Citation:

HMTQ v. Khosa and Bhalru

Date:

20030203

 

 

2003 BCSC 221

Docket:

CC011518

Registry:  Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA

Oral Reasons for Sentence

The Honourable Madam Justice Loo

February 3, 2003

 

HER MAJESTY THE QUEEN

AGAINST

SUKHVIR SINGH KHOSA

 

AND

 

BAHADUR SINGH BHALRU

 

 

 

Counsel for the Crown

E. Z. Poll

Counsel for the Defendant Bhalru

J. M. Doyle

Counsel for the Defendant Khosa

D. B. Geller

Place and Date of Hearing:

Vancouver, B.C.

3 February 2003

 

[1]            THE COURT:  Shortly after 9:00 p.m., the evening of November 13, 2000, Irene Thorpe was walking along the sidewalk on Southwest Marine Drive when Sukhvir Khosa’s vehicle ran out of control and struck and killed her.  Mr. Khosa was street racing with Bahadur Bhalru.  Both men were convicted of criminal negligence causing her death.

[2]            The two men had left a party at Iona Beach Park in Richmond, with Mr. Khosa driving a 1995 Z28 Camaro, and Mr. Bhalru driving a 1994 Z28.  They were seen racing with each other from the end of the Arthur Laing Bridge, east along Southwest Marine Drive, until just before Manitoba Street, when the accident occurred.

[3]            Trevor Moreno, a witness, said he was shocked and scared at Khosa’s vehicle as it shot by him on the right to avoid some parked cars, the rear of his car fishtailing and almost striking the median before it shot off again down the road, only to be followed, split seconds later, by Bhalru’s vehicle travelling even faster.  Mr. Moreno estimated Mr. Khosa’s vehicle at speeds of more than 120 kilometres per hour.  The two vehicles then raced past Robert Calvez, who said he was so frightened for his own safety that he hunched down and gripped his steering wheel as the Camaros blew past him.

[4]            Just past Yukon Street, Southwest Marine Drive curves, as does the median dividing the three lanes of eastbound traffic from the three lanes of westbound traffic.  Mr. Khosa was in the lead, Mr. Bhalru about two seconds behind, when suddenly Mr. Khosa’s Camaro struck the curb of the median.  He lost control of his vehicle, which then careened off the road onto a sloped sidewalk, became airborne, demolished two telephone booths and a hedge before it flipped end over end, eventually landing on Manitoba Street.  Mr. Khosa closed his eyes as his Camaro spun out of control.  He was totally unaware that he had struck and killed Ms. Thorpe until, shortly after, an ambulance attendant located her body under a bush.  At that point, he broke down and cried.

[5]            While Mr. Khosa had a drink or a beer or two while he was at Iona Beach Park, he did not appear impaired to the police or ambulance attendant at the scene.  I am satisfied that alcohol was not a factor contributing to the accident.  Mr. Bhalru had nothing to drink.

[6]            Crown submits that this is a case about street racing and that this court should take judicial notice of the increasing incidents of street racing in the community and the resulting fatal consequences for the innocent.  It argues that, in accordance with the sentencing principles of deterrence and denunciation, both offenders deserve prison sentences of four to seven years and driving prohibitions of 10 to 15 years.  To put it another way, Crown argues that only by lengthy prison sentences can society demonstrate that street racing and its wanton and reckless disregard for the safety of others will not be tolerated.

[7]            The defence contends that case law demonstrates sentences for this offence within the range of 18 months less a day and that I should therefore consider a conditional sentence, that is, a sentence served in the community rather than in prison for that length of time, followed by probation for three years, with a total five year driving prohibition, and 240 hours of community work service directed at speaking to youth about the conviction, speeding, reckless driving and its tragic consequences.

[8]            This case has attracted much publicity because Mr. Bhalru was charged and convicted of criminal negligence causing death, an offence with a maximum penalty of life imprisonment, even though his vehicle did not strike Ms. Thorpe.  Mr. Bhalru committed the offence by being in the race.

