R. v. Meller Date:, 2011 BCPC 318

Citation: R. v. Meller Date: 20111109 2011 BCPC 0318 File No: 56886 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL LEE MELLER REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: M. Ruttan Counsel for the Defendant: D. Walsoff Place of Hearing: North Vancouver, B.C. Date of Hearing: November 7, 2011 Date of Judgment: November 9, 2011 [ 1 ] Mr. Meller pled guilty on September 15, 2011 to five charges arising out of events occurring on July 25, 2011 in North Vancouver. The charges relate to Mr.

Meller’s operation of his motor vehicle while under the influence of crack cocaine. He essentially went on a rampage through the streets of lower Lonsdale, using his car as a weapon, injuring two female pedestrians and confronting another, and intentionally colliding with a vehicle driven by a fourth female. [ 2 ] The Crown submits that the focus should be on denunciation and deterrence, and that Mr. Meller should serve three to four years in a federal penitentiary. [ 3 ] The Crown proceeded by indictment. The offences to which Mr.

Meller has pled guilty are two counts of assault with a weapon, his vehicle, impaired driving causing bodily harm, hit and run, and threatening. The assault and impaired charges carry maximum sentences of 10 years, while the hit and run and threatening charges carry maximum sentences of five years each. [ 4 ] The defence submits that one year imprisonment followed by a one year conditional sentence and three years probation will achieve a longer period of supervision. As well, Mr.

Walsoff submits, such a sentence will provide transition back into the community, better serve the protection of the public by permitting Mr. Meller to engage in rehabilitative programs, and provide greater structure than would be available by way of parole after a federal sentence. A conditional sentence is not available for the assault and impaired offences by virtue of the use of violence and the 10 year maximum sentence. On the other offences, the maximum sentence is such that a conditional sentence is not precluded. [ 5 ] Mr.

Meller has been detained in custody since the time of his arrest on the offence date. He has therefore served the equivalent of a sentence of 108 days, or three and one half months, to date. [ 6 ] DNA is mandatory on the assault offences and the impaired charge and discretionary on the threatening and the hit and run charges. I will make orders on those counts under the relevant sections, 487.051(1) and (3), respectively. [ 7 ] A driving prohibition of up to 10 years may be imposed under

section 259 on the impaired and hit and run charges.

Facts [ 8 ] Mr. Meller’s vehicle was first seen at the Corner of Esplanade & Semisch, where he encountered the complainant Hanna Peinhof and her boyfriend Kyle Fraser who were on foot. Mr. Meller pulled his car up beside Ms. Peinhof and asked her if she wanted some crack, or may have asked if she had some, she was unclear which. She said no and went to cross the street in front of his stopped vehicle. Mr. Meller accelerated and struck Ms. Peinhof.

She rolled off his car onto the pavement. [ 9 ] Minutes later, the complainant Lindsay Jones and three of her friends were walking west from Lonsdale Quay to Waterfront Park when they observed Mr. Meller’s Mustang traveling on Chesterfield Avenue toward them in an erratic fashion. He stopped and confronted them, making a motion in a gun shape with hand, and said “You,” or “You three”, “Get in the car.” Ms. Jones declined, and Mr. Meller backed his vehicle briefly. Then as Ms.

Jones passed in front of him, he accelerated quickly, hitting both of her legs and pinning her against a large address sign for about 10 seconds, before leaving the scene. [ 10 ] A few minutes after that and again a short distance away, a Ms. Madani was double parked in her vehicle in the 100 block of West Keith Road. Mr. Meller approached her from behind and tried to pass her vehicle, unsuccessfully. He sideswiped it, causing damage to both vehicles. Again he did not stop, proceeding north on Lonsdale. Ms. Madani followed Mr. Meller and stopped, behind him when he stopped. Mr.

Meller backed his vehicle into hers a couple of times before leaving again. [ 11 ] The final incident involved the complainant Brynn Campbell, who was walking in an alley east of Lonsdale between 17 th and 18 th . Mr. Meller pulled up and told her to get into his car, again making the shape of a gun with his hands. He told her there was a force field around her and she could not move. When Ms. Campbell declined, Mr. Meller said “get in the car before I fucking kill you. Bang, bang, you're dead.” At that point sirens could be heard nearby, and he again left. [ 12 ] In response to various calls reporting Mr.

