R. v. Miller, 2015 BCSC 1052

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Miller, 2015 BCSC 1052 Date: 20150619 Docket: 38922 Registry: Campbell River Regina v. Chad Quinton Miller, Nicholas Dan Charlton Before: The Honourable Madam Justice Sharma On appeal from: Provincial Court of British Columbia, dated January 23, 2015 ( R. v. Miller and Charlton , Campbell River File No.: 38922-1) Reasons for Judgment Counsel for the Appellant: T. Morgan Counsel for the Respondent Miller: W.J. Havelaar Counsel for the Respondent Charlton: S. Runyon Place and Date of Hearing: Campbell River, B.C.

June 3, 2015 Place and Date of Judgment: Campbell River, B.C. June 19, 2015 [ 1 ] The Crown appeals the sentences imposed on the respondents, Chad Quinton Miller and Nicholas Dan Charlton. Both were convicted of assault causing bodily harm contrary to s. 267 (

b) of the Criminal Code . The Crown had proceeded summarily. Mr. Miller received a suspended sentence and period of probation for 18 months with conditions. Mr. Charlton was granted a conditional discharge and placed on similar conditions as Mr. Miller. The Crown had sought jail terms for both. FACTS [ 2 ] The assault took place on May 18, 2013. The complainant, Mr. McMath, the two accused, four teenagers who witnessed the assault and three RCMP officers testified at trial.

The circumstances were as follows. [ 3 ] A group of teenagers were enjoying a beach fire in the William Point area of Campbell River, British Columbia. They were all about 15 years old at the time of the incident. At some point in the evening, Mr. Miller and Mr. Charlton (both in their late 20’s at the time) arrived at the beach fire bringing a case of beer and a bottle of Fireball. The trial judge found that both were intoxicated but that Mr. Charlton was the most intoxicated of the two. [ 4 ] Mr. Miller gave one of the teenagers a beer and made crude comments to one of the teenaged girls.

He became aggressive towards two of the boys, pushing one of them and saying “do you want to fight?” Two of the other teenagers intervened and the teens decided to leave. [ 5 ] But by this time Mr. McMath had come up from the beach and, having seen the interaction, made a comment to Mr. Miller along the lines that the teenaged girls were young enough to be his daughters. Mr. Miller grabbed Mr. McMath and punched him in the face, threw him to the ground and punched him about 20 times. At first Mr. Charlton tried to stop Mr. Miller, but he was unsuccessful. He then joined in and punched Mr.

McMath between 10 and 15 times. [ 6 ] Just prior to the assault, one of the teenage girls commented as she saw Mr. McMath speaking with Mr. Miller, that she thought

Mr. Miller was going to beat up Mr. McMath, which he did. The teenagers yelled at Mr. Miller and Mr. Charlton to stop and then calledthe police. At some point the accused left and ran away. They were apprehended and arrested. [7] Mr. McMath was 52 years old at the time and was referred to as an old man or older victim. He had a job but it was suggestedhe was a “street person”. Crown described him before me as someone with “modest means”. [8] After the assault, Mr. McMath was bloody with a big welt on the side of his face the size of a tennis ball and he was bleedingprofusely.

His left eye was swollen shut and he lost a tooth. Mr. McMath says he was in and out of consciousness during the assault. Heneeded four or five stitches near his eye. THE TRIAL AND SENTENCING [9] The accused pled not guilty. They claimed they were acting in self-defence but the trial judge rejected that and convicted themboth. [10] The Crown submitted the fact that this was an attack by two younger men on a single, older victim was an aggravating factor.They also emphasized the respondents’ criminal records and the fact that there was no provocation.

Based on that, Crown submitted theprimary considerations should be deterrence and denunciation. Crown sought a sentence of 60 to 120 days’ incarceration for Mr. Millerand 30 to 90 days’ incarceration for Mr. Charlton. Mr. Miller sought a suspended sentence and probation and Mr. Charlton, a conditionaldischarge. [11] In his reasons for sentencing, the trial judge reviewed Mr. Miller’s criminal record but did not find the convictions similar to theoffence. Mr.

