ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-50000159-0000

DATE: 20151001

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DENNIS PERIC

Accused

Valerie Culp, for the Crown

Paul K. Mergler, for the Accused

HEARD: JULY 8, 2015

DECISION ON SENTENCING

b.a. allen j.

BACKGROUND

[1] On April 17, 2015 I convicted the offender, Dennis Peric, on two counts of failure to remain at the scene of an accident under s. 252(1)(c) of the Criminal Code and on one count of dangerous driving under s. 249(1)(a) of the Criminal Code.

[2] The brief facts are as follows.

[3] Mr. Peric was driving his vehicle westbound on Lakeshore Blvd. on October 26, 2012 at 8:30 p.m. Three pedestrians, Tracy Cole, Cheryl Grant and Fred Carter had crossed the westbound lanes of Lakeshore Blvd. near 37th St. from the north side of Lakeshore where there was no traffic light. They were standing on the yellow line separating east and westbound traffic, waiting for the eastbound traffic to clear, so they could cross over to the south side of Lakeshore Blvd.

[4] At that time, Mr. Peric’s vehicle was in the left passing lane at a traffic light at the intersection of Lakeshore Blvd. and 37th St. Albert Haase was in the right lane at that intersection. Mr. Haase saw Mr. Peric driving erratically and moving into the intersection on a red light. Mr. Haase got in front of Mr. Peric in the left lane when the light turned green and passed the three pedestrians standing at the yellow line. From his rear view mirror, Mr. Hasse saw Mr. Peric speed forward and strike Ms. Cole and Ms. Grant.

[5] Mr. Haase decided to chase Mr. Peric in order to obtain his licence plate number. Mr. Peric sped forward and made a dangerous U-turn into oncoming traffic on a red light at Lakeshore Blvd. and Dixie Rd. Mr. Peric then sped eastbound along Lakeshore attempting to get away from Mr. Haase. Mr. Haase pursued him and eventually was able to record Mr. Peric’s plate number which he subsequently gave to the police. Mr. Peric never returned to the scene of the accident.

[6] Mr. Peric did not turn himself in to the police. Nearly two months after the accident, the police were able to contact Mr. Peric through his licence plate number.

[7] Ms. Cole and Ms. Grant sustained serious permanent physical and emotional injuries which have qualitatively altered their lives. They orally delivered victim impact statements at the sentencing hearing that detailed the tremendous medical, social and financial impact their injuries continue to have on theirs and their families’ lives.

MR. PERIC’S CIRCUMSTANCES

[8] Mr. Peric is currently 53 years old, unmarried with no children. He has a strong work record. He has been gainfully employed as a certified automobile mechanic for many years. He has a close relationship with his sister and her family who lives in Vancouver. Mr. Peric lives with his elderly parents in their home. They rely on him for his English skills to write letters and for communication where English is required. Mr. Peric also maintains the home doing gardening, snow removal and home repairs.

[9] Mr. Peric has a dated and unrelated criminal record for possession of property obtained by crime, possession of narcotics, taking a motor vehicle without consent, theft under $5,000, failure to attend court and breach of recognizance. The first of those offences occurred about 30 years ago and the last one, 28 years ago.

[10] Mr. Peric has a very lengthy driving record spanning from 1988 to 2012, some 24 years. There are a multitude of speeding infractions, a numerous variety of other types of traffic offences involving unsafe driving, and lesser offences involving licence plate, insurance and seatbelt infractions. He has one conviction from 1992 for driving while his licence was suspended.

[11] There are letters of support from family and friends attesting to Mr. Peric’s good character, his support for his parents, love of his sister’s children, strong work ethic and his exceptional skill as a mechanic. His employment requires a drivers’ licence.

