R. v. Murphy, 2021 BCPC 148

Citation: R. v. Murphy 2021 BCPC 148 Date: 20210510 File No: 43487-1, 43057-2-C, 43413-2-C, 43517-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CODY ERIC MURPHY ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: L. Thomson, by phone Counsel for the Defendant: E. Costa, by phone Place of Hearing: Duncan , B.C. Date of Hearing: May 10, 2021 Date of Judgment: May 10, 2021 Introduction

[ 1 ] Cody Eric Murphy is before this Court. Mr. Murphy has been charged with a number of offences on three separate Informations. Mr. Murphy has entered guilty pleas with respect to specific counts on each of those Informations. He is before this Court for the purposes of determining a fit sentence. The Specific Charges [ 2 ] The specific charges to which Mr.

Murphy has entered guilty pleas are as follows. [ 3 ] On Information 43413-2-C, he has entered a guilty plea on Count 1, which alleges that on or about the 27th of May, 2020, at or near Ladysmith, British Columbia, he did have in his possession a Yamaha 2.5-horsepower outboard boat engine, being the property of Tracey John Domey, knowing that the said property was obtained by the commission in Canada of an offence punishable by indictment. That is an offence contrary to s. 355 of the Criminal Code . Crown has proceeded summarily with respect to that offence.

Accordingly, the maximum sentence for that offence is six months' custodial time, and a $5,000 fine is also available as a sentencing option. [ 4 ] On Information 43487, Mr. Murphy has been charged with the following offence to which he has entered a guilty plea. That allegation is that from the 16th of June, 2020, to the 18th of June, 2020, inclusive, at or near Ladysmith, British Columbia, he did break and enter a place, namely the Arbutus RV Compound at 1260 Rocky Creek Road, and commit an indictable offence therein, namely theft, and that is contrary to s. 348(1) (

b) of the Criminal Code . Again, Crown has proceeded summarily with respect to this offence. The maximum sentence is six months and a $5,000 fine is also available as a sentencing option. [ 5 ] The third information is Information 43057. It contains a total of five counts. Crown has proceeded by way of indictment. Mr.

Murphy has entered a guilty plea on Count Number 2, which is an allegation that from or about September 25, 2020, at or near Ladysmith, British Columbia, he did have in his possession 18 pairs of socks, 10 baseball caps, a hoodie, and a shirt of a value not exceeding $5,000, knowing that all or part of the property or the proceeds of the property was obtained or delivered, directly or indirectly, from the commission in Canada of the offence of break and enter, which is an offence contrary to s. 354(1) (

a) of the Criminal Code , R.S.C., 1985, c C-46 , and did thereby commit an offence under s. 355 (

b) of the Criminal Code . That offence has a maximum sentence of two years. [ 6 ] On Count 5 of the same information to which Mr. Murphy has entered a guilty plea to an allegation that from August 30, 2020, to the 31st of August, 2020, inclusive, at or near Ladysmith, British Columbia, he did commit mischief by wilfully damaging a door of a value not in excess of $5,000, being the property of the Ladysmith Baseball Association, contrary to s. 430(4) of the Criminal Code .

The maximum sentence with respect to that matter is 10 years. [ 7 ] It is noteworthy that the stolen property referred to in Count 2 of Information 43057-C-2 was also the property of the Ladysmith Baseball Association, who are further referenced in Count 5. Circumstances Surrounding the Offences [ 8 ] Crown has outlined the circumstances with respect to each of these offences to which Mr. Murphy has entered a guilty plea. No significant issue is taken with respect to those circumstances. I accept Crown's recitation of the circumstances to be the factual basis upon which the guilty pleas have been entered.

I also accept that there is no major disagreement about those circumstances. However, there is one further piece of information that has been provided by defence with respect to the allegation of the possession of the stolen property on Count 2 of Information 43057-2-C. The suggestion made by defence, which, as I understand it, is not disputed by Crown, is that Mr.

Murphy, while acknowledging that he was in possession of the stolen property, says he was in the process of taking that property back to the location of the Ladysmith Baseball Association's building from which it was alleged to have been stolen by some other individual. Circumstances of the Offender [ 9 ] Cody Eric Murphy, hereinafter referred to as "the Offender", comes before this Court as a relatively young man. He is presently age 29. He comes from a rather challenging background, having been essentially abandoned by his parents at age 14.

I understand from his direct submissions to the Court, at that time he was residing in or around the Langley, British Columbia, area. His mother departed to Northern Ontario. From that point on, he had virtually no contact with her, and having once again established some contact with her, continuing contact with him was not reciprocated further by his mother. His father, as I understand the submissions, was an abusive individual and left Mr. Murphy's life at approximately age 13. [ 10 ] I note parenthetically that I do not have before me a Presentence Report with respect to Mr. Murphy.

