CITATION: R. v. Miller, 2017 ONSC 5479
COURT FILE NO.: CR-16-40000087-0000
DATE: 20170928
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
WILLIAM MILLER
Defendant
COUNSEL:
Henry Poon and Matthew Bloch, for the Crown
Paula Rochman, for the Defendant
HEARD: May 17, 2017.
REASONS FOR SENTENCE
M. F. BROWN J.
Overview
[1] In my written reasons for judgment of March 17, 2017 (“reasons for judgment”), Mr. Miller was found guilty by me of Count One, the charge of bookmaking for the benefit of a criminal organization contrary to s.467.12 of the Criminal Code. I found Mr. Miller not guilty of Count Two, the charge of extortion contrary to s.346(1) of the Criminal Code. Also, in the reasons for judgment, I found that the criminal organization relating to the s.467.12 offence was an organization known as Platinum Sports Book or “Platinum”. In the reasons for judgment, I found that when looking at the totality of the evidence, I was satisfied beyond a reasonable doubt that the only rational conclusion that could be drawn from the whole of the evidence was that Mr. Miller was a party to the offence of bookmaking for the benefit of Platinum either as a principal, joint principal, aider or abettor.
[2] Platinum had as its main purpose the commission of the offence of bookmaking. If a person wanted to gamble on a sporting event, they could become a player with Platinum. The player would be given an account number and with a password, the player would be able to access, through the internet, a website which had Platinum as its homepage. The player could then go on the website and place bets within their limit. The limits set were controlled by an agent of Platinum. The player did not use a credit card, but rather losing and winning bets would be paid in cash. The losses or winnings would be paid through a Platinum agent. The Platinum organization operated as a pyramid structure with different groups or cells involving Platinum agents and sub-agents.
Circumstances of the Offence
[3] In the reasons for judgment I found that Mr. Miller was not simply an innocent bystander to the activities of Platinum. He was not a person who was just in the wrong place at the wrong time. He was a party to the offence of bookmaking for the benefit of Platinum. He helped to organize the 2013 Super Bowl party for Platinum. He was involved in Platinum’s bookmaking organization. He had his own bookmaking accounts with Platinum. He made decisions regarding the business of Platinum’s bookmaking and was involved in directing Platinum agents as to how to conduct their affairs regarding Platinum’s bookmaking operation. His introduction of potential Platinum players to an agent of Platinum was to aid or abet Platinum in its bookmaking endeavours. After the Super Bowl party arrests, Mr. Miller assisted the business of Platinum’s operation by attempting to locate lists and members of Platinum agents.
[4] Specifically, Mr. Miller was a party to the offence of bookmaking for the benefit of Platinum by engaging in the following activities:
a) Assisting in the Organization of the 2013 Platinum Super Bowl Party
[5] It is clear from the intercepted communications of Mr. Miller, made reference to at paras. 56, 57, 58, and 64 in the reasons for judgment, that Mr. Miller was active in organizing the 2013 Platinum Super Bowl party of February 3, 2013 on behalf of Platinum. There were over 2500 invitees to the 2013 Super Bowl party. The Platinum name and logo were prominently displayed at the party. Computer terminals were set up at several locations at the party, allowing invitees to place bets on the Platinum website.
[6] In the course of the intercepted communications, made reference to at paras. 56 and 64 of the reasons for judgment, Mr. Miller continually refers to “we” or “our” in describing his role in the Platinum Super Bowl party. At para. 64, Mr. Miller described the Platinum Super Bowl party in the following terms: “We do this courtesy for our players.”
b) Recruiting Bettors for Platinum
[7] There is no dispute that Michael Kriaris was an agent for Platinum who was responsible for the Rimini cell of Platinum. It was also clear from the intercepted communications between Mr. Miller and Mr. Kriaris, made reference to at para. 65 in the reasons for judgment, that Mr. Miller was directing Mr. Kriaris to handle a prospective bettor for Platinum. Mr. Miller said, “We can put him on your account and you can look after him.” This direction to Mr. Kriaris is evidence of Mr. Miller’s influence and involvement within the management of Platinum. It is also evidence of Mr. Miller being a party to the offence of bookmaking for the benefit of Platinum by introducing potential Platinum players to an agent of Platinum in order to aid or abet Platinum in its bookmaking endeavours. Also, it is clear from the intercepted communications made reference to at para. 66 in the reasons for judgment, that Mr. Miller was negotiating a bet with two unknown males prior to the Super Bowl and was enlisting the services of Mr. Kriaris in providing the money line for the bet.