[12] Mr. Peric also submitted two physician’s notes dated July 6, 2015 and September 25, 2015 from Dr. Aida Hasic. The July 6th note indicates Mr. Peric has been under her care since his first visit in August 2013. He attended the doctor four times in total, the last time being July 6, 2015. Dr. Hasic describes “symptoms of depression, manifested by sadness, hopelessness, lack of interest or motivation, feelings of being punished, self-hatred, sleeping difficulties, as well as anxiety symptoms, restlessness, fear of worse happening, feeling terrified, severe social anxiety.” The doctor indicates she is arranging an urgent appointment with a psychiatrist and social worker. The September 25th note indicates Mr. Peric’s health issues are worsening and that he would benefit from counselling and regular psychiatric care.

[13] Mr. Peric previously had substance abuse problems involving alcohol and cocaine which he had dealt with and had been substance-free for many years. Since the accident, he has returned to substance abuse to self-medicate his emotional problems after the accident.

THE VICTIMS’ CIRCUMSTANCES

[14] Both Cheryl Grant and Tracy Cole tearfully read their victim impact statements in open court. Both women presented to the court the dire circumstances of their lives since the accident.

[15] Ms. Grant sustained a broken back, broken rib and a severe concussion. She was at first confined to a wheel chair, then a walker, followed by a back brace. She has required and continues to require various forms of treatment for her injuries and the many other medical conditions that have arisen from her injuries. There has been impact to every facet of her social, employment and family life. In addition to the barriers to Ms. Grant created by her physical injuries, her emotional well-being has been profoundly impacted. Her once very active lifestyle has been severely curtailed. Her treatment providers have forecasted continued difficulties, both physical and cognitive, including arthritis, for the future. Ms. Grant requests a small amount of restitution, $168 for a watch she was wearing at the time of the accident, a watch her son had given to her weeks before for her 50th birthday.

[16] Ms. Grant also asked for a no contact order because of an incident outside the court after Mr. Peric’s conviction when he approached both of her and Ms. Cole professing his innocence.

[17] Ms. Cole remarked on one of the impacts of the accident. She has flashbacks of her good friend lying lifeless on the road after being struck by Mr. Peric’s vehicle. Ms. Cole, once a very active and upbeat person, was changed by the accident into a person who became dependent on others for very basic needs such as bathing, dressing and brushing her hair. Instead of her being able to take care of her children, they have had to take care of her. Her social life is non-existent. There has been profound hardship to her family and her financial well-being. The constant pain has caused sadness and hopelessness at times making her wonder why she survived. She is receiving ongoing treatment for her pain and emotional problems.

SENTENCING PRINCIPLES

Basic Objectives of Sentencing

[18] Section 718 of the Criminal Code sets out the principles for sentencing to be considered by the court: denunciation, general and specific deterrence, and the separation of the offender from society.

[19] Proportionality is also a guiding principle for sentencing. It requires a sentence to be proportionate to the gravity of the offence, to be determined on the particular facts of the case. The "narrow focus" of the sentencing process is directed to imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender: Criminal Code, s. 718.1 and R. v. Hamilton (2004), 2004 5549 (ON CA), 186 C.C.C. (3d) 129, 72 O.R. (3d) 1 (Ont. C.A.).

Sentences for Driving Offences

[20] The principles of general deterrence and denunciation are paramount for driving offences: R. v. Khelawan, [2011] O.J. No. 10, at para. 37, (Ont. S.C.J.).

[21] The Ontario Court of Appeal in a 2007 decision held the appropriate range of sentence for impaired driving causing bodily harm and dangerous driving causing bodily harm is from a conditional sentence to two years less a day in prison. R. v. Van Payenbroek, 2007 ONCA 824, [2007] O.J. No. 4689, at para. 59, (Ont. C.A.). Neither party in the case before me is seeking a conditional sentence.

[22] A review of the case law for sentences for driving offences reveals fairly wide variation. It is recognized that sentences for these offences do not demonstrate a particular range but are rather motivated by the many and varied circumstances in which the offences can arise: R. v. L.(J.), [2000] 147 (3d) 299, (Ont. C.A.). There has been a tendency, as social demand requires, for penalties to increase over the years with legislative amendments: R. v. Van Payenbroek, at para. 59.