Such a report would have been helpful in terms of understanding in greater depth Mr. Murphy's background. I can say that based upon the direct submissions by defence counsel and by Mr. Murphy's own submissions to the Court, I think I have a reasonably clear understanding of some of the challenges he has faced and some of the more positive antecedents of his life leading up to the time that he became involved in the criminal justice system. [ 11 ] Having been essentially abandoned at age 14, Mr. Murphy was able to actually raise himself up by obtaining steady employment.

That employment led him to get proper or essential training in an important area of the construction industry. He was trained to operate hydro-vac truck systems and also to operate cameras for x-raying water mains and sewer systems, as well as other hydrological systems, such as dams. The company that he worked for was a subcontractor of BC Hydro and Power Authority. He continued with that work for a number of years and was earning at one point, as I understand it, a substantial wage of some $40 per hour. He was a hard-working individual. [ 12 ] He entered into a somewhat lengthy domestic relationship at age 22.

That relationship continued for a period of some five years. Children were not the product of that relationship. The couple moved to Vancouver Island, which was the dream of the Offender's spouse rather than his own. Unfortunately the relationship then deteriorated and broke up. That left the Offender with a significant untreated depression issue. The depression led to him starting to use methamphetamines, and substance abuse became the guiding influence in his life.

[ 13 ] That substance abuse led him to lose most of his personal possessions, including what I understand to have been a very substantial sailing ship which served as his dream home while residing on Vancouver Island with his spouse. The circumstances about losing that particular vessel are somewhat unclear, but it ended up in the possession of a person who purported to be a friend of the Offender. The Offender then moved onto and lived aboard a second substantial vessel which apparently became the subject of an arson attack and that vessel was lost.

So in the course of a short period of time, the Offender lost a 54-foot ketch which he described as a beautiful boat, and then also lost his 43-foot ex-trawler boat, because of the arson attack. [ 14 ] The loss of the last vessel then resulted in the Offender becoming homeless and caused him to start relying upon on a number of resources within the community of Ladysmith, British Columbia.

As I understand it, he took up residence with a number of other individuals in a homeless camp; he did receive some community support while residing in the homeless camp, but was left with the continuing problem of his substance misuse and addiction issues. [ 15 ] That led the Offender to become engaged in the criminal justice system. Mr. Murphy was before the court on a number of offences on April 7, 2021.

At that time, he received sentences for a number of offences which may be summarized as follows: on a failure to appear on the 15th of December, 2020, for which he appeared to have received a 14-day sentence; that appears to have also been in conjunction with a further offence of failing to appear on January 26, 2021, which was dealt with at the same time.

At the same time, on April 7, 2021, he also entered guilty pleas with respect to a charge of mischief under $5000, for which he received a suspended sentence with 12 months' probation. [ 16 ] On April 7, 2021 he also entered a guilty plea for a breach of an undertaking on September 2, 2020. It appears that he was credited with seven days' time served on that offence. Again on April 7, 2021 he further entered a guilty plea to possession of stolen property on or about the 19th of August, 2020.

He appears to have been sentenced to seven days on a time-served basis; also at that same time appears to have been sentenced concurrently for possession of a controlled substance. At the same time, he also entered guilty pleas with a breach of a release order occurring on the 4th of January, 2021. That resulted in essentially a time-served sentence of 14 days; at the same time he entered a guilty plea on a theft under $5,000 charge, dating back to January 11, 2021, for which he received a time-served sentence of 35 days in custody. [ 17 ] That occasion of April 7, 2021 was Mr.

Murphy's first sentencing appearance in the criminal justice system. However, it is noteworthy that the offences to which he has entered guilty pleas before this court today, all predate his sentencing on April 7, 2021. There is no disagreement, with respect to the present offences, that essentially the Offender now comes before this Court and must be regarded as a first-time offender with respect to these additional charges for which he must now be sentenced. Victim Impact [ 18 ] I do not have any specific victim impact statements before the Court.

I do acknowledge that one of the victims in these offences is the Ladysmith Baseball Association, which I understand to be a non-profit community-based organization. It was victimized at least on two separate occasions, giving rise to two offences to which Mr. Murphy has entered guilty pleas. One of the other victims here is Arbutus RV. They are a commercial enterprise; their facility, which was the subject matter of a break and enter in this case, was a compound in which they kept a number of their new units. The third victim, of course, is the owner of the stolen outboard engine.

Brief Circumstances Surrounding the Offences [ 19 ] As noted above, Crown has given a detailed recitation of the various offences. With respect to some of these offences, there are some matters which bear particular attention. The first is with respect to the possession of the stolen property, namely the Yamaha 2.5-horsepower outboard boat engine. It was found in the possession of the Offender at the homeless camp.

