CITATION: R. v. O’Leary, 2015 ONSC 6347
COURT FILE NO.: CR-14-052
DATE: 20151023
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Michael Martin, for the Crown
- and -
CODI JAMES O’LEARY
Brian Barrie, for the Defendant
Defendant
HEARD: May 19, 20, 21, 22 and 26, June 1, October 5, 2015
REASONS FOR SENTENCE
Conlan J.
I. Introduction
[1] What sentence should be imposed on a young man with no prior criminal record, impeccable character references and good prospects for the future but who committed serious offences when he drove dangerously by racing with another car, driving which led to the death of one young man and serious bodily harm to another man?
[2] That is the issue that I am confronted with. This is a difficult case.
[3] Codi O’Leary was tried before me, without a jury, in Owen Sound in May 2015.
[4] In written Reasons for Judgment reported at 2015 ONSC 3449, I found Mr. O’Leary guilty of two criminal offences: dangerous driving (racing) causing death, contrary to subsection 249.4(4) of the Criminal Code of Canada, and dangerous driving (racing) causing bodily harm, contrary to subsection 249.4(3).
[5] A presentence report was ordered. The sentencing hearing was held in Owen Sound on October 5, 2015. I reserved my decision and rendered it in Court today, October 23, 2015.
II. The Facts
[6] On January 8, 2013, after sunset, the lives of many persons and their families changed forever.
[7] Mr. O’Leary and Mr. Tyler Dodd had been in the area of downtown Owen Sound. They were driving separate cars. They were each headed westbound, alone (although Mr. Dodd had the company of his dog in his car). They were strangers to each other.
[8] For some reason, probably immaturity and bravado, the two cars started to race. In tandem, they sped up the west hill and along 10^th^ Street West. Interrupted only by traffic lights, the race continued at even higher speeds west of the intersection at No Frills grocery store, along what is known as the sunset strip. The two cars were travelling well above the posted 80 kilometres per hour speed limit.
[9] In the vicinity of a curve in the highway, east of Springmount, in the Township of Georgian Bluffs, the car being operated by Mr. Dodd lost control. It crossed over in to the eastbound lanes of traffic. Travelling at about 107 kilometres per hour at the point of impact (even faster before that), it struck a van being driven by an innocent bystander, Mr. Ben Vollering. Mr. Dodd was killed in the collision. Mr. Vollering was very seriously injured and is lucky to be alive today. Mr. O’Leary continued westbound in his own car, unscathed and not involved directly in any collision. He went home, apparently unaware of the devastation that had befallen the roadway behind him.
III. The Offender
[10] Mr. O’Leary is currently 23 years old.
[11] He has no prior criminal record. He does have a history of convictions under the provincial Highway Traffic Act (Exhibit 4 on sentencing), including three speeding violations with offence dates in October 2011 (15 months before the racing incident before me), February 2012 (11 months before the racing incident) and June 2012 (7 months before the racing incident).
[12] The presentence report (Exhibit 1 on sentencing) is a positive one. The offender is employed as an apprentice carpenter. He is described as a “great employee”. He plans to attend college this Fall. In fact, he is registered in a general carpentry apprenticeship program at the Owen Sound campus of Georgian College, which program has been paid for and which is scheduled to start on October 26 and end on December 18, 2015 (Exhibit 5 on sentencing). Mr. O’Leary has no issues with drugs or alcohol. He has a supportive family. He is a “Good Samaritan”. According to the author of the report, Mr. O’Leary is a good candidate for community supervision.
[13] Mr. O’Leary has a medical condition which affects his right ear. His hearing is significantly impaired in that ear. He recently had surgery to remove a non-cancerous growth or tumour. He has to be very careful to ensure that the affected ear does not get wet.
[14] The Defence filed a collection of very positive character letters, approximately thirty of them (Exhibit 2 on sentencing). I have read them all. What strikes me the most is the fact that the letters are authored from such a wide variety of persons. That is a credit to Mr. O’Leary and gives me greater confidence that the letters are an accurate picture of what kind of young man the offender is. The letters cover a wide variety of subjects, from sports to cars and including school, employment, family and community involvement. The letters are written by persons of all ages, occupations and backgrounds. Some are written by family members but many are not. Some are written by persons who do not live in the immediate area.
