R. v. Mills, 2018 NLCA 37

Dion Patrick Mills (appellant) v. Her Majesty the Queen (respondent) (17/102) Indexed As: R. v. Mills 2018 NLCA 37 3 C.A.N.L.R. 69 Court of Appeal of Newfoundland and Labrador Welsh, Hoegg and O’Brien JJ.A. June 22, 2018

Summary: Dion Patrick Mills was convicted of two counts of attempting to obstruct the course of justice, contrary to section 139(3) (

a) of the Criminal Code for attempting to dissuade his former wife and his seventeen year-old son from giving evidence against him and ten counts of breach of probation for contacting his wife and son in contravention of court orders, contrary to

section 733.1(1) of the Code . He was sentenced to a total of three years in prison comprised of twenty-four months for each count of attempting to obstruct the course of justice, to be served concurrently, and twelve months in total for the breaches of probation. Before imposing a harsher sentence than suggested by either counsel, the trial judge did not seek further submissions. Mr.

Mills seeks leave to appeal, and if granted, appeals against his sentence for attempting to obstruct the course of justice, primarily on the basis that the sentence is demonstrably unfit, but also on the grounds that the judge should have advised counsel and sought further submissions before imposing a sentence higher than sought by either of them. Held: Appeal allowed, sentence reduced to twenty-two months imprisonment. Welsh J.A. (Hoegg and O’Brien JJ.A. concurring): Leave to appeal is required by section 675(1) (

b) of the Criminal Code because this was an appeal by Mr. Mills as to sentence only. Leave was granted on the basis that the appeal was not frivolous. The judge need not advise counsel in every circumstance where the judge intends to order a harsher sentence than was sought by the Crown. While a judge may wish to do so regardless of the circumstances, failure to advise counsel and provide them with an opportunity to make further submissions will not, in all circumstances, result in error.

Where, as here, the offender has been convicted following a plea of not guilty and neither a joint submission nor a joint recommendation on sentence has been submitted by counsel, considerations related to a quid pro quo between the Crown and defence would not arise. In that circumstance there is no apparent rationale for concluding that it is an error for a judge, in ordering a harsher sentence, to decline or fail to provide counsel with the opportunity to make further submissions. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

A sentence of two years imprisonment for obstruction of justice falls at the higher end of the range. When all the relevant factors are considered, Mr. Mills’ offence could not be assessed as falling at the high end of the range established by the case law, and the trial judge erred by failing to take into account relevant factors and by misapplying case law in determining an appropriate sentence. These errors resulted in a demonstrably unfit sentence. The sentence imposed by the trial judge should be varied from twenty-four months to ten months in prison.

That sentence is in the mid- range, taking account of the aggravating factors and the circumstances as a whole. Taking account of these reduced sentences, the total sentence should be varied to twenty-two months imprisonment. Thus the appeal was allowed and sentence reduced to twenty-two months imprisonment.

Cases cited: R. v. Hillier, 2016 NLCA 21, 377 Nfld. & P.E.I.R. 121 R. v. Scott, 2016 NLCA 16, 376 Nfld. & P.E.I.R. 167 R. v. Frampton, 2018 NLCA 23 R. v. Lokhmachev, 2001 NFCA 68, 208 Nfld. & P.E.I.R. 1 R. v. Mavros, 2014 BCSC 2347 R. v. Tremblay, 2015 BCSC 2263 R. v. D.H., 2012 NLCA 5, 317 Nfld. & P.E.I.R. 244 R. v. C.(F.J.) (1999), (NL SC), 174 Nfld. & P.E.I.R. 201 (Nfld. S.C.T.D.), affirmed 2002 NFCA 1 R. v. Sweezy (1987), (NL CA), 66 Nfld. & P.E.I.R. 29 (Nfld. C.A.) R. v. Kuppenbender (1985), (SK CA), 44 Sask. R. 161 (Sask. C.A.) R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 R. v.

