R. v. Murray, 2021 NLSC 16

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Murray , 2021 NLSC 16 Date : February 1, 2021 Docket : 201901g5904 Her Majesty The Queen v. DAVID WAYNE MURRAY Before: Justice Sandra R. Chaytor Reasons for Judgment Given Orally Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: January 18, 2021

Summary: The offender pleaded guilty and was convicted of three offences: robbery, uttering threats, and breach of recognizance. The Court accepted that the offender was experiencing a mental health crisis at the time of committing the offences. Upon consideration of the circumstances of the offences and the offender, including the atypical nature of the robbery, the offender’s mental health issues, and the lengthy period of pre-trial custody, the offender was sentenced to a period of incarceration of 470 days, followed by a supervised period of probation of 30 months as well as mandatory ancillary orders.

Appearances: Jessica Gallant Appearing on behalf of the Crown Timothy O’Brien Appearing on behalf of the Accused

Authorities Cited: CASES CONSIDERED: R. v. Ipeelee, 2012 SCC 13; R. c. LaCasse, 2015 SCC 64; R. v. Peters, 2000 NFCA 55; R. v. Hutchings, 2012NLCA 2; R. v. Roberts, 2019 NLCA 43; R. v. Crocker (1991), (NL CA), 292 A.P.R. 222, 93 Nfld. & P.E.I.R. 222(Nfld. C.A.); R. v. Murphy, 2011 NLCA 16; R. v. Hennebury (1996), (NL CA), 138 Nfld. & P.E.I.R. 56, 431 A.P.R.56 (Nfld. App. Div.); R. c. Mathieu, 2008 SCC 21; R. v. Summers, 2014 SCC 26 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 ORAL REASONS FOR JUDGMENT Chaytor, J.: OVERVIEW [1] David Wayne Murray was charged with seven offences. He pleaded guilty to the following three offences: Breach of

Section 343(c)-344(1)(

b) of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”) (robbery); Breach of

Section 264.1(1)(a) - 264.1(2) of the Code (uttering threats to cause bodily harm or death); and Breach of Section 145(3)(

a) of the Code (breach of recognizance). [2] An Agreed Statement of Facts was read into the record and adduced into evidence. The Court was satisfied, based upon theAgreed Statement of Facts that the Crown had proven all elements of the offences to which Mr. Murray had pleaded guilty, andconvictions were entered accordingly. Upon conviction, the other four charges on the Indictment were dismissed. [3] The facts as set out in the Agreed Statement of Facts are as follows: 1. Just before 0500hrs on 24 April 2019, the Royal Newfoundland Constabulary was called to the Irving Circle K on Kenmount Road,St.

John's, NL, with the report of a robbery. 2. Upon arrival police spoke with store clerks Kyle MacDonald and Sydney Williams, both of whom subsequently provided writtenstatements to the police about the incident. 3. Video later recovered from inside the Irving Circle K, captured both the visual and audio of the incident, confirming the accountprovided by Mr. MacDonald and Mr. Williams, as well as the identity of the offender as David Wayne Murray. 4.

Upon arrival on scene police learned that a male, later identified to be David Wayne Murray, exited a Newfound Cabs taxi andentered the store at approximately 0430hrs, requesting staff check his lotto tickets. Mr. MacDonald advised, however, that the store’slottery system was down and as a result they would not be able to process lottery tickets at that time. 5. David Wayne Murray accused Mr. MacDonald of lying, asked for the clerk’s name and then proceeded to write down his own name,stating “I’m David Wayne Murray”. 6. David Wayne Murray then asked the staff to call him a taxi, which Mr. MacDonald agreed to.

While waiting for the taxi, DavidWayne Murray purchased a drink in glass bottle. After approximately 5 minutes of waiting, David Wayne Murray asked Mr. MacDonaldto call the taxi company back to inquire how much longer they would be. The call taker indicated it would be another 5 minutes, whichMr. MacDonald communicated to David Wayne Murray. 7. Approximately a minute later, David Wayne Murray asked the staff if they had called the police. Mr. MacDonald answered that hehad not called the police and the calls he had made were to the taxi company as requested.

8. At that point, David Wayne Murray made his way around the back of the counter towards staff. After 2 attempts, David Wayne Murray smashed the glass bottle he had purchased on the counter, then raising the broken bottle in the air and said “give me all the money” and stepped towards Mr. MacDonald with the broken bottle still raised in the air. 9. Mr. MacDonald then punched David Wayne Murray in the left side of his face with his right hand and was then able to force David Wayne Murray out of the store, securing the door behind him. David Wayne Murray then fled the scene. 10. Both Mr. MacDonald and Mr.

