R. v. Murdock, 2013 MBPC 45

CITATION: R. v. Murdock , 2013 MBPC 45 Date: 20130731 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Dave Mann, ) for the Crown ) and ) ) ) Christopher Murdock ) Zilla Jones, Accused ) for the Accused ) ) ) Reasons for Decision delivered ) July 31, 2013 ) Wiebe P.J. Facts [ 1 ] Mr. Murdock is subject to a Long Term Supervision Order. This means that he was supervised in the community on parole and subject to a number of conditions, which included an order to reside at the Osborne Correctional Centre and an order that he abstain from the consumption of alcohol and drugs.

On June 22, 2012, he absconded from the Osborne Correctional Centre thus breaching his condition to reside there. In addition, on June 25, 2012, the result of a urinalysis test, which was performed before Mr. Murdock absconded, came back positive for THC- marijuana. As a result Mr. Murdock was also breaching his condition to abstain from the use drugs. Mr. Murdock had only been in the community for 24 days when he breached these conditions. [ 2 ] When it was discovered Mr. Murdock had absconded the facility, police were alerted. Police then saw Mr. Murdock on two occasions.

On the first occasion he successfully fled from police. On the second, he again attempted to flee but was apprehended. When he was apprehended, he was found to be in possession of 1 gm. of marijuana. Mr. Murdock had been AWOL for eight days. He has now been in custody since June 30, 2012. The decision reflects the Court’s determination of a fit and proper sentence in all of the circumstances for Mr. Murdock. Mr. Murdock’s Background [ 3 ] Mr.

Murdock is a 49-year-old Aboriginal offender who comes before the Court with a lengthy criminal record, which includes non-violent to extremely violent offences, including a number of very serious sexual assaults. Mr. Murdock has been involved in the criminal justice system since he was 13 years old. His criminal lifestyle has continued nearly unabated to the present. In 2002, Mr. Murdock was deemed to be a long-term offender, and as a result was ordered to be supervised in the community for seven years. [ 4 ] It is helpful to set out the background of some of Mr.

Murdock’s most serious offences to understand why he is supervised in the community; why he has certain conditions on his release, and to understand the significance of his breaching those conditions.

[ 5 ] In 1987 Mr. Murdock was convicted of sexual assault and break and enter. In this case he and his then common-law wife had picked up a hitchhiker and the three of them returned to his home, where they were all drinking. The victim became involved in an argument with Mr. Murdock’s common-law spouse’s sister and then left to go to a nearby home. Mr. Murdock followed her, threw her to the ground and sexually assaulted her. He was sentenced to two and half years in that case. [ 6 ] In December 1990 Mr.

Murdock was sentenced to a 10-year sentence for sexual assault with a weapon, pointing a firearm, break and enter and commit indictable offence, and possession of a narcotic. In this case he entered the home of the sister of his ex-common-law partner. He broke in through a window and had with him a rifle and ammunition. The victim was asleep and with her at her home were her 12 year old son and his friend. She awoke to find Mr. Murdock choking her son’s friend with a shoelace. He then pointed the rifle at her and ordered them all into a closet.

He demanded she take off her clothes and when she refused, he took them all to the living room, discharged the rifle several times and said he would kill them and himself if she did not comply. In fear of their lives she complied. Mr. Murdock then forced her to walk around the house naked and then sexually assaulted her in front of the boys. He held them hostage for over three hours. They eventually escaped when he fell asleep. [ 7 ] In September of 2002, Mr. Murdock was sentenced to four years in prison for another sexual assault: this time, the victim was a 15 year old girl.

The prison term was to be followed by a seven-year Long Term Supervision Order that began on September 15, 2006. [ 8 ] When Mr. Murdock was designated a Long Term Offender in 2002 Dr. Ellerby filed a lengthy report as his primary therapist. Dr. Ellerby detailed Mr. Murdock’s childhood, his family circumstances, his treatment history, risk factors and the degree of Mr. Murdock’s participation in therapy. It is clear from Dr. Ellerby’s report that Mr. Murdock participated in many therapeutic programs with varying degrees of commitment. Mr.

