R. v. Miller

2011 BCSC 1382 R. v. Miller IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Miller, 2011 BCSC 1382 Date: 20110812 Docket: 37638 Registry: Penticton Regina v. Nicolette Rachel Miller Leonard Phillip Thompson Andrew Bradley Miller Before: The Honourable Madam Justice H. Holmes Oral Reasons for Sentence August 12, 2011 Counsel for the Crown C.A. Crockett Counsel for the Accused Nicolette Miller J.H. Pennington Counsel for the Accused Leonard Thompson R. Maxwell Counsel for the Accused Andrew Miller K.J. Lundman Place and Date of Trial: Penticton, B.C. April 5-8, 11-15, 18-19, 2011 Place and Date of Sentence: Penticton, B.C. August 12, 2011 INTRODUCTION [1] Nicolette Miller, Leonard Thompson (Ms. Miller's common law partner), and Andrew Miller (her young adult son), were convicted by a jury of kidnapping, unlawful confinement, and assault causing bodily harm. Frank Guenther was the victim of all three offences. Late in the evening of February 28, 2009, Mr. Guenther was forced into a vehicle in Oliver and taken to Pyramid Park north of Penticton, where he was delivered near-naked to an unidentified man or men who beat him severely and forced him into the icy waters of the lake. [2] The task now is to determine the appropriate sentences. [3] All three offenders agree that the law and the circumstances require sentences of imprisonment in a federal institution, thus of two years or more. The issue is whether the sentences should fall, as the Crown submits, within a range of four to six years in length, or, rather, at around three years for each of Ms. Miller and Mr. Thompson, and closer to two years for Mr. Miller. THE CIRCUMSTANCES OF THE OFFENCES [4] The evidence and the jury's verdict established the following facts. [5] At the time of the events of February 28, 2009, Mr. Guenther had been selling crack cocaine in Oliver for about three years. He did not sell in small quantities on the street, but rather in large quantities averaging a quarter of an ounce each per day to a total of about ten customers. He typically sold a total of about two ounces per day, making him what one of the police officers in the trial described as a mid-level to high mid-level dealer in that substance. [6] Mr. Guenther was himself addicted to cocaine. He consumed a very large amount, typically a quarter of an ounce or more per day. [7] Mr. Guenther explained that he had started to fall behind in his drug debts to his supplier, a person named Al. He had received a visit from Al about a week earlier that ended with some violence and a payment plan. That visit, however, caused Mr. Guenther no visible or lasting injury. [8] In the evening of February 28, Mr. Guenther received a telephone call which he thought was from a lady from Penticton in whom he was romantically interested. The woman on the telephone asked to buy cocaine, and Mr. Guenther arranged to meet her near the Royal Bank in Oliver. [9] When Mr. Guenther approached the meeting place, he was quickly taken to the ground. Mr. Thompson and Ms. Miller then picked him up, walked him to the waiting vehicle, each holding one of his arms, and pushed him into the back of the vehicle. Mr. Guenther had struggled at first, but not for long because he felt that he was not strong enough to get away. [10] With Mr. Andrew Miller and his then girlfriend, Megan Gaddy, also in the vehicle, Mr. Guenther was taken to the Thompson family ranch outside Oliver, where Mr. Leonard Thompson lived with Ms. Miller at the time. There, they all changed to another vehicle, and continued on to Pyramid Park. [11] During both legs of the journey to Pyramid Park, Mr. Thompson and Ms. Miller abused Mr. Guenther verbally and struck him numerous times. Mr. Guenther estimated about ten blows from each of them in total. These blows did not cause physical injury, and were not the basis of the offence of assault causing bodily harm for which the offenders were found guilty. [12] In his verbal abuse of Mr. Guenther, Mr. Thompson condemned him for falling behind in his drug debts, and told him that "this is what happens" as a result. [13] In her verbal abuse of Mr. Guenther, Ms. Miller expressed anger with Mr. Guenther about various matters, including an insult that he made to her. She was also angry from a previous dispute about $100 that she and Mr. Thompson had paid a drug dealer for a swimming pool belonging to Mr. Guenther's sister, that Mr. Guenther then returned to the sister. [14] Ms. Miller also told Mr. Guenther, during the journey and after arrival at Pyramid Park, that this would be the worst day of his life. She said that any pain he was experiencing during the trip was nothing compared with what he had to look forward to. [15] When, after arrival at Pyramid Park, the group heard a noise from the lake, Ms. Miller told Mr. Guenther that if the unnamed man were to arrive by boat, as opposed to motor vehicle, Mr. Guenther was in trouble and would definitely not survive the night. She also