Hutchings, 2012 NLCA 2, 316 Nfld. & P.E.I.R. 211 R. v. O’Quinn, 2017 NLCA 10, 345 C.C.C. (3d) 326 R. v. Blok-Andersen, 2016 NLCA 9, 376 Nfld. & P.E.I.R. 130 Counsel: Derek Hogan, for the appellant; Trisha L. McCarthy, for the respondent. This appeal was heard on June 8, 2018 before Welsh, Hoegg and O’Brien JJ.A. The following judgment was delivered on June 22, 2018 by Welsh J.A. for the Court.______________________________________________________________ Welsh J.A.: [1] Dion Patrick Mills was convicted of two counts of attempting to obstruct the course of justice, contrary to section 139(3)(

a) ofthe Criminal Code, and ten counts of breach of probation, contrary to

section 733.1(1) of the Code. He was sentenced to a total of threeyears in prison comprised of twenty-four months for each count of attempting to obstruct the course of justice, to be served concurrently,and twelve months in total for the breaches of probation. Mr. Mills seeks leave to appeal, and if granted, appeals against his sentence forattempting to obstruct the course of justice, primarily on the basis that the sentence is demonstrably unfit. BACKGROUND [2] The charges of attempting to obstruct the course of justice arose from a telephone voice mail left by Mr.

Mills on November 30,2016, in which he attempted to dissuade his former wife and his seventeen year-old son from giving evidence against him. The breachesof probation, occurring between September and November 2016, resulted when Mr. Mills contacted his former wife and his son onseveral occasions, thereby contravening orders issued by the provincial and supreme courts. Mr. Mills was convicted of the attempt toobstruct justice charges and pleaded guilty to ten counts of breaches of probation.

The trial judge imposed the following sentences for atotal of thirty-six months imprisonment: Attempt to obstruct justice (former wife) twenty-four months Attempt to obstruct justice (son) twenty-four months, concurrent

Five counts of breach of supreme court probation orders six months each, concurrent for the breaches, consecutive Five counts of breach of provincial court probation orders six months each, concurrent for the breaches, consecutive. [ 3 ] In the November 30, 2016 voice mail, Mr. Mills made threats that his former wife would go to jail for fraud because she had dishonestly used a credit card after the breakdown of their marriage. In convicting Mr.

Mills of attempting to obstruct justice, the trial judge summarized the effect of the phone call ( 2017 NLPC 0816 A00249): [23] On an objective basis, the accused said 1) He was breaking the no contact orders of the Supreme and Provincial Courts; 2) He was prepared to go back to jail; 3) He had the opinion of a lawyer supporting his allegation of fraudulent use of the credit card [by his former wife]; 4) His ex-wife would have to retain her own lawyer; 5) His ex-wife would end up behind bars; 6) Leaving their teenaged son alone in the world; but 7) All of this could go away if she and their son agreed not to pursue charges with the police and let the accused off with a warning. [24] Objectively, it is clear that the accused intended to intimidate his ex-wife, and also to get her to persuade their son not to give evidence against him as well.

That is the only logical conclusion open on the evidence. [ 4 ] The charges for breaches of probation to which Mr. Mills pleaded guilty were assessed on the basis of an agreed statement of facts. On several occasions Mr. Mills contravened court orders by sending text and Facebook messages to his former wife and to his son.

One message to his son was particularly offensive and disturbing, described in the agreed statement of facts as “confrontational and vulgar”. [ 5 ] At the sentencing hearing, Crown counsel submitted that an appropriate sentence would be twelve to eighteen months imprisonment for attempting to obstruct justice and ten months consecutive for the breaches of probation for a total sentence of twenty- two to twenty-eight months. The suggested ten months for breaches of probation was based on a sentence of one month for each of the ten counts, to be served consecutively.

The judge, in fact, imposed a sentence of six months for each breach, two to be served consecutively, for a total of twelve months. Defence counsel submitted that a total of nine months imprisonment for the attempts to obstruct justice and seven months, consecutive, for the ten breaches of probation, for a total of sixteen months would be an appropriate sentence. Before imposing a harsher sentence than suggested by either counsel, the trial judge did not seek further submissions.