[15] The common theme among the letters is that Mr. O’Leary is generally a young man of remarkably good character who did something for which he should be held accountable but which is “extremely uncharacteristic of him”, to borrow the words used by Mr. O’Leary’s maternal grandparents.
[16] To the extent that some of the letters appear to challenge the Judgment after trial, that is unfortunate but cannot be laid at the feet of Mr. O’Leary. Some of the letters contain inadmissible expressions of what the appropriate sentence ought to be; I have ignored those sentiments.
IV. The Positions of the Parties
[17] The Crown requests the following sentence: two (2) years less one (1) day in custody, a driving prohibition Order of between three (3) and five (5) years in length, the mandatory section 109 firearms and weapons prohibition Order, and a secondary DNA Order.
[18] The Crown focusses on the sentencing principles of denunciation and general deterrence.
[19] I have read the casebook filed by the Crown.
[20] The Defence requests the following sentence: ninety (90) days in jail to be served intermittently on weekends and to be followed by two (2) years of probation with very strict terms including house arrest for the first six (6) months and community service, and a driving prohibition Order of between two (2) and three (3) years in length.
[21] The Defence does not oppose the section 109 and secondary DNA Orders sought by the Crown.
[22] The Defence focusses on those sentencing principles that call for restraint in cases of sentencing youthful first offenders.
[23] The Defence filed a Book of Authorities. I have read all of the materials filed.
V. Analysis
The Legal Parameters
[24] The maximum penalty for dangerous driving (by racing) causing death is life imprisonment. It is one of the most serious offences in the Criminal Code of Canada, even more so than straight dangerous driving causing death.
[25] There is no minimum penalty.
[26] It is common ground between counsel, and I concur in light of subsection 742.1(c) of the Criminal Code of Canada, that a conditional sentence of imprisonment is statutorily unavailable for Mr. O’Leary. That subsection came into effect in November 2012, before these offences were committed.
[27] Under subsection 259(2) of the Criminal Code of Canada, the driving prohibition Order is discretionary and can be for a maximum duration of ten (10) years.
The Basic Legal Principles on Sentencing
[28] Sentencing is a highly discretionary and individualized process.
[29] I must have regard to the principles of sentencing outlined in section 718 of the Criminal Code of Canada – denunciation, specific and general deterrence, the need to separate certain offenders from society, rehabilitation, restorative justice and the promotion of responsibility in offenders.
[30] Because of the nature of these offences and the personal circumstances of this offender, there is some friction between what would otherwise be the paramount sentencing principles. On the one hand, for these types of offences, denunciation and general deterrence are key. R. v. Nusrat, 2009 ONCA 31, [2009] O.J. No. 120 (C.A.), at paragraph 69. On the other hand, for a youthful first offender, specific deterrence and rehabilitation are considered paramount. R. v. Ijam, 2007 ONCA 597, [2007] O.J. No. 3395 (C.A.), at paragraph 56, citing R. v. Priest (1996), 1996 1381 (ON CA), 110 C.C.C. (3d) 289 (O.C.A.), at pages 294-295.
[31] Thus, those principles most applicable here are specific or individual deterrence, rehabilitation, denunciation and general deterrence.
[32] Any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender – section 718.1.
[33] These are very serious offences, recognized by Parliament by virtue of the fact that dangerous driving (by racing) causing death is punishable by life imprisonment.
[34] Mr. O’Leary should not be deprived of his liberty if less appropriate sanctions are appropriate in the circumstances – subsection 718.2(d). I should consider all available sanctions other than imprisonment that are reasonable in the circumstances – subsection 718.2(e).
[35] Any custodial sentence imposed on a first offender ought to be as short as reasonably possible in the circumstances. Further, it ought to be tailored to the accused rather than solely for the purpose of general deterrence. R. v. Priest, supra.
[36] In fashioning an appropriate sentence, I am at liberty to consider what other consequences will be suffered by the accused besides a period in jail. Those other consequences include the criminal justice system experience itself, the criminal record, the driving prohibition, the community stigma, and having to live for the rest of one’s life knowing that your conduct led to the death of one young man and a life changed forever for another man. R. v. M.B., [2006] O.J. No. 5876 (S.C.J.), at paragraph 27.
The Aggravating and Mitigating Factors
[37] There are two main aggravating factors in this case, one more important than the other.