Williams described the assailant as having a shaved head, wearing a blue jacket, carrying a men’s grooming bag and having tattoos on the back of the [sic] both of hands. Mr. MacDonald specifically noted the tattoos to be of red stars, outlined in black, on both hands. 11.

Based on the information initially recovered on scene, police conducted a criminal record check through CPIC that showed David Wayne Murray was [on] a recognizance, dated 2019/03/07, with a condition to reside at 12 Wigmore Court, Apartment 2, with a further condition to remain within his residence between the hours of 11pm-7am daily and present himself at the door upon request (see Appendix “A”). 12.

At 0524hrs police arrived at Wigmore Court, notably a short distance from the scene of the robbery, and spoke with a taxi driver who advised police he had just picked up a male wearing a blue jacket in the area of the Avalon Mall parking lot and dropped him at the Wigmore Court apartments. 13. Shortly thereafter, police heard a male screaming from one of the Wigmore Court apartments (later determined to be David Wayne Murray’s residence), yelling obscenities and threats at police.

Getting a visual on the male, police were able to positively identify the screaming male as David Wayne Murray, who stated he had a “22” and “come on in I’ll shoot you, I’ve been dreaming about this for years”. 14. David Wayne Murray continued to yell at police stating he was going to come at police with a knife and make the police shoot him. During this period, David Wayne Murray made suicidal comments to police and advised police that he had ingested drugs and glass. 15. A male and female, later identified at David Wayne Murray’s parents, exited the residence leaving David Wayne Murray in the apartment alone.

At this stage police then identified him as a barricaded person, prompting the need for additional officers and crisis negotiators to arrive on scene. 16. David Wayne Murray eventually allowed officers into the residence and he was taken into custody without further incident, being provided his initial Rights and Caution shortly after his arrest at 0730hrs. 17.

David Wayne Murray was taken to the Health Sciences Centre (“HSC”) where he was medically cleared and later transferred to the Waterford Hospital at 1139hrs, upon being certified by physicians at the HSC. [ 4 ] The sole issue for determination is the imposition of an appropriate sentence for the offences committed by Mr. Murray.

For the reasons that follow, I am imposing a sentence of incarceration for a period of 470 days followed by a period of supervised probation for 30 months as well as required ancillary orders. sentencing parameters and principles [ 5 ] In any sentencing, consideration must be given to the principles of sentencing set out in

section 718 of the Code . The fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful, and safe society. This is achieved by imposing just sanctions that have one or more of the following objectives:

a) Denunciation of the unlawful conduct and the harm done to victims or to the community that is caused by the conduct;

b) Deterrence of the offender and other persons from committing offences;

c) Separation of offenders from society, where necessary;

d) Rehabilitation of offenders;

e) Reparation for harm done to victims or to the community; and

f) Promotion of a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 6 ] In R. v. Ipeelee , 2012 SCC 13 , the Supreme Court of Canada stated that the fundamental principle of sentencing is that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is determined both on an individual basis and by comparison with sentences imposed for similar offences under similar circumstances. In R. c.

LaCasse , 2015 SCC 64 , Wagner, J. (as he then was) in commenting on the principle of proportionality, stated at paragraph 12 that t he more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of the offender. [ 7 ] The principles of denunciation and general deterrence are usually primary goals of sentencing for robbery and uttering threats and would take predominance over rehabilitation.

Specific deterrence is also a relevant consideration as Mr. Murray has a lengthy criminal record including prior convictions for the same offences for which he is now being sentenced. In this case, however, I accept as submitted by both counsel, that on the evening of commission of these offences, Mr. Murray was undergoing a mental health crisis. In such situations, the significance of denunciation and deterrence may be decreased. In R. v.

Peters , 2000 NFCA 55 , the court stated that severe punishment is less appropriate in cases of persons with mental illnesses since it would be disproportionate to the degree of responsibility of the offender and that the focus in sentencing such offenders may properly be placed on mechanisms that will promote rehabilitation and treatment rather than punishment. It is nonetheless important that any sentence imposed, promote in Mr. Murray a sense of responsibility for his actions and the harm that he caused. I must fashion a sentence that best achieves this while affording Mr.

