) ) HER MAJESTY THE QUEEN ) Alan Semchuk ) for the Crown - v. -, 2012 MBPC 60

2012 MBPC 60 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Alan Semchuk ) for the Crown - and - ) ) BYRON CORY KENNEDY ) Robert Harrison ) for the Accused - and - ) ) SHANNA MAE ELIZABETH MURDOCK ) Norm Sims ) for the Accused Accused. ) ) ) Judgment Delivered: ) October 19, 2012 HARAPIAK, P.J. [ 1 ] Early in the morning of December 20 th , 2010 an 87-year-old Dauphin resident’s sleep was violently interrupted when three people broke into her home.

Two of these people are before me to be sentenced today. [ 2 ] Byron Cory Kennedy (“Kennedy”) and Shanna Mae Elizabeth Murdock (“Murdock”) were jointly charged, and have pled guilty, to housebreak, enter and commit robbery. Ms Murdock has also entered guilty pleas to breaching her recognizance and theft under. Housebreak, enter and commit robbery is a strictly indictable offence and is punishable, at maximum, by life imprisonment. [ 3 ] This is not a case where each of the three people involved in this break and enter are equally culpable.

The Crown submits that as all took very different roles quite divergent sentences are justifiable. [ 4 ] Ms Monchka, the third accused, has already been sentenced, to 2 years less a day, which she is serving conditionally in the community, to be followed by three years of supervised probation. The Crown seeks a 4 year sentence, less time served, for Ms Murdock. Defence argues for 3 – 3 ½ years. The Crown reserved its most substantial recommendation for Mr. Kennedy – 12 – 15 years.

Defence argues that this is insupportable when you look at the caselaw and that 5 – 6 years, especially when considering parity of sentence, is appropriate. [ 5 ] It is particularly important, in light of the concerns raised about parity, to carefully review the facts, and the roles of both accused on December 20 th , 2010.

THE FACTS [ 6 ] Sometime in the week prior to December 20 th , 2010 87-year-old Elizabeth Simpson hired someone to come and clean the snow off her roof. The Crown describes Mrs. Simpson as “very strong and willful and independent.” In her statement Mrs. Simpson talked about the strategies she uses to maintain her health and independence, which include hiring help to assist with the things she can not do anymore – like cleaning snow off the roof. [ 7 ] Byron Kennedy was a member of that crew cleaning Mrs. Simpson’s roof in December, 2010.

He correctly assessed the victim as being elderly and vulnerable. [ 8 ] In the early hours of December 20 th Kennedy left a party with his girlfriend, Shanna Murdock and a new acquaintance - Brittney Monchka. Someone later reported that everyone at the party “was very drunk and abusing pills.” All three were under the influence. As they walked Kennedy pointed out Mrs. Simpson’s tidy bungalow and remarked that it was “vulnerable”. [ 9 ] Kennedy kicked in the back door of Mrs. Simpson’s home, breaking the door frame and presumably waking her up.

Monchka ripped the phone out of the wall and stood at the back door until she heard crying. [ 10 ] While Monchka stood in the kitchen Kennedy and Murdock had entered Mrs. Simpson’s bedroom. Murdock took Mrs. Simpson’s rings off her fingers and was searching through her things for valuables. Kennedy was on top of Mrs. Simpson repeatedly striking her in the face, in the process causing what the EMS personnel characterized as “extreme trauma” to her face. A tooth was knocked out at the root and a facial bone was fractured. [ 11 ] Monchka ventured further into the house to investigate.

She found Kennedy straddling the 87-year-old victim who was lying on her back in bed, crying. [ 12 ] Kennedy had a knife to Mrs. Simpson’s finger, and was telling her that he would cut it off if she did not tell him where her money was. Mrs. Simpson apparently opened her purse, gave Kennedy $60.00 and assured him that was all she had. Murdock admits to taking this money. [ 13 ] Murdock was expressing concern to Kennedy about the violence when Monchka arrived. Monchka told Kennedy to stop and then grabbed a wooden object and struck him to get him to stop. Kennedy did stop at that point, and told Mrs.

