Court File and Parties
Court File No.: CR-16-50000513 Date: 2017-05-12 Ontario Superior Court of Justice
Between: Her Majesty the Queen And: Earl Hourihan, Defendant
Counsel: Brady Donohue, for the Crown R. Craig Bottomley, for the Defendant
Heard: January 23-24, January 26-27 and January 30, 2017; March 23, 2017.
Reasons for Sentence
S.F. Dunphy J.
[1] Mr. Hourihan was convicted by me of impaired driving causing bodily harm and driving over 80 causing bodily harm. The convictions arise from a single motor vehicle accident that occurred shortly after 3 a.m. on May 28, 2015. Pursuant to Kienapple v. R., [1975] 1 S.C.R. 729, the Crown and defence concur in asking me to stay the impaired driving conviction and to sentence on the “Over 80” conviction only. I shall proceed accordingly.
[2] The parties have made thorough submissions on sentencing. The Crown seeks a custodial sentence within a range of 9 to 15 months with a suggested sentence of 15 months in order to satisfy the goals of denunciation and deterrence. The defence submits that a 90 day intermittent sentence plus two years of probation would achieve the appropriate balance between denunciation and deterrence on the one hand and rehabilitation on the other. Both Crown and defence concur that a two year driving prohibition is appropriate.
Circumstances of the Offence
[3] The accident occurred just after 3 a.m. on Lakeshore Blvd. West in Toronto. The road was deserted at the time. Traffic was sporadic. There were no parked cars in the vicinity. The roadway was wide, dry and well lit. Mr. Jesse Footit was proceeding westbound in the right hand lane on a push scooter (a wheeled device similar to a skateboard) and was struck from behind by Mr. Hourihan driving his car. He was not wearing any reflective clothing or lights and wore no helmet.
[4] Mr. Footit was taken to hospital by ambulance. He suffered serious injuries to his head and also received a broken arm. The accident has had a very severe impact upon him that I shall review in further detail below.
[5] Mr. Hourihan was found to have been impaired by alcohol at the time of the accident. The certificate of the breath technician under which he was convicted certifies a blood alcohol level of 110 mg of alcohol in 100 ml. of blood.
[6] Mr. Hourihan remained at the scene of the accident. He called 911 and did what he could to assist the injured Mr. Footit while waiting for the ambulance to arrive.
[7] There is no evidence to suggest that Mr. Hourihan was driving with excessive speed at the time of the accident nor any suggestion of any other egregious behaviour behind the wheel apart from the obvious facts of having elected to take the wheel after drinking and having been involved in an accident that was avoidable after having done so.
Circumstances of the Offender
[8] Mr. Hourihan is 39 years old. He is unmarried and has no children. He is a member of a large and supportive family and has for many years visited and helped care for an elderly aunt. He is an usher at his church.
[9] He has taken some time to get his life together but has made some significant strides in that direction recently. He is a member of Local 873 of the International Alliance of Theatrical Stage Employees. He works as a “Key Grip” and a “Best Boy” on a number of theatrical and movie productions. He is currently employed but the circumstances of his employment are somewhat precarious. He fears – reasonably – that he would lose his employment were he to be given a non-intermittent custodial sentence. He works as a member of a team and were he to lose his place, it may be some time before he is able to find another. Jobs in this sector are not easy to come by. Being out of the flow will have a negative impact upon his career.
[10] Mr. Hourihan is also not a wealthy man. His savings have been drained by the legal expenses incurred in connection with this case. He could not afford to pay rent for his apartment while in custody were he to lose his job. He fears that he would emerge from custody unemployed and homeless, forced to fall back upon his family for shelter.
[11] Mr. Hourihan has recognized and come to terms with an alcohol problem that he did not appreciate the extent of prior to the accident. While he was not drinking daily, he had a habit of binge drinking when he did drink. He has now sought and is accepting treatment for his addiction. He has begun – albeit only recently – to attend AA meetings and has undertaken the arduous 12 step process it requires of its adherents. He has a helpful and supportive sponsor.
[12] Mr. Hourihan has shown remorse. He was clearly and visibly distraught by the accident – a fact that was remarked upon by witnesses and is also clearly visible from the video and audio evidence from the attending officer’s car. He co-operated fully, provided the requested breath samples without issue. His co-operative behaviour was remarked upon favourably by the arresting officer and the breath technician. It is also clearly visible in the video evidence at the trial.