Murray an opportunity to rehabilitate by addressing his underlying issues. Victim Impact Statements [ 8 ] The Crown confirmed for the Court that the convenience store employees and the police officers subjected to Mr. Murray’s threats had been advised of the opportunity to prepare Victim Impact Statements. They had declined the opportunity to do so. Circumstances of the Offender [ 9 ] I do not have the benefit of a Pre-Sentence Report. Defence counsel’s submissions , however, included information regarding Mr. Murray’s personal circumstances. Mr. Murray is 37 years of age.

He has an extensive criminal record including as a young offender. His prior offences include theft, break and enter, fraud, assault with a weapon, uttering threats, robbery, and breaches of recognizance, probation and other court orders. [ 10 ] Mr. Murray suffers from mental health issues. He has been diagnosed with post-traumatic stress disorder, manic-depression, attention deficit hyperactivity disorder, and anxiety. While Mr. Murray has struggled with opiate addiction in the past, this was not an issue at the time he committed the offences as he was on a methadone program.

He has continued to receive this treatment during his pre-trial incarceration, and he has also been able to receive counselling from a psychologist. The counselling has been beneficial in assisting Mr. Murray to develop insight into his mental health issues and how these impact his behavior in the community. guilty pleas [ 11 ] I have taken into account the mitigating factor that Mr. Murray pleaded guilty to the three offences.

This has saved witnesses from having to testify and valuable Court time and resources. sentences prescriBed by the Code [ 12 ] Consideration of an appropriate sentence must begin with what is statutorily prescribed by the Code with respect to the offences for which the offender has been convicted. With respect to the robbery conviction , pursuant to section 344(1)(b), Mr. Murray is liable to imprisonment for life (there is no minimum sentence in this case as the weapon utilized was not a firearm).

With respect to the uttering threats conviction, pursuant to 264.1(2)(a), he is liable to imprisonment for a term not exceeding five years. With respect to the breach of 145(3)(a), he is liable to imprisonment for a term not exceeding two years. THE CROWN AND DEFENCE POSITIONs [ 13 ] Both counsel relied solely on the case of R. v. Hutchings , 2012 NLCA 2 , in making their respective submissions. Their positions as to an appropriate sentence did not differ substantially. There was not, however, a joint submission.

The parties agreed on the term of imprisonment for the uttering threats and breach of recognizance convictions. They disagreed as to whether the uttering threats sentence should be consecutive or concurrent to the sentence for the robbery, and they further differed on the term of imprisonment for the robbery conviction. Both recommended a period of supervised probation to enable Mr. Murray to receive programming upon his release into the community so that he may continue to address his underlying mental health issues. Both submitted that with enhanced credit given for time served in pre-trial custody, Mr.

Murray’s period of incarceration, pursuant to either

proposal, would be for a term of less than two years, and therefore he would be eligible for a probationary period. [ 14 ] The Crown sought a global period of incarceration of three and a half years (42 months), minus time served, followed by two years of probation. The Crown offered two potential breakdowns of this global period depending on if the uttering threats sentence were to be treated consecutively or concurrently to the robbery sentence.

The first proposal was three years incarceration for the robbery, four months for the uttering threats, and two months for the breach of recognizance with both of the latter sentences to be served consecutively. Alternatively, if the uttering threats sentence were to be served concurrently to the robbery sentence, the Crown proposed a sentence of three years and four months for the robbery.

Ancillary orders sought were a firearms prohibition and DNA Order, both of which are mandatory in the circumstances. [ 15 ] The Defence submitted that a sentence of three years (36 months) incarceration, less time served, followed by a period of probation would be appropriate. The Defence’s proposal was comprised as follows: 34 months for the robbery, four months for the uttering threats, to be served concurrent to the robbery sentence, and two months for the breach of recognizance to be served consecutively. The Defence submitted that Mr.

Murray would be agreeable to a longer period of probation (up to the three-year maximum) , if a shorter period of incarceration, in line with the defence submission, were to be imposed. disposition – THE FIT SENTENCE [ 16 ] In crafting the appropriate sentence, I am cognizant that this case involves a number of offences and therefore I am to follow the guidelines set out in R. v. Hutchings at paragraph 84 : 1. When sentencing for multiple offences, the sentencing judge should commence by identifying a proper sentence for each offence, applying proper sentencing principles. 2.

The judge should then consider whether any of the individual sentences should be made consecutive or concurrent on the ground that they constitute a single criminal adventure, without consideration of the totality principle at this stage. 3. Whenever, following the determinations in steps 1 and 2, the imposition of two or more sentences, to be served consecutively, is indicated, the application of the totality principle is potentially engaged. The sentencing judge must therefore turn his or her mind to its application. 4.