Simpson he was sorry as he left the house, kissing her on the forehead. [ 14 ] Monchka, as the three were leaving, pointed out that Mrs. Simpson had a car, as there were car keys on the table. They left at that point, went to another party and Kennedy returned sometime later and stole Mrs. Simpson’s 1994 Cadillac de Ville. All three accused were in it later that night – before abandoning it in a snowbank. All three accused were caught on camera entering the local 7-11 at just before 3 a.m., sometime after the car became stuck. [ 15 ] Mrs.

Simpson regained consciousness about 7 a.m. and thought, at first, she had had a particularly terrible dream. It was not until she saw herself in the mirror that she realized it had not been a dream and she called police. She remembered two native males with covered faces being in her bedroom. Her ability to assist with identification of any of the three accused was non-existent. No usable fingerprint evidence was found either in the house or the stolen car. [ 16 ] EMS found Mrs. Simpson to be quite disoriented that day. She had suffered two black eyes, a laceration over her right eye and a broken facial bone.

Her nose was swollen, there was bruising around her upper right lip and a tooth had been knocked out of her mouth. [ 17 ] Monchka shared details of the evening with a friend, who called the police. When they spoke to Monchka she gave a full statement and was a subpoenaed witness for the Crown at the January 30 th scheduled preliminary inquiry, which is when the other two entered pleas.

VICTIM IMPACT [18] Mrs. Simpson filed a victim impact statement with the court, and the Crown provided updates about her current situation. Iwant to spend a few minutes talking about Mrs. Simpson and what this assault on her privacy and her person has meant to her life. [19] She speaks about her goal, in her late 80s, of remaining independent and in her own home for as long as possible. This involvedher staying active by curling until the age of 80, planting a garden, knitting for charity, and playing bridge with friends to maintain socialties and mental acuity.

The things she recognized she could no longer do she had friends do or she hired out, such as yard work and snowremoval. [20] The Victim Impact Statement was completed shortly after the incident. Mrs. Simpson was still shaky at that time, uncertainabout the likelihood of remaining in her house and angry about the unnecessary violence that had been used against her. [21] There is one paragraph that poignantly encapsulates the perhaps permanent losses suffered by this elderly woman. She wrote“[b]ecause of this crime against me, I now have many uncertainties about my future.

I don’t know if the shakiness that I feel will goaway. Will I always be afraid now? This does not seem fair. I am an old woman! I should not have to feel this way. I just want my lifeback.” [22] A few months after the initial statement Mrs. Simpson advised that her friends thought she had changed dramatically and shenoticed in herself an inability to concentrate on projects for sustained periods of time. [23] Mrs. Simpson has made some progress since then in regaining her independence.

The Crown indicated that she is still fearfulbut that she has a strong and willful spirit and is “determined to try and make the best out of the circumstances.” [24] It seems, in answer to her plea in the early Victim Impact Statement, that Mrs. Simpson has set out to take her own life back. Ihope the sentencing of the last two offenders will allow her to concentrate on continuing what she has already so bravely begun.

SENTENCING [25] The principles that guide the court in sentencing are laid out in ss. 718 to 718.2 of the Criminal Code. “The fundamentalpurpose of sentencing” s. 718 outlines, “is to contribute”…“to respect for the law and the maintenance of a just, peaceful and safesociety” by imposing sanctions that embrace sentencing objectives of denunciation, deterrence, separation of offenders from society,rehabilitation, reparations for harm done and promotion of a sense of responsibility in the offender. [26] Further guidance is given at s. 718.2, requiring the court to increase or decrease the sentence to reflect relevant aggravating ormitigating circumstances relating to the offence or the offender and to be mindful of the principle of parity and exercise restraint whenconsidering incarceration, paying particular attention to the circumstances of aboriginal offenders. [27] The most important principle, of course, is found at 718.1 – proportionality. “A sentence must be proportionate to the gravity ofthe offence and the degree of responsibility of the offender.” Essentially, the punishment must fit both the offence and the offender.

