R. v. Miller, 2013 BCSC 2408

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Miller, 2013 BCSC 2408 Date: 20131101 Docket: 32376-2 Registry: Williams Lake Regina v. Brandt Kenneth Miller and Frank McGregor Before: The Honourable Mr. Justice Bernard Oral Reasons for Sentence (Re Accused Miller) Counsel for Crown: W. Mathers Counsel for Accused Miller: A. Kaiser Place and Date of Hearing: Williams Lake, B.C. November 1, 2013 Place and Date of Judgment: Williams Lake, B.C. November 1, 2013 [ 1 ] THE COURT: Mr. Miller and Mr. McGregor face a 12-count Indictment. Mr. Miller is charged with Counts 1 through 6 on the Indictment and Mr.

McGregor is charged with Counts 7 through 12. [ 2 ] In relation to this Indictment, Mr. Miller has entered guilty pleas to Counts 1, 2, and 5. The Crown has accepted these pleas as a full resolution of the charges against Mr. Miller. Count 1 is a charge of breaking and entering a seasonal dwelling house at Deka Lake, B.C. on or about November 9, 2012. Count 2 is breaking and entering of a seasonal dwelling house on or about November 9, 2012 at or near Deka Lake. The house in Count 2 is near to the house referred to in Count 1.

Count 5 is a charge of having in his possession property, liquor, and cabin supplies, belonging to Darcy Poole. [ 3 ] On or about November 9, 2012, Mr. Miller and Mr. McGregor broke into two cabins and a travel trailer at Deka Lake. The cabins and travel trailer are on recreational property and are not the owners’ principal residences. Mr. Miller's parents own one cabin, and Darcy Poole is the neighbour of the Millers and the owner of the other cabin and trailer. [ 4 ] Mr. Miller is a troubled 21-year-old man.

At the time of the offences, he had nowhere to live because he had been banned from the family home in Chilliwack, B.C. Apparently his illicit drug use, which began at the age of 16, has alienated him from his family. When he and Mr. McGregor committed these break and enters I am told that they were in need of shelter and food. They gained entry to the Miller house by damaging the entry door. They gained entry to the trailer and the Poole house by smashing windows. [ 5 ] When the police attended, they found Mr. Miller and Mr. McGregor in the Poole house under a duvet taken from the Miller house.

Both houses were in a state of complete disarray and some items were damaged. Food and liquor had been consumed. [ 6 ] Mr. Poole estimated his cost of repairs at $1,480. The Millers did not provide information about the cost of repairs to their cabin. Some jewelry which had been taken from the Miller home in Chilliwack was recovered at the Miller cabin. [ 7 ] Mr. Miller has a record of convictions for an assault and a breach of an undertaking, both registered in 2012. Mr. Miller is the Miller family’s adopted son.

He apparently has struggled with adoption issues, with his schooling and with drugs. [ 8 ] The Crown and defence present a joint sentencing submission as follows: on Count 1, six months in jail; on Count 2, six months in jail concurrent with Count 1; and on Count 5, one month in jail concurrent with both Counts 1 and 2. Neither probation nor compensation is sought. [ 9 ] Counsel submit that the jointly recommended sentence takes into account Mr. Miller's guilty plea, his youth, the unusual circumstances of his crimes, and his troubling personal circumstances.

In support of a fit sentence range of 90 days to 18 months, the Crown cites R. v. Hockley , 2013 BCSC 113 , and R. v. Isaac , 2006 BCSC 1529 . [ 10 ] I am satisfied that the joint sentencing position falls within the range of fit sentences for similar crimes committed by similar offenders; that such a sentence adequately addresses the purposes and principles of sentencing; that the proposed sentence recognizes the unusual circumstances of the offences and the offender, including Mr. Miller's young age and his prospects for rehabilitation; and, that in

all the circumstances there is no principled basis for not acceding to the joint submission. [ 11 ] The sole point of contention between the parties is in relation to the number of days of credit Mr. Miller should be given for his pre-sentence detention. [ 12 ] Mr. Miller was arrested on November 9, 2012, and released on bail on November 27, 2012. He remained at large until July 12, 2013, when he was arrested on new charges including another break and enter. Since this arrest, Mr.

Miller has remained in custody and the break and enter charge remains outstanding. [ 13 ] Shortly after the July 12, 2013 arrest, the Crown filed an application to revoke Mr. Miller's bail pursuant to s. 524 of the Criminal Code , R.S.C. 1985, c. C-46, and process was issued in the form of an arrest warrant although Mr. Miller was already in custody. Mr. Miller consented to remain in custody on the new charges and the s. 524 application was adjourned from time to time and, ultimately, never pursued; thus, the release order on the instant charges remained in place while Mr.