Murdock had the opportunity to face and discuss many of the systemic, societal and family issues which have impacted him and contributed to his troubled past. [ 9 ] At the end of the report, Dr. Ellerby was very clear to say that Mr. Murdock will have to participate genuinely in therapy for the long term if he hopes to address his issues and avoid a criminal lifestyle. Dr. Ellerby recommended Mr. Murdock be placed in a highly structured, supervised and monitored community facility to manage what he considered to be a very high risk to re-offend. In addition Dr. Ellerby stated it was critical that Mr.

Murdock demonstrate a commitment to sobriety and that he avoid the risk factors in his life that contributed to his criminal behavior. It was also strongly recommended that Mr. Murdock continue with sex offender treatment. The combination of abstaining from alcohol and drugs and recognizing his triggers was critical to Mr. Murdock’s success going forward as Mr. Murdock had shown that when he was under the influence of drugs and alcohol, he committed the majority of his offences, including the very serious sexual assaults. [ 10 ] It was during the time Mr. Murdock was in therapy with Dr.

Ellerby that he committed the third sexual assault referred to above. [ 11 ] The pre-sentence report dated April 17, 2013 indicates that since the Long Term Supervision Order became effective in 2006 Mr. Murdock has only been in the community for 16 months. He has spent the balance of his time in prison for various breaches. He has been sentenced for breaching his Long Term Supervision Order twice, receiving sentences of effectively 12 months and 17 months. In August 2010, he was sentenced to 18 months in custody for being unlawfully at large while on statutory release. This is the third time Mr.

Murdock will be sentenced for breaching his Long Term Supervision Order. The only reason it is not the fourth, is because he was on statutory release at the time of the August 2010 breach and not subject to the Long Term Supervision Order. However in all four of these cases Mr. Murdock tested positive for marijuana use and in all cases Mr. Murdock has gone AWOL from the facility he was to reside at. [ 12 ] The pre-sentence report contains a Gladue report and it details Mr. Murdock’s very challenging childhood. He was born in Peguis but grew up in Fisher River First Nation and considers this home.

His father still lives there, as do a few of his siblings. His mother passed away in 2005 while Mr. Murdock was incarcerated. Mr. Murdock’s parents had problems with alcohol. Mr. Murdock was physically and mentally abused. He was sexually assaulted by his brother as a young child. He accidentally shot his best friend at the age of 10. This clearly was a traumatic incident in Mr. Murdock’s life. Mr. Murdock’s grandparents attended residential school, where they were physically and sexually assaulted. By the age of seven Mr. Murdock was drinking and he was a regular drinker at age 12.

He was a serious alcoholic and drug user by age 18. Mr. Murdock was living on the streets in Winnipeg by age 13 and he became involved in crime. Mr. Murdock has not been able to resist a criminal lifestyle ever since. Mr. Murdock has very few supports in the community. He has great difficulty adapting to a pro-social lifestyle. His family is in Fisher River First Nation and it is clear from the pre-sentence report that although Mr. Murdock would like to return to that community, he is not welcome, given the sexual assaults he had committed there.

Further, he is not allowed to attend there by virtue of his conditions. [ 13 ] To Mr. Murdock’s credit, he has stopped drinking. The pre-sentence report indicates that some time after Mr. Murdock finished his 10-year jail sentence he stopped drinking alcohol. He does however continue to use marijuana regularly. He has indicated he has no intention of stopping this use even if that means he will stay in jail longer as a result. Dr. Ellerby, who has remained Mr. Murdock’s psychologist into 2010 and who was interviewed for the pre-sentence report, has pointed out Mr.