Charlton’s record consisted of one conviction for a driving-related offence. [12] The trial judge reviewed the cases referred to him by the respondents and noted that in all of them the accused was a policeofficer. The judge recognized that “in terms of like offenders, [the police officer accused] are not like offenders.” He continued: “[t]heyare not the same as the accused here, and in my experience in terms of the cases, the matters are approached significantly different[ly]”.But immediately after that, the judge relied on one of those cases (R. v.

Bal, 2013 BCPC 21) for the proposition that “a suspendedsentence and probation can denounce these types of offences.” [13] The Crown alleges it was an error to rely on a police case to establish the range having just agreed they do not have similaroffenders.

The trial judge’s reasoning on this point was: [8] More particularly, for the purposes of the accused, when a person receives a suspended sentence and probation and then issubsequently convicted of another offence while on that probation arising out of the suspended sentence, and this is one of the deterrentfactors in a suspended sentence, clearly the breach of the probation, you can also be brought back before the court at the discretion of theCrown, and resentenced with respect to the original matter.

If that is not a deterrent not only to yourselves, but also to other individuals --that is what in my view was taking place in Bal in terms of what might happen. You would be put on your good behaviour and people aregoing to know that if you come back before the court, then you are going to be dealt with accordingly. [14] The trial judge in this case found the range of sentence for Mr. Miller to be between a suspended sentence and a period ofincarceration. He imposed an 18 month suspended sentence on Mr. Miller with conditions. Mr. Charlton was given a conditionaldischarge with similar conditions.

ANALYSIS [15] The Crown alleges the sentencing judge erred by: a. not giving sufficient weight to the objectives of denunciation and general and specific deterrence; b. failing to impose sentences proportionate to the gravity of the offence and the respondent’s degree of moral culpability, and c. imposing sentences that were unreasonable and unfit in all the circumstances. [16] The fundamental principle in sentencing is that the sentence must be “proportionate to the gravity of the offence and the degreeof responsibility of the offender”: s. 718.1 of the Criminal Code.

The court must also consider that “a sentence should be similar tosentences imposed on similar offenders for similar offences committed in similar circumstances”: s. 718.2(b). The objectives ofsentencing are listed in s. 718: (

a) to denounce unlawful conduct; (

b) to deter the offender and others from committing offences; (

c) toseparate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations to the harm done tovictims in the community; and (

f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims andto the community.

Section 718.2 dictates that certain listed factors shall be deemed to be aggravating circumstances that would tend toincrease the sentence. The Crown relies on s. 718.2(iii.1) which states that if the evidence shows that the offence had a significant impacton the victim considering their age and other personal circumstances, it is deemed to be an aggravating factor. [17] The parties agree on the legal principles governing these appeals. The standard of review for an appeal against sentence is setout in R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227 and was confirmed in R. v.

M. (C.A.), (SCC),[1996] 1 S.C.R. 500; these cases state that considerable deference should be shown to the sentencing judge’s reasons. This was recentlyconfirmed in R. v. Burleigh, 2015 BCCA 245 at paras. 12 - 13: [12] A court of appeal should only intervene to vary a sentence imposed at trial where the sentence is demonstrably unfit; or where thesentencing judge erred in principle, failed to consider a relevant factor, or overemphasized the appropriate factors.

A sentence may befound to be demonstrably unfit where it is ‘in substantial and marked departure’ from the range of sentences imposed for similaroffenders committing similar crimes: R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500 at paras. 90 and 92.

[13] Where the sentencing judge is said to have erred in principle, there must nevertheless be some deference paid to the sentence imposed at trial given the sentencing judge’s comparative advantage of having seen and heard the witnesses to the crime, and familiarity with the crime and the community and circumstances in which it was committed. … [ 18 ] An appellate court should not vary a sentence on the basis that it would have imposed a different one: R. v. L.M ., 2008 SCC 31 at paras. 14 - 15 and R. v. Carrillo , 2015 BCCA 192 at para. 13 .

The significance of this principle is that it is not enough to demonstrate the trial judge imposed a sentence that is a substantial and marked departure from a range for similar offenders committing similar crimes. The appellant must also demonstrate that the sentence is unfit because of that error: R. v. Allen , 2012 BCCA 377 at paras. 31 - 34 .