instructed Mr. Guenther to take off his clothes and, when he did, she made fun of his physical appearance. [16] Another motor vehicle did arrive at Pyramid Park, with two male occupants. Mr. Guenther was given over to a large man from the vehicle who beat him severely. Mr. Guenther fell unconscious early in the beating, and came round only as he was being dragged toward the beach, where he was told to get in the water. [17] Mr. Guenther was lucky to survive the beating. When he was forced into the bitterly cold water of the lake -- he recalled seeing some remains of ice -- he was injured and almost naked. A person or persons threw rocks at him from the beach to prevent him returning to the shore. He feared, probably correctly, that a recreational vehicle which had been parked at Pyramid Park since the group's arrival probably had something to do with the person or people who had assaulted him, and so remained in the water even after the rock-throwing appeared to stop and the people responsible for it seemed to have left the park. He took a longer route back to the shore, to an area well away from the parking lot. [18] Mr. Guenther then made his way to Highway 97 and tried to flag down passing vehicles. Eventually, a Mr. Christopher Cousins saw him and stopped to help, took Mr. Guenther to warmth and safety, and called the police. [19] By their verdicts, the jury made clear that they rejected both the explanation Ms. Miller gave in the trial for the trip to Pyramid Park and the defence positions in the trial that the three offenders were guilty of simple assaults for striking in the vehicle, but not of the three offences as charged. [20] Ms. Miller, who was the only offender to testify, explained that the trip to Pyramid Park was to allow Mr. Guenther to meet his dealer in order to reload with cocaine for sales the next day. She testified that she and Mr. Thompson wanted to buy some cocaine from Mr. Guenther when he had reloaded his supply, and therefore offered him a ride which he willingly took. [21] By the defence position, there was no kidnapping and no unlawful confinement, and the assault causing bodily harm at the park was committed by other people without any involvement or prior knowledge of any of the three offenders. [22] However, all three offenders acknowledged assaulting Mr. Guenther during the journey to Pyramid Park; Mr. Thompson and Ms. Miller by slapping him with an open hand, and Mr. Miller by elbowing him once or twice. Through their counsel, they invited the jury to convict them of the included offence of assault (or simple assault as it is sometimes called). [23] The jury's verdicts indicate that they concluded that each of the offenders knew both that Mr. Guenther was being taken for the trip against his will and that Mr. Guenther was being delivered for a beating. THE EFFECTS OF THE OFFENCE [24] From the beating at Pyramid Park, Mr. Guenther sustained: · open wounds to the left side of his eyes · scratches and bleeding on the right side of his face · three broken ribs, which caused pain in the upper side of his chest and caused him difficulty breathing · the loss of eight teeth -- however, Mr. Guenther did emphasize that his teeth were particularly vulnerable because of extensive root canal work · small cuts and open wounds on the top of the head, and · general bruising in various areas, particularly to one leg. [25] Mr. Guenther was in pain for about three months, and then, over the course of a further three months, experienced some aggravation while he was working. [26] His victim impact statement describes some of the effects on his mental and emotional well-being of the kidnapping and the beating at Pyramid Park. These effects are not surprising and, unfortunately, will no doubt stay with him for some considerable time to come. [27] Mr. Guenther was very fortunate in that within days of the events of February 28, one of his sisters shepherded him through a lengthy and successful process of drug rehabilitation. He no longer sells or uses drugs. [28] It is no surprise that the offences have had significant effects also on that sister. Because of the association of the offences with the illegal drug underworld, she has since lived in fear not only for her brother's safety, but also in fear for her own safety and that of her family. THE BACKGROUND OF THE OFFENDERS Nicolette Miller [29] Ms. Miller is now 39 years of age. She has faced some very substantial challenges in her life. Some of those challenges came early in her life as a result of troubled family circumstances. She explained that others came as a result of violence in her relationship with Andrew Miller's father. Still further challenges came more recently as a result of her fairly long-standing involvement in the illegal drug underworld. She was a victim of a horrendous home invasion, and of some additional gang-related conduct that was evidently intended to threaten her. [30] Ms. Miller testified that she began using crack