PARITY [28] The principle of parity is codified at s. 718.2(

b) as follows: “a sentence should be similar to sentences imposed on similaroffenders for similar offences committed in similar circumstances.” [29] The Manitoba Court of Appeal, in R. v. Reader 2008 MBCA 42 , [2008] M.J. No. 120, adopted the BCCA’s

summaryof parity in R. v. P.(S.B.), [2007] BCCA 541, where they stated: “…in a just and fair system of law, offenders who are equally blameworthy ought to receive similar punishment. However, punishmentscannot be identical, since no two offenders are identical and no two crimes are committed in identical circumstances. Accordingly,disparity will always be present in the sentencing of similar offenders for similar offences committed in similar circumstances. Onlysubstantial disparity that cannot be justified by references to differences in offenders and the circumstances of their offences will lead to

appellate intervention…” [30] In this case Monchka was sentenced to a two years less a day conditional sentence and three years probation. She pled to adifferent and less serious offence – break, enter and theft. She did not participate in the robbery in the bedroom and actively intervenedby striking Kennedy as soon as she saw that he was being violent. Finally – without her the Crown concedes they would have had a verydifficult time proving their case. [31] Murdock had a higher level of culpability. She was in the room when Kennedy jumped onto the elderly woman and when herepeatedly struck her.

She objected, but did not intercede and participated in removing items of value while this was going on, includingrings from Mrs. Simpson’s fingers. [32] Kennedy bears the greatest responsibility here. He used information he obtained in the course of his employment providing aservice to an elderly person to target her and her home. He kicked in the door; he used violence against a very elderly person and utteredthreats to cut off her finger; he punched her repeatedly, causing all of her personal injury including a broken facial bone.

Along with hisgreater role in the offence he is the only one of the three to have a prior related record. [33] In my view the circumstances of the offence and offenders justify a broad range of sentences. THE CASELAW [34] Counsel has provided a number of cases to assist the court in determining an appropriate quantum of sentence. They arevaluable to greater or lesser degrees, and I have reviewed them all, and offer comments on and quotations from the most pertinent.

Areview of the case law has convinced me that counsel’s submissions are too high (on the part of the Crown respecting Kennedy) and toolow (on the part of counsel for Kennedy). [35] A 12 – 15 year sentence would be a startling leap from the range of sentences given for similar offenders for similar offencescommitted in similar circumstances in this jurisdiction, and contrary to s. 718.2(

b) of the Criminal Code. [36] This is a home invasion as contemplated by the Alberta Court of Appeal in R. v. Matwiy (1996), 1996 ABCA 63 , 105C.C.C. (3d) 251 and I believe a sentence for Kennedy that falls within, but not beyond a 7 – 10 year range would be a fit one in all thecircumstances. I accept that it is possible for a sentence with this constellation of facts and offenders to fall above or below the range. For Ms Murdock, a sentence below the range is an appropriate result. For Mr. Kennedy, a sentence above the range is not. A review ofthe caselaw supports this. [37] R. v.

Ross, (MBCA) – The Crown appealed a four year sentence in Ross given to an offender who entered ahome with a rifle, tied up the residents, threatened to kill them and pulled the trigger. The gun did not fire. A truck was stolen and thevictims were left behind in restraints. I note there were threats of violence but no physical harm as there was here. There was little hopefor the rehabilitation of Mr. Ross. In substituting a sentence of eight years the court wrote: “Home invasion robberies are a particularly serious and egregious threat to the sanctity of one’s home, and the safety of the communityas a whole.

There have been a number of such offences that have come before this Court over the past few years. It is imperative that astrong and clear message be sent that society will not tolerate offences of this kind and that when committed they will be dealt withseverely. Sentencing, of course, is an art rather than a science. There will undoubtedly be circumstances where the appropriate and fitsentence for a home invasion robbery could be higher or lower than the usual range of sentence.

Nonetheless, it seems to me that aperiod of incarceration of seven to ten years constitutes a realistic range for serious home invasion robberies such as we have before uson this appeal.” [38] R. v. Pakoo 2004 MBCA 157 (MBCA) – In Pakoo the accused was a person of good character and no record who hadovercome a difficult childhood. While separated from his spouse, he crawled through the window of a house where she lived with theirfour children and her new partner. He choked the boyfriend, loaded the rifle and fired it, just missing one of his children.

He thenattempted to fire it at the adults, but the weapon jammed.