Meller’s actions, police caught up with him at 19 th and Lonsdale. He was non- compliant and incoherent. It was necessary for one officer to draw his pistol and order Mr. Meller out of his vehicle and still he refused. He was warned about being tasered and ultimately police succeeded in arresting him. [ 13 ] Mr. Meller was found to have indications of cocaine, alcohol and marihuana in his blood when it was tested. He admitted to a four day crack cocaine binge and to using $300 worth of crack on the offence date. [ 14 ] The next morning apparently Mr.

Meller had no recollection of these events, and was said to feel shocked and nauseated when they were related to him. Victim Impact [ 15 ] Ms. Jones attended in court and filed a victim impact statement. Mr. Meller has had the opportunity to read that and I will spare Ms. Jones the embarrassment of reading it in court, except to note that Mr. Meller’s actions on the offence date, which he does not remember, are clearly something that Ms. Jones will never be permitted to forget. She has a significant disfigurement to one of her legs and has been told it is permanent. Photographs were provided and I hope Mr.

Meller will be provided with a copy of those, so that he may reflect from time to time on the harm he has caused. [ 16 ] Ms. Jones was previously a very active person. In the few months since the offence date she has been robbed of her ability to participate in the many activities that she used to engage in, including some planned biking and hiking trips, because she has essentially been unable to walk. She has become an uncharacteristically sedentary person. It is not clear when or if she will be able to resume her previous level of activity.

Certainly in any event, in light of her permanent disfigurement, as she puts it, what happened that day is going to affect her for the rest of her life. [ 17 ] I am told that the complainant Hanna Peinhof did not elect to provide a victim impact statement and missed an appointment with the author of the presentence report. I am told she was taken after the incident by ambulance to Lions Gate Hospital with soft tissue injuries and visible scrapes to her legs. I can only imagine that the incident was very alarming for her. [ 18 ] Ms.

Madani went to hospital with back pain, but again did not provide a victim impact statement. She was said not to have lasting injuries, and she is not named as one of the complainants. The charge dealing with her incidents is the hit and run. I also do not have a victim impact statement from the recipient of the threat, Ms. Campbell, but again, would assume the incident was alarming for her. Offender’s Criminal Record [ 19 ] Mr. Meller has a criminal record dating back to 1983 and continuing to 2007, when he received a federal sentence for a robbery and two thefts.

I was reminded that I was the judge that sentenced him on those offences. The robbery involved a purse snatching and one of the thefts was a substantial theft from an employer. He served that sentence until his release, which would have been some time in late 2008 or early 2009. Since then Mr. Meller has been working and living a crime free lifestyle, avoiding substance abuse, until these offences. He has in the past had at least one other lengthy period of sobriety and constructive lifestyle which according to his record would have been in the early 90’s.

He then reoffended in 2000 and in 2003, and then not again until 2007. Presentence and Psychological Reports [ 20 ] I had the benefit of thorough reports from a probation officer and a forensic psychologist outlining Mr. Meller’s background. [ 21 ] These reports document a lifelong struggle with substance abuse after a difficult childhood with an abusive father. Mr. Meller’s

recent challenge has been with crack cocaine. He had some residential treatment for a brief time in 2006 but relapsed shortly afterward, leading up to the 2007 offences. [ 22 ] The gist of the reports filed is that Mr. Meller is able to be a law abiding person if he refrains from the use of illicit substances. He is able to do that for years at a time, but over the years, he has inevitably relapsed. He has good intentions to achieve success in his rehabilitative path, and there are programs suggested in custody, and then after, that would assist him to do so. [ 23 ] Dr. Bartel assesses Mr.

Meller as a moderate to high risk for future criminal offences, but he qualifies his opinion considerably, saying that the risk for violent offences is lower, while noting that the 2007 robbery suggests a waning ability to manage his aggressive and angry impulses while under the influence of crack cocaine. [ 24 ] This series of incidents would be a good indication that he has no control over his actions while in that state. Dr. Bartel says the risk Mr.