Murdock’s entire breach history is related to his smoking marijuana. Dr. Ellerby said there are challenges in assessing whether this marijuana smoking increases Mr. Murdock’s risk of re-offending. He believes it depends on when he uses it, where he uses it and for what motivation. If he uses it with anti-social peers or with someone who is vulnerable this increases the risk factors. He notes Mr. Murdock was under the influence of marijuana when he sexually assaulted the 15 year old. Parole Officer David Roy shares this concern. Dr. Ellerby questions whether Mr. Murdock self-medicates through marijuana use as Mr.

Murdock becomes anxious when in the community and he suggests medical management of this anxiety while in the community may be of assistance. The Appropriate Sentence [ 14 ] The Supreme Court of Canada has made it clear that in sentencing an Aboriginal offender for breach of a Long Term Supervision Order the principles laid out in both Gladue and Ipeelee apply. [ 15 ] The Supreme Court of Canada also reiterated in Ipeelee that the fundamental purpose of sentencing is to contribute to “respect

for the law and the maintenance of a just, peaceful and safe society” and this is accomplished by imposing “just sanctions” that reflect one or more traditional sentencing objectives: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation to victims, and promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community. [ 16 ] In addition the Court in Ipeelee reminded the judiciary that the fun damental principle of sentencing is that the sentence be proportionate to both the gravity of the offence and the degree of responsibility of the offender. [ 17 ] In the case before me, the Crown takes the position a sentence of 30½ months, less time served, is appropriate.

That would be 10½ months attributed to the breach for failure to abstain and 20 months for leaving the facility and being AWOL. They support their argument that this is an appropriate sentence, by pointing to his record, the fact he fled from police and the fact that Mr. Murdock is facing his third breach, a fourth if the breach of the statutory release is counted. The Crown argues it is essential Mr. Murdock be supervised given his history of violent offences - particularly violent sexual offences - and they rely on Dr. Ellerby’s assessment that Mr.

Murdock must be highly supervised and monitored in the community given his high risk to re-offend status. [ 18 ] Defence argues Mr. Murdock should have a sentence of 10½ months, less time served, which at the time of the hearing was 10½ months. Defence argues Mr. Murdock has not been given the benefit of a proper Gladue assessment in the past and she stressed the fact that when he was sentenced for his breaches in 2007, 2009 and 2010, the Court did not properly apply the factors in Gladue .

Defence indicates that in each of those decisions, which were pre- Ipeelee , the Court’s paramount sentencing objective was protection of the public. Defence indicates that Ipeelee makes it clear that the purpose of a Long Term Supervision Order is both protection of the public and rehabilitation and each principle can be considered. I agree with defence counsel that this is what the Supreme Court of Canada Said in Ipeelee , 2012 SCC 13 .

I note that the Supreme Court of Canada in Ipeelee states at paragraph 51 : This is not to say that rehabilitation will always be the foremost consideration when sentencing for breach of an LTSO. The duty of a sentencing judge is to apply all of the principles mandated by ss. 718.1 and 718.2 of the Criminal Code in order to devise a sentence that furthers the overall objectives of sentencing………As with any sentencing decision, the relative weight to accorded to each sentencing principle or objective will vary depending on the circumstances of the particular offence.

In all instances the sentence must be proportionate to both the gravity of the offence and the degree of the responsibility of the offender. [ 19 ] In the case before me, I have considered the factors which have affected Mr. Murdock’s life. I have considered the effect of colonialism, the displacement felt by Aboriginals generally, the fact that Mr. Murdock’s grandparents attended residential school and that his own parents struggled with alcohol. I have considered the specific impact of these factors on Mr.

Murdock’s life – including the abuse he has suffered, physical and mental, his feelings of abandonment as a result of the breakdown of his family unit at age 13, and his feelings of guilt because of the tragic accident with his best friend. I have considered the fact that he lived on the streets at age 13 and I have considered his own struggles with alcohol and drugs. I recognize all of these factors have had an impact on the man Mr. Murdock is versus the man he may have been absent these challenges. [ 20 ] I have also looked at other factors - that despite his lack of education he is not an unintelligent man.

