police in the direction of others, and conspire with his then-girlfriend to give false statements. Mr. Precup was not only aware of the heightened media coverage and public awareness of his crimes, he took steps to point the investigation in the direction of completely innocent parties right up and until the end of his cross-examination at his retrial.

Sentences are typically in the mid-to-high reformatory range for this offence. However, there are none that involve the aggravating facts found in this case. There are none that deal with someone who not only flees, but conspires with someone else to take active steps to hide evidence, give false statements to police over five months of time, causing completely innocent persons to be investigated, and goes on to give multiple concocted stories, including false evidence to the court, in an effort to evade liability.

Mr. Precup’s ongoing deception continued unabated until the end of his cross-examination. He is at the very extreme in terms of moral blameworthiness for his crimes, and a sentence reflective of his conduct and deception must be crafted outside the existing jurisprudence that has yet to consider such aggravating facts.

All of this is in the context of parliament’s recognition of the seriousness of such an offence by allowing for a maximum of life sentence.

Crown counsel relies on the decisions of R. v. Rij in 1993, Ontario Judgment No. 4381, a decision of Justice MacKenzie of the Ontario Court of Justice General Division, in assessing the range of penalties in this case, and Crown counsel’s quote is, “Its facts are more typical of a dangerous driving causing death. Mr. Rij was driving a five-ton truck and deliberately went through a red light. He struck another vehicle, killing the other driver and injuring an occupant. No alcohol was involved. The collision took place at a busy intersection. Mr. Rij denied criminal responsibility but admitted he was involved in an accident, and he remained at the scene of the collision.”

Justice MacKenzie found that this was on the cusp of being the worst possible case of dangerous driving causing death/bodily harm. The accused had two prior convictions for dangerous driving, one over 80, and a bad but unspecified driving record. Ultimately, he was sentenced to five years imprisonment and a six-year driving prohibition.

Crown counsel submits that the matter at bar is far more severe. Mr. Precup was at a full stop when he decided to speed into a defenceless pedestrian on account of being angry at the fact that the pedestrian had touched the hood of his car. He was not intoxicated or insane. Mr. Precup has a very lengthy driving record with 16 convictions and has been involved in six collisions. Mr. Precup fled the scene of the collision and took deliberate steps to evade liability. Mr. Precup continues to deny responsibility and project blame onto others. Mr. Precup is far more morally blameworthy than Mr. Rij. Mr. Rij did not, out of anger, intentionally drive into a defenceless pedestrian standing a few feet in front of him, he sped through a red light and as a result caused a collision with another vehicle.

Crown counsel points out that as a society, we depend on every driver’s adherence to the rules of the road to enable us all to enjoy the use of the road. Mr. Precup’s dangerous driving was borne out of anger and disregard for human life, which makes his conduct so egregious that it cries out for a sentence that speaks to society’s need to deter and denounce his conduct.

Crown counsel claims that Mr. Precup has had tremendous support from public sources for more than a decade, and now the federal penitentiary system offers Mr. Precup the best chance for rehabilitation.

Mitigating circumstances

I find that Mr. Precup is a young person and a first offender.

Aggravating circumstances

Mr. Precup’s egregious conduct giving rise to horrific consequences; secondly, fleeing the scene of the collision and making so many efforts to hide his involvement; and (3) his not so good driving record.

My analysis and decision

Mr. Precup made a deliberate choice, aware of the likely consequences. He then made continuous and calculated choices to evade responsibility for what he knew he did.

His father testified at this trial and expressed his disbelief that his son would not consider surrendering to the police the minute he heard on the radio that the police was looking for him.

As stated by Crown counsel, Mr. Precup was not dealing with a collision with another car, a fender bender, but with a man standing in front of his car with no protection whatsoever.

I did find at the time of the collision that Mr. Precup was angry. Christy Lu, as seen in the Royal Ottawa Mental Health Centre reports, was afraid of him but tried to bring Mr. Precup to his senses. She asked him, “Did we hit something?” The reply was, “I don’t think so.” That is what merits such high condemnation. Users of the road have a common sense duty to stop and render assistance. Mr. Precup went around the block, so close to the collision scene, to join the Queensway to go home and he never stopped nor did he park his car to find out what had happened to Mr. Anderson.

I was stunned that when Mr. Precup, while testifying under oath at this trial, attempted to blame another witness at this trial for the collision. That witness had stopped her car and rendered assistance to Mr. Anderson.

I cannot disagree with Crown counsel who states in his written submissions that Mr. Precup was not street racing when he lost control and killed someone. He chose to race his car into a pedestrian standing directly in front of him. He then chose to flee the scene of the crime putting other pedestrians and drivers in danger. He chose to deliberately mislead the police with the help of his then-girlfriend, concealing evidence, concocting stories and giving false evidence to this court, in the hopes of evading liability for his crimes. He was unsuccessful, and now nearly seven years later, he is sentenced for being solely responsible for killing Mr. Anderson, not because he was sick or threatened but because he was angry.

Despite being a first-time criminal offender, Mr. Precup was neither youthful at the time of the offence. He was 32 years old and had a driving record replete with convictions, 16 in all, between 1993 and 2008, and it involved six demerit points for an out-of-province speeding conviction less than two months before the incident before the court. In 2008 alone, he accumulated 12 demerit points in three separate incidents. He has demonstrated over his driving career, his constant and consistent disobeying the speed limit, traffic signs and statutory requirements. He has been involved in six collisions now, this one which caused death and a previous one that involved injuries.

