R. v. Miklik

2014 BCSC 1413 R. v. Miklik

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Miklik, 2014 BCSC 1413 Date: 20140625 Docket: 78804 Registry: Kelowna Regina v. James Andrew Miklik Before: The Honourable Mr. Justice Betton Oral Reasons for Sentence Counsel for the Crown: J.M. Kaay Counsel for the Accused: M. Kennedy Place and Date of Trial/Hearing: Kelowna, B.C. June 25, 2014 Place and Date of Judgment: Kelowna, B.C. June 25, 2014 [1] THE COURT: This matter is before me today for sentencing. The accused, James Andrew Miklik, pled guilty to the offence of aggravated assault. This arises out of an incident that occurred on June 16, 2013, in Kelowna. There was a preliminary inquiry on March 31, 2014. The complainant/victim, Margitt Laverentz, was not required to testify at the preliminary inquiry. She has been in attendance during the course of submissions on this sentencing, is here now, and provided a victim impact statement, which was marked as an exhibit in these sentencing proceedings. Mr. Miklik has been in custody since his arrest shortly after the events. [2] At the time of the offence, Ms. Laverentz and one Mr. Russell had taken up residence in the home of Mr. Miklik. Ms. Laverentz was a drug user. Mr. Miklik was a drug user. The assault occurred after the accused had used Ms. Laverentz to access a supply of drugs. When she provided the drugs, he was of the view that he had been, so‑called,

"shorted", that is to say, he received less drugs than what he should have received in the context of the transaction. He confronted Ms. Laverentz and, when dissatisfied with her response, proceeded to assault her. She has, I am told, no recollection of the assault itself. Mr. Miklik says that he struck Ms. Laverentz four times. There is no indication or allegation that a weapon was involved. Indeed, he had what is described as a "boxer's fracture" of his hand consistent with having struck her with his hand or hands. [3] The consequences of his assault are serious indeed. Ms. Laverentz was hospitalized for approximately three months. In her victim impact statement, she refers to the injuries and Crown also made reference to the injuries and Exhibit -- another exhibit on the sentencing is a photograph taken while Ms. Laverentz was in hospital. As is common with photos, they are descriptive of what is visible and all indications from the photograph are that the injuries were serious. Not readily apparent from the photograph, however, is the fact that she had received fractures of facial bones and rib fractures. The injuries were such that she lost vision in one eye, there was a surgical removal of her spleen, and she received a traumatic brain injury. She, as I say, was hospitalized for some three months. That may have been extended to some extent because of her other

pre-existent health issues, which made her vulnerable to injury or consequences or complications from injuries and, as well, her social and economic status. In her victim impact statement, she describes both the physical and emotional consequences of her injuries. They are significant. She references that she was in a coma for two months. She remains, understandably, troubled and concerned at all that she has had to go through as a result of the actions of Mr. Miklik. [4] A presentence report was ordered and I have had the benefit of reviewing that. It sets out Mr. Miklik's background, and in some respects, it provides an all too common theme, which is of a somewhat troubled upbringing that saw him in foster care at a relatively young age. He has a prior criminal history involving offences, all of which occurred when he was 26 years of age, in 2003, in Ontario. It includes failing to comply with recognizances, careless use of a firearm, all of which resulted in fines, and trafficking in scheduled substances, which generated a 30-day intermittent jail sentence. He has had no convictions since that time. [5] Despite his acknowledged addiction to drugs, he has worked somewhat consistently over the years. He is the father, as I have it, of two children: one in Ontario and one here in B.C. He owned the house that he was living in at the time but, again, not uncommonly with persons

