



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Carry,







2008 
          BCCA 37



Date: 20080118

Docket: CA035068

Between:

Regina

Respondent

And

Daryl Daniel Carry

Appellant




Before:


The 
          Honourable Mr. Justice Hall




The 
          Honourable Mr. Justice Lowry




The 
          Honourable Mr. Justice Frankel



Oral Reasons for Judgment




M.F. 
          Allen


Counsel for the Appellant




K. 
          Madsen


Counsel for the Respondent (Crown)




Place 
          and Date:


Vancouver, British Columbia




18 January, 2008



[1]

LOWRY J.A.:
In December 2006, for various offences committed 
    between July and November 2005, most of which related to the operation of 
    a motor vehicle, the applicant was sentenced to be imprisoned for five years 
    and prohibited from driving for 10 years.  He seeks to have his sentence 
    reduced to between two and three years on the sole ground that it is excessive 
    and unfit.

[2]

The applicant is now 38 years of age.  
    He has suffered from drug addiction.  His criminal record begins in 1987.  
    It includes a litany of property offences throughout, for which the applicant 
    was sentenced to periods of incarceration.  It also includes convictions 
    for driving offences, the most serious of which is a conviction for criminal 
    negligence causing the death of two people in 1992, for which he was sentenced 
    to five years in prison, and the dangerous operation of a motor vehicle in 
    1996, for which he was sentenced to six months in prison.  The applicant 
    was in both instances also convicted of driving while disqualified, as he 
    was in one other instance.

[3]

On the first of November 2005, the applicant 
    was arrested after fleeing from police in a stolen vehicle at high speed on 
    city streets while under the influence of drugs.  He collided with another 
    vehicle, badly injuring its occupant.  In December 2006, he pleaded guilty 
    to criminal negligence causing bodily harm, fleeing from police, driving while 
    disqualified, and theft under $5,000 (the car he was driving).  At the 
    same time, he pleaded guilty to five counts of driving while disqualified 
    between July and November 2005 and one count of possession of stolen property 
    under $5,000 that occurred in that period.  He was sentenced to three 
    years on the convictions for criminal negligence and fleeing from police, 
    and one year on each of the eight other convictions.  He had been incarcerated 
    for a year awaiting sentence, for which he was credited on the customary two-for-one 
    basis.  All of the sentences are to be served concurrently, save for 
    the three year sentence for criminal negligence and the sentence for driving 
    while disqualified when that sentence was committed which are to be served 
    consecutively.  In the result, a global sentence of five years was imposed, 
    which is an effective sentence of seven years.

[4]

In passing sentence, the judge noted 
    the maximum sentences for which the
Criminal Code
provides for 
    two of the offences are 10 and 14 years.  He saw the nature of the applicants 
    extensive criminal record, the circumstances of the injury caused by the applicant, 
    the seriousness with which the community regards the kind of conduct in which 
    the applicant engaged, and the lack of any excuse for the applicants behaviour 
    as the aggravating factors.  He viewed the applicants guilty pleas and 
    the measure of family support the applicant has as mitigating factors.  
    The judge then said, in reasons for sentence (14 December 2006) Nanaimo Registry 
    60275-1, 60479-1, 60792-2-C, 60928-1, 60929-1, 60977-1, 60978-1 (B.C. Prov. 
    Ct.):

[11]      
    In passing sentence, I consider not only deterrence to you, but to others 
    who might be inclined to act as you did.  I also consider protection 
    of society, as well as your rehabilitation.  But in light of what I see 
    as a horrendous driving record, I place particular emphasis on protection 
    of the public and denunciation, and with respect to protection of the public 
    it is my view that the past driving prohibitions have been completely ineffective 
    in preventing you from operating a motor vehicle.  A lengthy period of 
    incarceration, unfortunately, is the only way to keep you from continuing 
    to commit such offences and to protect the public.

[5]

The applicant now cites decisions of 
    this Court where sentences of less than seven years have been imposed in what 
    are said to be comparable circumstances of both offence and offender:
R. 
    v. Sweeney
(1992), 11 C.R. (4
th
) 1, 33 M.V.R. (2d) 33 (B.C.C.A.);
R. v. Haines
, 2001 BCCA 489, 158 B.C.A.C. 26;
R. v. Jackson
(1982), 14 M.V.R. 311 (B.C.C.A.); and specifically
R. v. Vandervalk
, 
    2006 BCCA 431, 231 B.C.A.C. 63.  But there are distinguishing features 
    in each and, more particularly, I do not consider what was said in those cases 
    renders the global sentence of five years in prison imposed on the applicant 
    excessive or unfit.

[6]

Here the applicant was being sentenced 
    for ten offences committed between July and November 2005.  In addition 
    to the three-year sentences imposed for criminal negligence and fleeing from 
    the police, he was sentenced to one year for each of five convictions for 
    driving while disqualified as well as one year each for convictions of theft 
    and possession of stolen property.  Consecutive sentences can be justified 
    where an accused is sentenced for offences that are committed separately but, 
    having regard for the totality of the sentences here, the judge exercised 
    his discretion in ordering all but two of the sentences he imposed be served 
    concurrently.

[7]

Further, the applicant has already been 
    sentenced to a term of imprisonment of five years on a conviction for criminal 
    negligence causing death and it is apparent neither that sentence nor any 
    of the sentences imposed upon him have served to cause him to take responsibility 
    for his conduct and put an end to his criminal behaviour.

[8]

The applicant has persisted in criminal 
    conduct that represents a serious danger to public safety.  He has, in 
    particular, repeatedly driven when he has been disqualified from so doing 
    and he is now convicted of a second serious crime caused by his criminal negligence 
    for which he bears a high degree of moral blameworthiness.  The applicant 
    stands convicted nine times of driving while disqualified and accordingly 
    has shown no willingness to abide by the courts orders.  As the judge 
    said, the only way to insure he will not continue to endanger the public as 
    he has, is to incarcerate him for an extended period of time.  In my 
    view, this, coupled with meeting the sentencing objectives of denunciation 
    and deterrence, justifies the sentence imposed.  I see little reason 
    to consider whatever prospect of rehabilitation there may be should serve 
    to offset the grave concern for protecting the public that has to be the dominant 
    factor in sentencing the applicant.

[9]

It follows I do not consider the judge 
    erred in imposing the sentence he did and, while I would grant the applicant 
    leave to appeal, I would dismiss the appeal.

[10]

HALL, J.A.
:

I agree.

[11]

FRANKEL, J.A.
: I agree.

[12]

HALL, J.A.
: The extension of time for appeal is allowed.  
    Leave to appeal is granted and the appeal is dismissed.

The Honourable 
    Mr. Justice Lowry

CORRECTION 
     6 February 2008

In 
    Para. [3], the third sentence beginning In December 2006, he pleaded guilty 
    to dangerous driving causing bodily injury should be In December 2006, 
    he pleaded guilty to criminal negligence causing bodily harm


