R. v. Miller Date:, 2013 BCPC 106

Citation: R. v. Miller Date: 20130502 2013 BCPC 0106 File No: 224802-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KEVIN SCOTT MILLER EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. BAGNALL Counsel for the Crown: J.A. Cochrane (as Agent for T.D. Anderson) Counsel for the Defendant: J. Doucette Place of Hearing: Vancouver , B.C. Date of Judgment: May 2, 2013

[ 1 ] THE COURT: Kevin Miller is charged with breaching a condition of his long-term supervision order as a result of events which occurred on January 16, 2012. The particular condition in question was the residency condition. Mr. Miller elected to be tried in Provincial Court and entered a plea of guilty early in 2013 before another judge of this court, and the matter was put over to April 15, 2013. I heard submissions on that day and reserved my decision with respect to sentence until today. [ 2 ] Certain materials were filed during the course of the hearing.

The following will be marked collectively as Exhibit 1 in these proceedings: a copy of the long-term supervision certificate; a copy of Judge Harris's decision with respect to Mr. Miller from December 7, 2011; a copy of Judge Weitzel's decision with respect to Mr. Miller from January 17, 2006; and a letter from Ariane Weathers, who is Mr. Miller's spouse, dated April 12, 2013.

EXHIBIT 1 (on Sentence): Documents: long-term supervision certificate, decision of Judge Harris 7 December 2011, decision of Judge Weitzel 17 January 2006, letter from Ariane Weathers dated 12 April 2013 [ 3 ] It is necessary to relate in some detail the background of the order in question here and of the behaviour of Mr. Miller, in effect, his performance, while bound by the order. [ 4 ] Mr. Miller has a significant youth record beginning when he was approximately 15 years of age and including one offence of violence, an assault, and two offences of prowling at night. Mr.

Miller's adult criminal record prior to the offences which led to his designation as a long-term offender included the following. • In 1989, he was convicted of possession of a narcotic and fined $75. • In 1990, he was convicted of trafficking in a narcotic and was sentenced to one day in jail and also to pay a fine of $500. • On June 29, 1989, he was convicted of aggravated assault and sentenced to four years' incarceration. The circumstances which underlay that offence are set out in the materials filed, and I will not repeat them here. Although Mr.

Miller was paroled with respect to this sentence, he did not obey the conditions of his parole, including one occasion when he left the residence where he was required to reside. He was absent without authorization for 11 months, and after being apprehended, he remained in custody until his statutory release date of May 4, 1993. [ 5 ] On September 22, 1995, Mr. Miller was arrested for the offences which ultimately led to his designation as a long-term offender. He entered pleas of guilty respecting two counts of aggravated sexual assault.

The facts which gave rise to these charges are set out in detail in the sentencing decision of Judge Weitzel which has now been filed in these proceedings. I will not repeat those details. It is sufficient to say that these offences were very, very serious in nature. [ 6 ] As a result of that, the Crown sought to have Mr. Miller declared to be a dangerous offender. The order was made in June, 1997. Mr. Miller's appeal of that order was successful in June, 2000. The Crown's application proceeded a second time, and Mr. Miller was again designated a dangerous offender in June, 2002. Mr.

Miller's appeal of that finding was also successful, and the Crown ultimately applied for the designation a third time in mid-2005. Judge Weitzel heard evidence respecting that application for almost a month, in July of 2005. [ 7 ] The results of all of those proceedings was that on January 17, 2006, Mr. Miller was sentenced to four years on each of two counts of aggravated sexual assault to be served concurrently. Judge Weitzel took into account that Mr. Miller had been in custody for 10 years at that point in time. Judge Weitzel also ordered that Mr.

Miller be subject to a long-term supervision order for the maximum period allowed by the statute, 10 years. [ 8 ] Judge Weitzel, in the course of his decision, noted the following: 1. Mr. Miller had significant anger management and impulse control problems as a young man, which obviously persisted into adulthood. He had been diagnosed as having an antisocial personality disorder. 2. Mr. Miller was in a long-term spousal relationship with a woman I have already referred to, Ms. Weathers. Mr. Miller met her in 1992 when he was serving the four-year sentence for aggravated assault to which I have referred.

