CITATION: R. v. Lights, 2017 ONSC 5153
COURT FILE NO.: CR-16-30000016-0000
DATE: 20170831
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MICHAEL DEAN LIGHTS
Accused
Thomas Pittman, for the Crown
Christopher Murphy, for the Accused
HEARD: June 23, 2017
B.A. ALLEN J.
REASONS FOR JUDGMENT ON SENTENCING
BACKGROUND
The Convictions
[1] In a five-day judge-alone trial I convicted Michael Lights on two counts of dangerous driving causing bodily harm (Criminal Code, s. 249(3)) and two counts of criminal negligence causing bodily harm Criminal Code, (s. 221). The two sets of charges emerge from a common factual transaction. On the principle enunciated in R. v. Kienapple the Crown stayed the lesser of the charges, the two charges of dangerous driving causing bodily harm: [R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729 (S.C.C.)]. Mr. Lights therefore stands to be sentenced only on the criminal negligence causing bodily harm convictions.
The Collision
[2] The collision occurred on New Year’s Eve at 4:30 a.m. at the intersection of Lawrence Ave. E. and Brimley Rd. in Scarborough. The collision occurred blocks from Scarborough General Hospital. There were two victims in the accident.
[3] Vicky Milevska was on her way home at about 4:30 a.m. She was driving a white SUV northbound on Brimley Rd. toward Lawrence Ave. E. approaching the intersection. The light was red when she first arrived there. Ms. Milevska waited until it turned green and then proceeded through the intersection. That is the last thing she recalled until she found herself in the hospital.
[4] At about 4:30 a.m. Colibou Tchadouwa was driving a Ford Flex westbound in the centre lane on Lawrence Ave. E. The light facing him turned amber and then red. Mr. Tchadouwa saw a Nissan in the centre lane speeding eastbound on Lawrence Ave. The Nissan sped through the intersection and through the red light. There was no attempt to slow down or brake. The Nissan then struck the white SUV and went airborne, struck the light standard in the median, and then struck Mr. Tchadouwa’s Ford Flex on its front driver's side. The Nissan then collided with the back driver's side bumper of the Ford Flex.
[5] I found that Mr. Lights was the driver of the Nissan.
[6] Ms. Milevska and Mr. Tchadouwa suffered bodily harm. Ms. Milevska suffered broken ribs, a broken pelvis and a concussion. Mr. Tchadouwa sustained a back injury. He described in some detail the emotional sequelae of the collision − flashbacks and bad dreams where he pushes his wife out of bed and rolls out of bed himself as if to avoid danger.
Mr. Lights’ Life
Early Life
[7] Mr. Lights, now age 27, has had a challenging and unstable life. Mr. Lights’ mother gave birth to him when she was 16 years of age. Mr. Lights’ father and mother did not make a life together. The father eventually married another woman with whom he has three other children. The mother was addicted to illicit drugs and supported herself through prostitution. The mother also suffered from mental health issues.
[8] The mother cared for Mr. Lights until he was six months old and then passed him over to be cared for by his grandmother. He was then passed over to an aunt and then at 13 months he was passed over to the care of his father and stepmother who lived in a vulnerable Toronto neighbourhood. He kept in touch with his mother. On one visit he had the unfortunate experience of seeing his mother threatened at gunpoint by a pimp.
[9] At age nine Mr. Lights and his two half siblings were placed for adoption. He has had no contact with the half siblings. At age 11 Mr. Lights went to stay with his mother and after a few months he was returned to his father. In 2003 he asked to go into the care of the Children’s Aid Society whose custody he was in for one year.
[10] Mr. Lights began abusing alcohol and marijuana at age 11 and he has continued this into his adult life. He indicates he is motivated to address this problem while in custody.
Criminal Record and Time in Custody
[11] Mr. Lights’ contact with the criminal justice system began in 2002 at age 13 with a charge of mischief. Mr. Lights admitted to being involved in gang activity and to having started a gang in his early teens when he was involved in robbery and drug crimes.