[9]            I will deal first with the evidence about street racing, then the argument of the Crown and of the defence, followed by the circumstances of the victim, both accused, and then my conclusions.

[10]        Since the fall of 2000, Constable Dennis Hwang, of the Richmond RCMP detachment, has taken responsibility for a street racing enforcement project.  Most of his attention, that is 80 per cent, is focused on what he calls “industrial” or “organized” street racing, and the remainder on what he calls “spontaneous” street racing.  The word “industrial” presumably refers to the areas where the races take place, and the word “organized” refers to the fact that the races are organized ahead of time.

[11]        Constable Hwang and the other police gather information on industrial or organized street racing through automotive retail outlets or through Internet chat forums, where they often find out about the location and dates for a race.  As Constable Hwang testified, the police would then go to the designated location and hide until the cars assembled, and then they would stop the race.  Since cracking down on industrial racing, Constable Hwang says that the police are now finding more instances of spontaneous street racing, that is, cars racing from stop light to stop light, at least in Richmond.

[12]        The Crown sought to tender the opinion evidence of Constable Hwang as an expert in the area of street racing, specifically its frequency and occurrence throughout the province and the location of the street racing sites.  I disallowed the proposed evidence because I did not find that he had the necessary degree of knowledge through study or experience, with just over two years, to be able to qualify as an expert.  He may over time, but presently, as Constable Hwang himself testified, as did Dr. John Vavrik, there is currently no reliable statistical evidence for determining whether street racing is increasing, decreasing or remaining the same.  There is, however, anecdotal evidence, but that is not the same.  Nevertheless, I found Constable Hwang’s evidence on the efforts of the police to combat organized street racing helpful.

[13]        Dr. John Vavrik, a psychologist employed by ICBC since 1989, gave expert evidence on driving behaviour over the last 20 to 30 years.  Alcohol, that is, drinking and driving, is the most common factor associated with fatal collisions.  However, the frequency of drinking and driving has decreased over the last 15 to 20 years, with the greatest decrease in young drivers, those in their teens and early 20s.  The change, he says, has been brought about through enforcement, education and engineering.  Consistent law enforcement increases the probability of apprehension.  Increased education programs, especially in high schools, contributes to a positive change in attitude, and improved vehicle safety devices, such as seatbelts and airbags, also contribute to the decline in drinking and driving related collisions and fatalities.

[14]        Dr. Vavrik says that street racing has become an issue in the last five years or so, but has not received the attention in the education programs that drinking and driving has in the past, and much work needs to be done to raise awareness towards the devastating impact that results from aggressive driving behaviour.

[15]        Recently, Dr. Vavrik interviewed 15 of what he calls “committed street racers.”  The majority of these committed street racers spend money modifying their vehicle for racing,  the amounts of money spent ranging from just a few hundred dollars upwards to $10-$20,000.  He asked them a number of questions, including what it would take them to stop street racing.

[16]        According to Dr. Vavrik, to change driving behaviour, deterrent factors are required and they work better, in the short term, but it is education that plays a more important role in the long term.  Specifically, education in small groups, through testimonials from those who have suffered the consequences of street racing.

[17]        I ruled that the proposed expert evidence of Constable Hwang on the frequency of street racing was inadmissible, but Crown contends that it should be apparent to everyone that street racing is increasing and becoming a more significant problem and that I should take judicial notice of that fact. 

[18]        Judicial notice is a doctrine by which a court accepts the existence of a proposition of fact, even though it has not been proven by evidence that is admissible.

[19]        I am not prepared to take judicial notice of the fact that street racing is increasingly becoming a more significant problem when the evidence discloses that there is no reliable statistical evidence to prove that it is on the increase.  There is no doubt, however, that street racing is a problem that needs to be addressed.