After his release, they lived together, and that was sometimes on and sometimes off, but primarily they lived together. They were living together when Mr. Miller committed the two aggravated sexual assaults on June 7 and September 19, 1995, which led to his designation as a long-term offender. [ 9 ] Judge Weitzel, in his reasons, expressed concern about the fact that Mr. Miller was living with Ms. Weathers when those offences were committed, but he ultimately determined that the relationship had a positive influence on Mr. Miller.

He expressed his conclusion as follows, and I am reading from his decision commencing at paragraph 75: [75] I have reviewed the psychiatric evidence in this case, and in particular the assessments done in 2000 and 2005 by Dr. Robert Miller pursuant to s. 752.1 of the Criminal Code and the assessments by Dr. Lohrasbe in 1997 and in 2005 done at the behest of the defendant. Both authors are well respected and eminently qualified in this area of expertise. Apparently on the instructions of his counsel, the defendant Miller declined to be interviewed by Dr. Miller for either the 2000 or 2005 assessment reports.

Thus, Dr. Miller's reports are based on institutional records for the most part. Dr. Lohrasbe did have the benefit of personal interviews with the defendant for both of his reports. [76] In 2000, Dr. Miller concluded there was a high risk of both future violent offending and sexually violent re-offending by the defendant. In his 2005 report, while Dr. Miller's opinion remains essentially the same, he does note some changes, and what I can consider to be some improvements in the defendant's behaviour. Dr. Miller notes that the defendant's behaviour in the institution has improved since 2000. Dr.

Miller notes that the defendant's score on what is described as the HCR-20 Psychopathy Scale seems to have gone down, albeit it is still in the borderline range for psychopathy. Also in 2005, Dr. Miller used a technique called the Static-99

instrument to measure the defendant's risk of re-offending by a crime of violence and opined that the defendant was in the moderate high group to re-offend. [77] In general, Dr. Lohrasbe's reports are more supportive of the defendant, Miller. He sees Mr. Miller having improved in most aspects which impact on treatability between the time of his first report in 1997 and his subsequent 2005 report. In 2005, Dr. Lohrasbe is much more confident in finding that Mr.

Miller is not a sexual sadist than he was able to say in 1997. [78] Although retained by the defence to prepare his reports, and I am mindful of that, I am particularly impressed by his 2005 report and the forthright opinions of Lohrasbe in a number of areas. For example, in cross-examination he agreed that Mr.

Miller, the defendant Miller, at present remains a serious risk to re-offend, but the thrust of his report is that there is a significant possibility that Kevin Miller can be successfully managed in the community if he is given the opportunity for treatment for sexual offender issues before he is released from custody and that Mr. Miller's ability to take

part in and benefit from such treatment has substantially improved up to the present time. [79] While respecting the expertise of Dr. Miller and the conclusions he has drawn, I am prepared to give greater weight to the evidence of Dr. Lohrasbe because of his opportunity to not only have access to the institutional records but also because of his opportunity to have face-to-face interviews with Kevin Miller. Dr. Lohrasbe's view that the defendant's ability to benefit from treatment is supported by Miller's improved conduct within the institution.

In the result, I conclude that given the appropriate opportunity for treatment, there is a reasonable possibility for eventually controlling the risk of the defendant to re-offend in the community, and accordingly, pursuant to s. 753.1 I find Kevin Miller to be a long-term offender. [ 10 ] Mr.

Miller was released from custody on January 15, 2010, having completed the determined part of his sentence, that four- year sentence to which I have referred. [ 11 ] Thirteen days later, on January 28, 2010, he admitted to Corrections staff that he had used marihuana after he was asked to undergo urinalysis. [ 12 ] On February 9, 2010, the house where he was residing withdrew its support of him because he had been acting in an intimidating fashion towards a staff member. He was confined, but he left the residence and missed a mandatory meeting for residents.