He spends his time reading and doing crosswords. I have noted the degree to which he participated in programs in the past including several intense sexual offender programs. I note Dr. Ellerby saying it is up to Mr. Murdock to make the commitment to his treatment and to change his patterns - and not associate with certain people or in certain areas. I note that Mr. Murdock stopped drinking several years ago and I further note that Dr. Ellerby has said that Mr. Murdock must make a long-term and genuine commitment to therapy and abstinence in order to change his lifestyle. [ 21 ] I note that Mr.

Murdock, despite some of the changes he has made - and despite the insights he has gained - has refused and continues to refuse to give up smoking marijuana. This is a deliberate and conscious decision on his part. He admits he will never stop smoking and he has indicated he wants the judge to know this to be honest and forthright in this regard. This acknowledgement on Mr. Murdock’s

part comes despite the fact that he has spent several years in prison for smoking marijuana and going AWOL from his residence and he recognizes he is being repeatedly being sentenced for the same actions. [ 22 ] I have also noted and taken into consideration Mr. Murdock’s current attitude towards therapy. Mr. Murdock is not happy with the changes in his therapy team. His current attitude with respect to programs is he has been there and done that. He developed a long and trusting relationship with Dr. Ellerby and Bruce Sapach through Forensic Psychological Services.

These resources are no longer provided by Correctional Services of Canada and Mr. Murdock is not doing well with his current team. However it is important to note that Dr. Ellerby has indicated he will continue to see Mr. Murdock on a pro bono basis should Mr. Murdock make the request. Yet, Mr. Murdock did not contact Dr. Ellerby the last time he was on release. [ 23 ] I have also considered the mitigating and aggravating circumstances of these offences.

In terms of aggravating factors: • This is his third breach of the Long Term Supervision Order and the fourth similar breach when you consider the breach while on statutory release. The circumstances are very similar. Mr. Murdock smokes marijuana, is tested for drugs, knows the results will come back positive and goes AWOL. This is a particularly flagrant violation because whatever Mr. Murdock’s views are on whether smoking marijuana should be illegal or not, he is not allowed to do it. Further, because of his past behavior he knows he is to be supervised in the community. • Mr.

Murdock is at a high risk to re-offend, particularly if he is using drugs or alcohol. • Mr. Murdock has a highly unenviable record including serious sexual assaults and these have occurred when Mr. Murdock is using alcohol and drugs. • Mr. Murdock fled from the police when he saw them and he tried to flee the second time they spotted him and was only brought into custody because they caught him. • Mr. Murdock knows he cannot use marijuana and admits he will not stop using it despite the consequences.

Mitigating circumstances: • Mr. Murdock has pled guilty. • There was no substantive re-involvement when Mr. Murdock was AWOL. Clearly, the aggravating factors outweigh the mitigating factors. [ 24 ] In applying the principles of sentencing, and in keeping the words of the Supreme Court of Canada in Ipeelee in mind and in giving meaning to the words of the Criminal Code that judges have a statutory duty to consider the unique circumstances of Aboriginal offenders, I find that rehabilitation as well as denunciation and deterrence are the dominant sentencing principles to apply to this case. [ 25 ] Mr.

Murdock has shown insight into his issues in the past. He has quit drinking and he has shown a willingness to work on these issues at certain times and in certain forums. This is despite an upbringing which can easily be described as disadvantaged and destructive. He has the benefit of having the services of Dr. Ellerby available to him. It is up to Mr. Murdock to access those services and make a meaningful commitment to change his lifestyle. Notwithstanding Mr. Murdock’s lengthy record, Dr. Ellerby is not willing to give up on Mr. Murdock.

In these circumstances for this offender, I find it is appropriate to give some weight to the principle of rehabilitation. [ 26 ] Having said that, the conduct of Mr. Murdock must be denounced and both Mr. Murdock and the public must understand that flagrant disregard for the conditions of his Long Term Supervision Order will not be tolerated. His attitude toward the conditions of abstaining and leaving the facility - for a fourth time - simply cannot go unpunished. Mr.