MITIGATING AND AGGRAVATING FACTORS

[23] Section 718.2 provides for a sentence to be increased or reduced to take account of any relevant aggravating or mitigating circumstances related to the offence or the offender. This provision contains a non-exhaustive list of examples of aggravating and mitigating factors to consider.

[24] The mitigating factors in this case are:

● Mr. Peric is a certified mechanic with a strong and steady employment record;

● he relies on a driver’s licence for his employment and he lost his driver’s licence and his job after his conviction;

● he enjoys a close relationship with his family;

● his elderly parents depend on him for his English skills and for home maintenance;

● he has strong community support as reflected in the letters of support from friends and acquaintances who describe him as a reliable and loyal person;

● he has suffered emotional and psychological setbacks since the accident requiring prescribed medications; and

● since the accident he has relapsed into self-medicating with alcohol and cocaine after a long period abstaining from substance abuse.

[25] Mr. Peric is entitled to maintain his innocence. But he cannot gain the benefit that remorse would demonstrate as a mitigating factor.

[26] The aggravating factors are:

● the accident caused serious and persistent physical, emotional and psychological injuries to the victims which have resulted in serious social, financial and familial consequences to them;

● Mr. Peric has a lengthy driving record involving mainly speeding offences with a very dated driving while suspended offence;

● he has a criminal record, albeit, it is very dated and unrelated to his current offences;

● he did not turn himself in until the police found him weeks later through the information provided by a witness to the accident; and

● the accident involved very risky driving at the time of the accident and continued to be increasingly risky and dangerous to others after he struck the victims as he sped through red lights and made dangerous U-turns into oncoming traffic.

THE PARTIES’ POSITIONS

The Crown’s Position

[27] The Crown is seeking a 2 to 3 year sentence for dangerous driving simpliciter and 12 −18 months for each count of failure to remain to be served concurrently with each other but consecutive to the dangerous driving offence. The Crown seeks a probationary term if I impose a sentence in the reformatory range. The Crown further seeks the following ancillary orders: a five-year driving prohibition; a DNA order on the secondary designated offences of fail to remain; a no contact provision to apply while Mr. Peric is in custody and during any probationary I might order. The Crown seeks restitution of $168 for the watch Ms. Grant lost in the accident.

[28] The Crown submitted the following cases:

● R. v. Van Puyenbroek, 2007 ONCA 824, [2007] O.J. No. 4689 (Ont. C.A.) − offender intoxicated at the time of the accident; convicted of impaired driving causing bodily harm, dangerous driving causing bodily harm, failing to remain, and a firearm offence; he hit 2 pedestrians, left the scene; sentenced on appeal to 3 years in custody;

● R. v. Mathers, [2009] O.J. No. 1477 (Ont. C.A.) – offender convicted of dangerous driving and sentenced to 15 months’ custody and a 3-year driving prohibition; Court of Appeal refused to accept a lesser sentence because of offenders’ record and the nature of the offence;

● R. v. Gill, [2010] B.C.J. No. 1691 (B.C.C.A) – offender, age 51, no criminal record, a good driving record, looked away from the road as he reached for a lighter to light a cigarette; vehicle crossed 4 lanes on the road and struck another vehicle head-on injuring that driver; offender and his passenger did not remain at scene; sentence of 12 months’ imprisonment and a 2-year driving prohibition for dangerous driving and a consecutive 18 months for failing to remain.

● R. v. Cepic, 2010 ONSC 561, [2010] O.J. No. 1247 (Ont. S.C.J) – offender, pleaded guilty to dangerous driving and failing to remain; cut across three lanes of traffic, struck another vehicle seriously injuring the driver and passenger; no criminal record, was remorseful, had strong family support, planned to return to school, about to become a father; sentenced to 184 days’ custody less 98 days’ credit for time served.