The resulting suspension was ultimately cancelled, and Mr. Miller entered a new residence in April, 2010. Three days after he entered that new residence he was hostile towards a staff member who confronted him about missing a residence check. The order was suspended again until April 21 when he was returned to the residence. Two days after that, on April 23, he admitted that he had used marihuana while incarcerated but his release in that residence was continued. [ 13 ] On May 6, 2010, the Integrated Sexual Predator Observation Team reported to Mr.

Miller's parole officer that he had been seen at the public library looking at pornography on a computer. He was suspended, but the suspension was cancelled on May 11 when he agreed to cooperate with his case management team respecting that allegation. He was found to have been seeking a sexual relationship on a dating website. Given his predicate offences, this was obviously cause for significant concern. [ 14 ] On May 13, 2010, Mr. Miller reported that he had met a woman the night before and was intending to meet her again that day.

He was asked to postpone the scheduled meeting because he had not yet met with the psychologist and, in effect, because of circumstances, he had not yet stabilized in the community. [ 15 ] On May 24, 2010, Mr. Miller had what was described as a fit of anger over consequences for breaking curfew, and a suspension resulted. Before that suspension came into effect, Mr. Miller's parole officer was informed by the High Risk Offender Unit of the VPD that a complaint had been received about him from staff at a women's residence in the downtown area.

It was reported that he had been pursuing a woman who lived in that residence and that she was afraid for her safety. The employee reported that Mr. Miller had arrived at the house with another man and had insisted on seeing this woman. The employee identified Mr. Miller in a photo pack line-up. [ 16 ] In conversation with his team, Mr. Miller admitted that he had met this woman a few times with a view to developing a more intimate relationship. This was the same woman that he had met on May 12 and had been asked to not meet with again for a short period of time.

He had not disclosed any of this to his case management team, which resulted in yet another suspension. Mr. Miller was ultimately released again on August 21, 2010. [ 17 ] On September 3, 2010, he tested positive for THC. He admitted to his team taking a prescribed medication, which was given to him by another person, called "Marinol," which is a derivative of marihuana. That admission resulted in cancellation of his suspension. He was viewed as cooperating with his team. [ 18 ] Unfortunately, tested again on October 13, 2010, the result was again positive for THC. Consequences for Mr.

Miller included a tightening of his curfew. [ 19 ] On November 2, 2010, he missed an appointment with the psychologist which had been arranged for him, and he was confined as a result. He became angry and frustrated with this, and the staff at his residence withdrew their support, refusing to continue to accommodate him. He was incarcerated as a result of this. [ 20 ] He was released again on December 3, 2010. Fifteen days later, on December 18, he was asked to submit to urinalysis. He told

staff at that point in time a story about consuming some chocolates which contained alcohol. This was not the truth. Mr. Miller tested positive for alcohol, and he ultimately admitted drinking a strong beer while he was out of the residence. He was charged, as a result of this and the history that I have related, with a breach of his long-term supervision order. He was detained, and he spent almost a year in custody as a result of that. [ 21 ] I was not told why he waited in custody so long before he dealt with that charge. Ultimately, he was sentenced to one day in jail on December 7, 2011.

Judge Harris accepted the joint submission of counsel that the time served by Mr. Miller was an appropriate sentence. Judge Harris said this, and I am reading from his decision at paragraphs 5 and 6: [5] The circumstances of the breach are, in essence, he failed to abstain from intoxicants. Events began to unfold while he was out in the community where he sought refuge with alcohol. In this particular case, several people have spoken indirectly on his behalf, particularly a parole officer who, through discussions with Mr.

Miller, has recognized a change of perception, a greater acknowledgement of his requirement for help, and insight with respect to triggering mechanisms, and as well as what is needed to be done by him to be in the community in a circumstance where he is safe to the community. [6] As well, there is somewhat of a motivation for him to comply with conditions.