cocaine at the age of 28, when her relationship with Andrew Miller's father ended in a financial settlement, and that she continued using it until April 2010, when her mother passed away. [31] Ms. Miller was pregnant with Andrew Miller at the age of 14 or 15. Her second son is now 14. She shares his care with that son's father. [32] Ms. Miller ended her formal education part way through grade 8 as a result of her pregnancy with Andrew Miller. She has not taken any formal academic education since then, but has taken several courses in the hospitality field and a traffic control flagging course. She has had some periods of employment in that latter field. [33] I will say that I was somewhat surprised to learn that Ms. Miller's formal schooling ended as early as grade 8, because she is well-spoken and presents as intelligent and capable. She has expressed a strong wish to finally deal with her problems, and I will observe at this point, as I probably will again, that she seems to be amply equipped with a great number of personal resources and abilities to allow her to do so. I do not suggest that this is an easy process. However, Ms. Miller has a lot going for her if she chooses to apply her skills in the right direction. [34] Ms. Miller has the following criminal record: · in September 2001, she pleaded guilty to theft of property with a value less than $5,000, and received an absolute discharge · in April 2003, she was convicted of public mischief (falsely reporting a crime), and received a conditional sentence of imprisonment for 3 months, with probation for 9 months · in December 2003, she was convicted of assault and uttering threats, and was sentenced on each offence to a conditional sentence of imprisonment for 6 months, with probation for 9 months · in December 2005, she was convicted of breach of probation, and received a suspended sentence with probation for 9 months · in May 2010, she was convicted of breaching the conditions of bail on the present charges on August 22, 2009, and was sentenced to a $100 fine. [35] Ms. Miller's criminal record thus includes one previous offence of violence, which was associated also with an offence of uttering threats. [36] I have considered also the pre-sentence report prepared to assist the Court in this matter, and will here digress to express appreciation for the thoughtfulness and care with which Cindi Miles, Probation Officer, prepared pre-sentence reports for all three offenders. [37] Ms Miles notes in the pre-sentence report that Ms. Miller feels badly about the events that resulted in the assaults. Ms. Miles also observes that the strongest factors concerning the risk of Ms. Miller reoffending are her instability in family and significant relationships, the negative influence of those with whom she associates, and her long-term issues with substance abuse. Leonard Thompson [38] Mr. Thompson is 42 years of age. He was born in Oliver, and has lived his life on the family ranch, where by all accounts he has worked hard since a very young age. The pre-sentence report indicates that his family life was relatively uneventful and happy, despite some unfortunate events that led to the separation of his parents. [39] Mr. Thompson has a grade 10 education. He left school because of his dyslexia, which made it difficult for him to succeed. [40] However, he has done well in his work on the family ranch, where he is a full-time employee operating heavy-duty equipment and performing various other types of work. He is said to be skilled and capable with maintenance and the repair of machinery. His relatively limited formal education seems to pose no barriers for his success in that work. [41] There are observations in the pre-sentence report that suggest that Ms. Miller's relationship with Mr. Thompson is not healthy for either of them. Some issue was taken with those observations, and I do not propose to make a determination as to whether they are well-founded or not. They do, at the very least, point to a matter that both Ms. Miller and Mr. Thompson need to consider very carefully as they move forward to deal with their substance abuse problems, as they both profess they will. [42] Mr. Thompson reports a family history of heavy drinking, but says that he did not begin to use cocaine until his early 20s. He says that for a lengthy period afterwards he did not use that substance, until a former partner got him involved in much heavier use. [43] Mr. Thompson has a court history, but, as the pre-sentence report and counsel properly note, the offences all follow the commission of these offences. His history can therefore relate only to his prospects for rehabilitation, and is not to be considered as a prior record for the purpose of determining the appropriate sentences for the present offences. [44] In the pre-sentence report, Ms. Miles noted that Mr. Thompson expressed regret at having abandoned Mr. Guenther, instead of staying to help him. He referred to the fairly recent