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Abstract: Transcript of the Reasons for Sentence
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R. v. Draskoczi, 2013 NWTSC 07 S-1-CR-2013-000007 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - ANDREW DRASKOCZI __________________________________________________________ Transcript of the Reasons for Sentence delivered by The Honourable Justice L. A. Charbonneau, sitting in Yellowknife, in the Northwest Territories, on the 29th day of January, A.D. 2013. __________________________________________________________ APPEARANCES: Ms. W. Miller: Counsel for the Crown Mr. S. Petitpas: Counsel for the Accused (Charge under s. 221 of the Criminal Code of Canada) Official Court Reporters 1 THE COURT: Mr. Draskoczi pleaded guilty 2 this morning to a charge of criminal negligence 3 causing bodily harm. The events that led to this 4 charge are relatively straightforward and 5 happened about a month and a half ago in 6 Hay River. 7 I heard this morning that Janice Sabourin 8 and the accused know each other. On December 12, 9 2012, in the early evening, they had an 10 interaction while he was in his truck behind the 11 arena in Hay River. The facts that were alleged 12 and admitted by him are that she had given him 13 money but wanted it back. She was trying to get 14 the money back through the driver's window of the 15 vehicle. At that point, he drove away. She hung 16 onto the window of the vehicle and fell off when 17 he made a right turn on a street. So she fell 18 off the vehicle and rolled down the road, 19 something that a passerby was able to see. She 20 was taken to the hospital, I heard, and was 21 treated for a broken nose and a broken rib. She 22 also suffered abrasions and scratches to her face 23 and knee which are visible in the photographs 24 that were filed as exhibits. I heard that she 25 did not have to remain in the hospital and, 26 fortunately, has not suffered any long-lasting 27 injuries. I do not know anything more about the Official Court Reporters 1 1 impact that this event had on her because she has 2 chosen not to prepare a Victim Impact Statement. 3 The injuries that Ms. Sabourin suffered were 4 not minor injuries, but she, and the accused, are 5 very, very lucky that the were not far worse. It 6 goes without saying that hanging onto the window 7 of a moving vehicle is not a good idea, but to 8 drive off and continue driving when someone is 9 hanging onto one's vehicle is extremely dangerous 10 and negligent. It is beyond negligence, in fact; 11 it is a crime, and I know that Mr. Draskoczi 12 understands that because he has pleaded guilty to 13 the charge. 14 Motor vehicles are everywhere around us in 15 our communities. They are a very useful tool. 16 We use them all the time to get around. They can 17 also be very, very dangerous weapons. We often 18 say this in the context of sentencings for 19 drinking and driving offences: In the hands of 20 an intoxicated driver, a car is a lethal weapon. 21 In the hands of someone who makes the kind of 22 decision that was made in this case by the 23 offender, a car is just as much a lethal weapon. 24 The objective seriousness of this offence is 25 reflected by the fact that the Criminal Code 26 provides that a maximum penalty for it is ten 27 years. I point out that criminal negligence Official Court Reporters 2 1 causing death is punishable by life imprisonment. 2 The difference here between this offender 3 facing sentencing for one type of charge instead 4 of the other, I think, is really a matter of pure 5 luck. What I mean by that is that it is mostly 6 luck that makes the difference between someone 7 being seriously injured, or injured a little 8 less, or killed when motor vehicles are used in 9 an inappropriate way. I really do hope this 10 offender takes stock of having been very 11 fortunate this time, and that he never acts this 12 way at the wheel of a motor vehicle ever again. 13 I think the Crown counsel is correct in 14 noting that the range of sentences that are 15 imposed for these types of offences is very 16 broad. That is because the factual scenarios 17 that can lead to a charge of criminal negligence 18 causing bodily harm covers a very wide range of 19 situations. I also agree that this particular 20 incident fits neither at the top end nor at the 21 bottom end in the range of seriousness that this 22 crime can imply; but I emphasize again that I 23 think where it fits on the range is in large part 24 a matter of luck and that for the exact same 25 conduct, much more serious consequences could 26 have unfolded. 27 The criminal record that has been filed as Official Court Reporters 3 1 Exhibit 2 is an aggravating factor. Courts are 2 always concerned when we deal with individuals 3 who have a steady pattern of involvement with the 4 criminal justice system that goes on for years, 5 as is the case here; it is very useful to know 6 that the last entry on the record from 2011 7 actually relates to an incident that dates back 8 to many years before. It means, if one wants to 9 be optimistic, that there was a small gap in this 10 offender's criminal record by the time this 11 incident happened. So hopefully that is the 12 direction that he will take in his life. He is 13 the only one who has control over that. 14 The record, in addition to the fact it spans 15 over many years, is a concern specifically in 16 this case because there are prior convictions for 17 offences that have to do with driving (the misuse 18 of motor vehicles, or their use in circumstances 19 where he should not have been driving); but at 20 the same time, it is very important that people 21 not be punished over and over again for the same 22 crimes by having too much emphasis placed on 23 their criminal record. Because that is not fair. 24 There are mitigating factors in this case. 25 This happened not very long ago, as I said (just 26 a month and a half), and I heard that discussions 27 were ongoing from an early stage with a view of Official Court Reporters 4 1 resolving this matter without a trial. It is a 2 matter of record that the preliminary hearing was 3 waived. So there was court time that was saved 4 that would have otherwise have been required to 5 deal with this matter. But more importantly, 6 Ms. Sabourin and other witnesses did not have to 7 come to court to talk about this incident, be 8 cross-examined about it, be asked about minute 9 details of everything that happened that day. It 10 is hard for witnesses to come to court and talk 11 about dramatic events, and the Court knows that 12 because, when trials do proceed, we see the 13 effect it has on witnesses. So whenever someone 14 spares people who have already been hurt from 15 having to go through that, they deserve credit 16 for it, and that is why a guilty plea, and 17 especially an early one, is a significant 18 mitigating factor. 