[39] The court reviewed the term “home invasion” as defined by the Alberta Court of Appeal in Matwiy (supra) as being where aperson: “

a) Plans to commit a home invasion robbery (although the plan may be unsophisticated), and targets a dwelling with intent to stealmoney or property, which he or she expects is to be found in that dwelling or in some other location under the control of the occupants orany of them;

b) Arms himself or herself with an offensive weapon;

c) Enters a dwelling, which he or she knows or would reasonably expect is occupied, either by breaking into the dwelling or byotherwise forcing his or her way into the dwelling;

d) Confines the occupant or occupants of the dwelling, even for short periods of time;

e) While armed with an offensive weapon, threatens the occupants with death or bodily harm; and

f) Steals or attempts to steal money or other valuable property.” [40] The Court of Appeal disagreed with the trial judge’s assessment of the facts in Pakoo as being comparable to Matwiy as theaspect of robbery was missing, but did find that “it bears a strong resemblance to such a case” and that a seven to ten year range wouldbe appropriate, but for the “powerful” mitigating factors. The 3 year trial sentence was raised to 5 years, 8.5 months. [41] R. v.

McCowan 2010 MBCA 45 , [2010] 7 W.W.R. 195 (MBCA) – The accused broke into the victim’s house andfound his crack cocaine addicted wife in bed with the victim, her dealer. He struck him repeatedly in the face, causing serious injurywhich required a three month hospital stay. At trial he received an effective sentence of 5.5 years. Justice Steel upheld this sentence –noting it to be at the low end of the scale but not unfit - and made some important points about home invasions and appropriate range ofsentence.

She warned that s. 348.1 (home invasion deemed aggravating circumstance) does not equate to a Matwiy-like home invasion. She wrote that: “I believe it can be misleading to apply the range developed for “home invasion robberies” too rigidly without taking careful account ofthe nuances in the facts of each case.” [42] R. v. Pelly 2006 SKCA 60 , [2006] S.J. No. 332 (SKCA) – The Crown relies on Pelly to support its 12 – 15 year rangehere. In Pelly the 45-year-old accused with a 30 year criminal record was declared a long-term offender by the sentencing judge andsentenced to 15 years – for two home invasions.

Pelly stands for sentences of 7 and 12 years for violent home invasions by a habitualoffender involving very serious injuries – that is not the kind of offender we are dealing with here, or the kinds of injuries. [43] The first incident occurred the very day Pelly was released from custody on another matter and involved stabbing the victim(whom he blamed for his recent incarceration) twice in the chest. During the second home invasion six days later he struck his victimrepeatedly in the head with a hammer. When he was arrested by the police he had been peering through the window of yet anotherhouse.

After calculating time in custody he had 15 years left to serve. In the case at bar the weapon was used to threaten but not to causeinjury and Kennedy’s criminal history is negligible compared to Pelly’s. [44] R. v. Reader (supra) – In this case Reader, along with a friend, feigned car trouble to gain access into two different homes. Once in they hog-tied the residents. In the first house they stole a car and moved the victim to the basement so nobody could hear hiscries for help. In the second house they terrorized two brothers by holding a pellet gun to their heads and urging them to say goodbye toeach other.

No physical injuries were inflicted, and Reader was sentenced to 8 years on the first home invasion and 9.5 on the second,reduced to 15 for totality. This was upheld on appeal. [45] R. v. Campeau 2009 SKCA 3 – In this case two men pushed their way into a home to assault the male occupant. He barricadedhimself in the bathroom and his partner called the police. When she asked them to leave she was struck in the face, had some hair pulledout and suffered a fractured nose.

The Court of Appeal upheld the effective sentence of four years but noted that it might be viewed “aslight, or on the edge of what might be considered to be within the applicable range…” I find this case of limited use as there was noweapon used or robbery committed.

[46] R. v. Sharpe [2009] M.J. No. 173 (MBCA) – This case involved an individual targeting the victim to pay a drug debt andarranging the robbery while his creditor broke in, masked and armed with a rifle, to collect. The victim fought back with a baseball batand was shot, suffering permanent disability. The sentencing judge rejected a three year joint recommendation and imposed a six yearsentence – falling below the 7 – 10 year range to account for parity of sentence. This sentence was upheld on appeal.