The police report made by the owner of that property, Tracey John Domey, indicated that the engine had been previously stolen from his boat some three weeks prior. [ 20 ] With respect to the Arbutus RV break and enter offence, that particular offence resulted in loss of a TV from an RV unit and a financial loss to Arbutus RV of some $2,680.25. Mr. Murphy's fingerprints and a palm print were located in the RV unit, and it appears that entry had been gained into the RV unit through a pried window. [ 21 ] The two offences set forth on Information 43057-2-C were against a non-profit community organization.

With respect to the mischief charge, being the kicking in of the door of the Ladysmith Baseball Association's clubhouse facility, and the subject matter of Count Number 5, it resulted in a significant amount of damage being done to the facility and the estimated cost for that repair was placed in the range of some $3,500. [ 22 ] As I understand it, based on Mr. Murphy's present financial circumstances, Crown is not seeking any form of restitution with respect to those offences.

Position of Crown on Sentencing of the Offender [ 23 ] Crown's global sentencing position is that there should be a global sentence of some eight months; when allocated, after available time credited, there will still be some further custodial time to serve. It is agreed as between counsel that, after having been sentenced with respect to the matters on April 7, 2021, that there was still available pre-sentence credit for Mr. Murphy of some 16 days, which enhanced would be 24 days of credit.

He has remained in custody since April 7 to present date, which results in another 34 days of straight time, which on an enhanced basis, would amount to 51 days. Accordingly, Mr.

Murphy has available a credit total of 75 days to be applied to his sentence on these matters. [ 24 ] The Crown seeks an allocation of the sentence on the following basis: with respect to Information 43413-2-C, which is the possession of the stolen 2.5-horsepower outboard engine, a 30-day sentence; on Information 43487-1, which is the break and enter at the Arbutus RV compound, Crown is seeking a four-month sentence equalling 120 days; and then on Information 43057-2-C, on Count 2, which is the possession of stolen property of the Ladysmith Baseball Association, Crown is seeking a 45-day sentence.

Then consecutive to that, on the mischief charge, being the kicking in of the door of the Ladysmith Baseball Association facility, Crown is seeking a

further sentence of 45 days. Hence, the total sentence time added up on a day basis would equal 240 days. From that would be deducted the available credit of 75 days. [ 25 ] Crown further seeks an 18-month probation order with a number of terms which have been outlined to the court, which include no contact and no communication provisions with certain individuals who are associated with the victims of the offences, and also no-go provisions to certain locations in the Ladysmith area.

Crown is seeking a DNA order, which is discretionary in this case. [ 26 ] The Crown's position is based on specific and general deterrence and protection of the public, and Crown seeks an elevated sentence on the damage by way of mischief to the Ladysmith Baseball Association on the basis that it was a community organization which has been victimized by the Offender.

The Crown also submits that it is further aggravating that the commercial victim in this case, Arbutus RV, has been victimized financially as a result of the criminal activities of the Offender. [ 27 ] With respect to mitigating circumstances, Crown does concede that there has been a guilty plea entered with respect to these offences and the necessity to have a trial of some or all of these matters has thereby been eliminated.

Defence Position on Sentencing of the Offender [ 28 ] Defence counsel does not take any issue with the terms and conditions that have been outlined by Crown with respect to a probation order.

However, defence argues that the probation order term would be more appropriate if set at 12 months given the nature of this particular Offender’s circumstances and some of the improvement steps that he has already taken while in custody, and which deal with his rehabilitation. [ 29 ] With respect to the allocation of the sentence, defence says that the global sentence before the application of any available credit should total 122 days, less 75 days' credit, which would result in 47 days of new custodial time. [ 30 ] With respect to Information 43413-2-C, the possession of the stolen outboard engine, the defence submits that that should be a seven-day custodial sentence.

With respect to Information 43487-1, which is the break and enter of the Arbutus RV compound, defence submits that a 60-day sentence is appropriate. On Information 43057-2-C, on Count Number 5, which is the mischief, it is being submitted that the appropriate sentence is 14 days; and with respect to the possession of stolen property on Count 2, that being the baseball caps, socks, hoodies, and shirts of the Ladysmith Baseball Association, that the appropriate sentence should be 21 days. All of those sentences, it is suggested, would be served on a consecutive basis.

Case Authorities Relied Upon by Crown and Defence [ 31 ] Defence has placed before this court for consideration the following case authorities: 1) R. v. Dragani , 2018 BCCA 225 ; 2) Dakota Lundrigan v. Her Majesty The Queen , a decision of the Supreme Court of Newfoundland and Labrador's Court of Appeal, 2012 NLCA 43 ; 3) R. v. Donald McAulay , 2012 PCNL 1312A00152 , a decision of the Provincial Court of Newfoundland and Labrador. [ 32 ] Crown has placed before this court the decision of R. v. Nickles , 2013 BCCA 151 .