ISSUES [ 6 ] In addition to the question of leave to appeal, at issue is whether the trial judge erred when he imposed a sentence of twenty-four months imprisonment for each count of attempting to obstruct the course of justice, on the basis (1) that he failed to advise counsel and give them an opportunity to make further submissions when he intended to impose a harsher sentence than was sought by the Crown, and (2) that the sentence for those offences is demonstrably unfit. ANALYSIS Leave to Appeal [ 7 ] Leave to appeal is required because this is an appeal by Mr. Mills as to sentence only ( section 675(1) (

b) of the Criminal Code ). The test to be applied is whether the appeal is “frivolous in the sense of having no arguable basis or sufficient merit” ( R. v. Hillier , 2016 NLCA 21 , 377 Nfld. & P.E.I.R. 121 , at paragraph 7 ). In this case, based on the discussion that follows, I am satisfied that the test is met. Accordingly, I would grant leave to appeal. The Appeal Sentencing Submissions by Counsel [ 8 ] Mr. Mills’ first ground of appeal is that the trial judge failed to follow the correct procedure when he imposed a harsher sentence than was sought by Crown counsel.

This submission was based on the decision in R. v. Scott , 2016 NLCA 16 , 376 Nfld. & P.E.I.R. 167 , in which the accused, having been charged with multiple offences, pleaded guilty to two charges. The remaining several charges were withdrawn. The majority in that decision concluded that, before ordering a harsher sentence than was sought by the Crown, the judge was required to advise counsel and provide an opportunity for both to make further submissions before sentence was imposed.

The underlying rationale for this procedure, as discussed in Scott , is that a guilty plea generally involves a quid pro quo based on negotiations between Crown and defence counsel. If the judge declines to accept the Crown’s submission on sentence, the offender may have reason to withdraw the guilty plea. [ 9 ] The question raised by this appeal is whether the Scott procedure must be applied in every circumstance where the judge intends to order a harsher sentence than was sought by the Crown. In my view, the answer to that question is no. While a judge may wish to

adopt the Scott procedure regardless of the circumstances, failure to advise counsel and provide them with an opportunity to make further submissions will not, in all circumstances, result in error. [ 10 ] In R. v. Frampton , 2018 NLCA 23 , a distinction was drawn between a sentence based on a joint submission and one based on a joint recommendation, the latter being at issue in that case.

Because the judge in Frampton followed the Scott procedure, it was unnecessary for this Court to determine whether, in the case of a joint recommendation, the failure to use the Scott procedure would constitute error by the judge ( Frampton , at paragraphs 20 to 28 ). [ 11 ] Where, as here, the offender has been convicted following a not guilty plea and neither a joint submission nor a joint recommendation on sentence has been submitted by counsel, considerations related to a quid pro quo between the Crown and defence would not arise.

In that circumstance, while the submissions of counsel are a significant consideration, there is no apparent rationale for concluding that it is an error for a judge, in ordering a harsher sentence, to decline or fail to provide counsel with the opportunity to make further submissions. Nonetheless, where the judge intends to impose a sentence significantly harsher than sought by the Crown, serious consideration should be given to following the Scott procedure in order to avoid an appeal on the basis, for example, that the sentence is demonstrably unfit. [ 12 ] In this case, Mr.

Mills entered not guilty pleas to the charges of attempting to obstruct justice. In my view, it was not an error for the judge to impose a sentence harsher than was sought by the Crown without first advising counsel and giving them an opportunity to make further submissions. Whether the sentence was demonstrably unfit is another question and is dealt with below. [ 13 ] Mr. Mills pleaded guilty to the breaches of probation charges which should have engaged the application of the Scott procedure.

Without giving counsel the opportunity to make further submissions, the judge imposed a six-month sentence for each count which was significantly harsher than the one-month sentence for each count that was sought by the Crown. However, the total sentence of twelve months imposed by the judge was not significantly harsher than the ten months sought by the Crown, and was not appealed. [ 14 ] In the result, I conclude that the judge’s failure to apply the Scott procedure did not constitute error in the circumstances. Demonstrably Unfit Sentence [ 15 ] Mr.

