A Court of Queen’s Bench judge in Yorkton has sentenced 22-year-old Mitch Nahnybida to 40 months in prison for causing the death of his friend Eric Whitehawk.
Whitehawk died of injuries sustained in a crash caused when, following a long night of drinking and partying on the Cote First Nation, Nahnybida fell asleep at the wheel while driving to Canora to get more beer with Whitehawk in the front passenger seat of his pickup, a jury heard in December 2015. Nahnybida lost control of the truck while travelling at a high rate of speed on Hwy 5 near Mikado in August 2013. The then 19-year-old driver was charged with impaired driving causing death, failing to provide a breath sample and dangerous driving causing death.
Following a two-week trial, the jury found Nahnybida not guilty on the impaired charge but guilty of dangerous driving causing death. He also pleaded guilty to one count each of refusing to give a breath sample, driving while disqualified and breach of probation.
At a sentencing hearing July 22, Madam Justice L.L. Krogan noted that while she was satisfied beyond a reasonable doubt that Nahnybida had consumed alcohol prior to the deadly incident, she could not conclude it was an aggravating factor for the purposes of sentencing because of the jury’s verdict as determined by the Supreme Court in R v. Ferguson (2008).
Krogan did consider Nahnybida’s driving record as aggravating, however, cataloguing at length a litany of offences including impaired driving, driving while disqualified and breaches of court orders dating to two weeks after he got his driver’s licence and concluding two weeks before the fatal crash.
She also held the position Whitehawk should have been wearing a seatbelt against the defence saying it suggested Nahnybida had not fully taken responsibility for his actions.
Finally, the judge considered the affect on Whitehawk’s family and friends reading excerpts from five victim impact statements into the record.
As a mitigating factors, she considered the fact Nahnybida had not consumed alcohol nor driven since he was charged. On balance, however, she concluded that was too little too late saying he had demonstrated a total disregard for rules until it was too late.
Other mitigating factors included Nahnybida’s youth, remorse and a pre-sentence report indicating he was a low risk to reoffend.
In determining what she felt was an appropriate jail term, Krogan cited the fundamental principal of sentencing that it must be proportional to gravity of the offence and degree of responsibility of the offender.
In this case, she found Nahnybida’s the gravity of the crime and Nahnybida’s moral blameworthiness to be high.
“In this instance, Mr. Nahnybida’s unlawful conduct was not momentary or of short duration,” she wrote. “Rather, Mr. Nahnybida chose to drive on a highway at a substantially faster rate of speed than allowed for by the speed limit, to a location in excess of 20 kilometres from his starting location. He did so knowing, or he ought to have known, that there was a real risk that he would fall asleep while making the trip on a well-travelled highway with two passengers in his vehicle. The trip itself was entirely unnecessary given the purpose was to purchase beer.
She also wrote:
“I consider Mr. Nahnybida’s moral blameworthiness to be high also because he had, prior to this incident occurring, developed a pattern of both poor driving and dangerous driving as previously discussed. A prohibition from driving by the courts did not have any impact on Mr. Nahnybida’s decision to continue driving.
A sentence must also be within the range of sentences imposed on similar offenders in similar circumstances.
Krogan cited numerous cases with sentences ranging from 15 months to five years in determining 40 months as an appropriate sentence for the dangerous driving charge, 40 months concurrent on failing to provide a breath sample, six months concurrent for driving while disqualified and six months concurrent on the breach charge. Nahnybida will also be prohibited from driving upon his release from prison.
He will be eligible to apply for parole in October 2017.
Members of the Whitehawk family, some of whom appeared at the sentencing wearing “Justice for Eric,” t-shirts issued a statement following the hearing.
“No family is ever satisfied with the judgment when there is a loss of life,” it said. “Every day we mourn the loss of our beloved Eric Whitehawk.”