Purposes, Objectives, and Principles of Sentencing [ 33 ] Sentencing is an individualized process which requires the court to take into account both the circumstances of the offence and the specific circumstances of the offender (see R. v. Shoker , 2006 SCC 44 , at paragraph 14 , and R. v. Angelillo , 2006 SCC 55 , at paragraph 22 ). [ 34 ] As the sentencing judge, I must direct myself to consider all of the principles of sentencing contained in the Criminal Code , but also be mindful that, depending on the nature of the offence committed, certain principles will receive more emphasis than others (see R. v.

McCormick , 2006 ABCA 410 , at paragraphs 9 to 12 ). Applicable Sentencing Provisions of the Criminal Code [ 35 ] The purposes and principles of sentencing are found in ss. 718 to 718.2 of the Criminal Code . These sections codify and plainly state the intention and rationale for imposing particular sentences, as well as the common law principles of sentencing ( R. v. Nasogaluak , 2010 SCC 6 at paragraph 39 ). Fundamental Purpose [ 36 ]

Section 718 of the Criminal Code outlines the fundamental purposes of sentencing as: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

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

b) to deter the offender and other persons from committing offences;

c) to separate offenders from society, where necessary;

d) to assist in rehabilitating offenders;

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. Proportionality Principle [37]

Section 718.1 sets out and codifies a fundamental principle of sentencing. It directs that a sentence must be proportionate to thegravity of the offence and the degree of the offender's responsibility. The gravity of the offence refers to what the offender did wrong. Itincludes two components: (

a) the harm or likely harm to the victim; and (

b) the harm or likely harm to society and its values (R. v.Lacasse, 2015 SCC 64, at paragraph 130). [38] The Supreme Court of Canada has held that proportionality, as articulated in s. 718.1, is a fundamental principle of sentencing –"the sine qua non of a just sanction". It is grounded in elemental notions of justice and fairness and is indispensable to the public'sconfidence in the justice system (see R. v. Safarzadeh-Markhali, 2016 SCC 14, paragraph 70). Other Sentencing Principles [39]

Section 718.2, under the heading of "Other sentencing principles", it states in part that: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion,sex, age, mental or physical disability, sexual orientation or gender orientation or expression or on any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or theoffender’s family, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation, …. shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [40] As previously noted, s. 718.2(

b) codifies the parity principle, which holds that sentences should be similar to sentences imposedon similar offenders for similar offences in similar circumstances (see R. v. Ipeelee, 2012 SCC 13). [41]

Section 718.2(

c) codifies the totality principle which holds that the sentences that are imposed consecutively should not beunduly harsh or long, and a sentence should not exceed the overall culpability of the offender (see R. v. G.F., 2018 BCCA 339 ),and s. 718.2(

d) and 718.2(

e) codify the restraint principle which, as noted above, holds an offender should not be deprived of liberty ifless restrictive principles may be appropriate, and all available sanctions other than imprisonment that are reasonable in thecircumstances should be considered, with particular attention to Aboriginal offenders – s. 718.2(e).

Analysis Aggravating and Mitigating Factors [42] I accept as aggravating Crown's reliance on the fact that all the victims in this case have endured a high degree of inconvenience.The local community-based baseball association and the individual victim have endured significant financial loss. Similarly, thecommercial victim, Arbutus RV, has also suffered a significant financial loss as a result of the criminal activity of the Offender. [43] The mitigating factors that have been relied upon by Crown and by defence are also persuasive to this Court.

Essentially, wehave before us a gentleman, who up to a relatively short period of time ago, was a highly functioning and productive member of society.However, he has become entrapped in criminality through substance use in the form of a highly addictive and unpredictable drug, namelymethamphetamine.

[ 44 ] He has taken steps while incarcerated to reach out to an addictions counsellor. Given the restrictions on available resources while on remand in the Vancouver Island Regional Correctional Centre he has been unable to take programming. He has obtained the benefit of methadone treatment.

He is working himself down, in terms of his consumption of methadone, with the hope that he will be able to rely upon sobriety without the use of methadone upon his release. [ 45 ] He has made direct submissions to this Court, which lead me to believe that he is truly and sincerely remorseful for his actions that have brought him before this Court. He indicates that he is “disgusted” with his own behaviour. He has lost friends. He has lost jobs. He has lost his financial standing. He is in no way proud of anything that he has done in the course of his actions stemming from his drug addiction.

He makes it clear that what he seeks upon his release is to re-establish a productive and prosocial lifestyle by getting himself free and remaining clean from substance use, and getting himself back into the job market and being able to follow up with people who he knows in the Nanaimo area who are prosocial and can assist him in finding work. [ 46 ] On that basis, I accept as a mitigating factor that there is both significant insight and remorse being expressed by the Offender in this set of circumstances.