Lastly, appellate courts should be mindful of “the difficulty in identifying anything but a broad range of sentence given the individualized nature of sentencing and the reality that no two offences are ever truly alike”: Allen at para. 35 . [ 19 ] More importantly, sentencing is an art not a science. As stated in Carrillo at para. 31 : [31] … It is, however, important to acknowledge that deciding a fit sentence is not a science; there may not be a “single appropriate sentence for a similar offender and a similar crime” ( C.A.M. at para. 92).

A judge may impose a sentence outside the identifiable range where there is a justifiable case-specific basis for doing so ( Nasogaluak at para. 44). Similarly, in R. v. Samson , 2015 YKCA 7 , the Court said this about sentencing ranges and individualized sentences: [18] In other words, “while the range of sentences emerging from earlier cases provides guidance, it is not conclusive of an appropriate sentence in a given case” ( R. v.

Peynado , 2011 BCCA 524 at para. 27 , per Madam Justice Neilson). “Only substantial disparity that cannot be justified by reference to differences in offenders and the circumstances of their offences will lead to appellate intervention” ( R. v. Payne , 2007 BCCA 541 at para. 25 , per Mr. Justice Smith). [ 20 ] The Crown submits the sentence is not fit because it is a marked and substantial departure from the appropriate range. In Crown’s view, the trial judge erred in principle by confusing the “range” of sentences for an “appropriate range” (see R. v. Jimmie , 2009 BCCA 215 at para. 23 ).

As I understand the Crown’s submissions, the difference is that “range” refers to what is available in a general sense (maximum and minimum) for an offence whereas the appropriate range is identified by considering the similarities of the facts before the court with sentences imposed for similar offenders committing similar crimes. On that account, the Crown says the trial judge underemphasized the goals of deterrence and denunciation which led him to identify an incorrect appropriate range.

The Crown highlighted the trial judge’s reference to Bal as indicative of the error. [ 21 ] In my view, the trial judge was not relying on Bal to identify the appropriate range because he specifically identified that the circumstances were too different. Instead, he was confirming a more general principal that a suspended sentence can address the sentencing objective of denunciation.

In doing so, he did not err because the Court of Appeal has accepted the same proposition: Carrillo at para. 37 . [ 22 ] The Crown also says that denunciation and deterrence were not prominent enough in the trial judge’s reasoning and that for Mr. Miller, the appropriate range ought to have started with a jail term (including a conditional sentence).

The factors the Crown relies on to support that point are that this was an unprovoked assault by two young drunk men on an older, vulnerable male, which should attract great denunciation. [ 23 ] However, the Crown goes further and suggests that this case has similarities to group attacks or swarming cases as discussed in R. v. Nguyen , 2008 BCCA 252 and R. v. Hurley , 2008 BCCA 461 . In Nguyen , Justice Frankel agreed at para. 40 with Judge do Couto’s remarks in R. v.

N.A.D. , 2006 BCPC 309 , that “this conduct and group mentality and behaviour is becoming too prevalent in our communities”, which justifies courts sending a strong denunciatory message. [ 24 ] With respect, those cases involve considerations that do not exist here. Swarming conjures up a group attack, typically random and premeditated. Its defining feature is a number of people ganging up on the victim. I do not find any “group mentality” here. Mr. Miller instigated the assault. Mr. Charlton initially tried to stop Mr. Miller. While there was no prior relationship between Mr. Miller and Mr.

McMath, there was an interaction which makes it slightly different from a completely random, pre-meditated attack. I am not suggesting that interaction made the assault any less serious but it does distinguish it from a swarming. Once Mr. Charlton joined in the assault, it became more serious because it was two against one. But this was different from the “mob effect” that existed in Nguyen and Hurley . [ 25 ] The trial judge noted that Mr. Miller was the instigator and recognized the age imbalance between the victim and accused.

I am not persuaded that he failed to emphasize denunciation during sentencing. [ 26 ] The Crown also submits the trial judge underemphasized deterrence by collapsing his consideration of general deterrence with specific deterrence. The Crown’s position is stated thus: This case warranted a significant consideration of general deterrence, denunciation and retribution -- there was none.

While the judge demonstrated his awareness that sentencing is an individualized process, and that “[a]ssaults, generally, with intoxication seem to be prevalent in our society and our community ,” again he failed to properly animate these sentencing objectives. [Emphasis in original.] [ 27 ] The Crown acknowledges that the judge was aware of the difference between specific and general deterrence, but claims he did not sufficiently animate both. I do not agree. Determining a fit sentence requires balancing of all the relevant factors listed in the Criminal Code .