[12] Shortly after discharge from the CAS in 2004, while living with his father, he was arrested and found guilty of robbery and several firearms offences. In 2005, Mr. Lights was arrested for robbery, firearms offences, break and enter and breaches of court orders. In 2007, he was sentenced as an adult to six years’ federal imprisonment for those offences. He was released in October 2013.
[13] Mr. Lights and his spouse bore a child in 2010 while he was on day parole. They later had another child in 2014. He has maintained frequent contact with his mother, spouse and the children while on federal parole. Violations of his release conditions sent him back to prison three times. On the expiry of his parole in October 2013 he moved in with his spouse and their first child and then into his half-brother’s apartment. Mr. Lights was next charged with the offences before the court in January 2014.
[14] While in federal custody on the earlier charges he participated in counselling and was open to discussing his life. He made progress and appeared to value the sessions. He indicated to the prison authorities that he was making progress in managing his anger.
[15] Mr. Lights is currently serving a prison sentence for several firearms and drug charges. He was sentenced on January 13, 2017. He received a global 64-month prison term. He is currently serving that sentence.
Information from Family Members
[16] Mr. Lights completed high school in 2008 obtaining an 80 percent average. He enrolled in a college business program in Brantford where documents provided by his spouse to the author of the Pre-Sentence Report show he obtained good grades on assignments. He had to leave the program when he was taken into custody. In 2015, he enrolled at a college in Toronto where information provided shows he got an A grade in Psychology. Mr. Lights indicated he is motivated to complete college either in custody or in the community. While on parole he worked at two factories.
[17] Mr. Lights maintains a relationship with his spouse and children. He and his spouse have a good relationship with Mr. Lights’ father and stepmother. In a letter to the court the spouse describes Mr. Lights as a caring father to his sons “with a heart of gold”. She indicates that he does not display anger management issues and that his youth criminal record from ten years ago does not reflect the man he has become today. He is motivated to be a better man, to be a good father to his children, and to finish school and start a business.
[18] Mr. Lights’ father states that his son is close to his family. He acknowledges that his son has had a hard life and that his criminal life style grew out of that experience. He indicates he does not believe his son is a menace to society. The father indicates he and his wife and Mr. Lights’ spouse are all supportive of him. This was displayed by members of his family attending at his sentencing hearing. They stood and identified themselves as his father, stepmother, aunt and younger sister.
Victim Impact Statement
[19] Ms. Milevska provided a victim impact statement. She states she has suffered emotional, physical and financial consequences following the collision. She had difficulty with physical work around the house and getting in and out of the car. She suffers from bad headaches, back, neck and pelvic pain. She suffers from insomnia. Ms. Milevska states that the emotional impact on her prevents her from driving. She gets anxious and nervous when entering a car. She has not driven since the collision. Having to purchase a new car and being off work for four months has put financial pressure on the family.
[20] Mr. Tchadouwa did not provide a victim impact statement. However, at trial he spoke about his problems with lower back pain. He states that his pain prevents him from doing the physical activities he did before the collision. He can no longer do long distance running and other sports and is restricted in activities with his children. Mr. Tchadouwa also spoke of dreams about the accident. As noted above, he indicates that during these dreams he has pushed his wife out of bed and rolled out of the bed himself as if saving them from an emergency.
PRINCIPLES ON SENTENCING
[21] Section 718 of the Criminal Code provides the objectives of sentencing, being denunciation, deterrence and the separation of the offender from society.
[22] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other potential future offenders from committing offences; and (c) to separate offenders from society.
[23] Proportionality is also a guiding principle for sentencing. A sentence must be proportionate to the gravity of the offence, 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 CanLII 5549 (ON CA), 186 C.C.C. (3d) 129, 72 O.R. (3d) 1 (Ont. C.A.)].