c) Maintaining Active Bettors or Players of Platinum
[8] It is clear from the intercepted communications referred to at para. 73 of the reasons for judgment, between Mr. Landon and Mr. Kriaris, that Mr. Miller, who they refer to as “BG” which is Mr. Miller’s nickname, had his own players in Platinum. As well, seized documents made reference to at paras. 72 and 75 of the reasons for judgment, demonstrate that Mr. Miller controlled particular Platinum betting accounts. A note seized from Mr. Miller’s residence contains a handwritten notation of “LF8999”. Lf8999 falls under the heading of “BG accts” in the printed documents seized from Mr. Bielli and Mr. Spruce.
[9] In addition, e-mails between Mr. Kriaris and Mr. Bielli, made reference to at paras. 79 and 80 of the reasons for judgment, show Mr. Miller’s involvement in the financial transactions of Platinum.
d) Granting Approval to Make Tino Valensizi a Master Agent
[10] When Mr. Kriaris was no longer able to handle the Rimini cell betting accounts of Platinum, Mr. Kriaris sought to transfer the accounts to Tino Valensizi. It is clear from the intercepted communications of Mr. Kriaris to Mr. Valensizi, at para. 86 of the reasons for judgment, that before doing so they needed the approval of “Bill”, which I found, as I indicated in the reasons for judgment at para. 51, to be Mr. Miller.
[11] The series of intercepted communications at paras. 85, 86 and 87 of the reasons for judgment demonstrate Mr. Miller was consulted and approved of the transfer of the Rimini cell betting accounts of Platinum from Mr. Kriaris to Mr. Valensizi. This evidence demonstrates once again Mr. Miller’s influence and involvement within the management of Platinum.
e) Directing the Re-Organization of Platinum After the Arrests at the 2013 Super Bowl Party
[12] At the Super Bowl party on February 3, 2013, a number of individuals were arrested, including Mr. Miller. After the arrests, Mr. Miller spoke to Mr. Kriaris on February 22, 2013, as disclosed in the intercepted communications referred to at para. 92 of the reasons for judgment.
[13] Mr. Kriaris raised with Mr. Miller an incident he had heard about, after the arrests, of one agent signing up another agent’s players. Mr. Miller told Mr. Kriaris: “We have said that nobody is touching anybody’s fucking players until after the first court date. I’ve gone through this with a few different people. I said nobody’s taking it, scooping up anybody, so he should have enough intelligence in his fucking brain… you don’t start scooping shit up unless you talk to people.”
[14] Later on Mr. Miller said to Mr. Kriaris: “Yeah, well and I’m gonna tell him, you know what, nobody’s scooping fuck all up till after the fucking first court date ‘cause there’s gonna be more charges, so everybody, there’s a bunch of people that are nervous and, and scared and shit like that but that doesn’t mean you go and scoop up the guys players because you know what, in a couple of weeks they’ll be back playing again.”
[15] At a later point Mr. Miller said: “Tell him to try and show up in time with his fucking end. That would, that would be really good if he could do that.”
[16] These intercepted communications demonstrate that Mr. Miller was not a passive participant in the affairs of Platinum after the arrests at the Super Bowl party on February 3, 2013. He was clearly involved in directing Platinum agents not to take players or bettors from other Platinum agents. This, once again, is evidence of Mr. Miller’s influence and involvement within the management of Platinum.
[17] As well, the intercepted communications made reference to at paras. 93, 94, 95 and 96 of the reasons for judgment, between Mr. Miller and others between March 5, 2013 and March 8, 2013, demonstrate Mr. Miller’s involvement in his attempts to re-organize Platinum after the Super Bowl party arrests of February 3, 2013. In doing so, he assisted the business of Platinum’s operations by attempting to locate lists and numbers of Platinum agents.