Mills submits that the sentence of twenty-four months for attempting to obstruct justice is demonstrably unfit, and that, in the result, the total sentence of thirty-six months for all the charges is demonstrably unfit. [ 16 ] I begin with a fundamental principle of sentencing set out 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. Further, under

section 718.2 of the Code , in imposing sentence, the court shall take into consideration that: (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; These principles engage a consideration of the appropriate range of sentence. [ 17 ] In imposing a sentence of two years for each attempt to obstruct justice, after reviewing case law, the trial judge concluded: [12] Given the antecedents of the accused, and the fact that his prior offences were also committed against his ex-wife, a sentence of 2 years is applicable here. … [ 18 ] A sentence of two years imprisonment for obstruction of justice falls at the higher end of the range.

For example, in R. v. Lokhmachev , 2001 NFCA 68 , 208 Nfld. & P.E.I.R. 1 , Mr. Lokhmachev’s appeal of a two-year sentence for obstruction of justice was dismissed. Serious threats of violence had been made against individuals and their families. Roberts J.A., for the Court, having reviewed the trial judge’s discussion of the evidence, wrote: [61] The trial judge began his comments regarding the obstruction of justice charge as follows: “The obstruction of justice charge, I find in this case, is on a very serious level.

It was evident throughout the trial that intimidation and obstruction of justice was of paramount concern to the accused and the results of obstruction came across very vividly in the demeanour of the witnesses who had been intimidated. These people exhibited something that I cannot put in writing; something that I cannot adequately put in an oral judgment. You have to be there to see it. These people were scared to death and they exhibited that throughout the trial. …” [ 19 ] Similarly, in R. v. Mavros , 2014 BCSC 2347 , a two-year sentence was imposed for attempting to obstruct justice.

The trial judge explained: [102] … This offence was carried out by Mr. Mavros with dogged persistence over a period of several months, as he tried to cajole C.D., who had been his domestic partner, into lying to the police, the Crown and the Court in order to have the charges against him dropped. … The offences leading Mr. Mavros to attempt to obstruct justice in this way related to violent assaults against two complainants and unlawful confinement of one of them. For example, the judge accepted: [45] He kept questioning her about what she had done to retract the charges.

She was sitting on the couch, and whenever she tried to get up, he pushed her back down. Referring to her children, he said, “I’ll get them, I’ll kill them, I’ll do them all; just you do as I say or you’re screwed.” … [ 20 ] In R. v. Tremblay , 2015 BCSC 2263 , Mr. Trembly was convicted of criminal negligence causing the death of two girls aged

sixteen and seventeen. The judge explained: [1] … Mr. Tremblay was in his mid-40s. He was a drug dealer and offered his home to at-risk youth, primarily female First Nationsteenagers, for the purpose of partying. … During the incident which resulted in the convictions, Mr. Tremblay gave the girls, and one oftheir friends, alcohol and powdered methadone which they snorted. Neither had used methadone before and they quickly passed out. Mr. Tremblay was fully aware of the girls’ weakened condition, but took no steps to obtain appropriate assistance for them.

Indeed, Iconcluded, on the basis of video evidence, that he touched the girls for a sexual purpose after they passed out. Ms. Lalonde died on asidewalk in Burnaby where Mr. Tremblay had left her body. Ms. Jackson died in his residence. … [21] Regarding the obstruction of justice conviction for which a two-year sentence was imposed, the judge explained: [171] I concluded that Mr. Tremblay wilfully attempted to obstruct the course of justice by attempting to dissuade P.G. from providingfull information about the circumstances surrounding the deaths of [the victims]. Mr. Tremblay told both P.G. and Ms.

Marquardt to“stick to the same story”; that Kayla had never been at his residence and that he did not know [the victims] and that they were friends ofP.G. and her daughters. None of this was true. Later, Mr. Tremblay told P.G. to tell the police that she gave drugs to [the victims]. P.G.was upset, and eventually told the police what had actually happened. I concluded that Mr. Tremblay was intent on misleading thepolice investigation and that he used P.G. to do so. The judge took account of P.G.’s vulnerability based on her serious drug addiction and the fact that Mr.