Consideration of the Case Authorities [ 47 ] The case authorities that have been referred to this Court highlight the individualized circumstances of sentencing. The British Columbia Court of Appeal in Dragani was dealing with a situation of essentially a home invasion. In that particular case, at the end of the day, the Court of Appeal upheld the sentences that were imposed on those two offenders who essentially also were not unlike the Offender before this Court.

Those offenders were found to be entitled to the 90-day intermittent sentences plus two years of probation as imposed upon each by the Provincial Court in that matter. [ 48 ] In doing so, the Court of Appeal acknowledged that a 90-day intermittent sentence for the significant offences that were committed by the two offenders in that case was at the low end of the range, but they held that the sentences imposed were not demonstrably unfit.

The Court of Appeal noted that the sentencing judge had sufficiently balanced the competing principles in crafting a sentence that was informed by the cases put to him and the prevailing circumstances, and although the sentences, as noted above, were at the lowest end of the spectrum, they were not contrary to the parity principle and did not fail to reconcile the competing sentencing principles. Conclusions [ 49 ] I accept the Crown's submission that denunciation and deterrence should be a primary focus of any sentence that is imposed by this Court.

But I do note that in this particular case, with this particular Offender, in these particular set of circumstances where drug addiction and misuse have been prevalent, that this Court must pay some heed to the positive steps that have been taken initially by the Offender towards his own rehabilitation and his efforts to return to a more productive lifestyle. In other words, this is a classic situation of where the competing principles of sentencing must be balanced. [ 50 ] The situation leads to a close examination of the allocation that is being proposed by Crown and by defence in this case.

I am satisfied that there should be a probationary period. I am of the view that the probationary period being sought by the Crown in this case of 18 months is part of a fit sentence. With respect to the actual sentence for the offences to which the Offender has pled guilty, I accept that a fit sentence, on some of the offences falls between what is being proposed by Crown and what is being proposed by defence. [ 51 ] With respect to the charge for the possession of the stolen property, being the outboard engine, in my view, a fit sentence in that case would be 14 days of custodial time.

That is on 43413-C-2, Count 1. On Information 43487, Count 1, which is the break and enter at Arbutus RV compound, I accept that a 70-day custodial sentence would be appropriate.

With respect to 43057-2-C, the possession of stolen property of the Ladysmith Baseball Association, I would place that sentence at 30 days, and with respect to the mischief being caused to the Ladysmith Baseball Association, I would put a fit sentence at 30 days on that particular matter. [ 52 ] All those sentences would be served on a consecutive basis, with the result being that the total custodial time before credit would be as follows: there would be 144 days, less credit of 75 days which results in 69 new days of custodial time. [ 53 ] With respect to the terms of probation for the 18-month order, they will be as follows: [ 54 ] 2001: You must keep the peace and be of good behaviour.

You must appear before the court when required to do so by the court. You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the officer of any change of employment. [ 55 ] I am going to pause here for a moment. It is really important, Mr.

Murphy, that you listen carefully to these because I will be coming back and making sure you understand the provisions, and that will assist in dealing with the resulting documentation. [ 56 ] The next provision will be 2002: You must have no contact or communication, directly or indirectly, with any of the following named individuals: Shawn Freer, Katie Freer, and Jay Myer - just check the spelling - there is an S on that, Myers, Madam Clerk. [ 57 ] THE CLERK: Sorry, Your Honour, Shawn Freer, Katie Freer, and Jay - [ 58 ] THE COURT: Jay Myers. [ 59 ] THE CLERK: - Myers, with an s. [ 60 ] THE COURT: Yes, correct. [ 61 ] THE CLERK: Thank you.

[ 62 ] CNSL L. THOMSON: Thank you, Your Honour. If I can interject, there's a Tracey Domey as well for the – the - [ 63 ] THE COURT: Thank you. Thank you, Mr. Thomson, yes, and the owner of the engine being Tracey John Domey. [ 64 ] THE CLERK: Thank you. [ 65 ] THE COURT: The next provision will be the no-go provision, 2005: You must not go to any place where any of, and then the same individuals, Shawn Freer, Katie Freer, Jay Myers, and Tracey John Domey, lives, works, attends school, worships, or happens to be.

If you see them, you must leave their presence immediately without any words or gestures. [ 66 ] The next provision will be: You must not be within 50 metres of the premises of Arbutus RV located at 1260 Rocky Creek Road, Ladysmith, British Columbia, or the premises of the Ladysmith Baseball Association at 373 Dogwood Drive, Ladysmith, British Columbia. The exceptions are as follows: you may be within the prohibited area of 50 metres while travelling through the Town of Ladysmith on the Trans Canada Highway.