[20]        There is no doubt, on the submissions and the evidence I have heard, that the police want to send a strong message that street racing will not be tolerated.  Crown therefore contends a lengthy penitentiary term will meet the sentencing principles of deterrence and denunciation.  In everyday language, it means that it hopes that a prison term will deter others from street racing by setting an example in this case, and to denounce or express society’s condemnation or abhorrence of street racing.

[21]        I agree that street racing, particularly in Richmond, poses a problem according to the evidence, and should not be tolerated.  However, I question whether Mr. Khosa or Mr. Bhalru are the kind of drivers that Constable Hwang’s project is attempting to target.  There is no suggestion whatsoever that Mr. Khosa or Mr. Bhalru are the committed street racers that Constable Hwang or Dr. Vavrik spoke of, nor is there any suggestion that either of them ever engaged in industrial street racing, or that the Camaros they drove that evening had been modified somehow to enhance racing performance.  Mr. Khosa was driving his older sister’s Camaro and Mr. Bhalru was driving his friend’s car.

[22]        By making these comments, I do not intend to be taken as condoning street racing in any manner or form.  I accept Dr. Vavrik’s evidence that street racing is indeed a problem that needs to be addressed through a program of education strategies and deterrence, much like what has been done in the past with drinking and driving.  Neither am I attempting to minimize in any way Mr. Khosa’s or Mr. Bhalru’s moral culpability or blameworthiness.  Mr. Khosa was 18 at the time of the offence; Mr. Bhalru was 21.  They were very young, but still, they should have foreseen the risks they took to satisfy the momentary pleasure of flexing their horsepower-driven muscles to see who could drive the fastest.  They both lost the race, but Ms. Thorpe lost her life.  Speeds of 120 kilometres per hour in a 50 kilometre per hour zone, over a well-travelled road, is not acceptable by any normal standard.

[23]        With the fairly recent Criminal Code (the "Code") conditional sentencing provisions, Parliament has mandated that certain offenders who used to go to prison should now serve their sentence in the community under strict conditions, as long as certain requirements are met.  They include the judge being satisfied by a preliminary determination that a sentence of less than two years, or two years less a day, is within the appropriate range of sentence, and that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in the Code.

[24]        While the ordinary citizen may be shocked or even appalled at the suggestion of alternatives to imprisonment, it is useful to point out here what was stated by the Supreme Court of Canada in R. v. Gladue, [1999] 1 S.C.R. 688 at paras. 52 to 57 about the problem of overincarceration in Canada.  Canada is unfortunately distinguished as a world leader amongst western democracies at putting people into prisons, second or third only to the United States.  However, studies show that imprisonment is neither a strong deterrent nor effective for rehabilitating the offender.

[25]        The extent to which the sentencing objectives of deterrence and denunciation, which the Crown emphasizes in this case, can be addressed by a conditional sentence was considered by the Supreme Court of Canada in R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5.  On the principle of denunciation, Chief Justice Lamer stated in part at paras. 102-3:

102   Denunciation is the communication of society's condemnation of the offender's conduct.  …  Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration.  That said, a conditional sentence can still provide a significant amount of denunciation.  …

 

103   First, the conditions should have a punitive aspect.  …  [C]onditions such as house arrest should be the norm, not the exception.  This means that the offender should be confined to his or her home except when working, attending school, or fulfilling other conditions of his or her sentence, e.g. community service, meeting with the supervisor, or participating in treatment programs.  Of course, there will need to be exceptions for medical emergencies, religious observance, and the like.

[26]        At para. 105, he stated:

105   The stigma of a conditional sentence with house arrest should not be underestimated.  Living in the community under strict conditions where fellow residents are well aware of the offender's criminal misconduct can provide ample denunciation in many cases.  In certain circumstances, the shame of encountering members of the community may make it even more difficult for the offender to serve his or her sentence in the community than in prison.