The approach is to take one last look at the combined sentence to determine whether it is unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender. 5. In determining whether the combined sentence is unduly long or harsh and not proportionate to the gravity of the offence and the degree of responsibility of the offender, the sentencing court should, to the extent of their relevance in the particular circumstances of the case, take into account, and balance, the following factors: (

a) the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offences involved; (

b) the number and gravity of the offences involved; (

c) the offender's criminal record; (

d) the impact of the combined sentence on the offender's prospects for rehabilitation, in the sense that it may be harsh or crushing; (

e) such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of the offences and the offender's degree of responsibility. 6. Where the sentencing judge concludes, in light of the application of those factors identified in Step 5 that are deemed to be relevant, that the combined sentence is unduly long or harsh and not proportionate to the gravity of the offences and the offender's degree of responsibility, the judge should proceed to determine the extent to which the combined sentence should be reduced to achieve a proper totality.

If, on the other hand, the judge concludes that the combined sentence is not unduly long or harsh, the sentence must stand.

7. Where the sentencing court determines that it is appropriate to reduce the combined sentence to achieve a proper totality, it should first attempt to adjust one or more of the sentences by making it or them concurrent with other sentences, but if that does not achieve the proper result, the court may in addition, or instead, reduce the length of an individual sentence below what it would otherwise have been. 8. In imposing individual sentences adjusted for totality, the judge should be careful to identify: (

a) the sentences that are regarded as appropriate for each individual offence applying proper sentencing principles, without considerations of totality; (

b) the degree to which sentences have been made concurrent on the basis that they constitute a single criminal adventure; and (

c) the methodology employed to achieve the proper totality that is indicated, identifying which individual sentences are, for this purpose, to be made concurrent or to be otherwise reduced. 9. Finally, the sentencing judge should indicate whether one or more of the resulting sentences should be further reduced to reflect any credit for pre-trial custody and if so, by how much. Appropriate sentence for each offence [ 17 ] I must commence by identifying a proper sentence for each offence.

Section 343(c) - Robbery [ 18 ] Convenience store and gas station attendants can be vulnerable victims especially when working late at night. In R. v. Hutchings , at paragraph 104 , the court stated that the normal range of sentence for armed robberies of convenience stores or gas bars by a young person, masked, late at night, where the money or merchandise taken is relatively small could range from three to five years. [ 19 ] In that case, the court determined that an appropriate sentence for each of two armed robberies was four years (the sentence for the second conviction was reduced for totality). Mr.

Hutchings, like Mr. Murray, had a lengthy prior criminal record and a number of offences were of considerable concern. Unlike Mr. Murray, the most time Mr. Hutchings had spent in jail as an adult was a thirty-day intermittent sentence. As a young offender, Mr. Hutchings had a conviction for armed robbery and received a nine-and-a-half-months combination of secure and open custody. Mr. Hutchings had a drug addiction and his young age was a consideration in relation to his prospects for rehabilitation. In this case, Mr.

Murray’s prior robbery conviction occurred almost 16 years before commission of the current offence. Drug addiction was not a factor at the time of the current offences, but Mr. Murray’s mental health condition was an issue emphasized by both the Crown and Defence. [ 20 ] Although sentence ranges from other cases are of assistance in determining an appropriate sentence, I am guided by the words of Wagner, J. in Lacasse , at paragraph 60 where he noted that sentencing ranges are primarily guidelines and not hard and fast rules.

Ultimately, sentencing must be an individual process focused on the offender before the Court and the specific circumstances of his or her offence . [ 21 ] With respect to the circumstances of this case, I have considered the aggravating factors including that this is not Mr. Murray’s first conviction for robbery. His prior conviction was in 2003 and at that time, he received a two-year period of incarceration. Further, at the time of commission of these offences, Mr. Murray was at large on a recognizance directed by a judge approximately seven weeks before these offences.

I have also considered the aggravating factor that Mr. Murray wielded a weapon during the robbery attempt. I note however that he did not enter the store carrying a weapon. Rather, the broken bottle was a weapon of convenience, which is reflective of the unplanned nature of the robbery. [ 22 ] Furthermore, with respect to the specific circumstances, I also have considered that nothing was taken in the robbery and that the assault grounding the conviction was an assault by gesture. I also accept the submissions of both counsel that this was an “atypical” robbery. It was not premeditated prior to Mr.