I will make a further exception: you may be within the prohibited area of 50 metres from any of those locations with the written consent of your probation officer for the purposes of work or employment, provided that you must carry any permission with you, either in written or electronic form, and you must produce it to a peace officer upon the request of a peace officer. [ 67 ] The next provision will be the reporting provision, 2104: You must report in person to a probation officer. Now, I am going to pause for a moment, do we want this in Nanaimo or where do we want him to report?

Should he - [ 68 ] THE ACCUSED (BY VIDEOCONFERENCE): Duncan would be best for right now. [ 69 ] THE COURT: Duncan? [ 70 ] THE ACCUSED: Yes. [ 71 ] THE COURT: All right. Mr. Murphy says Duncan. You must report in person to a probation officer at - and we have a new address, Madam Clerk, if you could provide that, please? [ 72 ] THE CLERK: Yes, Your Honour, it's Unit 7, 180 Central Road, Duncan, British Columbia. [ 73 ] THE COURT: And is there a telephone number, please? [ 74 ] THE CLERK: Your Honour, just give me one moment here.

I believe the phone number has stayed the same, it should be 250-746-2854. [ 75 ] THE COURT: Okay, so I made that - I am going to pause for a moment. Is reporting in person preferable here, Ms. Costa, or do you want it by telephone? [ 76 ] CNSL E.

COSTA: Considering that he will be coming out of Wilkinson jail, I would say via telephone would be preferred by everyone involved, Your Honour. [ 77 ] THE COURT: All right, so I will change that to report by telephone at that particular number, and I will make that within two business days after your release from custody, unless you have obtained, before your release from custody, written permission from the probation officer to report elsewhere or within a different timeframe. After that, you must report as directed by your officer.

I am going to add in the provision: Such reporting may be by way of telephone at the direction of your probation officer. [ 78 ] Then I am going to put in 2106: Your reporting ends when you have satisfied your probation officer that, and it will be sub (c), completed all your counselling and treatment, or that it is not required, and your officer has told you that you are no longer required to report. [ 79 ] The next provision will be the counselling provision, 2501: You must attend, participate in, and complete any intake, assessment, counselling, or education program as directed by your probation officer.

This may include counselling or programming for (

a) alcohol or drug addiction. Is it agreeable that we also put in mental health, in order that he can deal with his depression issues, Ms. Costa? [ 80 ] CNSL E. COSTA: I don't have that from my client, Your Honour. [ 81 ] THE COURT: All right. Mr. Murphy, do you want to be referred to mental health. [ 82 ] THE ACCUSED: Yes, I do. [ 83 ] THE COURT: All right, then I will put that in, I will put in (

b) mental health. Okay, so that if you want to get some treatment, then I have made a provision and your probation officer can assist you in that regard, okay? [ 84 ] THE ACCUSED: Yes. [ 85 ] THE COURT: The next provision will be the 2617: You must not possess any tools or instruments capable of use for criminal activity (including pry bars, screwdrivers, bump keys, bolt cutters, pliers, blow torches, grinders, night-vision goggles, slim jims, and lockpicks). The exceptions are as follows, and that will be: (

a) while on your property; (

b) while at work, or going directly to and from work. If asked, you must provide your probation officer with the details of your location and hours of employment; and then (

c) with the prior written permission of your probation officer, and you must carry the permission, which may be in electronic format, when you possess any of these items outside of your residence. [ 86 ] I am going to return to the requirements with respect to address for reporting and I am going to have to make a change here to

reflect the present uncertainty as to Mr. Murphy's residential situation.

So it will be 2202: When first reporting to your probation officer, you must provide them with the address where you live and your phone number (if you have one) or any contact telephone number that may be available to you. [ 87 ] The next will be you must not change your address or telephone number (if you have one) or any contact telephone number available to you, unless you have notified your probation officer on the next business day following any such change. [ 88 ] If you are residing in a shelter location, you must notify your probation officer of any change of that shelter location on the next business day following any such change. [ 89 ] I am going to pause for a moment.

Is everyone content with the wording I have used in order to try to address the uncertainty of Mr. Murphy's residential situation? [ 90 ] CNSL L. THOMSON: I'm content, Your Honour. [ 91 ] CNSL E. COSTA: Yes, Your Honour, thank you. [ 92 ] THE COURT: All right. I believe those are all the terms and conditions that had been discussed as between counsel. Have I overlooked or have I overreached with respect to any of those conditions? [ 93 ] CNSL L. THOMSON: No, Your Honour, Crown doesn't believe so. [ 94 ] THE COURT: Ms. Costa? [ 95 ] CNSL E. COSTA: No, Your Honour, thank you. [ 96 ] THE COURT: All right.