[27]        On the principle of deterrence, Chief Justice Lamer stated, at para. 107:

107   Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence.  Judges should be wary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration.  ...  The empirical evidence suggests that the deterrent effect of incarceration is uncertain.  ...  [A] conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences.  There is also the possibility of deterrence through the use of community service orders, including those in which the offender may be obliged to speak to members of the community about the evils of the particular criminal conduct in which he or she engaged, assuming the offender were amenable to such a condition.  …

[28]        The sentencing provisions of the Code require a judge to consider other sanctions before imposing a prison sentence and suggest that imprisonment should be used as a last resort:  s. 718.2(d) and (e).

[29]        For the offence of criminal negligence causing death there is no minimum sentence as there is for some other offences but as I have indicated, there is a maximum sentence of life imprisonment.  Also, as I indicated earlier, Crown contends four to seven years is appropriate and relies on the following cases involving criminal negligence causing death.  They are:

►     R. v. Woodley (1993), 24 B.C.A.C. 153;

►     R. v. Tang, [2001] B.C.J. No. 796 (P.C.), 2001 BCPC 62;

►     R. v. Broomfield (1995), 56 B.C.A.C. 220;

►     R. v. Rai (1996), 84 B.C.A.C. 90;

►     R. v. Thompson (1987), 1 M.V.R. (2d) 322 (B.C. Co. Ct.);

►     R. v. Leadbetter (15 February 2001), Vancouver CC000615 (B.C.S.C.); and

►     R. v. Linden (2000), 147 C.C.C. (3d) 299 (Ont. C.A.).

[30]        The sentences imposed in these cases ranged from two years less a day to six years in addition to 13 months already served.

[31]        Crown also refers to the unreported Provincial Court decision in R. v. Coles (5 May 2000), Surrey 107465-01D (B.C.P.C.) but I do not find that case or R. v. Rai, supra, of assistance.  They are clearly distinguishable from the facts of this case.

[32]        On the issue of whether there is a range of sentence for criminal negligence causing death, in R. v. Linden, supra, the trial judge held that the range for the offence of criminal negligence causing death was three to seven years and imposed a sentence in the middle of the range, at five years.  The Ontario Court of Appeal dismissed the appeal from sentence, but the following passage at para. 2 from its judgment bears repeating:

…  If there was any error by the trial judge, it was in assuming that there was a set range for the offence of criminal negligence causing death.  The cases demonstrate that criminal negligence causing death can be committed in so many different ways that it defies the range-setting exercise.  The cases do not demonstrate a range, only a series of examples that are driven by the almost infinite variety of circumstances in which this offence can be committed.  …

[33]        However, what must always be kept in mind is the principle in s. 718.2(b), that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[34]        It is the case of R. v. Tang on which the Crown places the greatest emphasis, because of its similar circumstances.  It, too, involved a spontaneous street race that started in Richmond and ended in Vancouver, with the death of a pedestrian.

[35]        The facts in Tang are these.  A spontaneous street race began on Alderbridge Way, in Richmond, between Mr. Tang, who was driving a yellow Porsche Boxster, and an unidentified person driving a Honda Civic.  They were then joined by a third vehicle.  The three vehicles were seen by witnesses as they raced over the Knight Street Bridge from Richmond into Vancouver, jockeying for positions at speeds estimated up to 200 kilometres an hour.  As the racing vehicles approached 57th Avenue in Vancouver, the Porsche was in third position.  The first two vehicles went through the intersection on a yellow light, the Porsche drove through on a red and struck and killed a pedestrian in the crosswalk.  The Porsche stopped, both doors opened, no one got out, and the Porsche then sped away.  The next day, Mr. Tang surrendered himself to the police. 

[36]        The sentencing judge in that case stated at para. 34, and I agree, that "conditional sentences may be imposed for offences of criminal negligence, even where death ensues".  However, he concluded that a conditional sentence was inappropriate and sentenced Mr. Tang to four years in prison and prohibited him from driving for 10 years.

