The Yukon’s Court of Appeal has ruled a $1,500 fine for a Marsh Lake man convicted of impaired driving causing bodily harm was unfit.
He will instead serve four months in jail.
Petrus Mackenzie Lommerse was sentenced in territorial court earlier this year after pleading guilty to one count of impaired driving causing bodily harm.
Along with the fine, the then-22-year-old was prohibited from driving for 15 months, placed on 18 months probation and ordered to do 120 hours of community service.
According to court documents, Lommerse was doing donuts in an ATV outside the community centre in Marsh Lake on July 21, 2012 at around 1:30 a.m.
The passenger in the all-terrain four-wheel Rhino cage buggy was Dustin Kotylak.
Kotylak would later tell police his friend did not slow down when he asked him to.
Kotylak was hanging out of his side of the ATV when it flipped over, pinning him under it, Yukon judge Michael Cozens said in his original decision.
“Mr. Lommerse and his friends lifted the ATV off of Mr. Kotylak, who stood up and said he was OK. However, Mr. Kotylak began to complain of pain,” the judge said.
Kotylak had broken a rib and, more seriously, had punctured his lower intestine. He required surgery for this puncture and was in the hospital for six days.
Police found Lommerse’s blood alcohol content was at least 0.15, records say, nearly twice the legal limit.
In making his decision to fine Lommerse, Cozens found he was genuinely remorseful.
He noted that Lommerse was co-operative with the police, assisted in the investigation and accepted full responsibility.
Kotylak spoke at the original sentencing hearing in defence of his friend. He said Lommerse was with him at the hospital the night of the accident, and visited him every day.
Kotylak told the court he considers the accident to have been at least equally his fault. He said both men learned from the accident.
The Crown appealed the sentence, arguing that a fine was not appropriate in this case.
The Court of Appeal agreed. In a decision released this week, Justice Harvey Groberman disagreed with Cozens.
“In my view, the judge understated the risks inherent in Mr. Lommerse’s decision to drive while impaired, and consequently understated the level of moral culpability involved,” Groberman said on behalf of the panel of three justices.
“It is true that driving an ATV in a parking lot entails different risks than driving an automobile on a public road. Mr. Lommerse was unlikely to injure members of the general public, for example.
“On the other hand, the ATV was an inherently unstable vehicle with limited protection for its occupants. Further, the nature of the driving – which was intended to provide thrills for the vehicle occupants – made impaired driving particularly risky. I do not see that the need for a sentence directed at general deterrence is in any way mitigated by the nature of the activity involved.”
Sentences for impaired driving causing bodily harm in Yukon usually start at four months. The maximum sentence under the criminal code is 14 years in prison.
Lommerse’s new four-month sentence will not include a probation order. But the driving ban remains in place.
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