R. v. Miller Date:, 2015 BCPC 202

Citation: R. v. Miller Date: 20150714 2015 BCPC 0202 File Nos: 35735-B-2, 36152-2-C, 36650-1 Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TARA PATRICIA MILLER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: T. Patola Counsel for the Defendant: M.J. Munro Place of Hearing: Port Alberni , B.C. Date of Hearing: July 8, 2015 Date of Judgment: July 14, 2015

The Issue [ 1 ] Ms. Miller has entered guilty pleas to two charges and been convicted of a third. It is my task to sentence her for those offences. The offences are: (

i) breach of a probation order by failing to report to her probation officer, as directed, on April 24, 2014; (ii) attempted robbery on July 8, 2014; and (iii) shoplifting on May 12, 2015. The Facts [ 2 ] The circumstances of the first offence are simple - Ms. Miller’s probation officer directed her to report on April 24, 2014 and she did not comply with that direction. [ 3 ] On July 8, 2014, Ms. Miller entered a smoothie shop in Port Alberni. She was wearing large dark sunglasses and hair extensions of a different colour than her natural hair. She had in her hand a plastic toy pistol.

She handed the cashier a handwritten note, which read: BE QUIET SLOWLY GIVE ME ALL THE MONEY B4 I SHOOT EVERYONE The cashier was unimpressed by this threat, and pointed out that it is not possible to shoot people with a plastic toy pistol. The owner of the smoothie shop (who is the cashier’s mother) emerged from the kitchen. A brief altercation ensued, which involved some physical contact between the owner and Ms. Miller but caused no injury to either. Ms. Miller fled the scene, taking the “gun” and the note with her.

She discarded the note in a trash bin in a nearby park, and her outer clothing, sunglasses and hair extensions in the shrubbery. The police found those items when they searched the area on the day after the robbery. Upon retrieving the note from the trash bin, the police observed that the note was handwritten on the reverse side of a single-page document. The obverse side of the document bore Ms. Miller’s typewritten curriculum vitae. The officers proceeded to the address given by the document, where they arrested Ms. Miller without incident. She was charged with: (

i) attempted robbery; (ii) use of an imitation firearm while attempting a robbery; (iii) assaulting the owner of the smoothie shop; and (iv) masking her face while attempting a robbery. On April 8, 2015, I convicted her of attempted robbery, and acquitted her of the remaining three charges: R vs Miller 2015 BCPC 95 . [ 4 ] On May 12, 2015, while on bail and awaiting sentencing on the charge of attempted robbery, Ms. Miller stole some costume jewellery, valued at $5.97, from the Walmart store in Port Alberni.

She was apprehended in the parking lot by the loss prevention officer, arrested by the police, and charged with theft of property valued at less than $5000. [ 5 ] Ms. Miller is 28 years of age. [ 6 ] Ms.

Miller’s criminal record begins in 2009 (at age 23), and (prior to the offences for which I must sentence her) comprises two convictions for possession of controlled substances, one for production of a controlled substance, one for obstructing a police officer, one for assaulting a police officer, one for possession of stolen property, one for theft of goods valued under $5000, one for failure to attend court as required and four for breach of probation. [ 7 ] Ms. Miller has two children, ages 9 and 12.

She shares custody with the father, each having care of the children on alternating weeks, and is in a stable relationship with another intimate partner. She has been a cocaine user since 2010, and reports that she is able to abstain while the children are in her care, but is a heavy user when they are not. She says that she was under the influence of cocaine when she attempted the robbery of the smoothie shop. She suffers from agoraphobia, social anxiety disorder and major depressive disorder, for which she is prescribed medication.

When out of custody, she receives psychiatric assistance on an out-patient basis. [ 8 ] Ms. Miller has completed most, but not all, of her high school education, and has completed several vocational training courses subsequent to high school, some of them while in custody on the present charges. The following comment is found in her performance appraisal from the Alouette Correctional Centre for the period June 1 - 26, 2015: She has a great work ethic and is very committed to a project or program when she starts it. Sentence for Attempted Robbery [ 9 ] Mr.

Patola submits that the appropriate range of sentences for attempted robbery is from two to nine years’ imprisonment. The authorities upon which he relies are conveniently summarized and discussed in Regina vs Thompson 2008 BCCA 350 . He seeks a sentence of 2 years less a day in this case. Mr. Munro says that a sentence of time served would be appropriate. The calculation of time served is complex because Ms. Miller’s bail was revoked when she was arrested on the shoplifting charge. Counsel agree that, as of July 8, 2015, she was entitled to credit for 221 days of pre-trial custody. [ 10 ] I think that Mr.

Patola is correct when he says that the normal range of sentences for attempted robbery is two to nine years. The question is whether a sentence outside the normal range is appropriate in this case. [ 11 ] In addressing that question, I must be guided by the “fundamental principle” stated in

section 718.1 of the Criminal Code :

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. That provision was considered, in context, by Justice LeBel in R vs Nasogaluak 2010 SCC 6 , [2010] 1 SCR 206 @ paragraphs39 - 44 (italics in the original, underlining added, citations omitted): The objectives and principles of sentencing were recently codified in ss. 718 to 718.2 of the Criminal Code to bring greater consistencyand clarity to sentencing decisions.

Judges are now directed in s. 718 to consider the fundamental purpose of sentencing as that ofcontributing, along with crime prevention measures, to "respect for the law and the maintenance of a just, peaceful and safe society".This purpose is met by the imposition of "just sanctions" that reflect the usual array of sentencing objectives, as set out in the sameprovision: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation, and a recent addition: thepromotion of a sense of responsibility in the offender and acknowledgement of the harm caused to the victim and to the community.