[37]        In my view, not only was Mr. Tang’s background far worse than Mr. Bhalru's or Mr. Khosa's, as the Crown concedes, so were the aggravating factors, which included these:  (i) the speed (the judge, in the case of Tang, noted that speeds were often in the range of 120 to 140 kilometres per hour, but in very few cases did the speed approach 200 kilometres per hour); (2) Mr. Tang drove through the intersection on a red light; (3) Mr. Tang fled the scene of the accident; (4) Mr. Tang had a criminal record for possession of counterfeit money for which he was fined $12,000 (more than a year and a half later, he had paid nothing towards the $12,000 fine and his response to performing only five of the 50 hours of the community work ordered was that he did not know how to take a bus); (5) Mr. Tang had a driving record, including nine infractions of driving without a driver’s licence and insurance, which he chose to do rather than pay a debt to ICBC to retrieve his licence; and (6) he was driving without a licence at the time of the offence.

[38]        Given that there were far more aggravating factors in Tang than in this case, the facts of which I will come to, it seems to me that the upper-end range for the facts in this case is four years.

[39]        Turning now to the defence argument, defence points to the sentences imposed for criminal negligence causing death in R. v. Sweeney (1992), 11 C.R. (4th) 1 (B.C.C.A.), involving Mr. Sweeney and a Mr. McNeil, in two separate cases.  The facts are important.

[40]        Mr. Sweeney was 20 years old when, driving while impaired, the police gave chase and he drove his vehicle into another vehicle, killing the other driver.  He then fled from the scene.  Mr. Sweeney had no criminal record, but a record for driving offences.  The British Columbia Court of Appeal reduced his sentence from 4.5 years to 18 months less a day, but upheld the 15 year driving prohibition.

[41]        Mr. McNeil was 23 years old when driving while impaired at twice the legal limit, at speeds between 132 and 142 kilometres per hour.  He crossed the highway centre line, collided with the oncoming vehicle and killed three people.  He had a minor criminal record and driving record.  The British Columbia Court of Appeal reduced his sentence from five years to 18 months less a day, but upheld the 10 year driving prohibition.

[42]        Mr. Sweeney and Mr. McNeil were sentenced before the conditional sentencing provisions were enacted; however, had they been decided today, the judge would have given consideration to the appropriateness of a conditional sentence.

[43]        Counsel have found only one case where a conditional sentence was imposed for criminal negligence causing death.  It is R. v. Boyd (1998), 33 M.V.R. (3d) 37, a decision of the Ontario Court of Justice (General Division).  While that case involved speeding, but not street racing, some of the facts that the judge took into account in imposing a conditional sentence are similar to the facts in the case before me.

[44]        Mr. Boyd was 19 years old when driving while impaired at more than twice the legal limit.  At speeds of 103 to 113 kilometres per hour, his car left the road and collided with a telephone pole, killing the front seat passenger and his 17 year old best friend.  The judge, in sentencing Mr. Boyd, concluded that, although a three year prison term was common, a lesser term could be appropriate and sentenced him to a two year conditional sentence with strict conditions, including house arrest and a five year driving prohibition.  In doing so, the judge noted that Mr. Boyd was a youthful offender at the age of 19; he had no criminal record; he had a favourable pre-sentence report; he had been on bail for more than three years without incident; he worked; he lived at home with his parents; he suffered remorse over the loss of his friend; the trial had lasted 55 days over more than a year; brought grief to himself and his family; and he was unlikely to re-offend.

[45]        Counsel for Mr. Khosa and Mr. Bhalru rely on the remarks of Chief Justice Lamer in Proulx at para. 130 in support of their argument that a conditional sentence is appropriate in this case.  The facts in Proulx are these:  Mr. Proulx was 18 years old, drank one and a half to two beers at a party, and decided to drive his friends home in his car that he knew was mechanically unsound.  Mr. Proulx had only seven weeks of driving experience.  He drove erratically, weaving in and out of the traffic and, while trying to pass another car, drove into the oncoming lane and a head-on collision killed Mr. Proulx’s friend, as well as causing serious injuries to the other driver, and Mr. Proulx himself was in a near-death coma for a time.

