Criminal negligence causing death

R. v. Francisco

Sentence and the Crown's position

Crown asked4 years in custody1
Judge imposed4 years' imprisonment, then a 4-year driving prohibition1

What the law allows

MaximumLife imprisonment
Crown asked4 years in custody
Judge imposed4 years in custody
Defence asked2 years in custody
For criminal negligence causing death (CC 220), the Criminal Code currently allows up to life imprisonment, with no mandatory minimum. Life is drawn at 25 years for scale. Read the section.

Roberto Francisco pleaded guilty to criminal negligence causing death after he struck and killed a pedestrian on a Burnaby sidewalk while driving with a blood alcohol content of at least 188 mg%. The Crown sought four to five years' incarceration and the defence two years. Justice Winteringham imposed four years' imprisonment followed by a four-year driving prohibition, citing his driving record, the egregious driving and high blood alcohol, balanced against his guilty plea, remorse and traumatic brain injury.

In the judge's words

Despite Mr. Westell's thoughtful submission, I am of the view that a two‑year sentence does not adequately reflect the sentencing principles engaged. The cases on which the defence relies are different than the circumstances present before me. I have decided that four years' incarceration is an appropriate sentence and this is based on the following, in summary.

1

The record

Prior convictions
0 prior convictions1
At the time of the offence
Not stated1
Defence asked for
2 years in custody1
Appeal
Not yet checked
Counsel
Crown: M. Myhre
Defence: K. Westell, J.A.D. Cooper

Sources

  1. https://www.canlii.org/en/bc/bcsc/doc/2022/2022bcsc420/2022bcsc420.html Court decision[13] Crown counsel took the position that the court should impose a 4-5 year period of incarceration and advocated for the higher end of that range.[14] Mr. Francisco suggested that the circumstances presented here justify a lesser sentence of two years incarceration followed by a two‑year driving prohibition.[3] Mr. Francisco is before the court for sentencing, having entered a guilty plea to one count that he did, by criminal negligence in the operation of a motor vehicle, cause the death of[98] The first aggravating factor relates to Mr. Francisco's driving history. Mr. Francisco does not have a criminal record, but he does have a relevant driving record.[110] However, I have struggled with a sentence of two years in the circumstances. Despite Mr. Westell's thoughtful submission, I am of the view that a two‑year sentence does not adequately reflect the sentencing principles engaged. The cases on which the defence relies are different than the circumstances present before me. I have decided that four years' incarceration is an appropriate sentence and this is based on the following, in summary.[15] My decision on sentence is this: … a) Four years incarceration; … b) Followed by a four-year driving prohibition; and
  2. Criminal Code, s. 220 Record, Justice Laws Website
  3. R. v. Francisco, 2022 BCSC 420 Court decision, Courts of British Columbia

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