"Total frustration” is what New Westminster’s Tony Malcom said he felt when he heard the sentence handed down to the driver responsible for his daughter Olivia’s death.
Richmond resident Chao Chen, 45, was sentenced to five months in jail and two years of probation in Surrey provincial court Friday after pleading guilty to dangerous driving causing death last month.
Chen had originally been charged with impaired driving causing death and impaired driving with a blood alcohol level over 80 milligrams causing death after his Jeep slammed into 19-year-old Olivia Malcom as she stood by the open trunk of her family’s Honda Civic while it was pulled over near a bus stop beside Highway 17 in Delta.
The collision pinned Malcom between the two vehicles and carried her for nearly 16 metres before the vehicles disengaged and she fell to the ground.
She was pronounced dead at the scene.
Provincial court Judge Emmet Duncan called the case a “horrendous tragedy.”
At a sentencing hearing last month, Crown prosecutor Jodie Harris had argued for a 12-month jail sentence and a 12-month term of probation, as well as a five-year driving ban.
Defence lawyer Michael Mines, meanwhile, had called for a 90-day jail sentence to be served on weekends, two years of probation and a three-year driving ban.
In handing down his five-month sentence Friday, Duncan noted a number of mitigating factors, including Chen’s guilty plea, his lack of a criminal record, his previous good character and his remorse.
Chen’s lawyer argued another point in his client’s favour should be the fact that Chen admitted to having had a single shot of whiskey before driving and then throwing the open bottle (which had been in his Jeep at the time of the crash) over a fence before police arrived.
Mines reasoned that the Crown wouldn’t have been able to prove those facts since the bottle was never found, so Chen’s admission should be taken as proof of his remorse.
Duncan didn’t see it that way.
“I agree with the Crown that Mr. Chen disposed of evidence, and he did so in a way that indicates that, however distraught he genuinely was, he was also sufficiently composed to surreptitiously dispose of evidence of his own potential criminal liability. Indeed, this behaviour in itself might have been a further criminal offence … It was anything but mitigating.”
As an aggravating factor, Duncan noted Chen’s driving record, which included a conviction for impaired driving that led to a driving ban that expired just months before the crash that killed Malcom.
Duncan also noted Chen was caught driving while prohibited less than two weeks after the deadly crash.
Taken together, Duncan said these incidents showed a “particular attitude of carelessness toward driving” and “demonstrated a willingness to take risks while driving.”
“That willingness may well have been integral to a decision to use the bus loading area and in his failure to notice the Honda and a pedestrian standing behind it,” Duncan said.
Chen has denied having been impaired on the night of the crash, according to his lawyer, but Duncan found Chen's decision to consume alcohol before driving that night was “another example of his overall attitude as to how carefully he should approach driving, particularly given that he’d just completed a significant, alcohol-related prohibition some months before this incident.”
Besides the five-month jail sentence and two years of probation, Duncan imposed a driving ban on Chen of three years and five months.
One of the conditions of his probation will be to have no contact with the Malcom family, Malcom’s boyfriend Jake Stott, who was driving the Civic the day she died, and Téa Canton, a friend who was behind the Civic with Malcom but managed to jump out of the way before being pinned.
“To everyone here, it’s my hope that, although this sentence will make no one whole, it will bring some closure to just one chapter in what is a painful journey for so many people in this courtroom and beyond.”
Outside of the courthouse, the Malcom family was met by a large group of supporters, many wearing blue “Justice for Olivia” ribbons pinned to their jackets.
“There will never be justice for our daughter Olivia’s senseless death,” Malcom’s mother Bridget Malcom told reporters. "She was 19 years old with a life full of love, kindness and dreams to live out the day that she was killed.”
Bridget Malcom said the justice system process has been “exhausting,” and the family was disappointed when the more serious impaired driving charges against Chen were dropped without explanation less than two weeks before the trial.
When asked how the family felt about Chen’s sentence, Malcom’s father Tony Malcom said that, just a couple months before the trial was set to begin on Feb. 8, the Crown had been talking to them about prison sentences of up to five-and-a-half years if Chen were convicted on the impaired driving charges.
“To be here today at five months? No. It’s total frustration,” he said.
Bridget Malcom thanked supporters who had come to the courthouse and urged everyone who knew Olivia to light a candle and keep her memory alive.
“We are just asking everyone to keep speaking Olivia’s name to us,” she said. “It means so much to us.”