So with respect to - I am going to make the DNA order. So this is a secondary offence. Which - do you want it to attach to the break and enter matters, Mr. Thomson? [ 97 ] CNSL L. THOMSON: Yes. [ 98 ] CNSL E. COSTA: Yes, I find that appropriate, Your Honour. [ 99 ] THE COURT: All right. So this will attach to Count 1 on Information 43487-1.

So it is a secondary designated offence, and after considering the factors set out in s. 487.051(3) of the Criminal Code , I am satisfied that it is in the best interests of the administration of justice to authorize the taking of samples of bodily substance from you, and the samples will be taken from you while you are in custody, and you must submit to the taking of the samples. [ 100 ] That leaves, I think, the matter of victim fine surcharges. Ms. Costa, any submissions on that? [ 101 ] CNSL E.

COSTA: Your Honour, considering that he has not had any gainful employment since 2019, I am going to ask you to waive, please. [ 102 ] THE COURT: All right. Mr. Thomson, any submissions with respect to that? [ 103 ] CNSL L. THOMSON: No, Crown takes no position, Your Honour. [ 104 ] THE COURT: All right. Given the whole of the circumstances of Mr.

Murphy, the fact that he still has custodial time to serve, the fact that he has not had gainful employment for a significant period of time, I am satisfied that this is appropriate circumstances to waive the imposition of victim fine surcharges with respect to all counts. [ 105 ] Anything further with respect to this matter? [ 106 ] CNSL L. THOMSON: Yes, Your Honour, if I could touch on briefly the application of credit. I didn't want to interrupt Your Honour during your decision, but my understanding is that credit can't be applied globally to a sentence.

I understand that the jail doesn't like that. [ 107 ] THE COURT: Yes. [ 108 ] CNSL L.

THOMSON: And so we just need to - I think it would make sense for the 75 days of credit, obviously Your Honour can apportion that between the sentences you have imposed as you wish, but I might suggest on Information 43057-2-C, the possession of stolen property, you had imposed a 30-day sentence, and the mischief, you had imposed a 40-day for that, apply 70 days of credit, or 30 and 40 days making those a time-served disposition, and then applying the remaining five days to the possession of stolen property on 43413, which has 14 days to serve, which would be nine days after the application of credit. [ 109 ] THE COURT: Ms.

Costa, are you agreeable? [ 110 ] CNSL E. COSTA: I - I either misheard Your Honour or my friend, because I wrote down 30 days each count on 43057-2-C. Did I mishear Your Honour? [ 111 ] CNSL L. THOMSON: Oh no, maybe I might have. I put a 140 days - 44 days total, which would be - [ 112 ] CNSL E. COSTA: I have 14 days plus 70 plus 30 plus 30. [ 113 ] THE COURT: Correct, that was the correct allocation. On 43413 -

[ 114 ] CNSL L. THOMSON: Yes. [ 115 ] THE COURT: - 14 days, on 43487, 70 days, on 43057, 30 days on Count 5 - [ 116 ] CNSL E. COSTA: Each count. [ 117 ] THE COURT: - and on Count - I think it was Count Number - [ 118 ] CNSL E. COSTA: Two. [ 119 ] THE COURT: - 2, it was another 30 days. [ 120 ] CNSL E. COSTA: Yes. [ 121 ] CNSL L. THOMSON: Okay, so then it would be - [ 122 ] CNSL E. COSTA: That's what I had. [ 123 ] CNSL L.

THOMSON: - time served on all matters but for the break and enter, and that would be one day remaining to be applied to that 70-day sentence, leaving us with the 69 days, Your Honour. [ 124 ] THE COURT: You are content with that allocation, Ms. Costa? [ 125 ] CNSL E. COSTA: It truly makes no difference to my client, Your Honour, yes, thank you. [ 126 ] THE COURT: All right. The allocation will be as outlined by Crown. Madam Clerk, did you get that? [ 127 ] THE CLERK: Yes, Your Honour, if I can just confirm, just to be on the safe side here.

So for the Count 5 and Count 2 on 43057-2-C, they are going to be jail time served dispositions, 30 days' credit on each count. [ 128 ] THE COURT: Yes. [ 129 ] THE CLERK: And then on the 43413-2-C, Count 1, it is going to be another - sorry, this is where I might have missed it, another 14 days' jail time served credit, Mr. Thomson? [ 130 ] CNSL L. THOMSON: Yes, that's correct, it will be 14 - 14 days will apply to that sentence as well for a time-served disposition.

There is one day remaining from that, that can be applied to the 70-day sentence on 43487. [ 131 ] THE CLERK: Perfect, thank you so much. [ 132 ] THE COURT: All right. Thank you. Anything further with respect to this matter? [ 133 ] CNSL L. THOMSON: Just in regards to staying remaining counts.