Meller poses is directly tied to his substance abuse, and that risk management would centre on his limiting exposure to stress, and developing coping abilities. [ 25 ] Mr. Ruttan in his able submissions points out the observations in the pre-sentence reports that Mr. Meller’s employer is not prepared to re-hire him and his mother is not prepared to have him back to live with her, in light of the events of the offence date. Mr. Ruttan submits that those are stressors that would tend to detract from Mr. Meller’s ability to remain clean and sober. [ 26 ] Dr. Bartel has also assessed Mr.

Meller as having a profile which points toward fragile self-esteem and poor coping abilities. He also notes that he has a lengthy history of repeated substance abuse despite clear negative consequences for him and others. [ 27 ] These events would again be a good example of that. He served a sentence of two years federal time in 2007 and must be taken to have understood the clear negative consequences that his substance misuse created at that time.

The fact that he maintained sobriety and a law abiding lifestyle for close to four years after that is probably of little comfort to those who were victimized in the offences before me now. Cases [ 28 ] Mr. Ruttan cited the following cases relating to the range of sentence applicable to impaired driving causing death or bodily harm: R. v . Proulx ; R. v . Kirton , 2010 BCPC 220 ; R. v . West , 2008 BCPC; R. v . Peel , 2010 BCPC 124 ; R. v . Cohen , 2007 BCCA 276 ; and R. v . Biancofiore , cited in Cohen and Proulx .

The Crown takes the position that sentences are increasing for offences of impaired driving causing bodily harm. [ 29 ] I have also considered the case of R. v . Dawydiuk , 2008 BCPC 495 which dealt with an offence of assault with a motor vehicle and resulted in an 18 month sentence for an offender without a prior record, and the following cases involving other offences in which vehicles were used: R. v. Vandervalk, 2006 BCCA 431 ; R. v. Alkhatib, 2007 NSSC 294 ; R. v. Tower, 2008 NBPC 14 .

Analysis [ 30 ] The first task of the Court is to assess the offender’s level of culpability in relation to the offences, having regard to the mitigating and aggravating circumstances. Mr. Meller is said to be very remorseful. He was alarmed when told what he had done and immediately wrote a letter apologizing to the victims. He has since written a further letter. I note that in that letter he says he does not have any violence in his past, and that may not be entirely apt, in light of the prior robbery conviction. Nonetheless, at the sentencing hearing, Mr.

Meller also addressed the court and the complainant, Ms. Jones, who attended Court, indicating his remorse. He is said as well to have been very concerned about how Ms. Jones was doing after the incident and to have called his counsel regularly to find out. [ 31 ] Mr. Meller has entered a guilty plea, sparing the complainants and other witnesses, and the system, the need for a trial. He has focused on making changes in his life while in custody since the offences, and has been doing well in pre-trial custody.

He is willing to undergo treatment while in custody, which he accepts will occur, and afterward, to attempt to ensure that he does not relapse and commit further offences. [ 32 ] The civil consequences of these events are such that it is unlikely Mr. Meller will drive again for a long time. [ 33 ] The aggravated factors here are obvious. These charges arise out of four separate incidents in which Mr. Meller’s vehicle came into contact with a pedestrian or a motor vehicle, and a confrontation with a third pedestrian. In relation to the two pedestrians and the second incident with Ms.

Madani’s vehicle, the facts disclose that Mr. Meller used his vehicle intentionally. Although it clearly cannot be said that Mr. Meller was in his right mind at the time, he clearly had the mens rea required for the offence of assault. The fact that these incidents were intentional serves to significantly distinguish Mr. Meller’s case from those cited involving unintentional accidents that occurred while the perpetrator is impaired. [ 34 ] The cases cited set a wide range of sentences, from conditional sentences in the community to federal terms of imprisonment.

Those involving death I do not find to be helpful, although I must observe that Mr. Meller should receive no credit for the fact that someone did not die in one of the three incidents involving his car, particularly those with the pedestrians. He certainly cannot lay claim to any deliberate control over the effects of his actions. It is really just a matter of luck, timing, or divine intervention that either Ms. Jones’s or Ms. Peinhof‘s injuries were not even more serious. [ 35 ] Similarly I do not find cases involving a single accident arising from a state of impairment to be particularly relevant.