Tremblay was her supplier. [22] In this case, given Mr. Mills’ offence and his culpability, on their facts, the following decisions are of more assistance inestablishing an appropriate range. 1. In R. v. D.H., 2012 NLCA 5, 317 Nfld. & P.E.I.R. 244, the appellant was sentenced to three months imprisonment, amended on appealto a conditional sentence, having “pleaded guilty to a charge of obstruction of justice for providing false information to the police” (atparagraph 6). The appellant was charged with possession of marihuana for the purpose of trafficking. 2. In R. v.

C.(F.J.) (1999), (NL SC), 174 Nfld. & P.E.I.R. 201 (Nfld. S.C.T.D.), affirmed 2002 NFCA 1, theappellant was sentenced to six months imprisonment for obstruction of justice. He and the complainant had a long-term domesticrelationship involving violent assaults and uttering threats. The obstruction of justice charge arose when, on more than one occasion, theappellant asked the complainant to drop the charges.

The judge commented: [20] … [The complainant] testified that F.J.C. threatened her on December 27, 1997, “if he went to jail he would kill me … well, hesaid, your life is gone … if I goes to jail.” … [During another contact, a] heated argument followed in which F.J.C. stated that [thecomplainant] wasn’t going to live. … … [24] … [F.J.C.] denied that he was ever physically abusive to [the complainant], a denial which the jury clearly rejected. [Thecomplainant’s] evidence, which the jury accepted, indicated that F.J.C. often exhibited quick changes of temper and was frequentlyphysically abusive after he drank. 3.

In R. v. Sweezy (1987), (NL CA), 66 Nfld. & P.E.I.R. 29 (Nfld. C.A.), Mr. Sweezy’s sentence was reduced onappeal from eighteen to twelve months imprisonment. Mr. Sweezy, a lawyer, advised a member of a motorcycle gang “to be forgetfuland evasive particularly on the topic of any connection with the murder of the six members of the Hell’s Angels group at Lavalle” (atparagraph 10). The witness was, in fact, forgetful and evasive. 4. In R. v. Kuppenbender (1985), (SK CA), 44 Sask. R. 161 (Sask. C.A.), the Saskatchewan Court of Appealincreased Mr.

Kuppenbender’s sentence for attempting to obstruct justice from four months to twelve months in prison. Mr.Kuppenbender had made twenty-five telephone calls to the complainant, and when she said she intended to testify against him, “theaccused would berate and threaten her, saying things like: “you’re dead – you and your brothers are dead – I’ll kill your brother”. Healso told her that if she persisted, he would take a jack hammer to her car, and would blow up her mother’s house” (at paragraph 4). Mr.Kuppenbender had a criminal record for property offences.

Cameron J.A., for the Court, explained: [10] … Attempting to dissuade a witness from giving evidence is serious enough.

Using violence or the threat of violence to that end isall the more serious, particularly where, as here, the offender deliberately adopts an extended campaign of intimidation accompanied bythreats of harm to the witness and others, including members of the family. [23] In assessing whether the trial judge erred in the case before this Court, I turn to a consideration of factors relevant to sentencing,including, the whole of the circumstances; aggravating and mitigating factors; the nature, seriousness and frequency of the threats orintimidation; and the appropriate range in light of case authority. [24] The offences in respect of which Mr.

Mills sought to obstruct justice were the breaches of court orders prohibiting him fromcontacting his former wife or his son. The breaches were by means of telephone, texts and Facebook messages. These began occurringvery shortly after he was released from prison and while he was on probation. He had been in prison as a result of convictions forassaulting, uttering threats against and unlawfully confining his former wife, for which he was sentenced to twelve months in prison,commencing in June 2015. [25] When the offences of attempting to obstruct justice and breaching court orders were committed, Mr.

