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Crown wants penitentiary time for driver who struck down aviation instructor

Defence says judge should consider Nick Berto's IQ in sentencing
03-12-2018 Pine Plaza crash
Photos of a police reconstruction shown to jurors
Nicholas Berto uttered some of the words that Paul VanderGreindt's family wanted to hear Thursday afternoon 

But family members weren't in the Sault Ste. Marie courtroom when the young man indicated remorse for his March 12, 2016 deadly actions that caused devastating, life-changing injuries, leaving the Sault College aviation instructor a quadriplegic.

Fighting back tears, reading from a yellow piece of paper, and with his mother Deborah's arm around his shoulder, he told Superior Court Justice Annalisa Rasaiah there were no words that he could express to the family that would make things right.

"I think of Paul every day and pray for what has been lost and the family," Berto said. "I hope one day to meet Paul to say I'm sorry and take responsibility for my actions."

VanderGreindt's mother and father, Charlene and Frank, and his brother Curtis were in court to give victim impact statements Wednesday on the first day of Berto's sentencing hearing.

They were back in court Thursday morning to hear the Crown and defence submissions, but returned home to southern Ontario following the lunch break.

In their poignant, heart-wrenching statements, the family members detailed the horrendous injuries and excruciating pain the then 25-year-old suffered, the lengthy medical treatment he endured and his fight to stay alive.

The family described the heart ache, frustration and emotional roller coaster they experienced after their son and brother became the victim of "horrific actions" that stole his life, career and future.

They also urged Berto to show remorse and to take responsibility for the consequences of his actions.

A jury found Berto guilty of dangerous driving causing bodily harm and failing to stop at an accident to offer assistance in May.

He struck and ran over VanderGreindt with his jacked-up GMC Sierra truck in the parking lot outside The Harp Bar and Grill in the Pine Plaza after an altercation with a group of people in the parking lot.

The Crown is seeking a two-to-three-year penitentiary term for the dangerous driving offence, which carries a maximum sentence of ten years.

Prosecutor Kelly Weeks called for a further one-year consecutive sentence for the second offence, plus a five-year driving prohibition.

Defence lawyer Bruce Willson asked the judge to impose "a short, sharp sentence" (up to 90 days) that Berto could serve locally for the dangerous driving.

He proposed a conditional sentence (perhaps house arrest), which would be served in the community, for leaving the accident scene. The maximum penalty for this offence is five years.

Rasaiah will give her decision Nov. 13.

"General deterrence and denunciation are primary in this case" involving a "very serious and violent offence," Weeks said in her a two-and-a-half-hour submission.

"Consequences matter. The consequences to Paul VanderGriendt matter and they matter in sentencing," the Crown attorney said, arguing these are specific choices Berto made that night.

He had escalated a situation with another man into a physical altercation outside the bar, engaging with multiple people, trying to pick a fight and at some point brandishing a piece of a broken bottle, she said.

The crowd retreated, he got into his jacked-up truck with its knobby tires, then drove directly toward the crowd, accelerated and stopped just before the group, Weeks said 

This was deliberate and meant to be intimidating and menacing, she told Rasaiah.

"Upset and angry," he then carved to the right, accelerated and struck down and rode over VanderGreindt.

Weeks said she wasn't suggesting Berto meant to strike VanderGreindt, but he "must be held accountable for his choices."

Berto's actions profoundly changed the course of VanderGreindt's life, his dream of being a pilot was dashed, and he will never fly again.

He has lost the use of his arms and legs, and remains a quadriplegic to this day, the Crown said.

Willson described his client's actions as "a momentary, reckless absence of judgement."

A video from the Pine Plaza parking lot indicates the driving lasted no more than 10  seconds - "a short period of dangerous driving."

It wasn't intentional, he maintained.

Berto was barely 18 at the time, is a first offender with cognitive impairment, who has an IQ of 69 and had to be home-schooled in high school, the defence said.

He suggested the court "is not sentencing a person with an average IQ," and that there are a number of mitigating factors that must be balanced against the horrific consequences of Berto's actions.

Willson pointed to a "very, very positive" pre-sentence report that showed Berto, an only child, has a close relationship with his family, has worked hard and saved his own money since he was young.

He experiences considerable anxiety, is ill at ease with others, and doesn't have a lot of experience socializing, but is described as a polite, respectful person, the lawyer said.

"I say this is one-off, uncharacteristic behaviour."

Willson noted the writer of the report indicated Berto poses a very low risk to re-offend.

A sentence of two years or more would put his client into a federal penitentiary - to subject a youthful offender to this the conduct must be grave, he told the judge.

Berto has been on bail for 30 months with stringent and restrictive conditions and should be given credit for that, he also argued.

The defence also indicated that Berto is consenting to a Crown application for the forfeiture of his $15,000 truck, which he paid for himself.

"He is not getting that back," Willson said, suggesting "this is a form of punishment, that's why it's in the Criminal Code."

Weeks countered it's clear that forfeiture of the vehicle isn't mitigating in sentencing, because it is property that played a role in the offence.

She called it aggravating that Berto sped out of the parking lot after running over the victim, ran a red light and then concealed the truck behind a barn owned by his parents.

"He didn't call police or 911 and hid the vehicle deliberately."

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About the Author: Linda Richardson

Linda Richardson is a freelance journalist who has been covering Sault Ste. Marie's courts and other local news for more than 45 years.
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