death of his mother and said that his emotions were "all over the place". He also said that his long-term use of cocaine, together with his alcohol consumption that night, distorted his way of looking at things. Mr. Thompson told Ms. Miles that even at the time this experience made him question what he was doing and why, and has since caused him to stop using. Andrew Miller [45] Andrew Miller is 23 years of age. He suffered during his childhood and teenage years because of Ms. Miller's own challenges and problems resulting from or associated with her substance abuse. For example, he reports returning home at a young age to find the home ransacked, presumably by Ms. Miller's drug-using associates. [46] Mr. Miller expresses frustration at Ms. Miller's apparent refusal to deal with her substance abuse problems. In recent years, he has lived with his father. His father appears to be supportive of Mr. Miller, and was present in the courtroom for the sentencing hearing. [47] Mr. Miller had an on-and-off relationship with Megan Gaddy, who testified in the trial, which involved a four-year period of cohabitation. After they broke-up, there followed a short period of reconciliation during which Ms. Gaddy became pregnant with Mr. Miller's daughter, who is now less than a year old. [48] Mr. Miller also had a brief relationship with another partner from which was born a son, now aged slightly more than a year old. [49] Mr. Miller recognizes the importance of his role as father to these two young children. He says he will live responsibly in order "to be there for" them. [50] Mr. Miller graduated from high school in 2006. He began an apprenticeship in cooking, but his interests changed. First, he wanted to qualify to work on oil rigs. Now, he hopes to qualify as a diamond driller. [51] He has been employed for a diamond drilling company where he has been a hard-working employee much appreciated by his employer. His employer indicates that he will rehire Mr. Miller when he is released from prison. [52] Mr. Miller has some additional training. I will not outline it all. His background shows that he has almost always been engaged either in some form of employment or some form of education or training. All indications are that he has been a very good worker. [53] In September 2009, Mr. Miller received a conditional discharge, with probation for 12 months, in relation to a charge of mischief. However, this is of very limited relevance because it followed the commission of the present offences. [54] Through the pre-sentence report, Mr. Miller expresses regret about the offences. He acknowledges how frightened Mr. Guenther must have been. Mr. Miller says that he was intoxicated by drugs and alcohol, but should have known better than to have gone along with his mother and Mr. Thompson. [55] Ms. Miles reports that Mr. Miller identified his arrest on the present charges as a turning point in his life. He no longer wants drugs and alcohol to control his life, but wishes to shift his priorities and to become just a "working man". He told Ms. Miles that he had developed a routine of going home after work instead of seeking out old friends. [56] While in custody on an unrelated matter, Mr. Miller completed the first two portions of a substance abuse program, as well as two other rehabilitative programs. Substance Abuse as a Factor [57] All three offenders speak through their counsel and through Ms. Miles in the pre-sentence reports of the longstanding substance abuse problems to which they attribute these offences. I do not take these explanations as attempts to minimize their responsibility for the offences. I take them as efforts to understand the offences and what led to them and, one hopes, as the first rehabilitative step in overcoming those substance abuse problems. THE APPLICABLE SENTENCING PRINCIPLES The Effect of the Principle in Kienapple [58] I should first say that all counsel agree that the principle in Kienapple applies, and that the court should therefore enter a stay of proceedings on the offence of unlawful confinement (count 2) which is essentially subsumed by the offence of kidnapping. General Principles [59] The general principles that govern the determination of a fit sentence are found both in our common law and in the Criminal Code, in s. 718 and the neighbouring sections. [60] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society. That purpose underlies six main sentencing objectives: (1) denunciation of the offending conduct; (2) deterrence of the offender and of other people from criminal conduct; (3) separation of the offender from society, where necessary; (4) rehabilitation of offenders; (5) reparation to victims or the community; and, (6) the fostering of the offender's acknowledgement of responsibility and of the harm done to victims and the community. [61] The relative emphasis to be given to the various objectives will vary according to the particular offence and the particular offender. It is