Murray entering the store. Rather it was a spontaneous act on Mr. Murray’s part that occurred after he had been in the store for some time. Unlike typical armed robberies, Mr. Murray did not enter the store wearing a mask or otherwise disguised. In fact, not only did Mr. Murray do nothing to conceal his identity – he actually revealed it.

He walked into the store with his face uncovered, tattoos visible on his hands, and provided his name to the store employees. [ 23 ] Given the unusual nature of the circumstances of this offence, I find it differs from the premediated situation contemplated by the range of sentence articulated in R. v. Hutchings where masked individuals enter convenience stores late at night, armed with a weapon, with the intention of committing a robbery. [ 24 ] With respect to Mr.

Murray’s specific circumstances, both counsel submitted that the peculiarity of the facts surrounding the robbery is indicative of the offence having occurred within the context of Mr. Murray suffering a mental health crisis at the time.

Doctors were sufficiently concerned for Mr. Murray’s mental health in the hours immediately following the offences that he wascertified for psychiatric treatment. I accept that Mr. Murray was an individual suffering a mental health crisis at the time of commissionof this offence. An offender’s mental health condition is a mitigating factor as it reduces his moral culpability. [25] It is because of the atypical nature of the offence and Mr. Murray’s mental health condition at the time that the Crown hasproposed a sentence on the low end of the range indicated by R. v.

Hutchings, and the Defence seeks a sentence slightly below thatrange. [26] Having considered all of the circumstances of this robbery and Mr. Murray’s personal circumstances including his mentalhealth condition at the time, I am satisfied that a sentence of 34 months incarceration as proposed by Defence counsel would be anappropriate sentence for this offence.

Section 264.1(1)(a) - 264.1(2) - Uttering Threats [27] With respect to the circumstances of this offence, I accept the submissions of counsel that during the altercation with the police,Mr. Murray was continuing to suffer from a mental health crisis. Mr. Murray yelled at the police that he was going to come at them witha knife and make the police shoot him. During this period, he also made suicidal comments and advised police that he had ingesteddrugs and glass. Crisis negotiators were called to the scene. Ultimately, Mr.

Murray was taken to the Health Sciences Centre where hewas certified by attending physicians and subsequently transferred to the Waterford Hospital. [28] Both parties submit that four months incarceration is appropriate for the uttering threats conviction. Mr. Murray’s criminalrecord shows that he has several prior convictions as an adult offender for uttering threats to cause bodily harm for offences occurring:April 16, 2018, September 23, 2016, May 31, 2016, and August 19, 2002. The Court does not know the circumstances of those otheroffences.

Most recently, he was sentenced for the April 16, 2018 offences in June 2018 to 45 days incarceration (time served) and aprobationary period. [29] I have considered the circumstances of the current offence and Mr. Murray’s circumstances and that the four months proposedby both parties is within the range of sentence for this offence. As such, I find four months incarceration would be an appropriatesentence for this offence. Section 145(3)(a) - Breach of Recognizance [30] Mr.

Murray has had several prior convictions for breaches of recognizance as an adult offender for which he has receivedsentences varying from 15 days to 92 days incarceration. His most recent conviction for breach of section 145(3)(

a) of the Code (prior tothe current offence) was December 10, 2018. At that time, he received a sentence of 15 days. I am satisfied that the proposal by bothcounsel of two months incarceration for this offence is within the range of sentence and would be appropriate given the circumstances ofthis case. Single criminal venture? [31] I must next consider whether any of the individual sentences should be made consecutive or concurrent on the ground that theyconstitute a single criminal venture, without consideration of the totality principle at this stage.

Offences regarded as such shouldgenerally be made concurrent with the heaviest sentence arising out of that single criminal venture. However, even if offences areindicative of a single criminal venture, concurrent sentences are not the inevitable result (R. v. Roberts, 2019 NLCA 43 at para. 46). [32] Both the Crown and the Defence submitted that the robbery and uttering threats were part of the same criminal venture. Thebasis for their submission was the temporal connection of the two offences (one immediately following the other) and the similar erraticbehavior exhibited by Mr.

Murray in the commission of the two offences. [33] The Crown submitted, however, that the uttering-threats sentence should nonetheless be consecutive to the robbery sentence. The Defence submitted that as it was the same criminal venture, the uttering threats should be treated concurrently. [34] In R. v. Crocker (1991), (NL CA), 292 A.P.R. 222, 93 Nfld. & P.E.I.R. 222 (Nfld.