[13] This is not Mr. Hourihan’s first conviction for an offence involving alcohol and driving. In 2007 he was convicted of driving while impaired and failing to provide a breath sample. At that time, he was sentenced to a fine of $2,000 (total) and prohibited from driving for one year.
[14] Mr. Hourihan is in middle age and is finally beginning to get some order in his life. He has acquired a trade and is gainfully employed. He has started coming to terms with episodes of depression and a chronic abuse of alcohol, two circumstances that are not likely unrelated. Mr. Bottomley suggests that the progress he has made in getting settled and putting his life on an even footing would be undone or seriously set back by a custodial sentence.
Impact upon victim and community
[15] Mr. Footit delivered a victim impact statement. The extent of the injuries to him are of course recorded in clinical terms in the evidence at trial: he had a number of abrasions, a fractured orbital bone, a broken right arm and some bleeding on the brain. The impact of these injuries upon Mr. Footit does not always emerge adequately from the dry prose of medical charts and records. The impact of these injuries upon him has been quite significant.
[16] Mr. Footit was disabled for several months with constant pain. He lost his job. He became addicted to pain killers. The time spent isolated from friends and acquaintances, the loss of his job, the pain and other factors resulted in a period of depression. He has only recently begun to turn a corner in his life. He is trying to finish school and is receiving psychiatric treatment. He continues to have some degree of cognitive impairment that creates challenges for him in finishing school and trying to re-enter the workforce.
[17] While he has turned a corner in terms of conquering his addictions and drug abuse, he continues to have nightmares. In his words, “on May 28, 2015, my entire way of life was turned upside down as a result of a drunk driver”. He has not yet been able to resume the quality of life he enjoyed before the accident and only time will tell if he shall.
[18] Tragically, Mr. Footit’s story of the impact of this incident upon him is not unique. It is one that is needlessly repeated across the country by thousands of people like him, and this year after year.
[19] I need hardly comment upon the impact upon the community of impaired driving generally and driving under the influence of alcohol in particular. Courts at all levels in this country have been highlighting the carnage wreaked upon our communities by this practice for years. Parliament has amended the Criminal Code on a number of occasions to attempt to eradicate this persistent, destructive and sometimes deadly behaviour.
[20] Something of a corner in social mores has been turned in recent years. Few would now claim that the practice is morally defensible. Nevertheless, despite some improvements noted in the trend lines, the statistics continue to demonstrate that the problem is a long way from being solved. Whether it is because drivers are poor judges of their own sobriety or are simply prepared to run unreasonable risks, too many drivers continue to take the wheel while impaired.
[21] There is never a good excuse for taking the wheel while impaired. The decision becomes still harder to explain in a dense urban area such as Toronto where even at 3 a.m. there are so many transit and other transport options available.
[22] Driving under the influence of alcohol continues to exact an unacceptably high social cost and the importance of denunciation and deterrence in sentencing acquires additional weight in consequence. The police cannot hope to detect and stop every driver who takes the wheel after drinking too much. Society can only function where most people most of the time choose to obey the law.
[23] For as long as drivers continue to think it reasonable to roll the dice and try to get away with it “just this once”, ensuring a constructive level of fear of the consequences of being caught is a legitimate tool to alter that twisted calculus and persuade more people more of the time to make the right call. The criminal justice system cannot change society by itself nor can it change society overnight. The tools at our disposal are blunt at the best of times and can only be effective if co-ordinated with other means of persuasion and dissuasion.
Provisions of the Criminal Code
[24] Section 255(1)(a) of the Criminal Code prescribes a minimum punishment of 30 days imprisonment for a second offence under s. 253. Section 255(2.1) prescribes a maximum sentence of ten years where the person causes an accident resulting in bodily harm while committing an offence under s. 253(1)(b) of the Criminal Code. Finding the appropriate sentence within that wide latitude granted by Parliament is where the art of sentencing lies.
[25] The purposes of sentencing are set forth in s. 718 of the Criminal Code. The fundamental purpose is to protect society and to contribute to respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions. Just sanctions have, among other objectives prescribed, denunciation, deterrence of the offender and others from committing offences and the rehabilitation of offenders. Obviously, these objectives do not always tend in the same direction. They must be applied in a balanced fashion.