clear from the case authorities, as well as from the circumstances, that these offences require particular emphasis on denunciation and deterrence. [62] Further principles of sentencing, designed to help achieve the sentencing objectives I have outlined, are stated in sections 718.1 and 718.2 of the Criminal Code. They include that a sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender, and should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. A sentence should be increased or reduced to reflect any relevant aggravating or mitigating circumstances relating to the offence or the offender. An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. THE CROWN'S POSITION [63] The Crown says that in the circumstances the appropriate range for the sentences to be imposed is between four and six years of imprisonment. The Crown submits that Ms. Miller's sentence should lie at the higher end of that range, because of her role in initiating the kidnapping. [64] The circumstances which call in particular for a four to six year range include, the Crown submits: (1) the violence used, both in the car and through the beating administered by the unknown person or persons; (2) the threatening comments to Mr. Guenther during the journey; and, (3) in relation to Ms. Miller, her criminal record. THE DEFENCE POSITION Leonard Thompson [65] Through Mr. Maxwell, Mr. Thompson submits that his remorse and the steps he has taken to remove himself from triggers for his substance abuse suggest that his prison sentence should be shorter than the range the Crown outlines. He seeks a sentence of three years' imprisonment. Nicolette Miller [66] Through Mr. Pennington, Ms. Miller makes a similar submission, suggesting a sentence of three years' imprisonment. She acknowledges the aggravating effect of her criminal record, but submits that the challenges in her background provide some offsetting mitigation. Andrew Miller [67] Through Ms. Lundman, Mr. Miller submits that the appropriate range in his circumstances is between two and three years' imprisonment. He seeks a sentence toward the low end of that range given his young age, his remorse, and the steps he has taken toward rehabilitation. THE APPLICATION OF THE SENTENCING PRINCIPLES IN THIS CASE Case Authorities [68] I have been given numerous helpful case authorities. I am not going to review them now in these reasons, but will instead simply note that they include the following: (a) R. v. Aulakh, 2007 BCSC 2004 (b) R. v. Ayach, 2007 BCSC 398 (c) R. v. Berthelet, 2008 BCSC 999 (d) R. v. Deo, 2007 BCCA 626 (e) R. v. Mills (1998), 112 B.C.A.C. 283, 129 C.C.C. (3d) 313 (f) R. v. Nelson, 2010 BCSC 125 (g) R. v. Randhawa, 2007 BCCA 598 (h) R. v. Stanton, 2011 BCCA 217, and (i) R. v. Tanti, 2003 BCSC 377. [69] Ms. Lundman referred in particular to R. v. Tanti. On my reading of that case, the sentence imposed on a co-offender, namely, a Mr. Vella, appeared to play a significant part in Mr. Tanti's sentencing. Mr. Vella appeared to have had greater involvement in the offence than had Mr. Tanti, and he had a more significant criminal record. His sentence seems to have functioned somewhat as an upper ceiling in Mr. Tanti's sentencing, for reasons of sentencing parity. The Main Sentencing Objectives for These Offences [70] The present offences call for a strong message of denunciation, to deter not only these offenders, but also other people from similar conduct. The offences were committed for the purpose of delivering Mr. Guenther to a severe beating as punishment for perceived wrongs in the illegal drug underworld. [71] In a very similar context, Madam Justice Arnold-Bailey in R. v. Berthelet identified denunciation and deterrence as the primary sentencing principles. She spoke about the destructive effect of this type of unlawful conduct, both on the safety and physical and psychological welfare of individuals and on the welfare of the community as a whole. She noted that the law protects drug users as much as anyone else (para. 69): drug addicts and other unfortunate people in the grips of their addictions are no less worthy of protection under the law than anyone else. Otherwise, significant segments of some communities are abandoned to "vigilante justice" as opposed to the rule of law. [72] These were, as I have noted, offences committed in support of the illegal drug underworld. It is that world which, by Ms. Miller's own evidence in the trial and according to all three offenders as reported in the pre-sentence reports, has caused so much destruction in the offenders own lives and in the lives of those around them. [73] These offences were not only vigilante offences; they were vigilante offences committed to support a pernicious antisocial structure bent on exploiting the vulnerable, in utter disregard of the destructive effects on individuals, families, and society at large. The Respective Roles of the Offenders in the Offences [74] On the evidence, I conclude that Ms. Miller