I will just note for the record that we are - note specifically that on 43413-2-C, those matters are not being stayed, there is a trial date and it is going on Counts 2 and 3, and the Crown would ask that that file be put over to that trial date that I understand Madam Clerk has. [ 134 ] THE COURT: All right, that is - do I have that right, that is June 7, 2021? [ 135 ] THE CLERK: The 17th, Your Honour. [ 136 ] CNSL E.

COSTA: June 17th. [ 137 ] THE COURT: Seventeenth, one-seven, thank you, 2021, and that is whereabouts, that is Duncan, is it? [ 138 ] THE CLERK: That's correct, Your Honour, in this courtroom - Courtroom Number 2. [ 139 ] THE COURT: All right, this courtroom, 9:30, and then so those matters remain live, and then Counts 2 and 3 on Information 43487-1? [ 140 ] CNSL L. THOMSON: Yes, Crown directs a stay of proceedings, Your Honour. [ 141 ] THE COURT: On both Counts 2 - [ 142 ] CNSL L. THOMSON: And - [ 143 ] THE COURT: - 2 and 3, thank you. [ 144 ] CNSL L.

THOMSON: And then I believe its Counts 1, 3, and 5 - excuse me, 1, 3, and 4, on Information 43057-2-C, Crown directs a stay of proceedings. [ 145 ] THE COURT: On Counts 1, 3, and 4, yes, thank you. [ 146 ] CNSL L. THOMSON: And finally, to the sole count on 43517, Crown directs a stay of proceedings as well. [ 147 ] THE COURT: So recorded. All right. Mr. Murphy, before you depart, I wish you the best of luck in terms of continuing your recovery. I am sure you have learned and you will learn that you are not going to have a particularly easy road to hoe here. It is going to

take not only your commitment, but it is going to take your willingness to reach out to get the type of support and the services you need. And you do not want to let this very dangerous and very destructive addiction rule the rest of your life. [ 148 ] You have made amazing strides for many years from a person who came from what could only be described as a very disadvantaged background; you should take some pride in what you did accomplish.

And you have said yourself, you do not take any pride in where you have found yourself; I think that is going to have to be your guiding star here, and you have got to do everything you can to haul yourself up and make sure you are getting the necessary support going forward. I wish you luck in that regard. [ 149 ] THE ACCUSED: Thank you. [ 150 ] THE COURT: And I do want to just emphasize that the terms of that probation order that I have imposed upon you, those are things you must do, okay. They are not maybes. They are not suggestions.

They are things you need to do, and I take it you understand all of those provisions of your probation order, is that right? [ 151 ] THE ACCUSED: Absolutely, yes. [ 152 ] THE COURT: And you are agreeing to abide by the provisions of that probation order, is that right? [ 153 ] THE ACCUSED: Yes, I do. [ 154 ] THE COURT: Okay, and you understand that if you breach, you could be facing further charges for failure to comply with those provisions, is that right? [ 155 ] THE ACCUSED: Yes, I do. [ 156 ] THE COURT: Okay. I am satisfied on that basis that Mr.

Murphy understands, is agreeing on the record to follow the terms. I am going to dispense with the requirement to sign any documents, although I take it, Ms. Costa, you are going to be receiving a copy of the probation order and you will arrange to have it provided to Mr. Murphy or, alternatively, Crown can liaise with Vancouver Island Regional Correctional Centre to make sure that the copy of the order is sent to him for his records. [ 157 ] CNSL E. COSTA: Your Honour, the preferred method would be to my friend's office, to send it to Wilkinson Road Jail, and they will provide it to Mr.

Murphy. [ 158 ] THE COURT: Is that correct, Mr. Thomson? [ 159 ] CNSL L. THOMSON: I'm not sure if that's the preferred method. I'm not actually familiar with us going out - sending it to Wilkie, as I expect that he will be given a copy once he is released, as it is reviewed with him, but if that is the court's wish, I have no issue following through with it. [ 160 ] THE COURT: All right, I will ask, because of the uncertain times of COVID, I will leave it to you to liaise between Court Services and your office to make sure that - and I guess Corrections, to make sure that Mr.

Murphy is provided with a copy of all those terms and conditions. [ 161 ] CNSL L. THOMSON: Certainly, thank you, Your Honour. [ 162 ] THE COURT: All right, anything further? [ 163 ] CNSL E. COSTA: Thank you very much, Your Honour. [ 164 ] THE COURT: Okay. [ 165 ] CNSL E. COSTA: Nothing further. [ 166 ] THE COURT: That completes - I appreciate staff's indulgences in staying to assist in getting this matter concluded. Thank you. (JUDGMENT CONCLUDED)