Having said that, I note that more recent cases involving impaired driving causing bodily harm have been resulting in increased sentences, perhaps in light of the change in legislation denying a conditional sentence order in such cases. [ 36 ] Those cases are distinguishable, in my view, because many of the offenders are otherwise law abiding citizens without criminal

records who have accidentally injured people because of an illegal level of alcohol consumption. Here, as noted by Judge Dollis in Dawydiuk , the intention required for the offences is worse than that for impaired driving or even criminal negligence. [ 37 ] As I see it, the use of a vehicle as a weapon, while having voluntarily become seriously impaired by a significant mind altering substance, is akin to attempted murder. There can be no control over the degree of injury on the part of the offender. It is not an accident. Death would be a foreseeable consequence.

The Crown has not chosen to proceed in that fashion, and I will not be sentencing on that basis, but I find I must make those observations. [ 38 ] This case as it stands is clearly worse than a single incident of impaired driving causing bodily harm. It is two incidents of using a vehicle as a weapon against a female victim who had declined his request; in one, causing significant injury. Added to that are two more incidents which are serious in themselves; a deliberate impact with a motor vehicle in a clear effort to deter a woman who was pursuing Mr.

Meller after he damaged her car, and a disturbing and profane threat to another woman to kill her for refusing to get into his car. [ 39 ] These can have been nothing short of terrifying for each of these individual complainants. Either of the assaults would have merited a sentence in the high provincial range, in my view. Added together, they amount to a campaign of terror, which is how I believe I may have characterized it on Mr. Mellor’s bail hearing. [ 40 ] Defence counsel has made an innovative submission on Mr.

Mellor’s behalf that protection of the public will be better achieved by a longer period of supervision in the community than could be imposed with a federal sentence. That is because the longest sentence to which I may attach a probation order is one of two years, which amounts to five years of total supervision, in theory. [ 41 ] It is said on Mr. Meller’s behalf that he has been to the penitentiary and did not find that to be productive time. I am told that there are a lot of drugs there, and Mr.

Meller found it difficult to pursue his rehabilitation, and that it was his own efforts once released that permitted him to maintain sobriety until this most recent relapse. [ 42 ] It is unfortunate that drugs may be readily available in our federal penitentiaries. That is not an observation that figures prominently in the decisions of our courts. It also does not assist in setting the appropriate range of sentence in this case. Rehabilitation must take a back seat, as Mr.

Mellor must be deterred by the sentence I impose, and it must also denounce his actions, address their seriousness, accord with sentences for other similar offenders, and promote respect for the law. [ 43 ] I am mindful that the long term protection of the public will best be achieved by Mr. Meller being successful in maintaining his sobriety, which he is most likely to do with a lengthy period of structure. In my experience, authorities in the federal system impose very similar conditions on parole as could be imposed on a probation order and breaches result in quick revocation and recommittal.

There is considerable structure available through the parole system, and the programs in federal penitentiaries, if one chooses to make use of them, are capable of assisting a person who intends to travel the path toward rehabilitation, as Mr. Meller says he does. Ultimately, it will be up to Mr. Meller to do whatever he has to do to ensure that he comes out a better person than he goes in and that he continues in his rehabilitation once his sentence is finished. [ 44 ] I have concluded that a federal sentence is both required and appropriate in this case.

Bearing mind the number of separate offences against individuals, the cases cited, Mr. Meller’s history, and the principle of totality I conclude that Mr. Meller must serve a sentence of four years, less the 108 days he has served to date. Had Mr. Meller not pled guilty, I would have imposed a sentence of five years or more. [ 45 ] Mr. Meller will provide DNA samples pursuant to

section 487.051(1) on the assaults and 487.051(3) on the hit and run and threatening charges, while in custody. He will be subject to a lifetime ban under

section 109 of the Criminal Code . He will be banned from operating a motor vehicle for 10 years pursuant to

section 259. The victim fine surcharges will be waived in the circumstances. ________________________________ The Honourable Judge C. Baird Ellan Provincial Court of British Columbia