and Mr. Thompson had the main role in these offences. They were the ones who physically accosted Mr. Guenther. They were the ones instructed to take him to Pyramid Park. Ms. Miller initiated the trickery to lure Mr. Guenther to the place where he was kidnapped, and she made his ordeal worse by taunting him and promising significant violence to come when the unknown male arrived. She thus made the night even more frightening than it would otherwise have been for Mr. Guenther. She was also the one who told him to remove his clothes. [75] On my assessment of the evidence and in light of the jury's verdict, Andrew Miller had no involvement in the planning of the offences and less involvement than Ms. Miller and Mr. Thompson in carrying them out. [76] On the evidence in the trial, Mr. Miller said nothing during the trip to Pyramid Park. He did not strike Mr. Guenther, although, as I have noted, he acknowledged elbowing him. There is some evidence that he made an aggressive and potentially threatening comment in Mr. Guenther's presence while the group was transferring vehicles at the ranch, but there is no evidence that he acted upon that threat. [77] The Crown submits that I should infer that the jury found that Mr. Miller administered one of the kicks to Mr. Guenther immediately after the beating started at the park. However, I do not agree that this inference necessarily follows from the evidence and the jury's verdict. The jury may well have convicted Mr. Miller for assault causing bodily harm for his role as a party in bringing Mr. Guenther to the beating. That is the basis on which the jury must have convicted Ms. Miller and Mr. Thompson of that offence. To the extent that Mr. Miller's having kicked Mr. Guenther at the park may be argued to aggravate the other offences he committed, that circumstance is disputed by the defence and, in my view, is not proven beyond a reasonable doubt, as it must be if the Crown is to rely on it as an aggravating circumstance. Other Circumstances [78] I also take into account Mr. Miller's youth and, as I find, his greater awareness of the consequences of his conduct, as well as his strong prospects for rehabilitation. The latter are, I find, motivated in large part by feelings of responsibility toward his two very small children, who he evidently hopes will have an easier start in life than his own. [79] All three offenders have expressed their regret for their conduct and its effects. They recognize that they have brought shame to themselves and to their families. [80] I accept that they wish to gain control of their substance abuse problems and of their lives. I hope that they do so. I am not convinced that they have done so yet. They have support in various forms available to them, and I very much hope that they will take advantage of it. SENTENCE [81] I ask each of you to stand, please. I am now going to impose sentence. [82] Mr. Thompson, on the charge of kidnapping (count 1), I sentence you to imprisonment for a period of four and a half years. On the charge of assault causing bodily harm (count 3), I sentence you to two years' imprisonment, to be served concurrently to the sentence on the charge of kidnapping. [83] Ms. Miller, I sentence you for the offence of kidnapping (count 1) to imprisonment for four and a half years. On the offence of assault causing bodily harm (count 3), I sentence you to imprisonment for two years to be served concurrently with the sentence for kidnapping. [84] Mr. Miller, on the charge of kidnapping (count 1), I sentence you to three years' imprisonment. On the charge of assault causing bodily harm (count 3), I sentence you to one and a half years' imprisonment to be served concurrently with the sentence for kidnapping. OTHER ORDERS [85] There are some other orders I must make. Firearms [86] There will be an order under s. 109(2)(a) prohibiting you from possessing any firearms or ammunition. The duration of that order is 10 years. [87] THE CLERK: My Lady, which count does that apply to? [88] THE COURT: That applies to Counts 1 and 3. [89] THE CLERK: All three accused? [90] THE COURT: Yes. [91] THE CLERK: Thank you. Provide DNA [92] All three offenders, under s. 487.051, you are to provide a sample of bodily substance that is suitable for DNA analysis. [93] Is there anything else that needs to be dealt with? [94] THE CLERK: Victim surcharges? [95] THE COURT: There will be no victim surcharge in the circumstances. [96] THE CLERK: The DNA will again apply to what counts or is that to all counts? [97] THE COURT: I am sorry? [98] THE CLERK: The DNA will apply to Count 1? [99] THE COURT: Both. [100] THE CLERK: For all three accused? [101] THE COURT: Yes. Thank you. Anything further to be dealt with? [102] MS. CROCKETT: No, My Lady, I do not believe so. [103] MR. PENNINGTON: No, thank you. [104] THE COURT: Thank you. [105] THE CLERK: The DNA is primary? [106] THE COURT: The DNA is primary, yes. "H. Holmes, J." The Honourable Madam Justice H. Holmes