[26] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code s. 718.1. A sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances: Criminal Code s. 718.2(b). These then are the broad principles that I must adhere to in fashioning a sentence appropriate to the circumstances of this case and this offender.
Summary of positions of the parties
[27] The position of the Crown was that a sentence of fifteen months imprisonment or within a range of nine to fifteen months along with a two-year driving prohibition order would be appropriate in all of the circumstances of this case. While it is appreciated that Mr. Hourihan is a stalwart and contributing member of his community, this is unfortunately a trait shared by a great number of persons who choose to drive while under the influence of alcohol. The requirement for denunciation and deterrence is one that the courts have re-stated and reinforced in recent years. The impact upon Mr. Footit has been severe and the fact that this is a second offence for Mr. Hourihan shows that he did not learn his lesson from his first brush with the law. Further, the fact that Mr. Hourihan was involved for two further years in appealing his first conviction ought to have provided still more reason for him to have learned that lesson.
[28] The position of the defence was that a custodial sentence is indeed appropriate in the circumstances but that a sentence of 90 days ordered to be served intermittently pursuant to s. 732 of the Criminal Code coupled with a two year term of probation would achieve a fair balance between the purpose of rehabilitating the offender in this case while denouncing the conduct and deterring both the offender and others from committing the offence. A longer sentence would result in Mr. Hourihan losing his job and his apartment. He has been battling depression and alcohol for some time – emerging from custody unemployed and homeless would be a recipe to encourage recidivism not rehabilitation. There are no additional aggravating circumstances present here and the cases cited by the Crown involve offenders with much higher blood alcohol readings with conduct far more egregious than that of the offender in this case. Mr. Hourihan is truly remorseful. His prior conviction is now ten years in the past and the devastating impact of this case on his life is such that the court can be highly confident that he is at a very low risk of reoffending. He has come to terms with his alcohol problem and is actively treating it. A harsher sentence would put all of that progress at risk and frustrate the potential for rehabilitation.
Mitigating and aggravating factors to be considered
[29] Among the aggravating factors to be considered are:
a. The existence of a prior conviction for a similar offence; and b. The gravity of the bodily harm suffered by Mr. Footit.
[30] The Crown suggests that I ought to count the location of the offence within the City of Toronto as an aggravating factor in and of itself because of the broad range of options available to Mr. Hourihan to leave his car behind. I decline to do so. Such a conclusion would suggest that impaired driving ought to be treated more harshly in urban than in rural areas, a conclusion that Parliament has not suggested and I decline to draw.
[31] The aggravating factor of a prior conviction is also mitigated to some degree by the fact that it was eight years in the past at the time of the offence and ten years in the past today. I attach no particular importance to the fact that Mr. Hourihan appealed his conviction during two of those years. The pursuit of that appeal – on grounds that are not before me – appears to me to be quite irrelevant. He was convicted and he did avoid re-offending for eight years thereafter. Both facts are relevant and the latter fact does not “cancel out” the former. It is simply a factor.
[32] Without in any way minimizing the responsibility of the accused, the aggravating factor which is the severity of the harm suffered by the victim must be tempered to some degree by an appreciation of the fact that Mr. Footit’s decision to operate a push scooter on the road with neither helmet nor reflective clothing at 3:00 a.m. obviously played a contributing role.
[33] Among the mitigating factors are:
a. The fact that Mr. Hourihan has shown considerable remorse; b. The fact that Mr. Hourihan has recognized and is addressing his problems with alcohol; c. His standing as a valued and contributing member of the community as evidenced by the numerous support letters filed and reviewed by me.
[34] The Crown also asked me to take into account the fact that Mr. Hourihan exercised his right to a trial and did not plead guilty in this case. Such a decision, it was suggested, demonstrates at a minimum a lack of remorse. I disagree.
[35] There can be any number of reasons why a party chooses to exercise his or her right to a trial. I have no intention of being drawn into an assessment of the reasonableness of positions taken in plea negotiations. There is a fine and subtle distinction that must be drawn between assessing a guilty plea as a mitigating factor in sentencing and implicitly treating any other plea in effect as an aggravating factor. A guilty plea must always be a voluntary admission of guilt by those who are in fact guilty not a bargain reluctantly accepted by innocents persuaded by the fear of a fate still worse than the one offered. There is a risk that overweighting this factor can turn plea bargaining into plea coercion, a development that might cause the wheels of justice to turn more swiftly but not more justly.
