THUNDER BAY -- A man convicted of fleeing the scene of a fatal hit-and-run nearly four years ago will spend 90 days in prison.
Christian Hernandez, 29, was sentenced to 90 days in jail – in addition to 48 days of credited pre-sentence custody – to be served intermittently on weekends in a detention facility in London, Ont. for leaving the scene of the collision that claimed the life of 45-year-old Richard Carmichael on Dec. 19, 2010.
Hernandez had also been charged with impaired operation of a motor vehicle and operation of a motor vehicle with a blood alcohol level of more than 80 milligrams but was acquitted of those charges in June.
“It was an entirely appropriate and fit sentence,” said defence lawyer Francis Thatcher after the sentence was handed down Wednesday afternoon at the Thunder Bay Courthouse.
“It was well within the range that the senior appeal courts have indicated for an offence of this nature, which requires real jail time with the individual behind bars,” he said.
At about 3 a.m. on Dec. 19, 2010 Carmichael was struck by a vehicle driven by Hernandez near the intersection of High and Van Norman Streets, where he was found on his stomach with a pool of blood underneath.
Carmichael arrived at the Thunder Bay Regional Health Sciences Centre at 3:55 a.m. and was pronounced dead at 3:58 a.m.
During the trial, Justice Joyce Pelletier ruled that the breath samples taken from Hernandez at 4:58 a.m. at the Thunder Bay Police Station couldn't be proven beyond a reasonable doubt were taken within two hours of the collision.
Although the first 911 call came in at 3:10 a.m., that person was not an eyewitness to the collision and the incident could have happened much earlier.
The Crown had asked for five to nine months of jail time and a two to three year driving ban.
The defence countered that restrictions on Hernandez during the release period over the past four years created hardships that included the loss of a job, bankruptcy application, family strain and a relocation to London, Ont. Hernandez also was not permitted to operate a vehicle except for work and childcare purposes and had to surrender his passport.
The judge agreed that the restrictions under the bail conditions meant there was no need for a continued driving prohibition.
Pelletier also said there wasn’t a case for a DNA order to be issued.
She said the incident was a tragic motor vehicle accident with fatal consequences but accepted that Hernandez was remorseful and accepted responsibility for his actions and there is no doubt he made a terrible judgment call that night.
Pelletier also said the accused was a good family man and was described in the pre-sentence report as a hard-working, productive member of the London community and she doesn’t believe he will end up in a criminal courtroom again.
Thatcher said he will be filing a notice of appeal with the court of appeal for Ontario with respect to decisions the judge made early in the trial regarding the admissibility of some evidence.
Hernandez, a Mexican national, was also notified on Wednesday he is now deemed inadmissible in Canada.
“While the appeal is being pursued, the Canada Border Services Agency has the right to take what steps they choose to do and we’ll be dealing with those at the same time we’re dealing with the appeal,” said Thatcher.
Whether or not Hernandez is deported would likely not happen until after his sentence has been served and Thatcher said they expect a decision on the appeal before the sentence is finished.