One is, he has a goal of returning back to Montreal, which requires compliance with all conditions, and two, it seems, and from having heard him, that jail is not the place where he wants to be. [ 22 ] The latter comments are, in my view, particularly significant given what has transpired. [ 23 ] Judge Harris placed reliance on the fact that Mr. Miller had experienced somewhat of a "transformation" during the year that he had been in custody up to that sentencing date. Judge Harris concluded that Mr.

Miller had become aware of the triggers in his behaviour, aware of the steps he had to take, and of what he needed to do in the community to remain crime-free. [ 24 ] Judge Harris also placed great reliance on the circumstances of the residence to which Mr. Miller would go to assist him in his rehabilitation and to keep the public safe until such time as he is ultimately completely rehabilitated. Judge Harris said this at paragraph 8: [8] I have received little information of what is available within the institutional setting. However, I am told that there is a one-to- one treatment program set up for Mr.

Miller within the community. There is a halfway house available to receive Mr. Miller. This is just not any halfway house. This is a halfway house that has been subjected to the rigors and audits of Corrections Canada, strict rules, regulations, curfews, zero tolerance with respect to intoxicants, strict rules with respect to guests signing in and signing out logs. [ 25 ] So Judge Harris sentenced Mr. Miller to serve one day with respect to that first charge of breaching his long-term supervision order. [ 26 ] It was only five weeks later, on January 17, 2012, when concern arose over Mr.

Miller's use of a computer at his residential facility. It appeared that he was having a sexual correspondence online. He told staff that he was corresponding with his spouse. This seemed to staff to be untrue because they observed that he seemed to be using Craigslist. He was told that he would be confined as a result of this. [ 27 ] Mr. Miller left the residence. He went AWOL. Four days later, on January 21, 2012, he called the 9-1-1 line in Montreal and turned himself in. He was held on the suspension warrant which resulted until early April, 2012.

Thereafter, he was held in custody on the information which concerns me, the information on which I am to sentence him. These are the circumstances. [ 28 ] The Crown takes the position that a sentence of two years is appropriate. The defence seeks a sentence of one year, in effect, a sentence of time served. [ 29 ] Mr. Miller's antecedents are set out in the materials that have been filed, but I will just recite some of the circumstances. [ 30 ] He was born in the United States on November 13, 1968, and he is now 43 years of age. His parents divorced when he was four years of age. His mother remarried twice.

During his childhood, the offender was subjected to abuse. He was taken into care in 1983. He ended up on the streets, abusing alcohol and drugs, by the time he was 17 years of age. He had an extraordinarily abysmal childhood. [ 31 ] At the present time, most of his supportive family members and Ms. Weathers, the woman he considers to be his wife, reside in Montreal. Mr. Miller says, through counsel, that the concerns of the staff leading to his confinement in January, 2012, were unfounded. He decided to go to Montreal, expecting that he would be held there if he were arrested there, close to his family. Mr.

Doucette told me in submissions that Mr. Miller wanted to be close to his wife, believing her to be a positive influence on him. [ 32 ] As I have indicated, a letter from Ms. Weathers was filed, indicating her ongoing support. In that letter, she says that their now 20-year relationship is based on commitment, a mutual commitment, and on an understanding, a clear understanding of the challenges they will face as Mr. Miller works out his rehabilitation. [ 33 ] On the basis of everything that I have heard, I must say that it is very difficult to share her faith in his good intentions and his ability to change.

All of the circumstances that have led up to the present charge do not indicate that that faith is well placed.

[ 34 ] As for what Mr. Miller did during the time he was absent from his residence, Mr. Miller addressed the court during the sentencing proceedings, and he told me that he met a musician on the bus that he took to Montreal and he socialized with this person after arriving there for a brief period of time until he turned himself in by calling 9-1-1. [ 35 ] In his comments, Mr. Miller placed a great deal of responsibility for his failure to comply with the terms of the order, over history, on those whose duty it was to supervise him.