[38] The less important is the driving record for Mr. O’Leary. Although not a criminal history, it shows a concerning pattern of driving at excessive speeds in the time period leading up to January 2013.
[39] The more important is the nature of the driving in this case. The length of the race was significant – from just west of the downtown core of Owen Sound to just east of Springmount. This was not a momentary sprint. Further, the racing took place during the winter, in darkness, when temperatures were near freezing. The race started in a busy corridor of the City of Owen Sound and continued on a major thoroughfare (10^th^ Street) and then on a highway. There were other motor vehicles on the road. There are businesses and homes along the way. This is not some desolate area but rather a busy, urban stretch of roadway. In addition, the race path contained hills, curves and traffic lights. The final calamity occurred at a curve that Mr. O’Leary was familiar with and which he knew to be at least potentially dangerous. Finally, the speeds of these two cars were wildly excessive, not just moderately over the limits prescribed by law, especially along the sunset strip west of the intersection at No Frills. As I said at paragraph 171 of my Reasons for Judgment, in the area of Fox Chrysler, the offender was racing at a minimum of thirty (30) kilometres per hour over the speed limit, perhaps as much as forty (40), and that was from a stopped position at the traffic light at No Frills (not that far away).
[40] In mitigation, I must remember that Mr. O’Leary is a young man. He is currently 23 years old. He was just 20 years old at the time of these offences. Further, he has no criminal record; he is the subject of a positive presentence report; he is enrolled in college and has good prospects for the future; and he is the beneficiary of very positive character letters filed by the Defence.
Input from the Victims
[41] Not surprisingly, what happened on January 8, 2013 has left a trail of devastation too significant to describe in a way that would give justice to the family of Mr. Dodd and to Mr. Vollering.
[42] The victim impact statements (Exhibit 3 on sentencing) are moving. To the extent that they may have inadvertently strayed in to items that are inconsistent with my findings of fact, the authors can be forgiven and counsel can be assured that I have noticed (for example, the notion that Mr. O’Leary deliberately left persons to die in a ditch).
[43] Ms. Drury misses her son so much that it is like a physical sore that will never heal. Stephanie Walko is haunted by the memory of what happened to her cousin, Tyler. The family’s grief is unbearable.
[44] As for Mr. Vollering, his injuries were and continue to be substantial. They include reduced strength in his right leg, a fractured foot and injured ankle, a right knee injury, chronic back pain, and a crushed left hand. Perhaps even more devastating has been the loss of enjoyment of life and employment, the discomfort with driving at night, the sleeping problems, the nightmares and the image of that final second and the flash of light that must be imbedded in his mind.
The Jurisprudence
[45] No two cases are ever the same. Sentencing decisions can always be distinguished on their facts.
[46] Having read all of the cases filed by both sides, I will touch below on only those decisions that I have found to be most instructive and helpful to my analysis of what would be a fit sentence for Mr. O’Leary.
[47] In Nusrat, supra, a youthful man with no criminal record pleaded guilty to criminal negligence causing death while street racing. That is a more serious offence than what Mr. O’Leary has been found guilty of, however, the guilty plea in Nusrat, supra was a significant mitigating factor. The racing in that case took place over a much longer distance. The trial judge imposed a conditional sentence of the maximum length. The Crown appealed. The Court of Appeal varied the sentence to thirty (30) months in prison, less credit for presentence custody.
[48] In Her Majesty the Queen v. Stevens, 2012 ONSC 5197, Justice Miller of the Ontario Superior Court of Justice sentenced the offender to twelve (12) months in jail. There was no racing involved. The nature of the driving was less serious than the circumstances involving Mr. O’Leary. Three persons were killed as a result of the offender’s dangerous driving. Mr. Stevens was a youthful first offender.
What is a fit Sentence for Mr. O’Leary?
[49] In my view, a fit sentence for Mr. O’Leary is something higher than what was imposed in Stevens, supra but lower than what was imposed in Nusrat, supra, on appeal.
[50] The Defence is absolutely correct that it takes two cars to race each other. But that does not take away from the degree of Mr. O’Leary’s criminal misconduct on the night in question. Given the nature of the driving and the aggravating factors outlined above, notwithstanding the considerations in mitigation and the principle of restraint as directed by authorities like Priest, supra, a custodial sentence anywhere close to ninety (90) days in length would not be a fit sentence for this offender.