C.A.), Goodridge C.J.provided early guidance on determining whether offences are related in such a manner that they can be considered a single criminalventure: 34 A single criminal adventure may not be an adequate description of the circumstances which invite concurrent sentences. Otherexpressions have been used such as "a single enterprise".

A situation where two or more crimes are connected or related may also beincluded in that description. 35 As an example, possession of drugs for the purpose of trafficking, and trafficking, while constituting two offences, may in propercircumstances attract concurrent sentences. A single rampage involving damage to two or more premises, while constituting two or moreoffences, may attract concurrent sentences. [35] In R. v. Hutchings, the Court of Appeal provided further guidance:

22 In some cases, separate offences of a similar type, though committed at separate times can be considered to constitute a singleevent for the purpose of this principle. In Crocker, Goodridge referred, for example, to a "single rampage". In other cases, separateoffences amounting to a repetition of the same behaviour towards the same victim have been described as a "single transaction" and havelikewise been regarded as sufficiently interrelated to attract the application of the principle. See R. v. Arbuthnot, 2009 MBCA 106 (Man.C.A.) at para. 22.

In still other cases, separate offences committed on what has been described as a "crime spree" have likewise beenregarded as sufficiently interrelated to attract the application of the principle. See R. v. Wozny, 2010 MBCA 115 (Man. C.A.) at paras.42, 50 and 78. [36] More recently, in R. v. Roberts, the Court of Appeal stated: 44 We would observe, however, that it is not the simple fact that offences occurred at the same time that necessarily determines thatthey amount to a single criminal venture. As Rowe J.A. observed in R. v.

Newhook, 2008 NLCA 28, 276 Nfld. & P.E.I.R. 190 (N.L.C.A.), it may be that two offences, following "hard on the heels" of one another may be considered "sufficiently distinct in their nature"that they should not be considered to be a single criminal venture. Thus, in that case, a brutal assault and the subsequent kidnapping of ahome occupier following a break and enter of a dwelling were not considered to be part of a single criminal venture related to the breakand enter. 45 Further, this Court in R. v. Frampton, 2018 NLCA 23 (N.L.

C.A.) observed in obiter that the offences of being masked and armedin the commission of a robbery might as a matter of general principle be considered as separate offences and not as a single criminalventure.

We would add the caveat, however, that a consideration as to whether this should be so in a given case would be affected bywhether there might be "double punishment" involved if the facts of being armed and masked were factors already taken into account insetting the level of sentence for the robbery offence itself, as it appears that it might have been in the current case. (See O'Quinn, atparagraph 20; R. v. Bourgeois, 2018 NLCA 13 (N.L.

C.A.) at paragraph 38). 46 It is also worth noting that even if factors such as temporal connection, similarity of victim and connections between offences(Bourgeois, at paragraph 36; R. v. Flynn, 2018 NLCA 61 (N.L. C.A.), at paragraph 22) or the nature of the offences (O'Quinn, atparagraph 18) might be indicative in a given case, of a single criminal venture, concurrent sentences are not the inevitable result (Martinat paragraph 25; O'Quinn at paragraph 21; R. v. Murphy, 2011 NLCA 16 (N.L. C.A.) at paragraph 27). The Court still has a discretion tomake them consecutive.

It might consider doing so if, for example, the offences are sufficiently distinct in nature that one or more ofthem cannot be said to amount to merely a particular method of carrying out another offence (Bourgeois, paragraph 37; Newhook,paragraph 17) or they consist of some other element that specifically merits special recognition as a separate delict (R. v. Mahoney, 2018NLCA 16 (N.L. C.A.)at paragraph 37), or where for policy reasons they should be treated separately (Murphy).

Furthermore, section718.3(4) of the Code, as discussed later in these reasons, would also require the sentencing judge to consider making the sentenceconsecutive in the circumstances indicated in that provision. [37] I accept that the robbery and uttering threats offences occurred in the context of the same mental health crisis for Mr. Murray,and that the two offences are connected in that the uttering threats arose in the aftermath of Mr. Murray having fled the scene of therobbery and the police arriving at his residence to apprehend him for the first offence.

I do not accept, however, that the commission ofthese two offences can be properly categorized as having been the result of a single criminal venture. The uttering threats is a separateand distinct subsequent offence. The victims of each offence are different and the interests sought to be protected in the deterrence ofeach crime are not the same.