What is revealed in Mr. Precup’s medical record is that Mr. Precup has a severe issue with his anger and resorting to extreme violence to sort out his differences with others. This happens despite being properly medicated for his psychiatric illness and despite being under the supervision of doctors and enjoying the support of his community.

As I stated earlier in this sentencing decision, Mr. Precup’s violent outbursts who appear to have been known only to his wife, his father and mother, are well established by his social workers and psychiatrist. As stated by Christy Lu, it is too bad that Mr. Precup’s medications did not benefit him earlier. Indeed, if one met Mr. Precup on one of his good days, then he would be described as he is in the letters written to the court in his support.

The future, because of the progress made on medications to help schizophrenics like Mr. Precup, appears brighter. I believe that Mr. Precup’s condition can be treated in a penitentiary, as well as in the Brockville Mental Health Unit.

Because of the manner that Mr. Precup drove and hit Mr. Anderson, I believe that the sentence must deter others from this type of conduct, and calls for the upper range of sentence. Because Mr. Precup worked so hard at evading responsibility for the collision, and his attempt to blame others for the collision, it also draws a substantial penalty on the second charge.

I respect Dr. Miura, as he has his patient’s interest at heart, and now he is keen to find out what causes schizophrenia. He stated that new medications will get schizophrenics off the couch and now instils initiative in them. It is too bad it did not work for Mr. Precup.

I have taken into account Mr. Precup’s mental illness, the effects of his wife, family and friends to give him support, and for that reason, I cannot give the sentence the Crown has requested, although I agree that the driving record that Mr. Precup has, leaves a lot to be desired.

THE COURT: Mr. Precup, would you, please, stand? Do you have anything to say before I pass sentence?

MR. PRECUP: No.

THE COURT: Thank you. You may sit down...

MR. PRECUP: Thank you.

THE COURT: ...or, please remain standing for a minute...

MR. PRECUP: Okay.

THE COURT: ...sorry. I sentence you to two years of imprisonment for the dangerous driving causing death conviction, and two years of imprisonment for the failing to remain at the scene of the collision, to be served consecutively.

In my view, the mental illness, now largely under control with treatment, must be balanced against the need for general deterrence and denunciation.

This global sentence of four years less credit for time served must be served in a penitentiary where correctional services are asked to continue Mr. Precup’s treatments for schizophrenia. A copy of these reasons will be sent to correctional authorities so that they can understand the reasons for my recommendations.

Pursuant to section 110 of the Criminal Code, you are prohibited from possession of any of the weapons outlined in that section, for a period of 10 years.

Pursuant to section 487.051 of the Criminal Code, you shall provide a DNA sample for the purposes of forensic analysis.

As Mr. Precup’s driving record indicates on his face, especially the new serious convictions, a considerable lack of responsibility, that gives me concerns when it comes to the offender and a motor vehicle. I sentence you to a 10-year driving prohibition. You may be seated. Can counsel give me how much time should be credited for time served?

MR. CRYSTAL: Well, we know that he’s been in custody since December 1st. I don’t know the amount of time from the first conviction to the bail pending appeal.

MR. RAMSAY: I’m unaware as well so that the – obviously the appeal’s handled in Toronto, and when he was released I, I can certainly look that up.

THE COURT: So you don’t have that information?

MR. RAMSAY: I don’t have it readily available.

THE COURT: Well, maybe, Mr. Crystal, you can talk to Mr. Precup and he may be able to tell you how much time he spent in jail, because it’s never a pleasant place to be. You remember?

MR. CRYSTAL: His, his recollection is two months...

THE COURT: For the....

MR. CRYSTAL: ...between the first time he was convicted and bail pending appeal.

THE COURT: And two and a half months now – no, three months now.

MR. CRYSTAL: Three and - yes, three months and 14 days...

THE COURT: So let’s say...

MR. CRYSTAL: ...12 days, sorry.

THE COURT: ...three and a half months, and one and a half?

MR. CRYSTAL: Yes. Let me just speak to my friend. THE COURT: You may be seated, sir.

MR. PRECUP: Okay.

MR. CRYSTAL: I would ask for one and a half to one.

THE COURT: That’s fine. So out of a total of, of five, I should add another two and a half to make it seven and a half months of credits. I’d like to make one correction. There are two sections in the Criminal Code for prohibition of weapons. One is section 110 and the other one is section 109. For offences such as these, it’s section 109 that applies and it’s mandatory, I don’t have a choice.

COURT REGISTRAR: And so we figured out the total sentence minus the - it....

THE COURT: It’s minus...

COURT REGISTRAR: Minus seven....

THE COURT: ...seven and a half months.

COURT REGISTRAR: That leaves 16.5 months?

THE COURT: To me....

MR. CRYSTAL: Forty-eight months minus seven and a half.

COURT REGISTRAR: So, 40 - yeah.

MR. RAMSAY: Forty and a half months.

COURT REGISTRAR: Thank you.

THE COURT: So I make it 41 and a half months to serve.

MR. RAMSAY: It should be 40...

COURT REGISTRAR: Forty...

MR. RAMSAY: ...point five.

COURT REGISTRAR: ...point five.

THE COURT: Pardon me?

MR. RAMSAY: Four zero point five.

THE COURT: Four zero point five. Thank you.

MR. RAMSAY: Thank you, Your Honour.

COURT REGISTRAR: And do you, do you want the pre-sentence custody to be concurrent on both charges as well? So then it would look – so then it would be the 40.5 months consecutives or do you want the two years consecutive on the second charge for two years?

THE COURT: Oh, I see. It doesn’t really matter. Let’s give the credit on the first charge and the full two years on the second charge.

COURT REGISTRAR: Thank you.