It is that balancing that is at the heart of determining a fit sentence. Balancing requires a judicial determination of the facts and circumstances that are relevant to each of the sentencing goals, together with a consideration of which goals ought to carry more weight in a particular case. [ 28 ] The Crown does not allege that the trial judge ignored some of the sentencing goals but claims he attached inadequate significance to two of them. In my view, the trial judge did not simply give lip service to deterrence and denunciation. The trial judge identified factors relevant to both and considered them.

That he did so briefly does not mean they were not sufficiently weighed.

[29] Appellate courts must keep in mind the comments of our Court of Appeal in Carrillo at para. 32: [32] Thus, sentencing is a “profoundly contextual” process particularly suited to the sentencing judge. This Court has only the(impersonal) printed record. As the Court in L.M. repeated, “[t]he sentencing judge has ‘served on the front lines of our criminal justicesystem’ and possesses unique qualifications in terms of experience and the ability to assess the submissions of the Crown and theoffender” (at para. 15).

The sentencing judge hears the submissions at first instance, gauges the relevant factors, and assimilatesimpressions that can be difficult to articulate such as the sincerity of expressions of remorse, and whether there is a real possibility ofrehabilitation and genuine motivation for it. These factors may support “a justifiable case-specific basis” for imposing a sentence outsidethe identifiable range (Nasogaluak at para 44).

As the Court in Samson said, appellate intervention is warranted only where substantialdisparity cannot be justified by reference to differences in offenders and the circumstances of their offences. [30] I do not find the range identified by the trial judge to be a marked or substantial departure from the appropriate range. Therespondents referred to cases where the gravity of the offence was arguably more serious because of the nature of the injuries and yet asuspended sentence was imposed: R. v. Jones, 2014 BCSC 131; R. v. Spencer, 2005 BCPC 487 and R. v. Tait, 2005 BCPC 273, 2005 BCPC 0273.

The Crown insists these cases are not probative because they involved guilty pleas. It is probablyimpossible to find another case that has identical facts and circumstances and since not pleading guilty cannot be considered anaggravating factor, I find these cases to be helpful. [31] Furthermore, the Crown does not offer cases of similar offenders committing similar crimes. Instead, it relies on generalstatements about crimes involving violence justifying harsher penalties: R. v. Wood (1975) (ON CA), 24 C.C.C. (2d)79 (Ont. C.A.) and R. v. Huh, 2015 ONCA 356. [32] For all these reasons, I dismiss the appeal of Mr.

Miller’s sentence. [33] With regard to Mr. Charlton, the Crown submits that a conditional discharge is not a fit sentence and seeks incarceration ofbetween 30 to 60 days. The Crown concedes that Mr. Charlton’s involvement does not justify the same sentence as Mr. Miller becausehis participation was different. Mr. Charlton expressed remorse and had only one prior conviction for dangerous driving. Mr. Charltondid not offer liquor to the teenagers, did not indicate a willingness to fight prior to the assault and, initially, tried to stop Mr. Miller fromcommitting the assault. He was also more intoxicated than Mr.

Miller. All these factors justify a less severe sentence for Mr. Charltonthan Mr. Miller. [34] The trial judge appropriately relied on R. v. Fallofield (1973), (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A.) todetermine if a conditional discharge was appropriate. The Crown agrees that Mr. Charlton is less morally blameworthy for the assaultbut maintains that the appropriate range cannot include a conditional discharge. [35] The trial judge made findings that specific deterrence should not be emphasized as much with Mr. Charlton because he wassatisfied that this was truly aberrant behaviour for the accused.

That means that specific deterrence would likely have a more meaningfulimpact. He also noted that Mr. Charlton had the support of his family living in the Campbell River area. [36] I have no basis to interfere with these findings and, in my view, it is the basis upon which the judge found a conditionaldischarge was in the accused’s best interest and was not contrary to the public interest. I see no error in principle in that approach. [37] For all of the above reasons, I dismiss the Crown’s appeal against the sentence of Mr. Charlton. “Sharma J.”