A Penticton man who has been convicted of multiple driving incidents over the last seven years, including one that resulted in a death, has lost an appeal to overturn a judge’s “unduly harsh” sentence for his latest driving while prohibited charge.
Brian William Cooper pleaded guilty in February to flight from police and driving while prohibited related to an incident that took place on Oct. 2, 2018. He argued that an effective jail term of 18 months from Justice Greg Koturbash for his fourth driving offence was not appropriate, especially when the Crown counsel was only seeking a year.
According to court documents, a police officer observed Cooper driving a motorcycle, with one female passenger, without a license plate. Two police vehicles turned on their emergency lights in an attempt to stop Cooper, who slowed briefly before accelerating away “driving at speed through a townhouse complex.” RCMP said they eventually located him down a laneway and his abandoned motorbike was found by a police dog a short distance away.
The Crown at the time of sentencing was seeking one year in jail, a period of probation and a five-year driving prohibition. Defence counsel was asking for a conditional sentence of up to two years less a day, followed by a three-year probation order. Defence agreed that a five-year driving prohibition should be imposed.
In the B.C. Court of Appeal judgment, Crown acknowledged that the judge was led into error in considering the circumstance of Cooper’s criminal past because his record filed at sentencing contained errors that duplicated convictions on driving offences including flight from police and driving while prohibited.
However, the Crown submitted that Cooper did have a “significant” criminal record. This includes convictions of criminal negligence causing death, criminal negligence accusing bodily harm and flight from police in 2006. Cooper had convictions of dangerous driving, driving while prohibited and flight from police in 2012 and in 2016 and 2017 he had two further convictions for driving while prohibited.
“The sentencing judge was particularly concerned that Mr. Cooper had caused the death of his friend because of his dangers driving and yet continued to commit driving offences. The errors in the criminal record do not affect that reasoning or the judge’s concern that Mr. Cooper lacked insight about the risks posed by his driving behaviour,” it states in the reasons.
The appeals court said the judge imposed a sentence for flight from police which was lower than the sentence Cooper received for the same offence previously. The judge also imposed a slightly higher sentence for driving while prohibited than the one had previously received for that offence. The appeals court said in their view, the judge “did not err in concluding that a significant sentence was required given Mr. Cooper’s repeated violations of previous driving prohibitions.”
Cooper did receive a reprieve in that the appeals court found that the judge made a mistake due to the errors filed on the criminal record that led to Koturbash handing him a five-year driving prohibition. This part of the sentencing was adjusted to reflect a two and three year ban on each conviction that are served consecutively.
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