[36] I am fully satisfied in this case that Mr. Hourihan has shown a great deal of remorse and I am not persuaded to lessen my appreciation of that fact merely because he has chosen to exercise his right to a trial.
[37] I fully accept that an early plea of guilty is an effective signal that the offender accepts responsibility for what has happened and that in turn is an important consideration in assessing rehabilitation prospects, among other things. I simply wish to state that I am wary of seeing the sentencing process being used to punish an accused for having chosen to assert his or her legal rights.
Analysis and conclusions
[38] Mr. Hourihan has come to grips with the fact he has an alcohol problem and is diligently pursuing treatment for it. Better late than never. It would have been better if this realization had come to him before the trial or before he took the wheel that night. However, I am satisfied that his efforts at this time are genuine.
[39] It is also clear to me that Mr. Hourihan has shown true and sincere remorse. I formed that view long before sentencing submissions were made from my view of the trial evidence. He was visibly distraught at the scene of the accident and did what he could to help Mr. Footit. As I have said above, I am not moved from that appreciation by reason of his failure to plead guilty.
[40] I am concerned by the prospect of a harsh sentence detracting unduly from the goal of rehabilitating this offender. It is quite likely that a non-intermittent custodial term will cause him to lose his current job and he will have some difficulty in finding a new one. He is not financially secure and will likely lose his apartment and have to rely on friends and family for help in re-establishing himself in that case. The progress that he is making on combatting his alcohol and other problems is at some risk of being lost. That is an important consideration as well.
[41] It is also clear to me that the facts of this case warrant a sentence somewhere in the lower end of the range of sentences imposed for similar offences. This case displays few if any of the aggravating circumstances found in much of the jurisprudence cited to me. Mr. Hourihan’s blood alcohol readings were certainly high but did not approach levels of two or more times the limit of 80 mg found in many of the cases cited to me. There was no speeding or erratic behaviour observed. He did not flee the scene. He called 911. He co-operated with police.
[42] Mr. Bottomley’s suggestion of an intermittent sentence coupled with a term of probation tied to continuation of the treatment program is something I have given careful consideration to. While I am persuaded that the relative lack of aggravating factors here when the facts found are compared to most of the cases cited to me requires a sentence that is at the low end of the range, I cannot find that a sentence as low as the 90 day range suggested by Mr. Bottomley is within that range.
[43] Lawyers and judges frequently will often somewhat informally speak in terms of sentencing “ranges”. There is danger in doing so. Viewed and treated as guidelines and not hard and fast rules, ranges can serve the salutary purpose of ensuring a reasonable degree of parity in sentencing decisions, thereby fulfilling the policy of s. 718.2(b) of the Criminal Code. However, parity is not an absolute goal and must be balanced with due consideration of all of the factors the Criminal Code requires to be weighed, including proportionality and the purposes of sentencing described in s. 718. The infinite variety of circumstances surrounding each offence defies any attempt to apply ranges in a cookie-cutter fashion and doing so would be an abdication of the critical responsibility the Criminal Code places upon the sentencing judge.
[44] In the present case, the concept of a sentencing range applies in effect as a reminder of the relative weight to be accorded the goals of sentencing enumerated in s. 718 of the Criminal Code and, in particular, the weight that the strong public policy concerns attendant upon this offence require to be placed upon the goals of denunciation and deterrence.
[45] The public policy of deterring drinking and driving is and has been for many years one of very great importance. Some small, incremental successes have been recorded over the years. In 1985 when MacKinnon A.C.J.O. famously described every drinking driver as a potential killer in R. v. McVeigh, [1985] O.J. No. 207; 11 O.A.C. 345; 22 C.C.C. (3d) 145, it is fair to say that social attitudes towards drinking and driving were very different than they are today. It was not always socially unacceptable to drink and drive. Offenders were often considered unlucky to have been caught rather than lucky if they caused no damage. RIDE programs were considered a nuisance. Some members of the public wildly underestimated the impact of impairment on their own ability to drive safely. Accidents were caused by someone else, faceless “others” who couldn’t handle their liquor. The oft-quoted line from Pogo captures the era well: “We have met the enemy and he is us”.