Circumstances of the Offender
[18] Mr. Miller is 54 years of age. He was born and raised in Toronto. He has a grade 10 education. Both his parents are living. He has a good relationship with his mother who has acted as his surety in the past. He has two sons, aged 28 and 31. He has a close relationship with his son Jesse.
[19] Mr. Miller lives most of his time in the Dominican Republic. He has a criminal record which has been marked as Exhibit 1 on sentencing. It is an extensive criminal record but it is a dated record. Most of his convictions were between 1980-1993. His last conviction was in August 2003, when he was convicted of possession of a prohibited or restricted firearm with ammunition contrary to s.95 of the Criminal Code and sentenced to a term of imprisonment for one year. He was also convicted at the same time for unlawfully keeping a machine for gambling under s.202 of the Criminal Code and sentenced to a concurrent sentence of 15 days imprisonment.
Position of the Parties
[20] The Crown seeks a period of incarceration up to a maximum of 2 years less a day. The Crown submits that on the basis of the parity principle, Mr. Miller must receive a sentence in excess of that imposed on Mr. Kriaris because Mr. Miller was clearly directing Mr. Kriaris on the basis of the evidence in this case and Mr. Miller was above him in the hierarchy of Platinum. After a guilty plea to one count of bookmaking for the benefit of a criminal organization pursuant to s.467.12 of the Criminal Code, Mr. Kriaris received a sentence of one year imprisonment less pre-sentence custody and probation for two years.
[21] The defence, on the other hand, submits that the appropriate sentence in this case is either a suspended sentence with substantial donations to charity, or a fine in the range of $5,000 to $10,000. The defence submits, in the alternative, if there is to be a custodial term of imprisonment it should not exceed six months.
[22] Like the Crown, the defence also relies on the parity principle but submits that the sentence for Mr. Miller should be lower than that of Mr. Kriaris given that Mr. Kriaris’ conduct was far more serious than that of Mr. Miller. The defence submits that the fact that the Crown cannot show Mr. Miller received any monies or made any profit from Platinum from his activities in this case puts him in a very different category than other people who have been sentenced regarding the affairs of Platinum.
Aggravating and Mitigating Factors
[23] There are certain aggravating factors in this case:
Mr. Miller, while not the head of Platinum or the ultimate leader of Platinum, held a leadership or management role in the organization. I am satisfied beyond a reasonable doubt on the totality of the evidence that the only rational conclusion I can draw from the whole of the evidence is that, at the very least, Mr. Miller was directing Mr. Kriaris in the operation of that aspect of the Platinum organization that Mr. Kriaris was responsible for, which involved the Rimini cell of Platinum.
Platinum is a large and sophisticated criminal organization that had as its main purpose the commission of the offence of bookmaking. Mr. Miller is not responsible for all of the bookmaking activities of Platinum, however the evidence demonstrates Mr. Miller’s influence and involvement within at least a portion of the management of Platinum. While there is no direct evidence that Mr. Miller received cash or made any profit from Platinum, Platinum as an organization engaged in bookmaking involving extremely large sums of money.
The fact that Mr. Miller committed the offence of bookmaking for the benefit of Platinum, which is a criminal organization, is an aggravating factor. Section 718.2(a)(iv) of the Criminal Code specifically recognizes that committing an offence for the benefit of a criminal organization is as an aggravating factor.
[24] There are also certain mitigating factors in this case:
The evidence of the period of time of Mr. Miller’s involvement in the affairs of Platinum was not lengthy – from September 2012 until March 2013.
There is no direct evidence that Mr. Miller profited or received cash from Platinum.
The previous criminal record of Mr. Miller is dated. He has not been convicted of an offence for 14 years.
There is no evidence of Mr. Miller being involved in any violence or threats of violence in relation to his activities with Platinum.
[25] Along with these aggravating and mitigating factors I must also consider parity of sentence with other individuals sentenced in regard to the Platinum organization.