He said the following, and I am reading from the transcript of proceedings at page 31, lines 15 and following. These are the comments of the accused: The difficulty I have reintegrating into the community is an indication of my need for community support and not a reflection of my risk, but a reflection of the lack of support I have received, both in Corrections and from, you know, any -- any family that might be willing to support me. [ 36 ] Mr. Miller also said in his comments that he has gained insight.

He said that in leaving his residence and travelling to Québec, he took matters into his own hands and he recognizes that this was wrong. [ 37 ] These comments, and his indication of that understanding, is very little comfort to the court given the history that has been described. There is a litany of non-compliance with the terms of the order leading up to the circumstances today. There are the consequences for a charge based on a much less serious breach of the order in December, 2011. I conclude, on the basis of the all of this, that there is, in reality, no indication of a real increase in insight. Mr.

Miller knew what the consequences would be when he left his residence and travelled to Québec. This is not the first time that he has left the residence where he was required to reside. He was, he said, trying to ensure that he would serve the rest of his order in Montreal. He has applied, and he told me about this, unsuccessfully to be transferred to Québec. What he did was a way of determining that the result he wished obtained when the authorities had not allowed it. [ 38 ] I just want to refer briefly to some of the law that is applicable here. [ 39 ]

Section 753.1(1) reads as follows: 753.1

(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that (

a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (

b) there is a substantial risk that the offender will reoffend; and (

c) there is a reasonable possibility of eventual control of the risk in the community. [ 40 ] So that is what Judge Weitzel found what pertained in this case, and I would also like to read s. 753.1(3):

(3) If the court finds an offender to be a long-term offender, it shall (

a) impose a sentence for the offence for which the offender has been convicted, which must be a minimum punishment of imprisonment for a term of two years; and (

b) order that the offender be subject to long-term supervision for a period that does not exceed 10 years. [ 41 ] So Judge Weitzel decided that the maximum available order was appropriate in this case. [ 42 ] I have been referred to two cases, and I have had occasion to look at one further. The law respecting sentencing for this sort of offence was recently reviewed in a case called R. v. Ipeelee , 2012 SCC 13 .

I am going to read starting at paragraph 48: [48] Reading the Criminal Code , the CCRA and the applicable jurisprudence together, we can therefore identify two specific objectives of long-term supervision as a form of conditional release: (1) protecting the public from the risk of reoffence, and (2) rehabilitating the offender and reintegrating him or her into the community. The latter objective may properly be described as the ultimate purpose of [a long-term supervision order], as indicated by s. 100 of the CCRA , though it is inextricably entwined with the former.

Unfortunately, provincial and appellate courts have tended to emphasize the protection of the public at the expense of the rehabilitation of offenders. This, in turn, has affected their determinations of what is a fit sentence for breaching a condition of [a long-term supervision order.

[ 43 ] Quoting again, commencing at paragraph 51: [51] This is not to say that rehabilitation will always be the foremost consideration when sentencing for breach of [a long-term supervision order]. The duty of a sentencing judge is to apply all of the principles mandated by ss. 718.1 and 718.2 of the Criminal Code in order to devise a sentence that furthers the overall objectives of sentencing.

The foregoing simply demonstrates that there is nothing in the provisions of the Criminal Code or the CCRA to suggest that any of those principles or objectives will not apply to the breach of [a long-term supervision order]. As with any sentencing decision, the relative weight to be accorded to each sentencing principle or objective will vary depending on the circumstances of the particular offence.

In all instances, the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender. [52] It would be imprudent to attempt to determine in the abstract the gravity of the offence of breaching a condition of [a long-term supervision order]. The severity of a given breach will ultimately depend on all of the circumstances, including the nature of the condition breached, how that condition is tied to managing the particular offender's risk of reoffence, and the circumstances of the breach.

However, a few comments may be instructive. [ 44 ] The court then, at paragraph 55, synopsizes what has been said: [55] It is the sentencing judge's duty to determine, within this open range of sentencing options, which sentence will be proportionate to both the gravity of the offence and the degree of responsibility of the offender. The severity of a particular breach of [a long-term supervision order] will depend, in large part, on the circumstances of the breach, the nature of the condition breached, and the role that condition plays in managing the offender's risk of reoffence in the community.