[46]        Chief Justice Lamer, at para. 130, stated that conditional sentences may be imposed for offences such as dangerous or impaired driving and that, had he been the trial judge, he might have found that a conditional sentence was appropriate.  The facts he considered militating in favour of a conditional sentence included that Mr. Proulx was still quite young, he had no criminal record, he wanted to go back to school, and he had already suffered a lot by killing his friend in the accident and by being in a coma himself.  However, to meet the sentencing objectives of denunciation and general deterrence, Chief Justice Lamer said he would have imposed conditions of house arrest and required Mr. Proulx to speak to designated groups about the consequences of dangerous driving, as was ordered in two other cases:  R. v. Parker (1997), 116 C.C.C. (3d) 236 (N.S.C.A.), where the offender was 20 years old, and R. v. Hollinsky (1995), 103 C.C.C. (3d) 472 (Ont. C.A.), where the offender was 19 years old.

[47]        One other case deserves mentioning.  It is R. v. Sandreswaren (2001), 50 C.R. (5th) 162 (Ont. Ct. Just.).  There the accused, a 29 year old professional limousine driver was convicted of criminal negligence causing death.  He drove erratically because he was impaired by alcohol at more than twice the legal limit.  He ignored his passengers’ offers to drive and he ignored their warning that the traffic light ahead was red, and he drove through the intersection, colliding with another car and killing the driver.  After his arrest, he repeatedly denied being the driver of the car.  His poor driving record was also an aggravating factor.

[48]        After reviewing five Ontario Court of Appeal cases where both alcohol and reckless driving were involved, the court concluded at para. 38 that, for criminal negligence causing death, “it would be an extremely rare case in which a conditional sentence would be appropriate.”

[49]        Although Mr. Justice Cole found a prison sentence of three years was appropriate, he sentenced the accused to only two years because he considered the order to perform 240 hours of community service equivalent to one year in prison.  The court recommended, as in other cases, that for community service, the accused speak to groups about the consequences of drinking and driving dangerously.  There was also a seven year driving prohibition in that case.

THE VICTIM

[50]        Irene Thorpe, who was 51 at the time of her tragic death, was the eldest of 11 sisters.  She was a sister to many, an aunt to many, a mother to a son and a newlywed daughter.  I have victim impact statements from a brother-in-law and two of her sisters.  There is no doubt that her death has left a hole in the family and in their hearts.  While it has not been expressed to me, there are likely family members that want the accused to serve a long penitentiary sentence because they feel that they deserve it for causing the death of Irene Thorpe.  While I have great sympathy for Ms. Thorpe’s family, the harm caused by the accused is but one, and not the only one, of the many factors I must take into account in determining a just and appropriate sentence.

BAHADUR BHALRU

[51]        Mr. Bhalru is the youngest of three siblings and the only son.  He is now 24.  He was 21 at the time of the offence.  He was born in India and emigrated to Canada with his family in 1997 when he was 18 years old.  He completed grade 12 and one criminology course at Douglas College.  He appears always to have had various full-or part-time jobs, but lost his job in 2000 because of the publicity surrounding this case.  Mr. Bhalru lives with his parents, a sister, and his grandmother in a basement suite.  The family is of modest means.  The money Mr. Bhalru makes from his various jobs, which include working at the 7-Eleven and making videos, in accordance with the customs of his culture goes to his family and his parents give him spending money.  Mr. Bhalru applied for Canadian citizenship at the same time as his mother, but his application was denied because of this offence.