The conduct of threatening the police is not conduct that has been consumed by the punishment for therobbery offence. [38] Even if I were to accept counsels’ argument that the two offences constituted a single criminal venture, it does not mean thatthe sentences must be concurrent. In the facts of this situation, I would nonetheless find it appropriate for the sentences to be servedconsecutively. The circumstance of Mr.

Murray undergoing a mental health crisis was taken into consideration in finding appropriatesentences for the offences at the lower end of the range. [39] Both counsel submitted that the breach of recognizance should be treated consecutively. Breaches of probation, recognizances,and other court orders normally result in sentences that are to be served consecutively to a sentence for the related offence (R. v. Murphy,2011 NLCA 16 at para. 27; R. v. Hennebury (1996), (NL CA), 138 Nfld. & P.E.I.R. 56, 431 A.P.R. 56 (Nfld. App.Div.) at para. 7).

It is appropriate that the sentence for breach of recognizance be served consecutively. [40] Accordingly, before considering totality, a sentence of 34 months incarceration for the robbery followed by the twoconsecutive sentences: 4 months for uttering threats; and 2 months for breach of recognizance, would result in a period of incarcerationof 40 months. I now turn to the next step in the analysis. Totality [41] The next step in the analysis is to apply the principal of totality. In doing so I have considered: (

i) the length of the combinedsentence is within the range of the normal level of sentence for robbery (being the most serious of the individual offences involved); (ii)the three offences and the gravity of each (as detailed in the summaries of the circumstances of the offences above); (iii) Mr. Murray’slengthy criminal record including prior convictions for all three of the offences; (iv) the impact of the combined sentence on hisprospects for rehabilitation, in the sense that it may be harsh or crushing; and (

v) Mr. Murray’s mental health condition and its impact onhis moral culpability. [42] Having completed this analysis, I determine that a sentence of 40 months incarceration would not be disproportionate to thegravity of the offences and the degree of responsibility of Mr. Murray. This would be an appropriate sentence in this case but for the factthat Mr. Murray has spent a considerable amount of time in pre-trial custody. This is another factor to be taken into consideration inarriving at a fit sentence (R. c. Mathieu, 2008 SCC 21). It is also the final step in the guidelines set out in R. v. Hutchings. I now turn to

a consideration of the extent to which pre-trial custody may reduce Mr. Murray’s sentence. Credit for Time Spent in Custody [ 43 ] Mr. Murray has been in custody since his arrest on April 24, 2019. Since then he has been convicted and has served time for other offences. His sentence for those offences expired on September 23, 2019. From that date up to the sentencing hearing, the parties agreed he would have served 483 days. As of today, he has served an additional 14 days for a total of 497 days. Counsel proposed enhanced credit for time spent on remand. Defence counsel submitted that Mr.

Murray had spent more time on remand than otherwise would have been the case but for the pandemic situation. Mr. Murray was originally scheduled for trial in April 2020. The trial did not proceed at that time due to the public health emergency resulting from the COVID-19 pandemic. Further, Defence counsel submitted that programming and recreation available to Mr. Murray while in custody had been more limited than usual for a period of time because of the public-health restrictions. [ 44 ] The Supreme Court of Canada stated in R. v.

Summers , 2014 SCC 26 , at paragraph 79 : “Generally speaking, the fact that pre- sentence detention has occurred will usually be sufficient to give rise to an inference that the offender has lost eligibility for parole or early release, justifying enhanced credit.” [ 45 ] Pursuant to section 719(3.1) of the Code , I am satisfied to allow credit for pre-sentence custody at a ratio of 1:5 to 1. Therefore, 497 days calculated at a rate of 1:5 to 1, I apply credit for 745.5 days (rounded to 746) in pre-sentence custody. [ 46 ] A sentence of 40 months would equate to 1216 days. Having given Mr.

Murray credit for 746 days, I am imposing a sentence 470 days of incarceration, calculated as follows: For robbery: 1036 days less 746 days for pre-sentence custody = 290 days incarceration; For uttering threats: 120 days consecutive; and For breach of recognizance: 60 days consecutive. Probation [ 47 ] Both the Crown and the Defence recommended a period of probation. I am imposing a lengthy period of supervised probation because both Mr. Murray and society will benefit if Mr.

Murray continues to receive counselling and is able to make inroads into dealing with his mental health issues. [ 48 ] Pursuant to section 731(1) (

b) of the Code , a probation order can only be given if the sentence of imprisonment imposed is for a term not exceeding two years. In R. c. Mathieu , at paragraph 19 , the Supreme Court of Canada clarified that “imprisonment for a term not exceeding two years” refers to the custodial term imposed at the time of sentence - the actual term of imprisonment imposed after taking into account any time spent in pre-sentence custody.