This requires a contextual analysis. As Smith J.A. states in R. v. Deacon , 2004 BCCA 78 , 193 B.C.A.C. 228, at para. 51 , "the gravity of an offence under s. 753.3 must be measured with reference not only to the conduct that gave rise to the offence, but also with regard to what it portends in light of the offender's entire history of criminal conduct". Breach of [a long-term supervision order] is not subject to a distinct sentencing regime or system.

In any given case, the best guides for determining a fit sentence are the well-established principles and objectives of sentencing set out in the Criminal Code . [ 45 ] These principles are echoed in the other case referred to, R. v. Larocque , 2012 BCCA 216 . The court in that case dealt very recently with a set of circumstances similar to those in the case at bar, and I have been guided by the comments of the Court of Appeal there. [ 46 ] I do not view the relationship that Mr. Miller has with Ms. Weathers in the way that it was viewed by Judge Weitzel in 2006. The fact is that Mr.

Miller committed the two very serious predicate offences of aggravated sexual assault while he was residing with Ms. Weathers, and while Judge Weitzel indicated that that caused him concern, overall, he found that the relationship with Ms. Weathers was a positive one and a significant source of support for Mr. Miller. Time has not borne out that expectation. [ 47 ] Ms. Weathers lived here in B.C. until 2009. Her support has apparently been constant over what she says is now 20 years, albeit at a distance throughout some of the time that concerns me, but Mr.

Miller's level of compliance with the conditions of his long-term supervision order has been abysmal in spite of that support. There is no other way to describe it. [ 48 ] In sentencing Mr. Miller in late 2011, Judge Harris placed reliance on the close supervision of the offender that would pertain in the residence to which he was being sent. Mr. Miller left that house five weeks later when he was told he would be confined to the residence. [ 49 ] I have recited his history. This is nothing new for Mr. Miller.

This is more of his pattern of behaviour, both prior to and since he was released on the order in 2010. [ 50 ] Two further matters require some brief comment. [ 51 ] Mr. Doucette told me that Mr. Miller intended to plead guilty to this charge of breaching his long-term supervision order from the outset. I did ask why it had then taken almost a year for him to do that. Mr. Doucette, in effect, took responsibility for the delay, and nothing further turns on that. [ 52 ] Mr. Doucette sought that I should apply or give Mr.

Miller credit for the time after he was arrested in Montreal and before he was brought before the court respecting the present information, a period in excess of three months. This issue is addressed in both R. v. Larocque , supra , and in R. v. White , an even more recent case found at 2013 BCCA 44 . Because, by operation of law, Mr. Miller's long- term supervision order was running while he was under suspension, I decline to consider that period of time as credit in determining the appropriate sentence for the breach of the order that concerns me. [ 53 ] The term breached by Mr.

Miller is absolutely central to his rehabilitation and to the management of the risk he presents to the community. The breach was deliberate. It was a result, I have concluded - he has told me this - of his attempt to force the system to do something which, until now, has been refused, that is, to transfer him to Québec to serve the remainder of his sentence. Mr. Miller's behaviour in this event is consistent with his behaviour throughout. He has absented himself from required residences in the past when he did not like the way things were going.

He does not successfully comply with many of the conditions of his order, at least not for very long, when he is in the community. [ 54 ] It is obvious, I think, but it must be explicit, Mr. Miller cannot be rehabilitated if he is not compliant with the conditions of his order nor can the risk that he presents be managed in the community. [ 55 ] A sentence of one year in custody as suggested by the defence is inadequate to address all of the principles of sentencing,

including rehabilitation. The sentence proposed by the Crown is appropriate and fit. I will take into account the almost 13 months that Mr. Miller has been in custody on this matter. [ 56 ] Mr. Miller, would you rise, please, so that I can formally pass sentence. [ 57 ] You will serve 11 further months with respect to this matter. [ 58 ] There will be no surcharge. (REASONS CONCLUDED)