The objectives of sentencing are given sharper focus in s. 718.1, which mandates that a sentence be "proportionate to the gravity of theoffence and the degree of responsibility of the offender". Thus, whatever weight a judge may wish to accord to the objectives listedabove, the resulting sentence must respect the fundamental principle of proportionality.

Section 718.2 provides a non-exhaustive list ofsecondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parity andtotality, and the instruction to consider "all available sanctions other than imprisonment that are reasonable in the circumstances", withparticular attention paid to the circumstances of aboriginal offenders. It is clear from these provisions that the principle of proportionality is central to the sentencing process ….

This emphasis was not borneof the 1996 amendments to the Code but, rather, reflects its long history as a guiding principle in sentencing …. It has a constitutionaldimension, in that s. 12 of the Charter forbids the imposition of a grossly disproportionate sentence that would outrage society'sstandards of decency. But what does proportionality mean in the context of sentencing? For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and thegravity of the offence. In this sense, the principle serves a limiting or restraining function.

However, the rights-based, protective angle ofproportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure thatoffenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and theharm they caused …. Understood in this latter sense, sentencing is a form of judicial and social censure ….

Whatever the rationale forproportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by theprinciple that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives onproportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft asentence that is tailored to the nature of the offence and the circumstances of the offender. The determination of a "fit" sentence is,subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in amanner that best reflects the circumstances of the case ….

No one sentencing objective trumps the others and it falls to the sentencingjudge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relative importance ofany mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences. Thejudge's discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures thateach case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law.

The wide discretion granted to sentencing judges has limits. It is fettered in part by the case law that has set down, in somecircumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions inaccordance with the principle of parity enshrined in the Code. But it must be remembered that, while courts should pay heed to theseranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordancewith the principles and objectives of sentencing.

Thus, a sentence falling outside the regular range of appropriate sentences is notnecessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community inwhich the offence occurred. [12] Attempted robbery is usually a very grave offence. The use or threat of violence usually instils fear in the victim, and theemotional sequelae can be severe and long-lasting. In many cases, the victim responds with violence to the threat of violence from thecriminal. Sometimes, the police intervene, and are called upon to use force to apprehend and subdue the criminal.

When the criminalemploys a plausible imitation of a firearm, the use of such an object may provoke a violent response of the same seriousness as the use ofa real firearm. Serious injuries and death are foreseeable outcomes of such confrontations. [13] There was no such risk in this case. Neither the cashier nor the owner thought for a moment that the object in Ms. Miller’s handwas anything other than a toy. The struggle between the owner and Ms. Miller was momentary and gave rise to no risk of materialinjury. The following passage appears in Ms.

Miller’s presentence report: Contact was made with [the cashier], who also spoke on behalf of her mother, [the owner], because of her limited English. [The cashier]states neither of them felt any negative effect after this incident occurred. There was no increase in fear or precautions taken at thebusiness. For them, business continued as usual and this incident has not had any effect on them. [14] Shortly put, a two-year sentence would be entirely disproportionate to the gravity of this offence. In my view, a sentence of 90days would be appropriate, and I impose that sentence.

Sentence for Failure to Report [15] Probation officers perform many important functions. As will be apparent, I am hopeful that Ms. Miller’s probation officer willbe able to assist her to access suitable counselling programs after her release from prison. However, probation officers cannot effectivelycarry out their duties unless the offender attends as required at appointments with the probation officer, counsellors and others assigned

to assist in rehabilitative measures. For that reason, a failure to report to a probation officer as directed is not a trivial matter. Ms. Miller has four previous convictions for breach of probation. However, I was provided with no particulars of those, and cannot assume that any of them was for failing to report as directed. In the circumstances, I think that a sentence of 14 days would be appropriate to impress upon Ms. Miller the importance of attending upon her probation officer as required.

Sentence for Shoplifting [ 16 ] I have already referred to the importance of the gravity of the offence in the determination of a fit sentence. There is no such thing as a trivial theft. With that acknowledged, theft of goods valued at less than six dollars may reasonably be described as less grave than most. Having regard to Ms. Miller’s record for previous property offences, a jail sentence is appropriate, but I think that 7 days would be quite sufficient. Probation [ 17 ] The following facts are noteworthy: a. Ms. Miller attempted a robbery with a “gun” which was so obviously a toy that it fooled no one. b.

Ms. Miller wrote the hold-up note on the back of her curriculum vitae , which provided the police not only with her name, but also with the address at which she could be arrested. c. While on bail and awaiting sentencing for attempted robbery, Ms. Miller stole $5.97 worth of goods from Walmart. At the risk of some understatement, those actions might be described as ill-considered. I am hopeful that an extended period of probation may assist Ms. Miller to access services which might assist her to behave more prudently in future.

Disposition [ 18 ] On information #35735-B-2, there will be a sentence of 14 days jail. On information #36152-C-2, count #1, there will be a sentence of 90 days jail. On information #36650-1, count #1, there will be a sentence of 7 days jail. Each of those sentences will be consecutive to each of the others. Because the total of the three sentences is less than the time that Ms. Miller has served in pre-trial custody, she will be released immediately. [ 19 ] There will also be a term of three years’ probation on the following conditions. Ms.

Miller must: a. keep the peace and be of good behaviour and attend court when required to do so by the court; b. report in person to a probation officer within 72 hours of her release from custody, and report thereafter as directed by her probation officer; c. reside at a place approved by her probation officer, and not change that place of residence without the prior permission of her probation officer; d. not possess or consume any controlled substance, as defined by the Controlled Drugs & Substances Act , except in accordance with the terms of a valid medical prescription; e. attend for psychological assessment and counselling as directed by her probation officer; f. take steps satisfactory to her probation officer to seek and maintain employment.

July 14, 2015 ___________________________ T. Gouge, PCJ