dealing with drug addictions, remaining employed and being financially responsible are not consistent with the addiction to drugs. He was living with his wife and child. His wife was addicted to drugs. They had left. The financial situation was not good and that is what brought him into contact with the complainant, the victim, and saw him invite her into the house only a week before the incident occurred. As I indicated, he has been in custody since these offences. By Crown's calculation, that is some 374 days. [6] Crown provided several authorities in respect of sentencing. I do not intend to refer to those authorities at any great length, or really at all, other than to say they each deal, obviously, with their own fact situations and, to some extent, comment on the range of sentences that have been imposed in cases of aggravated assault. The defence acknowledges that those are relevant and appropriate authorities and does not disagree with the range of sentences discussed in them. [7] Ultimately, with reference to the facts of this case and the evidence and those authorities, the Crown's position on sentence is that an appropriate sentence before any credit for presentence custody would be three to three-and-a-half years. Given the 374 days in custody, the credit that could be given for time served based on the recent decision of the Supreme Court of Canada in R. v.

Summers, 2014 SCC 26 -- that an additional two years' custody plus probation for two or more years would be appropriate. [8] Counsel for Mr. Miklik suggests, based on the same authorities, that the range of sentence, having consideration to the time spent in custody before sentencing, would be 18 months to two years but says that Mr. Miklik, acknowledging that range, would prefer a sentence of two years such that he may serve his time in a federal institution and have the benefit of perceived higher quality programming in federal penitentiaries. [9] The Criminal Code has a number of sections, primarily s. 718 to 718.2, that deal with the principles of sentencing. I do not intend to spend a great deal of time addressing those provisions other than to make the observation that there are a number of objectives or principles that need to be considered. They include denunciation of the unlawful conduct, deterrence of the offender and other persons from committing offences, separation of offenders from society where necessary, assisting in rehabilitation of offenders, provide for reparations for harm done to victims or to the community, and to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. [10] It does not take much thought to recognize that often those objectives or considerations will pull in different directions

in terms of whether more or less time in custody should be spent, how much emphasis should be placed on rehabilitation, and how to balance those considerations. Here, as I have said, counsel for Crown and defence, while not making a joint submission or characterizing it in that fashion, essentially adopt similar positions as to what the appropriate sentence should be. I am satisfied that those submissions do reflect an appropriate balance of the considerations in imposing a sentence, are consistent with the range of sentences set out by the authorities, and are appropriate in all of the circumstances. [11] It is perhaps fortuitous that given the time that Mr. Miklik has spent in custody that an appropriate sentence can be fashioned that allows for the imposition of a period of probation to follow his time in custody. As I observed in dialogue with counsel for Mr. Miklik during submissions, having supervision once an individual is out of custody and in the community can be a very useful aid in the transition from existence in custody to being back in the community where there are inevitable ups and downs of life. The introduction of stresses and interaction with people may otherwise entice someone back into old habits even when they are sincerely intent on abstinence. [12] This case is yet another example of the horrors of drug addiction; the conduct of persons connected with

transactions involving drugs, whether it be on the purchasing or selling end of things; and the use of drugs. I am satisfied from the presentence report that Mr. Miklik does have a sincere motivation to remove himself from the cycle that seems to occur all too often, and I am hopeful that this sentence not only will serve all of the other objectives of sentence, but will assist Mr. Miklik in following that course so that we might not see him again in this environment. [13] Accordingly, after taking into account the time served, and this is new time in addition to that, there will be a sentence of two years. [14] That will be followed by a period of probation for a period of two years. The terms of that probation order will be as follows, and Madam Clerk, do you have the standard terms available to you? If I just reference them by -- [15] THE CLERK: Oh, one moment, yes. [16] THE COURT: All right. [17] THE CLERK: Yes. [18] THE COURT: Item 200 ‑ you shall keep the peace and be of good behaviour. Appear before the court when required to do so by the court. Notify the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. [19] Item 201A ‑ within 72 hours of your completion of this or any other jail sentence or conditional sentence, during the course of the probation order, you

