Hergott: Don’t vent on judges about perceived lenient sentencing

Lawyer Paul Hergott's weekly column.

If any of you read my column published Sept. 7, 2008, in the Westside section of the Capital News, a lot of what I’m writing about today will sound familiar.

That’s because that column was the last time I reacted to the public trashing of a sentencing decision issued by a judge.

Before I tell you anything about the offence or the sentence, I’m going to share with you how the system works.

We the people, through our elected politicians, make the laws. We task judges to apply those laws.

The Criminal Code is a piece of legislation that was passed into law in 1892. It has survived since with remarkably few amendments.

The Criminal Code gives sentencing direction to judges. It sets out sentencing principles that must be considered by judges when deciding where along the sentencing spectrum a particular sentence should fall.

Those principles can be found at sections 718, 718.1 and 718.2. Have a look. The Criminal Code is available on the Internet.

Section 718 mandates objectives such as denouncing unlawful conduct, deterrence, rehabilitation, reparation of harm, promoting a sense of responsibility in offenders, and separating offenders from society, where necessary.

Section 718.1 requires a sentence to be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 includes such guidelines as an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

Sentencing must also be consistent.

Judges have been sentencing offenders for the last 115 or so years. Well established sentencing ranges for particular offence circumstances have developed over that extensive period of time.

There are many factors to be taken into account when applying the mandated sentencing principles.

For example, a person with no criminal record ought to be treated differently than a person with previous convictions; a person having genuine remorse ought to be sentenced differently than a sociopath; a person with no intention to cause harm ought to be dealt with differently than a person with a criminal intention.

Judges are not perfect. If a judge imposes an unusually harsh or unusually light sentence, the judge’s decision is subject to appeal.

The key, though, is that judges apply the law that we give them.

If we think that sentences imposed by judges are too light, it is asinine to blame the judges.

It is also cowardly, because in my view judges are not permitted to defend their decisions in public debate.

If we want things to change, it is totally within our power to change them.

“Now here’s a judge who just doesn’t get it” are the concluding words of an opinion column that got me all riled up.

The sentence being trashed was two years of probation and 15 hours of community service for a man who pleaded guilty to the criminal offence of dangerous driving causing the death of a 52 year–old flag person.

On the face of it, the sentence does sound light.

We weren’t in the courtroom, though. We didn’t hear all the evidence.

We don’t know the well-established sentencing ranges for this type of offence. We aren’t judges.

I’ll fill you in what I have learned from the many news reports.

The offender, Melle Pool, is a retired farmer who was born 88 years ago when there weren’t such things as driver’s licences.

Care he gives to his ailing wife is keeping her out of a care facility while Pool is also of frail health.

The judge found that a jail sentence would effectively be a life sentence for this man.

His guilty plea to dangerous driving was an appropriate one, but not because he was driving twice the speeding limit or driving impaired.

It was because he was legally blind.

He had been declared unfit to drive 10 years before, because of his deteriorated vision.

He struck the flag person at the slow 30 kms/hour speed he always drove as a safety compensation for his limited vision.

He utterly failed to appreciate the risk he was creating, but had no intention to cause harm.

Pool was extremely remorseful. The judge noted that he had been physically and emotionally crushed by the incident, and that as a result he often spent hours sitting in the dark in his basement.

It was recognized that Pool will continue to punish himself for the harm he caused for the rest of his life.

The community service will be spent speaking about the dangers of driving while elderly and physically disabled.

One thing the news reports didn’t comment on is the reality that Pool will not be covered by insurance.

He is likely to face the equivalent of a massive fine when the widow properly pursues the loss of income and other losses she is entitled to claim against him as a result of her husband’s death.

Should Pool spend time in prison?

If this judge erred in applying the law, the Crown can appeal.

If you don’t like the law, take it up with your MP, but don’t attack the judge.

Oh, and if you have an ailing parent who should no longer be behind the wheel of a vehicle, take the responsible step of putting an end to it.

This column is intended to provide general information about injury claims. It is not a substitute for retaining a lawyer to provide legal advice specifically pertaining to your case. Paul Hergott is a lawyer  at Hergott Law in West Kelowna.




Kelowna Capital News