The Sentence

This is not a pretty story. I will be spare in the details.

In July 2009 five Ottawa cyclists were victims of a hit-and-run. They were in a lane, cycling in line to breakfast in Pakenham 40km away. It was a clear, bright Sunday morning. The driver fell asleep at the wheel.

Yesterday was sentencing day. The driver (who turned himself in 5 hours later) was sentenced to two years less a day and his driver’s license suspended for a year.

In her sentencing, the judge took into account the fact that this was a first time offence; that the accused turned himself in; that the testimony regarding alcohol use during an all-night Saturday party was not beyond reasonable doubt.

The victims are now free to pursue civil damages should they so choose.

Was this the right sentence? Where the degrees of punishment, deterrence and retribution appropriate?

The lives of the victims, one in particular, were devastated. No sentence can undo that damage.

Emotionally I wanted to see the book thrown at the driver, but it would serve no practical purpose.

Two years is not trivial. The family of the driver, a blue collar immigrant, has suffered financially and will continue to do so during his incarceration and thereafter from civil litigation.

There are no winners here. Sentencing is an imperfect art. If I remove my personal prejudices as a cyclist, I think the judge probably struck a fair balance.

12 comments on “The Sentence”

  1. Doug wrote:

    It's really hard to comment without all of the details and I don't know how folks in Ottawa view crimes like this – perhaps it was lenient or maybe the usual kind of sentence in those circumstances.

    It also depends on what the purpose of such sentencing is. Is it to punish someone, or maybe to rehabilitate someone? Is it meant to reflect the impact on the victims or deter others from committing such a crime? What is the likelihood of the offender doing something like that in the future? All things for the judge in her wisdom to weigh up and as you say probably the right balance has been struck.

    At least the offender did the decent thing in the end and turned himself in. I hope he was given credit for that.

  2. Patrick wrote:

    ... sentenced to two years less a day and his driver’s license suspended for a year.

    In the UK at least, it means he would be without his licence for 6 months (after 6 months in prison). Or not without his licence at all if he serves half his sentence. I think it's too lenient. A 5 year driving ban would be appropriate. Driving a vehicle in a sleepy condition is a serious crime, or it should be. The Great Heck rail crash killed ten people when a driver fell asleep after a night awake. He was given 5 years and served half of it.

    As Doug says, it's difficult without the details. Perhaps he turned himself in because he knew he'd be caught and simply spent five hours sobering up.

    A slight aside. Australia has zero tolerance of speeding and red light jumping. They also have impromptu road blocks for breathalysing. This would be regarded as bad sport in the UK, with the police seen as persecuting 'the motorist'. I think this view is wrong. 30 mph is 30 mph just as 2 years is should be 2 years. Cyclists' cliché it may be, but motor vehicles are lethal weapons and accidents continue to happen because drivers aren't careful enough. They would be more careful if the penalty to themselves was greater. I think it's as simple as that.

    Straying off the point even further... I've stopped even reading reports of drivers getting away with minimal sentences after killing cyclists because they can't be bothered to drive properly. They are just too depressing. I'm very much in favour of a law like the one I believe exists in Holland where a driver in collision with a cyclist is presumed guilty unless proven otherwise.

  3. Hilary wrote:

    I agree its hard to comment without knowing all the details. I'm puzzled by the bit

    that the testimony regarding alcohol use during an all-night Saturday party was not beyond reasonable doubt.

    If he had been to an all night party its fair to assume that he should have known that he was not in a fit state to drive. If he had not, then falling asleep at the wheel could unfortunately happen to anyone – as demonstrated by Dennis nodding off on his moped! (Incidentally when the gendarmes arrived they asked if he'd been drinking but simply accepted his word that he hadn't (he's virtually tea-total) and didn't breathalyse him).

    The man handed himself in 5 hours later. Some mitigation I suppose, but I thought leaving the scene of an accident was considered a serious crime.

    I don't know.

    I agree with Patrick that we should have the same law as in the Netherlands but the number of youths I see jumping on and off pavements and running red lights does nothing to help our case.

  4. Chris wrote:

    Agreed. But I suppose falling asleep at the wheel – for whatever reason – is at least not as bad as wilfully causing an accident by demonstrably dangerous driving. Hmmm....

  5. Patrick wrote:

    It is not as socially unacceptable as drink driving. Falling asleep at the wheel I mean. I suppose driving under the unfluence is done more knowingly. Nodding off can catch you unawares. Also I think many sleepy drivers will press on and hope, as halting your journey mid-way is more inconvenient than arranging a taxi before a night out (although stopping for coffee when you are drowsy can work wonders).

    In the UK you can be disqualified from driving for 6 months for 12 penalty points within three years (at least 3 points for speeding) so on reflection I think the two year driving ban in Kern's example is about right, but it should begin when he is released from prison, otherwise it seems meaningless.

  6. Kern wrote:

    Japan has very a interesting law on driving under the influence: all occupants of the car are charged as well as the driver.

    I agree about the laws in the Netherlands. India apparently has a similar concept (the larger vehicle is always at fault).

    Perfection is beyond our grasp I'm afraid. It all comes down to human frailty.

  7. Doug wrote:

    I meant to mention this before. I once worked with a probation officer who did an exchange trip to New Zealand, where they operate a level of Restorative Justice. I remember him sharing his first case. A young lad was drunk as he drove his friend home; he crashed and his friend (the passenger) died. Part of the probation officer's role there is to take into account the victim's views; in this case his friend's parents.

    The parents wanted the offender to visit the grave and apologise with the parents there with him. This became part of the sentencing package.

    Strikes me as being very powerful and much to commend this kind of approach.

  8. Garry wrote:

    The coffee thing is, I think, largely mythical. I've tried it myself. It doesn't work. A 10 minute nap is, believe it or not, hugely restorative.

  9. Patrick wrote:

    It works for me Garry – coffee – although I believe it can put some people to sleep.

  10. Alan wrote:

    I believe the NL law is about civil liability, not criminal guilt. See http://hembrow.blogspot.com/2012/01/campaign-for-sustainable-safety-not

    When I felt myself getting tired at the wheel, which happened rather a lot when I did 25,000 mile/year or more, the first thing was to stop. My personal rule was never, ever continue driving, except for taking the next motorway exit. Then a walk might cure the problem, or forty winks, or whatever.

    True, this sometimes led to police tapping on my window and some interesting conversations, but that was better than some gristly alternative.

  11. Patrick wrote:

    That's an interesting article Alan (Hembrow and Wagenbuur's, who always seem to come back to their hobby horse of promoting the Dutch model of separated cycle paths). I think Strict Liability would be more significant in the UK which generally does not separate cyclists. The threat of the rear driver being held liable for a rear end shunt – their example – is fundamental and surely influences behaviour on the roads. Similarly, the threat of a driver being liable for a collision with a cyclist would put out an important message IMO. But I do realise this is never going to happen.

  12. Alan wrote:

    Some folk have a single-track mind that focuses on segregation, which I regard as abandoning the road to the motorist. I'd much rather tame the motorist, but while we allow them free access to park (and therefore drive) on footways, there is little chance.

    Strict liability could be one tool among many towards taming motorists not to squish us.

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