● R. v. Khelawan, [2011] O.J. No. 10 (Ont. S.C.J.) – offender, age 54 , married, 3 children, no criminal record, worked as fire inspector, was convicted for dangerous driving causing bodily harm, impaired driving, failing to remain, failing to provide a breath sample; offender drinking all day; hit 4 year old who darted out in front of him; left the scene, went home, changed clothes and consumed more alcohol, returned to scene; did not identify himself; child suffered catastrophic brain injury; sentenced to 18 months’ custody for dangerous driving causing bodily harm and a consecutive 6 months custody less a day for dangerous driving, two months’ concurrent custody for the other offences and a 5-year driving prohibition.

● R. v. Luangpakham, [2012] O.J. No. 1475 (Ont. S.C.J.) – offender, age 47, married 2 children, close family ties, remorseful, steady skilled employment was convicted of 5 counts of dangerous driving causing bodily harm, 5 counts of failure to remain; he dozed off and struck 5 cyclists; left the scene. Sentenced to 9 months’ custody for dangerous driving causing bodily harm and a consecutive 15 months for failing to remain and a 1-year driving prohibition.

● R. v. Popovics, [2005] O.J. No. 2456 (Ont. C.A.) – offender had extensive, serious driving record, two-life time driving prohibitions and convictions for driving while disqualified; sentenced to 3 years’ custody for dangerous driving and 2 years’ custody for each of 2 driving while disqualified charges to be served concurrently to each other but consecutive to dangerous driving charge and a consecutive six months’ custody for breach of probation, amounting to a 5½ year custody sentence; upheld on appeal.

The Defence’s Position

[29] The defence seeks a global sentence of 9 – 12 months and a 1-year driving prohibition. The defence does not dispute the ancillary orders sought by the Crown.

[30] The defence submitted the following cases:

● R. v. Smith, [2015] O.J. No. 134 (Ont. C.J.) – offender, age 21, no criminal record, pleaded guilty; convicted of impaired driving causing bodily harm, dangerous driving causing bodily harm and failing to remain; he drove his vehicle after consuming over 10 drinks, collided with 2 trees and a lamp post; left the scene and drove home and lied to police about driving the vehicle; sentenced to a suspended sentence and 2-years’ probation, 240 hours community service and a 2-year driving prohibition.

● R. v. Ryazanov, 2008 ONCA 667, [2008] O.J. No. 3816 (Ont. C.A.) – offenders, each age 18, no criminal records, stable families, remorseful, pleaded guilty to 2 charges of dangerous driving causing death; had been charged with criminal negligence causing death and failure to remain and Crown withdrew those other charges; speeding at 80 – 140 km/hr in a 60 km zone; one offender collided with the left side of a taxi and caused it to crash into a utility pole causing the driver’s death; appeal upheld but conditional sentences terms varied, upheld community service, and increased 4-year driving prohibition to 7 years.

● R. v. Ferguson, 2014 ONCA 673, [2014] O.J. No. 4608 (Ont. C.A.) – offender in midst of relationship break up and suicidal; drove vehicle across centre line and struck oncoming vehicle injuring 2 passengers; attempted suicide after accident; received 90-day intermittent sentence with 1-year probation and a 2-year driving prohibition; upheld on appeal.

● R. v. McKerness, [2007] O.J. No. 2411 (Ont. C.A.) – offender convicted of 2 counts of dangerous driving causing bodily harm, impaired driving, obstruct police officer, public mischief for falsely reporting theft of her vehicle, failure to remain; offender had been smoking marijuana and drinking beer in the vehicle and lost control driving on Hwy 401; left scene of accident and was only found by police several weeks later; passenger in her car and other driver suffered injuries; sentence of 12 months’ custody concurrent on each of the dangerous driving charges, the impaired driving offence and the fail to stop offence; 30 days’ concurrent custody for obstruct police and public mischief and a 2-year driving prohibition; upheld on appeal.

● R. v. Zarb, 2014 ONSC 2585, [2014] O.J. No. 2180 (Ont. S.C.J.) – offender, with deteriorating physical and mental health, convicted of dangerous driving causing bodily harm and failure to remain; offender drove aggressively on highway and engaged in mutual cut off with another driver, hit another vehicle causing it to run into a concrete barrier, to roll across lanes and hit a concrete post; offender left scene and attempted to cover up damage to his vehicle; total sentence 18 months’ custody for dangerous driving; 12 months’ concurrent for failing to remain, 10-year driving prohibition and a DNA order.