Murdock knows this - he has acknowledged it in admitting he smokes marijuana and that he intends to continue to smoke marijuana knowing he will pay a penalty for doing so. Marijuana is clearly a trigger for Mr. Murdock’s criminal behavior. Mr. Murdock’s only option to get out of the cycle of breaches and sentencing is to use the services offered to him and to stop. This is his decision. It is clear to me that Mr. Murdock can do this as he has stopped drinking. He also knows there are services available and, as Dr. Ellerby indicates, other ways to manage his anxiety in the community.

If he does not stop he knows he will be back before the courts and the sentences will continue to be harsher. [ 27 ] In all of the circumstances and in coming to a decision on the appropriate sentence for Mr. Murdock, I have paid particular attention to the circumstances of Mr. Ladue as recited in what is commonly referred to as the Ipeelee decision. In fact it is the Ipeelee and Ladue decision. The Supreme Court of Canada reviewed Mr. Ladue’s sentence on appeal. [ 28 ] Mr. Ladue appealed a three-year sentence for breach of his Long Term Supervision Order.

He had two prior breaches of his Long Term Supervision Order for failing to abstain and was before the Court on his third breach for fail to abstain. He also had a long record with over 40 convictions including a number of serious sexual assault convictions. There are many parallels between Mr. Ladue and Mr. Murdock. However, there are also some significant differences. [ 29 ] In Mr. Ladue’s case he was to be released to a particular facility with relevant cultural support from an Aboriginal Elder.

He was however re-arrested at the prison gate for failing to give a DNA sample and by the time that issue was resolved he had lost his original placement. He was then sent to a different placement, which he objected to because it was in a well-known drug area and it did not offer the same supports as the original placement. Mr. Ladue had been determined and committed to avoid drugs.

However he did not avoid them and once again found himself before the courts being sentenced for the breach. [ 30 ] The trial court was found to have not properly considered the Gladue factors and they overemphasized isolation at the expense of rehabilitation. The Court of Appeal determined that the three-year sentence originally imposed was not proportionate to the gravity of the offence - particularly considering how Mr. Ladue came to be at the second placement. The Court emphasized the fact that Mr. Ladue desired to succeed and the placement was detrimental to his ability to do so.

The Court of Appeal substituted a 12-month sentence, which the Supreme Court of Canada agreed with. [ 31 ] The significant differences between Mr. Ladue and Mr. Murdock are: • Mr. Ladue was committed to treatment. Mr. Murdock is not. • Mr. Ladue did not go AWOL from the facility once he knew he would test positive and be in breach. Mr. Murdock did. [ 32 ] So, notwithstanding my emphasis on the principle of rehabilitation as one sentencing consideration, Mr. Murdock to date is not embracing the opportunities provided. As a result, I find Mr.

Murdock’s degree of culpability in the circumstances to be higher than those of Mr. Ladue. In order for the sentence to be proportionate to both the gravity of the offence and the degree of responsibility of the offender I must recognize that this is essentially Mr. Murdock’s fourth breach for the same set of circumstances. His degree of responsibility here is also high. He deliberately used marijuana 24 days after being released and then when he realized he would be caught he fled.

Again, this is unacceptable for a person who is deemed to be in need of a highly structured and monitored life in the community both for his sake and for the protection of society. [ 33 ] In balancing the need for rehabilitation against the need to deter and denounce Mr. Murdock’s conduct, I do not find that either sentence proposed by counsel in the circumstances is appropriate.

Time served as suggested by the defence does not give recognition to deterrence and denunciation and 30 months plus as suggested by the Crown, while a step up from the previous sentence, does not give recognition to the principle of rehabilitation. [ 34 ] I therefore sentence Mr. Murdock to 20 months in custody concurrent on each charge. In doing so I have taken into account all of the factors referred to above as well as the unique circumstances which apply to Mr. Murdock as an Aboriginal offender.

Original signed by Judge M. Wiebe P.J.