Having imposed a sentence of 470 days, after taking into account credit for pre-sentence custody, a probation order may be granted in this case. [ 49 ] The purpose of a probation order is to facilitate the offender’s rehabilitation. It also provides a measure of supervision and therefore an element of protection to the public during an offender’s reintegration into the community following incarceration. Mr. Murray has a lengthy criminal record including offences of breaching probation orders. As such, I was initially hesitant to accept that a probation order would be of benefit in this case.

Defence counsel submitted, however, that not all of the prior probation orders were supervisory in nature or with a focus on addressing Mr. Murray’s mental health issues. [ 50 ] Although for Mr. Murray the glimmer of hope for rehabilitation may be dimming, no offender is beyond the prospect of rehabilitation if he truly commits himself to turning the corner and changing his life’s course. I accept counsel’s submission that Mr. Murray, through recent counselling, is gaining insight into the issues that have been contributing to his criminal behaviors. I am prepared to provide Mr.

Murray with another opportunity to focus on his rehabilitation through the benefit of a supervisory probation order. I am imposing a term of probation of 30 months to allow Mr. Murray time to avail of the benefits a probation order can offer him in addressing his issues and assisting him in his rehabilitation. The period of incarceration imposed, in combination with a longer period of probation is intended to facilitate Mr. Murray’s rehabilitation. [ 51 ] Therefore following release from jail, pursuant to section 731(1) of the Code , Mr.

Murray is to be bound by a probation order for 30 months subject to the following statutory conditions: 1) Keep the peace and be of good behavior; 2) Appear before the Court when required to do so; and 3) Notify the Court or the probation officer, in advance, of any change in name or address and promptly notify the Court or probation officer of any change in employment;

And the following additional conditions: 4) Report to and be under the supervision of a probation officer to whom he is to report within three working days from the date of release from jail and, thereafter, when required by the probation officer and in the manner directed by the probation officer; 5) Comply with all requirements of the probation officer including attending any counseling or other rehabilitative measures deemed appropriate by the probation officer; 6) Not to attend the location of the robbery offence, being the Irving gas bar or Circle K convenience store on Kenmount Road, in the City of St.

John’s, NL; and 7) Not to contact or communicate, directly or indirectly, in any manner with Kyle MacDonald or Sydney Williams and to remain away from any place of residence, employment or schooling he knows to be frequented by them. [ 52 ] Mr. Murray, you must also be aware that pursuant to

section 733.1(1) of the Code , if you fail or refuse to comply with the conditions of the probation order, that is a separate offence for which you may also be charged. You have had a long history of violating court orders . If you are truly committed to your rehabilitation, you will not violate this probation order. Rather, you will take full advantage of any programming offered to you so that you can finally address your underlying issues and turn your life around before that glimmer of hope for rehabilitation is extinguished. Ancillary Orders

Section 109 – Weapons Prohibition [ 53 ] A weapons prohibition is mandatory pursuant to Section 109(1) of the Code as Mr. Murray has been convicted of an offence where violence was threatened, and for which he is liable to a period of imprisonment of ten years or more. Mr. Murray has a prior conviction for robbery. The Crown confirmed that, pursuant to

section 727 of the Code , Mr. Murray was given notice that greater punishment would be sought because of his prior conviction. Therefore, this is a lifetime prohibition pursuant to section 109(3) of the Code . Order Authorizing the Taking of Bodily Substances for Forensic DNA Analysis [ 54 ] Robbery is a primary designated offence. Therefore, a DNA Order is mandatory pursuant to

section 487.051(1) of the Code .

Summary [ 55 ] Mr. Murray, please stand while I impose your sentence. You are hereby sentenced as follows: 1. Incarceration for a period of 470 days; 2. Following your release from jail, you are to be bound by a probation order for 30 months, subject to the terms and conditions noted herein; 3. Pursuant to section 109(3) of the Code you are prohibited for life from possessing any firearm, crossbow, restricted weapon, ammunition, and explosive substance; and 4. Pursuant to

section 487.051(1) of the Code , I authorize a peace officer to take or cause to be taken from you a number of samples of bodily substances that are reasonably required for the purposes of forensic DNA analysis provided the samples be taken by means of the investigative procedures described in subsection 487.06(1) of the Code . _____________________________ Sandra R. Chaytor Justice