● R. v. Balcha, 2004 396 (ON CA), [2004] O.J. No. 1217 (Ont. C.A.) – offender, no criminal record, convicted of dangerous driving causing bodily harm and failure to remain; sentenced to 2 years less a day and a 5-year driving prohibition; offender and girlfriend left a club and were attacked by three assailants; offender chased assailants in his vehicle, hit a man and backed over him but the victim was not one of the assailants; on appeal custodial sentence upheld, driving prohibition reduced to 1 year.

CONCLUSION ON SENTENCE

[31] In the circumstances, I find a fit sentence is 12 months’ custody for dangerous driving and 12 months, less a day custody for each of the failure to remain charges, to be served concurrently with each other, but consecutive to the dangerous driving charge. The total custodial sentence is 24 months, less a day. I also impose: 24 months’ probation; a 24 month driving prohibition; a restitution order for $168 for the watch Ms. Grant lost in the accident; a DNA order for the secondary designated offences of failing to remain and a non-contact order.

[32] I find this sentence properly expresses the principles of denunciation and deterrence.

[33] I arrive at this sentence for the following reasons.

[34] I took into account the following aggravating circumstances: Mr. Peric’s continued, very risky driving after the accident; his failure to report the accident requiring the police to find him after over a month; the serious and persisting injuries to the victims; his failure to show remorse; and his extensive driving record. His dated, unrelated criminal record was a minimally aggravating factor.

[35] The mitigating factors I considered are: Mr. Peric’s stable work history as a certified mechanic; the requirement of a driver’s licence for his job; his positive and close family and community relations; his responsibilities to his elderly parents; his post-accident psychological and emotional conditions; and his post-accident relapse into alcohol and cocaine abuse. Conditions on the probation order will allow him to address his medical and substance abuse problems. The driving prohibition is imposed due to his lengthy driving record. The non-contact order is required to prevent him from further contacting the victims.

SENTENCE

[36] I will now pronounce sentence. Dennis Peric, will you please stand.

[37] Dennis Peric, you have been convicted on 1 count of dangerous driving and on 2 counts of failure to remain at the scene of the accident. You stand to be sentenced on all three offences.

[38] I sentence you as follows:

(a) I sentence you to 12 months’ custody on count 3 for dangerous driving.

(b) On counts 1 and 2, I sentence you to 12 months’ custody on each of the failure to remain charges, to be served concurrently with each other, but consecutive to the sentence for dangerous driving.

(c) The total custodial sentence is therefore 24 months, less a day.

(d) I sentence you to 24 months’ probation on the following terms, to be served following release from custody:

(i) You will keep the peace and be of good behaviour.

(ii) You will appear before the court when required to do so by the court and notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation.

(iii) You will refrain from attending within 100 metres of Cheryl Grant or Tracy Cole.

(iv) You will not contact or communicate in any way with Cheryl Grant or Tracy Cole during your time in custody or after release.

(v) You will attend for and actively participate in, and to the satisfaction of your probation officer, any assessment, treatment or counselling as required by your probation officer and you will sign whatever consents or releases that may be required by your probation officer in order to monitor and verify compliance with said assessment, treatment or counselling and you will provide written proof of completion of said assessment, treatment or counselling to your probation officer.

[39] I make the following further ancillary orders:

(a) There will be an order authorizing the taking of such bodily substances as are necessary for the purposes of a forensic DNA analysis on the secondary designated offences of failure to remain at the scene of an accident.

(b) There will be an order for a 24-month driving prohibition.

(c) There will be a restitution order for $168 in favour of Cheryl Grant.

B.A. Allen J.

Released: October 1, 2015

COURT FILE NO.: CR-14-50000159-0000

DATE: 20151001

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DENNIS PERIC

Accused

DECISION ON SENTENCING

B.A. Allen J.

Released: October 1, 2015