shall report in person to a probation officer. Mr. Kennedy, where should we specify that? [20] MR. KENNEDY: I believe Vancouver. I will double-check that. [21] THE COURT: All right. [22] MR. KENNEDY: Yes, that is the intention of Mr. Miklik to be -- [23] THE COURT: Now, I am unable to specify an address, but I will require that in the actual term in the probation order that a Downtown Vancouver location for an adult probation office be specified so that he report to that office within 72 hours of his release, and thereafter as and when and in the manner directed by the probation officer. [24] Madam Clerk, I am going to insert now some of the terms as articulated in the presentence report. So the language I am using now is from that. [25] You shall reside in a residence approved of in advance by the probation officer and not change your residence at any time without first obtaining the written consent of your probation officer. [26] You shall not possess or consume any alcohol or any illegal drug or controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act. Any prescription drug that you possess or consume must only be those which are specifically prescribed to you by a qualified medical practitioner or dentist. [27] You shall attend, participate in, and successfully complete any assessment, counselling or program as directed by the probation

officer. Without limiting the general nature of this condition, such assessment, counselling or program may relate to alcohol or drug abuse; psychiatric or psychological health; a full-time attendance program, including residential treatment for alcohol or drug abuse and/or such full-time attendance program as may be directed by the probation officer; and you shall comply with all the rules and regulations of any such assessment, counselling or program. [28] Having consented, you must commence and/or continue such psychiatric or medical treatment as may be considered medically appropriate, including taking prescribed medications. [29] At the direction of the probation officer, you will attend from time to time upon a qualified medical doctor for the purpose of receiving such medical counselling and treatment as may be recommended, except that you will not be required to submit to any treatment or medication to which you do not consent. If you do not consent to any form of medical treatment or medication prescribed or recommended, you shall notify the probation officer. [30] Now, Madam Clerk, returning to the standard terms and conditions. [31] THE CLERK: Thank you. [32] THE COURT: Item 208 ‑ you shall have no contact or communication directly or indirectly with Margitt Laverentz, and I will make this exception, except with the advance written consent of the probation officer

and in accordance with any victim-offender reconciliation or similar program that may be available and with which you participate and to which Ms. Laverentz has participated by consent. [33] You are to carry with you at all times -- this is item 202, Madam Clerk -- you must carry a copy of this order with you at all times when you are not in your residence, and produce it on request of any peace officer or staff of Corrections. [34] Now, I do not think there are any other terms, Mr. Kaay or Mr. Kennedy, that I have not addressed? [35] MR. KAAY: No, My Lord. [36] MR. KENNEDY: No, nothing further, Your Honour. [37] THE COURT: There will be an order -- and I am sorry, Mr. Kaay, is it s. 109 or 110? [38] MR. KAAY: Section 109, My Lord. [39] THE COURT: All right. [40] Pursuant to s. 109 of the Criminal Code, that you not possess any firearms, ammunition, or explosive substances -- and it is 10 years, Mr. Kaay? [41] MR. KAAY: Yes, My Lord. [42] THE COURT: For 10 years. You will be required to submit and provide a sample suitable for registration with the DNA databank. That will be done at the direction of the staff of the Corrections facility where you are housed. [43] While you are incarcerated -- I am sorry, I have forgotten the section number for no contact? [44] MR. KAAY: Section 743.2(1)(i), I believe, My Lord. [45] THE COURT: You are prohibited pursuant to that section while

incarcerated from having any contact directly or indirectly with Margitt Laverentz. [46] Now, the only thing that I have not dealt with and you did not address, Mr. Kennedy, was the forfeiture of the watch. [47] MR. KENNEDY: That is not an issue, My Lord. The watch was apparently surrendered by the individual who was -- [48] THE COURT: All right. So you are -- [49] MR. KENNEDY: Yes, so -- [50] THE COURT: All right. [51] MR. KENNEDY: -- it is not an issue. [52] THE COURT: In the circumstances and given the position on behalf of Mr. Miklik, the watch will be forfeited. [53] Anything else, then, gentlemen? [54] MR. KAAY: Nothing else, My Lord. [55] THE COURT: Mr. Kennedy? [56] MR. KENNEDY: No, thank you, My Lord. [57] THE COURT: Thank you. Good luck, sir. "D.A. Betton, J."