Justice MacInnescommented, in placing this dated case in context, that “judicial precedents from this court in 1996, 1997 and 1998 made clear thatsentences of nine and ten years were within, though at the high end of, the range for sentences for violent home invasions.” (emphasisadded) [47] R. v. Paul 2010 MBCA 51 – In this case Paul entered a home through the kitchen window, identified himself as a police officerto the approximately 75-year-old resident and accused him of criminal activity. He took him to an ATM, claiming he needed towithdraw bail money. Once he received $300.00 Paul left him outside the bank.

Paul had a lengthy record and had recently made a habitof preying on elderly people. The Court of Appeal upheld the six year sentence. I note this is a much less serious offence than the onebefore the court, lacking violence or a weapon or threats of violence. [48] R. v. Manuel 2010 NLTD(G) 177 – Mr. Manuel was a friend of a home care worker who was tasked with assisting an 88-year-old gentleman with his needs. He went along with her on two occasions – the first time pinning the senior down so the home careworker could take his wallet. On the second occasion things became violent.

Manuel struck the man with a telephone. The victimactivated his medic alert bracelet and the home care worker co-participant told the caller it had been a mistake. The senior then tried torun away and was chased down by both and struck on the head by Manuel. He received a 6.5 year sentence. Manuel had no criminalrecord, was an excellent candidate for rehabilitation and did not bring a weapon with him – all facts which distinguish him from Mr.Kennedy.

The court acknowledged that 6.5 years fell to the lower end of the appropriate range, but, after reviewing the utility of pleabargaining, found it not to be unduly lenient and accepted this joint recommendation. THE OFFENDERS [49] Having reviewed the caselaw, it is important to remember that sentencing is not as simple as picking a case that is the most likethis one and crafting a comparable sentence. No two cases are exactly alike. As the Supreme Court noted in R. v.

C.A.M. (SCC), [1996] 1 S.C.R. 500, “sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similarcrime will frequently be a fruitless exercise of academic abstraction.” Arriving at a fit and appropriate sentence for Kennedy and Murdock requires consideration of their particular circumstances. BYRON KENNEDY [50] The Pre-Sentence Report prepared for Byron Kennedy describes a young man with a limited record but an unconventional andanti-social lifestyle.

His record includes a prior robbery conviction in 2006, which took place in that victim’s home, and threeconvictions for breaching conditions of release; just prior to these offences, in September of 2010. [51] Kennedy, to his credit, appeared to be very honest to the report writer about his gang affiliation, criminal activity, partying andsubstance abuse.

He says he was a member of the Bloodz gang from 2008 – 2011 and that his peers were “notorious for drug offences,murders, assaults and other violent offences.” [52] He claims to have severed ties with the gang since sometime after his 2010 incarceration, leaving him with no friends oracquaintances. [53] As a result of probation counseling offered to him in 2008 Kennedy claims to have been successful in finding employment inthe construction field.

This was described as intermittent, “under the table” and for three different companies, none of whose namesKennedy could remember, and for which no records of employment or paystubs were ever obtained. [54] As a boy Kennedy says he struggled at school, experimented at an early age with alcohol and drugs, and believes he sufferedfrom an undiagnosed learning disorder. He was the youngest of three siblings and his mother stayed at home to care for them. Heremembers her as being addicted to alcohol, providing the necessaries throughout his childhood but being very neglectful.

His father,who worked steadily and supported the family, had a temper and was prone to physically discipline the children with what Kennedydescribed as “beatings”.

[ 55 ] When Kennedy was still in elementary school Child and Family Services started coming by the home to check up on the children as they were showing signs of neglect at school. This oversight went on until he was in high school. [ 56 ] Counsel indicated at sentencing that Kennedy has some aboriginal heritage. [ 57 ] Kennedy is the father of two sons – aged 5 and 2.

He has not been an active and supportive parent to date, but says he would like to do better in the future, and is keen to improve his educational standing. [ 58 ] During the interview process Kennedy showed genuine remorse about this offence, according to the report writer, and seemed to really struggle with what he had done.

He was emotional when discussing the victim and showed what the report writer saw as “genuine concern for her well-being and that of her family.” [ 59 ] Kennedy claims to have no recollection of the night in question but told the police, in a warned statement shortly after the incident, that he kicked the door open, threw something at the victim, apologized to her, attempted to clean her up, and had driven her stolen car around town. [ 60 ] He advised the report writer that he was a daily drinker at this time, consuming 15 – 20 beer a day, mixed with street drugs.