19 The time that Mr. Draskoczi spent on remand 20 has to be considered also. As defence counsel 21 noted, how much credit is given for time spent on 22 remand is a question for the Court's discretion. 23 There is no mathematical formula to be used. 24 There are limits now provided for in the Criminal 25 Code as to how much credit can be given, but how 26 much credit is given is really driven by the 27 specific facts of each case. Official Court Reporters 5 1 I heard from defence counsel, and it is not 2 disputed by the Crown, that this particular 3 offender was not a management problem for the 4 jail in the short time he was there, he worked in 5 the kitchen, and that he was someone who, if he 6 had been serving a sentence, would have earned 7 remission. That is a factor to take into 8 account. I have concluded that he should be 9 given credit for the remand time on more than a 10 one-for-one ratio, although I am not prepared to 11 go to a ratio of one to one and a half, which is 12 the maximum permitted under the law. I am not 13 convinced that this is necessarily a case for it; 14 but I accept that he should be given credit for 15 his remand time on a higher ratio than one for 16 one. 17 The Crown and defence are not very far apart 18 in their positions. Those positions are well 19 considered and it is obvious counsel have given 20 this some thought. Crown is saying a range of 21 four to six months' imprisonment would be 22 appropriate, defence is suggesting that a range 23 of four to five months would be appropriate. It 24 goes without saying that without his early guilty 25 plea, the Court would be looking at a much longer 26 range than that as far as a sentence. 27 I have heard that the offender had been Official Court Reporters 6 1 working in Hay River before this happened and has 2 plans to become a commercial fisherman. I really 3 hope that this plan will come true and that when 4 Mr. Draskoczi has finished serving his sentence, 5 he will turn away from any activity that will 6 bring him into contact with the justice system. 7 He is still a young man. As we get older, I 8 suppose that people that are younger than us 9 always seem very young. But he is not an old 10 man. He has a lot of years ahead of him to do 11 constructive things, if he chooses, instead of 12 staying on the very destructive path he seems to 13 have been on for many years; but whether he does 14 that is completely up to him. 15 Taking into account all of the circumstances 16 and the need to send a clear message in the 17 community about how dangerous this type of 18 conduct is, and also taking into account the fact 19 that it is not the first time that this 20 particular offender misuses a motor vehicle, I 21 have concluded that a fit sentence for this 22 offence is six months' imprisonment. By my 23 count, he has 47 days in pre-trial custody, and 24 taking into account what I heard from his 25 counsel, I will give him credit for two months. 26 Stand up, please. Sir, you have heard what 27 I said. I hope I do not see you in court again Official Court Reporters 7 1 and that you can use your skills and your talents 2 in a useful, constructive way from this point on. 3 I have concluded that the sentence should be six 4 months. Because I am giving you credit for the 5 remand time, there will be only be a further four 6 months to serve. 7 I am also going to impose a driving 8 prohibition. In my view, it is required under 9 the circumstances. Because of the jail term I 10 have imposed, I am going to make the driving 11 prohibition commence today and expire one year 12 and four months from today's date. Given the 13 past convictions for similar offences, I view 14 this as the absolute minimum, because it is the 15 same length of prohibition, essentially, that was 16 given on other occasion. 17 I considered what your lawyer said about the 18 surcharge, sir, and because of what I heard about 19 the kind of salary you were making before you 20 were taken into custody, because you are 21 obviously able to work, and because you have not 22 been on remand for a very long time, nor will you 23 be in jail for a very long time, I will impose 24 the victim of crime surcharge. It is a hundred 25 dollars. It is not a huge amount of money, but 26 that money goes to a fund that is there to help 27 victims of crime. The Code says that I have to Official Court Reporters 8 1 impose it unless I determine it would be a 2 hardship. If I send you to jail for a longer 3 time, that probably would be the case. But under 4 the circumstances, I will make that order. I 5 will give you seven months to pay it, which means 6 that you can have several months after your 7 release to get working again and pay that. 8 Is there anything that I have overlooked? 9 MS. MILLER: No. Thank you, Your Honour. 10 THE COURT: Anything I have overlooked? 11 MR. PETITPAS: No, Your Honour. 12 THE COURT: Well, good luck to you, sir. 13 I thank both counsel for their submission on this 14 case. They were very helpful. 15 ................................. 16 17 18 Certified Pursuant to Rule 723 of the Rules of Court 19 20 21 Jane Romanowich, CSR(A) 22 Court Reporter 23 24 25 26 27 Official Court Reporters 9
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