[46] Things have changed since 1985 and for the better. Hosts no longer hesitate to inquire who the designated driver is and offer alcohol-free options. People don’t boast about their prowess in driving while impaired. Social stigma has begun to attach to behaviour once wrongly thought to be harmless by too many.
[47] While there has been some progress in public attitudes and some limited progress in the numbers, drinking and driving remains a social problem that continues to take a terrible toll on families and communities across the country. The battle is by no means won.
[48] The change in public attitudes will doubtless face further stress as once illegal agents of intoxication become more generally available while science’s ability to detect levels of usage accurately remains in its infancy.
[49] There is one feature of these offences that bears examination. This is the fact that it is a crime that is very often committed by otherwise law-abiding pillars of the community. As Wagner J. noted in R. v. Lacasse, [2015] 3 S.C.R. 1089, 2015 SCC 64:
“While it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevant to offences that might be committed by ordinarily law-abiding people. It is such people, more than chronic offenders, who will be sensitive to harsh sentences” (at para. 73).
[50] The Court of Appeal has recently re-emphasized that general deterrence and denunciation are the “predominant sentencing objectives” in determining a fit sentence for alcohol driving offences, especially where bodily harm to another is involved: R. v. Clouthier at para. 54. The Court of Appeal has also recognized an upward trend in sentences for drinking and driving offences: R. v. Junkert, 2010 ONCA 549 at para. 46 and R. v. Carreira, 2015 ONCA 639 at para. 26. In R. v. Muzzo, 2016 ONSC 2068, Fuerst J. reviewed the recent sentencing jurisprudence in relation to impaired driving causing death and concluded that the increase in sentences in recent years due to the persistence of the problem means that sentencing decisions prior to Junkert, R. v. Ramage, 2010 ONCA 488 and R. v. Kummer, 2011 ONCA 39 have diminished value in providing guidance.
[51] While Muzzo, Junkert, Ramage and Kummer all involved accidents causing death, there is no principled reason why the same analysis ought not to apply to cases where by luck or Providence the resulting accident has “only” caused serious injury rather than death.
[52] In my view, the submissions of the defence in this case would privilege the objective of rehabilitation over deterrence and denunciation to an undue degree.
[53] A great number of drinking and driving offenders will fit the description of Wagner J. in Lacasse of being otherwise law-abiding individuals. Their rehabilitation prospects will often be excellent. Their remorse will be sincere and the impact upon their lives of a significant term of custody will doubtless be severe. It is, to a degree, precisely because of that fact that deterrence and denunciation bear added weight in cases such as this.
[54] Mr. Hourihan appears a thoroughly gentle man who would not deliberately harm a fly. I am certain that he did not expect to get into an accident that night. He was quite overcome with remorse that he did so. If he could restore Jesse Footit to the health and soundness he enjoyed before the accident he would doubtless do so without being asked. As well, his life has taken time to get settled and he appears only now to be finding an even keel with a trade and more settled career prospects. It is hard to imagine a sentence that would not put the progress he has made at some risk.
[55] And yet, despite all of these admirable characteristics, Mr. Hourihan did elect to take the wheel that night. He did so knowing how much he had had to drink and how recently. Too many people consider that they are fit to drive after drinking when they are not. Mr. Hourihan had reason – learned from hard experience – not to make the choice he made that night. He had been convicted for having done so in the past but the lesson did not sink in sufficiently to deter him this time. His remorse is genuine, I have no doubt, but he has not been swift to absorb his responsibility. His coming to terms with his alcohol problems is of very recent vintage – whether immediately before or after his conviction, I cannot say, but in the same time frame at least.
[56] I was strongly urged by Mr. Bottomley to follow the case of R. v. Biernat, 2009 ONCJ 273 where a 90 day intermittent sentence followed by probation was imposed in the case of a driver who had more than twice the legal limit of blood alcohol and struck a mother walking her two children in a parking lot. In many ways, Biernat was a more extreme case than the present one – the offender had two prior convictions for impaired operation of a motor vehicle and was awaiting sentencing on the second conviction when this offence occurred. His blood alcohol level was between 220 and 227 milligrams in 100 millilitres of blood. S.D. Brown J. noted his remorse, his guilty plea and his strong commitment to alcohol treatment in choosing to fashion a sentence that focused primarily upon rehabilitation due in significant part to the inability to impose a conditional sentence in the mid to upper reformatory range.