Miller was in custody. [ 14 ] The defence position is that Mr. Miller ought to be credited with not only the time he spent in pre-trial custody between his arrest and his release on bail, but also for the period from July 21, 2013 to the present. The defence notes that Mr. Miller has already received credit in other sentencing proceedings for 10 days; that is, the period from his arrest on July 12, 2013 to July 21, 2013. [ 15 ] As I understand it, the defence position is that as a result of the outstanding s. 524 application there is a sufficient nexus between the instant offences and the detention following Mr.

Miller's arrest on July 12, 2013, such that he ought to be given credit for this period. In support of this position, the defence cites R. v. Morin , 2013 ABPC 9 . [ 16 ] The Crown submits that Mr. Miller's sentence should be reduced only by the 18 days he spent in pre-trial detention from the date of his arrest on the instant charges to the date of his release on bail.

The Crown cites s. 719(3) of the Criminal Code in support of its position that credit is to be given only for pre-sentence detention which arises "as a result of the offence" for which the accused is being sentenced, and not for custodial periods related to other matters. [ 17 ] Section 719(3) provides as follows: In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody. [ 18 ] In R. v.

Wilson , 2008 ONCA 510 , the court rejected the notion that offenders could "bank" custodial time from other offences and draw upon this time for credit in a sentencing on an unrelated matter. Wilson was cited with approval in R. v. Farrah , 2011 MBCA 49 , in which Chartier J.A., delivering the judgment of the court, made the following apposite remarks: [60] The narrow issue on the sentence appeal is whether the judge erred in calculating the accused’s pre-sentence credit.

This brings into consideration s. 719(3) of the Code , which provides that a sentencing court may give credit for any time spent in pre-sentence custody “as a result of the offence.” This means that the pre-sentence custody must be “in relation to the offence for which a person has been convicted” ( R. v. Wust , 2000 SCC 18 at para. 3 ...If there is no connection between the pre-sentence custody time that an accused has accumulated and the charges upon which an accused is being sentenced, then there is no principled reason to allow any credit for that time.

To do otherwise “would distort the sentencing regime” (see R. v. Wilson , 2008 ONCA 510 at paras. 42-45 ...). [ 19 ] Applying the foregoing to the case at bar, I am satisfied that Mr. Miller is not entitled to credit at this sentencing hearing for any time he has spent in pre-trial custody as a result of the July 2013 arrest for new charges on which he has remained in pre-trial detention.

I am not satisfied that anything turns on the existence of an outstanding s. 524 application that was simply adjourned from time to time and, ultimately, never pursued. [ 20 ] I find that the sole reason for the post-July detention of Mr. Miller arose from the new charges; thus there is no principled basis upon which credit can be given in this matter for that unrelated pre-trial detention. If and when Mr. Miller is sentenced in relation to one or more of the later charges, he may seek credit for his pre-trial detention.

It is no answer that he may be acquitted and thus never get credit for his pre-trial detention. In Wilson , Rosenberg J.A. addressed this imperfection in the justice system as follows: [44] No doubt there are flaws in our justice system. Innocent people are held in custody, and innocent people are found guilty and sentenced to terms of imprisonment. To avoid this severe unfairness, bail is granted as liberally as possible consistent with public safety, cases of in-custody accused come on for trial as soon as possible and safeguards are in place to avoid wrongful convictions.

As well, in some cases, people who have been wrongfully convicted and spent time in jail receive monetary compensation from the government. [ 21 ] I adopt the foregoing reasoning, but also note that Mr. Miller consented to remain in custody following his arrest in July 2013, and at no time thereafter sought to exercise his right to a bail hearing. [ 22 ] Mr. Miller, please stand. For the reasons stated, I sentence you to six months in prison on Count 1, six months in prison on Count 2, and one month in prison on Count 5.

The sentences for Counts 2 and 5 shall run concurrently with the sentence on Count 1, and concurrently with one another, for a global sentence of six months. In recognition of the 18 days you spent in detention between your arrest and release on bail, you are entitled to 18 days' credit; accordingly, your six month global sentence will be reduced by 18 days. [ 23 ] As Counts 1 and 2 are primary designated offences, Mr. Miller will be required to provide a DNA sample pursuant to s. 487.051(1) of the Criminal Code .

Finally, the victim fine surcharge is waived in this case due to financial hardship. [ 24 ] Anything further, Counsel? [ 25 ] MR. MATHERS: Yes, My Lord, the Crown directs stays of proceedings with respect to Count 3, in relation to Mr. Brandt Miller, Count 4, and Count 6.

[ 26 ] THE COURT: Thank you. “Bernard J.”