[26] As noted, the Crown submits that the sentence of Mr. Miller must be higher than that of Mr. Kriaris. Based on the evidence in the case, the Crown submits Mr. Miller held a higher place in the Platinum organization than did Mr. Kriaris. In addition, submits the Crown, Mr. Kriaris entered an early plea of guilty demonstrating Mr. Kriaris’ remorse which is an important mitigating factor, absent in the case of Mr. Miller. Also, unlike Mr. Miller, Mr. Kriaris was a first offender.
[27] The defence submits, as I noted earlier, an important fact that distinguishes this case from that of Mr. Kriaris is that the Crown is unable to prove that Mr. Miller received any money from Platinum or that he made any profit from his activities. The defence submits that this puts Mr. Miller in a very different category than any of the other people sentenced regarding Platinum. As well, the defence submits, another factor that distinguishes Mr. Miller from Mr. Kriaris and others involved with Platinum is that unlike Mr. Miller they were all involved with Platinum for substantially longer periods of time. Mr. Miller’s first appearance, on the intercepted communications, is September 24, 2012 and then through until March 2013. Mr. Kriaris admitted involvement with Platinum for two years and illegal gambling for 20 years.
[28] The defence also submits that unlike the situation involving Mr. Kriaris, who admitted being involved in the use of threats of violence in collecting his debts, there is no evidence in the case of Mr. Miller engaging in violence or threats of violence regarding his association with Platinum.
[29] I will deal with these issues of parity shortly in my analysis of the appropriate sentence in this case.
Analysis
[30] In coming to an appropriate sentence in this case I have considered the purpose and principles of sentencing set out in s.718 and s.718.2 of the Criminal Code. I have also considered the fundamental principle of sentencing set out in s.718.1 of the Criminal Code which is a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[31] The offence committed by Mr. Miller is a serious one. The maximum sentence for an offence under s.467.12 of the Criminal Code is a term of imprisonment not exceeding 14 years. When sentencing offenders for these types of offences courts have repeatedly stated that denunciation and deterrence are the primary sentencing objectives. See R. v. Manasseri, 2014 ONCJ 683 at para. 56.
[32] In R. v. Venneri, 2012 SCC 33, Justice Fish of the Supreme Court of Canada stated at para. 36:
Working collectively rather than alone carries with it advantages to criminals who form or join organized groups of like-minded felons. Organized criminal entities thrive and expand their reach by developing specializations and dividing labour accordingly; fostering trust and loyalty within the organization; sharing customers, financial resources, and insider knowledge; and, in some circumstances, developing a reputation for violence. A group that operates with even a minimal degree of organization over a period of time is bound to capitalize on these advantages and acquire a level of sophistication and expertise that poses an enhanced threat to the surrounding community.
[33] Relying on the parity principle as codified in s.718.2 (b) of the Criminal Code, the defence submits that the sentence in this case should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. The defence submits that Mr. Miller’s actions, as found by the court, were not as serious as that of Mr. Kriaris, and were more in keeping with the sentences of other participants in the Platinum organization who got sentences much lower than that of Mr. Kriaris, including some who received fines.
[34] The purpose of the parity principle is to ensure fairness by avoiding disproportionate sentences among convicted persons where, essentially, the same facts and circumstances indicate equivalent or like sentences. The principle ensures fairness between similarly situated cases. It does not however override the individualized approach to sentencing. The principle of parity is secondary to the fundamental principle of proportionality. See R. v. Lacasse, 2015 SCC 64 at para. 92.
[35] I have examined the cases where sentences were imposed on various other offenders involved with Platinum over the past two years.
[36] A careful review of these cases demonstrates that each have important factors that distinguish them from Mr. Miller’s case. That being said, it seems to me that from the cases provided, the closest individual, in terms of culpability to Mr. Miller, is Mr. Kriaris who received, as I noted earlier, a sentence of one year imprisonment and two years’ probation. It was Mr. Kriaris with whom Mr. Miller had significant interaction on the basis of the facts in this case and it was in relation to Mr. Kriaris that Mr. Miller demonstrated a position of authority. Mr. Kriaris’ deference to Mr. Miller’s direction to him is evidence of Mr. Miller being someone who was higher in the hierarchy of Platinum than Mr. Kriaris.