Mills was in a position oftrust, particularly in respect of his son. However, he did not threaten violence and, indeed, the threat that his former wife would go to jailwas an empty threat, which would have become clear if she sought legal counsel. Although Mr. Mills told his former wife that he wasnot threatening her, he cannot avoid the consequences, when a threat is perceived, by saying it is not a threat. [26] While Mr. Mills several times breached the orders prohibiting him from contacting his son or former wife, there was just one

instance in which he attempted to obstruct justice by convincing his former wife and son not to testify in respect of the charges for breaching court orders. With respect to his son, there was no direct threat. Rather, Mr. Mills intended that his former wife would persuade their son not to give evidence against him. [ 27 ] The pre-sentence report, which was not referenced by the trial judge, is also a relevant consideration in determining whether the sentence of two years for obstruction of justice is demonstrably unfit in the circumstances. Mr. Mills, who is fifty years old, has some post-secondary education.

He is a heavy duty equipment operator and had been working in various locations. He usually worked away for three weeks and was home for one week during which he admitted that he partied, binge drinking and sporadically using cocaine. He reported that his twenty-year marriage ended in May 2015 when he discovered that his wife had been unfaithful while he was away at work. [ 28 ] I conclude from the above that, when all the relevant factors are considered, Mr.

Mills’ offence could not be assessed as falling at the high end of the range established by the case law, and that the trial judge erred by failing to take into account relevant factors and by misapplying case law in determining an appropriate sentence. These errors had an impact on the sentence imposed for the charges of attempting to obstruct the course of justice, and resulted in a demonstrably unfit sentence. ( R. v.

Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089 , at paragraph 44 .) [ 29 ] In the circumstances, I would vary the sentence imposed by the trial judge from twenty-four months to ten months in prison. That sentence is in the mid-range, taking account of the aggravating factors and the circumstances as a whole, as discussed above. [ 30 ] The result is a sentence of ten months for each obstruction of justice charge, to be served concurrently. The total sentence of twelve months for breaches of the court orders, to be served consecutively, was not appealed. Accordingly, I would sentence Mr.

Mills to a total of twenty-two months imprisonment. The remaining provisions of the trial judge’s order, including the probation order, would remain in place. [ 31 ] Finally, this case calls for some additional comments which are obiter dicta . First, the question of totality, where there are multiple offences, should have been considered by the trial judge ( R. v. Hutchings , 2012 NLCA 2 , 316 Nfld. & P.E.I.R. 211 ).

Given the restrictive nature of this appeal, that analysis has not been done here. [ 32 ] Second, in the case of multiple offences, care must be taken to ensure against double punishment. (See, for example, R. v. O’Quinn , 2017 NLCA 10 , 345 C.C.C. (3d) 326 , at paragraph 20 ; R. v. Hillier , supra , at paragraph 14 ; R. v.

Blok-Andersen , 2016 NLCA 9 , 376 Nfld. & P.E.I.R. 130 , at paragraphs 46 to 61 .) I would decline to address this issue in the context of this case because the Court did not have submissions by counsel. [ 33 ] Third, care must be taken in determining an appropriate sentence for breaches of a court order. In this case, because the total sentence for this offence was not appealed, counsel did not make submissions on the significant difference between one month sought by the Crown and six months imposed by the judge for each offence.

Again, it would be inappropriate to address this issue in the absence of submissions by counsel.

SUMMARY AND DISPOSITION [ 34 ] The trial judge erred by failing to take into account relevant factors and by misapplying case law in determining an appropriate sentence for the offences of attempting to obstruct the course of justice. These errors had an impact on the sentence imposed, and resulted in a demonstrably unfit sentence. [ 35 ] Accordingly, I would allow the appeal. I would vary the sentence imposed by the trial judge for attempting to obstruct the course of justice by imposing a sentence of ten months for each of those charges, to be served concurrently.

The remaining provisions of the trial judge’s order, including the twelve-month sentence for the breaches of probation and the probation order, would remain in place. In the result, a sentence of twenty-two months in prison, in total, would be imposed for the offences of breach of a court order and attempt to obstruct the course of justice. Appeal allowed.