[24] The parity principle requires a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is an individualized process which necessarily means that sentences imposed for similar offences might not be identical: [R. v. Cox, 2011 ONCA 58 (Ont. C.A.) and R. v. L.M, [2008] 2 S.C.R. 163, 2008 SCC 31 (S.C.C.)].
[25] Section 718.2 addresses the totality principle and provides that where consecutive sentences are imposed the combined sentence should not be unduly long or harsh. This principle applies to sentences for multiple offences and requires the court to craft a global sentence of all offences that is not overly excessive.
[26] This principle must be considered in the case at hand. Mr. Lights is currently serving a global 64-month sentence imposed in January 2017. I must craft a sentence that is not excessive with a view to Mr. Lights’ overall culpability: [R. v. M. (C.A.), [1996] 1 S.C.R. 500, 1996 CanLII 230, at para. 42, (S.C.C.)].
AGGRAVATING AND MITIGATING FACTORS
[27] Section 718.2(a) of the Criminal Code requires the court in deciding the nature and extent of sentence to consider any aggravating and mitigating circumstances. I am mindful, given Mr. Lights’ January 2017 convictions, that convictions received following the convictions before the court are not to be considered as aggravating factors on sentencing.
The Aggravating Factors
[28] The aggravating factors are as follows:
• The charges before the court are serious in that Mr. Lights very recklessly got behind the wheel of a poorly maintained vehicle in the early hours on a winter morning and sped through a red light, potentially imperiling other drivers, and injuring the two complainants.
• Mr. Lights has a serious and lengthy criminal record spanning from convictions in 2004 to 2014 for robbery, firearms offences, assault, drug offences, and breaches of court orders.
• Mr. Lights served six years in a federal prison for his 2005 offences. His federal sentence expired in October 2013. His experience with imprisonment did not deter him from the risky conduct that led to the motor vehicle offences about five months later.
• Mr. Lights has a history of disrespect for court orders having violated court orders and conditions while on parole.
• Mr. Lights lacks a solid employment background and education principally due to his lengthy periods of incarceration.
• Mr. Lights has issues with alcohol and marijuana abuse.
The Mitigating Factors
• The offences before the court while serious in nature are unrelated to his criminal antecedents and are not as serious as his previous convictions involving firearms and drugs.
• Although an ill-conceived plan, Mr. Lights’ intention was not to commit a crime the morning of the collision but to get his friend suffering from a gunshot to the hospital.
• Mr. Lights has a close and supportive relationship with his family, his father, stepmother, spouse and aunt all of whom have cared for him over the years of his difficult life.
• Mr. Lights has lived a terribly difficult life from birth. His mother has been a prostitute and suffered drug addiction and a psychiatric disorder. The mother has never been able to provide support and guidance for her son.
• Mr. Lights has been exposed to seeing his mother as a victim of gun violence because of the associates she engages with in her lifestyle.
• Mr. Lights’ family members who spoke to the author of the PSR state that his criminal history and conduct from ten years ago are not reflective of the loving father and spouse and the good-hearted and responsible person he has become as a man.
• Mr. Lights appears from his performance in school to be very intelligent. He completed high school and has attended but has not completed two college programs. When he has had the opportunity to go to school he has performed admirably and appears to be motivated to return to complete college either in custody or in the community.
• Prison authorities have remarked that Mr. Lights has been open to counselling for anger and other issues and has been cooperative with counsellors in discussing his life experiences. He is motivated to address his drug and alcohol issues.
PARTIES’ POSITIONS
[29] Crown counsel seeks two to three years’ imprisonment in a federal institution and a five-year driving prohibition. Defence counsel seeks six months’ custody and a one-year driving prohibition.
CASE AUTHORITIES
[30] Sentences for cases involving driving offences resulting in bodily harm vary greatly given the wide-ranging circumstances of collisions and the differing backgrounds and driving records of offenders. Sentences in the cited cases range from non-custodial, intermittent and suspended sentences to reformatory and penitentiary sentences. Driving prohibitions range from one year to seven years.
