by Tony Blais
An Edmonton man who killed a young boy when he drove into a restaurant patio has had his sentence increased on appeal from four months to 26 months.
In a decision issued Wednesday by the Court of Appeal of Alberta, Richard Suter, 65, was ordered to turn himself into custody at Edmonton police headquarters within 72 hours to begin serving the balance of his sentence.
The three judge panel ruled in favour of a Crown appeal that the four month sentence was "unfit" and the sentencing judge had erred by not finding that Suter's moral culpability in refusing to provide a breath sample was nearly as high as for someone who chose to drive while impaired.
"We conclude that the sentencing judge's failure, as part of establishing a proportional sentence, to assess Mr. Suter's moral culpability in terms of his choice to drive while distracted in the context of his health and pre existing alcohol problems, a choice which caused a child's death, not intentionally, but carelessly and even recklessly, was an error in principle as well as a failure to consider relevant factors, errors which combined to result in an unfit sentence," says the decision.
The panel agreed a proportional sentence, based on the aggravating and mitigating factors, would be a three year prison term, but reduced it to 26 months on the principle of restraint.
"This was a horrible situation," says the decision. "The respondent, a mature man of life experience, with capacity to decide for himself, and (according to him) unaffected by intoxicants, decided to withhold crucial evidence as to his condition despite required to do so by law, and when aware that he had killed a child and injured others and under circumstances which enraged the public around him and called for explanation.
"He chose to drive when his ability to drive was impaired by his own anger and poor health, and continued to drive while distracted by a serious, emotional argument into an area where the risk of public injury through driving error was high."
Suter's lawyer had also appealed the initial sentence, arguing a non custodial disposition was fit, but the panel dismissed the appeal. The three judges also dismissed a defence pitch for a 12 month driving ban, ruling it would remain at 30 months.
Suter was given credit for the time he has already served.
Suter was handed the four month sentence on Dec. 17, 2015, in provincial court after earlier pleading guilty to refusing to provide a breath sample where death ensued.
According to an agreed statement of facts, on May 19, 2013, Suter's Acura SUV went over a curb, through a glass barrier and into the table where two year old Geo Mounsef was sitting with his parents and brother at Ric's Grill, pinning Geo against a wall and causing his death.
Suter testified he was not impaired, but became distracted while arguing with his wife as he was parking, and "hit the gas pedal instead of the brake."
Court also heard during a sentencing hearing that a legal aid lawyer told Suter not to give a breath after being contacted following his arrest. The lawyer admitted in court he did not know the law had changed and did not realize there was such an offence as refusal following a death.
Suter has since filed a $600,000 lawsuit against the lawyer and Alberta Legal Aid, alleging he was given bad legal advice.
Suter also had his thumb chopped off when he was abducted from his home by three men dressed like police who told him it was related to the patio killing. Steven Vollrath, 33, was found guilty June 8 of kidnapping, aggravated assault, possession of a dangerous weapon and impersonating police in connection with the Jan. 22, 2015, abduction. He is slated to be sentenced later this year.