[57] I decline to follow Biernat. It is of course a lower court decision that is not binding upon me. As well, the decision both predates and to some degree contradicts the Muzzo, Junkert, Ramage and Kummer line of cases. Biernat was not followed by M.G.J. Quigley J. in R. v. Thompson, 2011 ONSC 624 at para. 42. Were I to be guided solely by the circumstances of the offender without regard to the broader picture, I should find the course outlined by Biernat to be an attractive one. However, a balance is required to be struck between the considerations specific to the offender and the broader societal interest, especially the interest in deterrence and denunciation.
[58] I was also urged to consider the case of R. v. Henderson, 2012 MBCA 9 where a suspended sentence was upheld by the Manitoba Court of Appeal for an impaired driving causing bodily harm case. There were exceptional circumstances found to exist in that case – uncontradicted evidence of the side-effects of a drug treatment recently started. There are no such exceptional circumstances here.
[59] The case of R. v. McCarthy, [2014] N.J. No. 344, 2014 CarswellNfld 349 involved an “over 80” cause bodily harm case where an intermittent sentence of 90 days was handed down. However, the offender in that case had no prior impaired driving convictions. The case of R. v. Rooplal, 2009 ONCJ 613 involved an impaired driving causing bodily harm with facts in many ways more severe than the present case where an intermittent 90 day sentence was handed down. The offender in that case had no prior history of impaired driving and the decision of course predates the Junkert line of cases.
[60] A sentence of only 90 days for a second conviction in circumstances where an accident causing serious bodily harm has resulted would not send an adequate message of deterrence and denunciation in my view and would disregard the guidance of more recent appellate-level decisions. The cases relied upon the defence in support of that position are distinguishable either because they pre-date the Junkert line of cases, involved offenders without prior impaired driving convictions or otherwise exhibited exceptional circumstances.
[61] While I find that 90 days intermittent is clearly an inadequate sentence, I find the 15 month sentence proposed by the Crown to be entirely too harsh. Mr. Hourihan’s case presents few of the aggravating factors present in the cases cited by the Crown.
[62] His level of intoxication, at least as measured by blood alcohol levels, was lower than the extreme levels found in R. v. Dhesi, 2001 ONCA 3554, R. v. Bouchard, 2001 ONSC 2465 or Thompson (more than twice the legal limit). Apart from the fact of drinking and an avoidable accident, there were no other indicia of a marked departure from norms of safe driving. There was no racing or speeding as in R. v. Ally, 2015 ONSC 1204. There was no erratic driving over several lanes of traffic as in R. v. Kraus, 2015 ONSC 6203. He has shown remorse and signs of taking positive if recent steps to bring his alcohol problem under control. While I attach considerable weight to the fact that this is a second offence, I am also mindful of the fact that the prior offence is now ten years in the past.
[63] Deterrence and denunciation are important values but they are not to be applied to the exclusion of all others. Mr. Hourihan must also be viewed as an individual and a sentence appropriate to his circumstances considered.
[64] In view of all of the circumstances of this case, I find that a sentence of nine months achieves a reasonable balance. It is sufficiently severe to send a strong message of deterrence both for Mr. Hourihan and for others who might be inclined to “roll the dice” and take the wheel in future. It recognizes his excellent prospects for rehabilitation and his genuine remorse while also taking into account the very serious and, for Mr. Footit, life-altering consequences that have attended upon the very tragic choice Mr. Hourihan made.
[65] The parties agreed on a two year driving prohibition as being appropriate and I concur.
Disposition
[66] Accordingly, I am staying the conviction on the charge of impaired driving. On the conviction under s. 255(2.1) of the Criminal Code for driving “over 80”, I sentence Mr. Hourihan as follows:
a. Nine months imprisonment; and b. A driving prohibition for a period of two years commencing from the date of his release.
[67] I may be spoken to regarding the date upon which Mr. Hourihan shall be directed to surrender himself into custody.
S. F. Dunphy, J.