[37] It is true that Mr. Kriaris admitted to facts that included threats of violence to bettors and evidence of the Rimini account within Platinum generating revenue of $582,000 spanning some two years. However, Justice McMahon on the sentencing of Mr. Kriaris also said at p.27 of the transcript of his sentencing reasons that although he found the joint submission of one year imprisonment at the extreme low end of the range for such an offence on behalf of a criminal organization, he was satisfied, because of the unique circumstances, no criminal record, and the extremely mitigating fact of Mr. Kriaris pleading guilty and taking responsibility for his actions, the sentence could address the paramount concerns of general deterrence and denunciation. While in no way an aggravating factor in this case regarding Mr. Miller, the mitigating factor of a plea of guilty is not present in this case as it was in the case of Mr. Kriaris. Also, unlike Mr. Miller, Mr. Kriaris was a first offender.
[38] In all the circumstances, I do not see the parity principle applying in this case in the manner suggested by the defence. I find Mr. Miller’s conduct in regard to Platinum to be more serious than that submitted by the defence.
[39] The defence admits that Mr. Miller took an interest in setting up the 2013 Super Bowl party and also, after the arrests, took an interest in being informed about what was going on with Platinum and his co-accused. The defence submits that the evidence, at its highest, reasonably supports an inference that Mr. Miller was connecting players to an agent of Platinum without in any way getting a commission, cut of the transactions or taking any form of risk for taking a bet. The defence submits that this is not evidence of Mr. Miller acting as a bookmaker but simply referring someone to an agent of Platinum who wanted to place a bet. The defence submits that Mr. Miller’s calls after the Super Bowl arrests in 2013 have to be taken in context. The defence submits that they are not evidence of attempts to re-organize Platinum but are evidence of Mr. Miller’s interest, as noted previously, of being informed about what was happening with Platinum and his co-accused after the 2013 Super Bowl party arrests.
[40] However, as I indicated in the reasons for judgment, I disagree with the position of the defence on this issue. The evidence in this case demonstrates, for the reasons I have expressed, that Mr. Miller was a directing force in the operations of Platinum. The evidence demonstrates that not only was Mr. Miller a party to the offence of bookmaking for the benefit of Platinum, but that he had influence and involvement in the management of Platinum. The fact there is no evidence that Mr. Miller received cash or made any profit from Platinum, or only appeared to be involved with Platinum from September 2012 to March 2013 or did not use violence or threats of violence in his activities with Platinum does not diminish the fact that, for at least the period of time from September 2012 until March 2013, the Crown has proven that Mr. Miller assumed a leadership or managerial role in the bookmaking activities of Platinum. At the very least, Mr. Miller was managing Mr. Kriaris in the bookmaking affairs of Platinum. In my view, the tenor of the intercepted communications between Mr. Kriaris and Mr. Miller makes that clear. Mr. Miller’s role in Platinum as a manager or supervisor of Mr. Kriaris is a serious aggravating factor which, among other things, distinguishes the conduct of Mr. Miller from that of Mr. Kriaris.
[41] I recognize, as I mentioned earlier, that the fundamental principle of sentencing as expressed in s.718.1 of the Criminal Code is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. As I have noted earlier, Mr. Miller is not responsible for all the bookmaking activities of Platinum. There is no evidence that he was the ultimate leader of the Platinum organization nor does the Crown make that submission. If he were, he would undoubtedly be facing a significant penitentiary term of imprisonment. Mr. Miller can only be sentenced on the basis of the facts as I have found them, proven by the Crown, in relation to Mr. Miller’s activities in committing the offence of bookmaking for the benefit of Platinum.
Conclusion
[42] Taking into consideration all the circumstances, including the purpose and principles of sentencing, the circumstances of the offence and the offender, and the aggravating and mitigating factors in this case, I am of the view that the appropriate sentence in this case is one of 15 months imprisonment on Count One, the charge of bookmaking for the benefit of a criminal organization.
[43] Accordingly, on Count One, the charge of bookmaking for the benefit of a criminal organization, Mr. Miller is sentenced to a term of imprisonment for 15 months. In addition, there will be an order pursuant to the provisions of the Criminal Code for the taking of samples of his bodily substances for the purpose of DNA analysis.
M. F. Brown J.
Released: September 28, 2017