[52]        Mr. Bhalru, an accomplished athlete, does not drink or take drugs.  He regularly attends the Sikh temple and has many letters of support.  I accept, based on his statement to the court, that he is truly remorseful for the acts that have caused the death of Irene Thorpe.  The other mitigating factors include the fact that Mr. Bhalru has no criminal record, no driving record, and he has complied with all of his bail conditions.  He is not likely to re-offend.  There is, however, the speeding incident.  Just past midnight, on July 29, 2002, Mr. Bhalru was caught driving at speeds of up to 100 kilometres per hour in a 50 kilometre per hour speed zone on No. 5 Road in Richmond.  However, Judge Arnold, on July 31, 2002, decided that Mr. Bhalru was not in breach of his bail conditions and that any misunderstanding he had was caused or contributed to by ICBC, who had returned his driver’s licence to him.  Mr. Bhalru, understandably believing that he was thereby free to drive, applied for and received an interim driver’s license and also applied to upgrade his license.  As Judge Arnold stated in her reasons:  "it is unfortunate that the court-ordered driving prohibitions that attach to bail documents are not also incorporated into the ICBC computer, but they are not."

[53]        I do, however, have a concern with the speed at which Mr. Bhalru was caught driving by Constable Everitt, who estimated the speed at between 100 to 110 kilometres per hour, but noted only 90 kilometres per hour in his book.  At either or any of those speeds, it was far in excess of the posted speed.  Mr. Bhalru, however, contended, as he did the evening of November 13, 2000 when he was racing along Southwest Marine Drive, that he was driving a “normal speed”, when clearly he was not.

SUKHVIR KHOSA

[54]        Mr. Khosa turned 21 years old this week.  He was 18 at the time of the offence.  He was raised in a small village in India, the youngest of four children, and is also the only son.  He emigrated to Canada with his parents and two of his youngest sisters in June 1996 when he was 14 years old.  They moved to Richmond and Mr. Khosa completed 18 months of ESL classes.  Since dropping out of school in grade 11, he has been employed, sometimes at more than one job at a time, at various jobs, including as a dishwasher, cook’s assistant, mechanic’s helper or labourer.  In January 2002, he enrolled in a two year mechanic’s course.  He successfully completed the first year and his plans for the second year have been put on hold, waiting the results of this sentence.  While attending that course, he was also washing cars at Marine Drive Chrysler, but lost that job as a result of negative publicity surrounding this case.  Most of the money Mr. Khosa earns, like Mr. Bhalru, goes towards supporting his family.

[55]        Mr. Khosa lives at home with his family.  In the more than two years that have passed since the accident, Mr. Khosa has not left the house except to go to work, to school, or the Sikh temple.  He normally does not drink.  He does not take drugs.  He has no criminal record.  He has no driving record.  He has complied with all of his bail conditions and is not likely to re-offend.  He has not driven a car since the accident.

[56]        I do not accept Crown’s suggestion that Mr. Khosa has shown no remorse for his acts.  I find, by his actions immediately after learning of Ms. Thorpe’s death and since the accident, that he has expressed remorse.

CONCLUSION

[57]        I agree that the facts in R. v. Tang come closest to the facts in this case.  That is the case where Mr. Tang received a four year term of imprisonment for street racing.  However, as I indicated, there were more aggravating factors in that case than in this case.  The cases I have referred to lead me to conclude that the sentences imposed on similar offenders, for similar offences, in similar circumstances, range from 18 months to four years and include the imposition of a conditional sentence.  As has been indicated in the decisions in Sweeney and Proulx, the principle of deterrence may not necessarily be served by sending the offender to prison for a long period of time.  In the words of Chief Justice McEachern (as he then was) in R. v. Barling (1995), 65 B.C.A.C. 317 at para. 10, an impaired driving case:

…  I think sending an offender to prison for a substantial period - and a year or two years is a substantial period - accomplishes as much as can be expected from incarceration, and the real penalty for many is the deprivation of driving privileges for a much longer period of time.

That case was decided before the conditional sentencing provisions came into force.