[51] Twelve months in custody would also not be sufficient for Mr. O’Leary. He is not in the same position as Mr. Stevens was before Justice Miller. The facts in the two cases are substantially different. Mr. O’Leary, at night and in the winter, raced through an urban area for quite some distance and at high speeds. Mr. Stevens was not racing anyone but rather made an unsafe pass of other motor vehicles, just before a solid line and in advance of a crest of a hill on a highway (see paragraph 92 of Justice Miller’s Reasons for Judgment reported at 2012 ONSC 3166). The crash in the Stevens’ case took place in the summer, in daylight (paragraphs 2 and 35 of the Reasons for Judgment). Unlike Mr. O’Leary, Mr. Stevens had nil driving record and was even younger than 20 years old at the time of the offences (paragraph 9 of Justice Miller’s Reasons for Sentence).
[52] On the other hand, thirty (30) months in prison would be too harsh for Mr. O’Leary. The Crown does not argue otherwise, hence its position at two (2) years less one (1) day in custody.
[53] The Crown’s position is not unreasonable. A penitentiary sentence could have been requested. Our community will not tolerate street racing. The potential consequences are too severe. The risks are too real. The lives destroyed are too many. We demand a greater sense of responsibility and accountability from our residents. Driving, after all, is a privilege and not a right. As Constable Blacklock stated at trial, speed kills. And racing adds another dimension to an already dangerous practice.
[54] Notwithstanding the above remarks, I have decided to temper the sentence for Mr. O’Leary. I do not think that the Crown’s position, although justifiable, adequately recognizes the principles enunciated in Priest, supra and Ijam, supra regarding first-time youthful offenders. Nor does it take in to account to a sufficient degree the exemplary character and positive attributes of Mr. O’Leary. Finally, I am of the view that something less than the maximum reformatory jail sentence is appropriate for Mr. O’Leary when considered in the context of all of the other consequences that he has already and will continue to experience as a result of his criminal actions: M.B., supra.
[55] The period of imprisonment for Mr. O’Leary must be as short as reasonably possible in the circumstances. It must not over-emphasize denunciation and general deterrence to the detriment of specific deterrence and rehabilitation.
[56] In the end, I have determined that eighteen (18) months in custody is a fit sentence for this offender.
[57] As for the section 109 and secondary DNA Orders, they will issue, essentially unopposed.
[58] Regarding the length of the driving ban, in Stevens, supra, the length imposed was three years. In many of the cases filed by both sides, the duration was much longer than that, for example, ten years.
[59] Given the nature of the driving in this case and the previous driving record for Mr. O’Leary, I am of the opinion that anything less than five (5) years would be inappropriate.
VI. Conclusion
[60] The sentence of the Court is as follows.
[61] First, convictions are registered.
[62] Second, a secondary DNA Order is issued.
[63] Third, a section 109 Order is issued for ten years and life according to the two subsections.
[64] Fourth, a driving prohibition Order is issued for five (5) years.
[65] Finally, Mr. O’Leary is sentenced to eighteen (18) months in custody, concurrent, on each conviction. Credit for presentence custody is not an issue. I will hear from the Defence any plea for a recommendation as to where Mr. O’Leary shall serve his sentence.
[66] The Crown did not request any probation. I do not think that it is necessary in this case. None will be imposed.
[67] I thank both counsel for their helpful submissions.
[68] I know that this sentence will likely not make anyone happy. No sentence can do what I would really like to do – turn back the clock to just before the race started and bring back Mr. Dodd and a healthy Mr. Vollering. Lives are worth much more than any criminal sentence could ever account for.
[69] My fervent hope is that the victims’ families understand why I have decided this case the way that I have, even if they do not agree with it.
[70] Similarly, this sentence is not meant to crush Mr. O’Leary. I know that he and his family disagree with my Judgment and with this decision. I respect that. Mr. O’Leary is generally a good person, and his friends and family are too. I hope that Mr. O’Leary reaches his full potential.
Conlan J.
Released: October 23, 2015
CITATION: R. v. O’Leary, 2015 ONSC 6347
COURT FILE NO.: CR-14-052
DATE: 20151023
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
CODI JAMES O’LEARY
Defendant
REASONS FOR SENTENCE
Conlan J.
Released: October 23, 2015