• R. v. Van Puyenbroek, 2007 ONCA 824, [2007] O.J. No. 4689 (Ont. C.A.) − offender intoxicated at the time of 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 failure to remain; he dozed off and struck 5 cyclists; left the scene. Offender 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 custodial sentence; upheld on appeal;
• 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 an 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 CanLII 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 spouse 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
[31] I carefully weighed the aggravating and mitigating factors and considered the range of sentences in other cases and the factual contexts on which those sentences were based. I am guided by the sentencing principles of denunciation and deterrence, proportionality and totality in fashioning a sentence.
[32] I find a custodial sentence is appropriate. In deciding this I took into account Mr. Lights’ serious and protracted criminal record. I considered the serious nature of the offences before the court which involved the sizeable risk Mr. Lights was willing to take which resulted in serious injuries to two unsuspecting motorists on their way home from New Year’s celebrations.
[33] In considering the length of sentence, I find the sentence should not be at the higher end of the range. I took into account the mitigating circumstances in imposing a sentence toward the lower end. The offences before the court are not a continuation of his firearms and drug offences from ten years earlier. Further, the current offences were motivated by a misguided and imprudent attempt to help a friend and not conceived for the purpose of harming people or property.
[34] I also took into account Mr. Lights’ unstable and often perilous background in which, for lengthy periods, he did not live in the context of family but rather was placed in institutional settings. He also went back and forth for short periods with different family members. He confronted dangerous situations when exposed to his mother’s lifestyle. He witnessed frightening events no child should ever experience. In spite of all of this, there is evidence from prison authorities that Mr. Lights is cooperative and open in counselling sessions and motivated to address his problems. He values counselling and has found it helpful.
[35] I further took into account Mr. Lights’ impressive performance in school. There is evidence from family that when Mr. Lights had the opportunity to attend high school and college he obtained high scores in his courses. His spouse provided the author of the PSR with documentary evidence of this. Mr. Lights indicated to the author of the PSR that he is motivated to complete college whether in custody or in the community.
[36] Regarding the length of the driving prohibition, the court was presented with no evidence of Mr. Lights’ driving record. Under s. 259 of the Criminal Code, a driving prohibition may be imposed. The five-year prohibition sought by the Crown is excessive.
DISPOSITION
[37] I find a fit sentence to be a 12-month custodial sentence for criminal negligence causing bodily harm to Vicky Milevska under s. 221 of the Criminal Code and a 12-month custodial sentence for criminal negligence causing bodily harm to Colibou Tchadouwa, the sentences to run concurrently. The 12-month sentence shall run concurrently to the 64-month sentence imposed in January 17.
[38] I impose a 12-month driving prohibition.
SENTENCE
[39] I will now pronounce sentence. Michael Lights, will you please stand?
[40] Counts 1 and 2 on the indictment have been stayed.
[41] You have been convicted for criminal negligence causing bodily harm to Vicky Milevska on count 3 on the indictment.
[42] You have been convicted for criminal negligence causing bodily harm to Colibou Tchadouwa on count 4 on the indictment.
[43] I sentence you to 12 months’ custody on count 3 and to 12 months’ custody on count 4 to run concurrently. Your total custodial sentence shall be 12 months.
[44] The 12-month sentence shall run concurrently to the 64-month sentence imposed in January 2017.
[45] I impose a driving prohibition of 12 months.
B.A. ALLEN J.
Released: August 31, 2017
CITATION: R. v. Lights, 2017 ONSC 5153
COURT FILE NO.: CR-16-30000016-0000
DATE: 20170831
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MICHAEL DEAN LIGHTS
Accused
REASONS FOR JUDGMENT ON SENTENCING
B.A. ALLEN J.
Released: August 31, 2017