[58]        Considering all of the circumstances of this case, and the principles of sentencing enunciated in ss. 718 to 718.2 of the Code, I do not find this is a case deserving of a penitentiary term.  Apart from this offence, Mr. Khosa and Mr. Bhalru are hard working, law abiding persons and good sons.  With a driving prohibition in place, I am also satisfied that the safety of the community would not be endangered by them serving their sentence in the community.

[59]        I appreciate the assistance of defence counsel in proposing the terms of the conditional sentence.  I therefore impose on both Mr. Khosa and Mr. Bhalru a conditional sentence for a term of two years less a day, followed by probation for a term of three years, on terms and conditions.

[60]        The mandatory conditions of the conditional sentence require you to:

(a)   keep the peace and be of good behaviour;

(b)   appear before the court when required to do so by the court;

(c)   report to your supervisor:

(i)   within two working days from today; and

(ii)  thereafter when required, and in the manner directed by the supervisor;

(d)   remain within the jurisdiction of the court, that is, the Province of British Columbia, unless written permission to go outside the jurisdiction is obtained from the court or the supervisor; and

(e)   notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or your supervisor of any change of employment or occupation.

[61]        During the period of the conditional sentence, I impose the following additional conditions that require you to:

(a)   abstain from the consumption of alcohol or other intoxicating substances, or the consumption of drugs, except in accordance with a medical prescription;

(b)   abstain from possessing, owning or carrying a weapon;

(c)   provide for the support of your parents by turning over to them all of your income (net of taxes and required deductions).  Your parents will provide you with an allowance at their discretion;

(d)   perform 240 hours of community work service over a period of 18 months, with the work service to be co-ordinated by your supervisor.  Based on the evidence and on the pre-sentence reports before me, I recommend that the work service be arranged through the Richmond RCMP or Vancouver Police agencies and/or ICBC and be directed at your speaking to, and with, youth about your conviction, speeding, reckless driving and the consequences of doing so.

(e)   attend any treatment course or driving course, as directed by your supervisor; and

(f)   not drive a motor vehicle, and you are subject to house arrest.  That means you must remain in your residence at all times unless you are engaged in an activity, including work, school, community service, treatment, or religious service, all of which is approved in advance by your supervisor, subject, of course, to any medical emergency.

[62]        There will also be a provision that you may engage in physical activity outside of the residence, the physical activity to be approved in advance by your supervisor and for a period not exceeding one hour a day.  The conditional sentence of two years less a day shall be followed by three years probation on the same terms and conditions as the conditional sentence, excluding 240 hours for the community work service, and instead of house arrest, you will abide by a curfew and remain in your residence between the hours of 8:00 p.m. and 7:00 a.m., unless you are engaged in work, community service, or treatment, or other activity approved in advance by your probation officer, again excluding a medical emergency.

[63]        I recognize that neither Mr. Bhalru nor Mr. Khosa have been allowed to drive, nor have driven a vehicle as a result of their bail conditions.  Mr. Bhalru had apparently only been driving a few days when he was arrested in June of last year.  With that exception, neither has driven for more than two years.  I have taken that into account in ordering the additional driving prohibitions of two years less a day during the conditional sentence period and the three years of probation, recognizing that the total driving prohibition will, in the end, amount to more than seven years.

[64]        The public should recognize that because of the parole eligibility provisions of the Code, the driving prohibition of more than seven years in this case is greater than would have resulted had the offenders been sentenced to prison for the four years, or more, sought by the Crown.

[65]        Mr. Bhalru and Mr. Khosa, you must recognize that a breach of a term of your conditional sentence may result in your having to serve the remainder of your sentence in prison.

[66]        Pursuant to s. 487.051, there will be an order in Form 5.03 authorizing the taking, for the purpose of forensic DNA analysis, of any number of samples of one or more bodily substances that is reasonably required for that purpose as set out in the Code.

[67]        There will be a $100 victim surcharge for the one count, and each has 30 days within which to pay it.

"L.A. Loo, J."
The Honourable Madam Justice L.A. Loo