Defence counsel conceded that he remembered “bits and pieces” and that it was enough to know that “the two co-accused were not innocent bystanders.” [ 61 ] Kennedy is assessed as being at very high risk to reoffend.

AGGRAVATING AND MITIGATING FACTORS [ 62 ] S. 718.2 of the Criminal Code requires this court to take into account “any relevant aggravating or mitigating circumstances relating to the offence or the offender.” The following are deemed to be aggravating factors which are relevant in this case: “evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,” and, at s. 348.1 , that the offender knew or ought to have known the house was occupied at the time and used violence or threats of violence to a person.

BYRON KENNEDY [ 63 ] There are several extremely aggravating factors that weigh against Kennedy here. Mrs. Simpson is quite elderly and can no longer do everything herself. It is this very dependence on others that brought her to the attention of Mr. Kennedy. The calculated nature of being on her property to be paid to do a necessary task and, while he was sober, obviously making a mental note that this house was vulnerable, and, by extension, this woman was too raises his culpability in my view. [ 64 ] A second aggravating factor is statutorily mandated at 348.1. Mr.

Kennedy, having been at the home earlier that very week, knew or ought to have known that the 87-year-old resident was likely to be in her bed in the middle of the night, and, once he discovered this to be so, compounded the violation of forcible entry by using significant violence. [ 65 ] Further aggravating is the use of a weapon and the degree of force used against a victim who surely could not have put up much resistance combined with the gross invasion of her personal dignity and space when Kennedy sat astride her, beating her in the face and threatening to cut off her finger. [ 66 ] To his credit, Mr.

Kennedy has pled guilty to this offence and Mrs. Simpson was spared the difficulty of testifying at a preliminary inquiry and then again at trial. He also seems to be genuinely remorseful for what he did that night, and concerned about the consequences of his actions for the victim and her family. [ 67 ] Kennedy claims to have no memory of the evening as a result of self-induced impairment. I am inclined to give his impairment very minimal, but some weight in mitigation. The Crown argued that despite being assessed in an earlier probation order no rehabilitation had taken place.

This is likely because the last time he had the opportunity for treatment he was noted as being

transitionally abstinent and no rehabilitative steps were even recommended. Things changed since then – one significant change being the death of his older brother which seems to have been a trigger for his abuse of alcohol and drugs. There may be some basis to his claim to be surprised and disbelieving about his behavior that night.

This will hopefully be a motivator for him to change and address his addiction issues in the future. [ 68 ] His claim to have no memory is not consistent with the information before the court, including his own counsel’s submission that he remembered enough to know the women were not innocent bystanders. [ 69 ] It seems that everyone at the party was “very drunk” and had been using drugs. Kennedy had been consuming excessive amounts of alcohol and drugs at that time and would likely have had a certain level of tolerance.

He was able to negotiate the Cadillac de Ville out of the garage successfully and walk into 7-11 unassisted. He also gave the police some specific details the next day indicating some memory of the evening and suggesting to me some minimization of responsibility in his claim of having no recollection. SHANNA MURDOCK [ 70 ] Shanna Murdock is a 22-year-old with a grade 8 education. She was assessed as being at very high risk to reoffend and somewhat minimizes her responsibility for this offence, blaming the alcohol and drugs she consumed along with the other participants.

Both the report writer and counsel seemed to agree that the gravity of her actions may not be clear to her for some time, and that a period of incarceration will be part of the path that leads her there. [ 71 ] Shanna Murdock is a member of the Valley River First Nation, a community where fifty percent of the population, including her mother, attended Indian Residential Schools. Murdock grew up between Valley River First Nation, Winnipeg and Calgary with her parents and four brothers, and first became a mother at the age of 15. [ 72 ] She has two young children but has had very little experience parenting them.

One child lives with her mother and the other with the child’s father. Murdock has a desire to go back to school and, during a short stint at Grandview School, enjoyed some academic success. [ 73 ] Ms Murdock recalls her father as being abusive and as drinking too much. She reports her parents did not set boundaries or discipline her as she was growing up.

She was also the victim of domestic violence by the father of her children, returning to the relationship after he served a custodial sentence for assaulting her. [ 74 ] At the age of 12 Murdock began drinking alcohol and spent a year in foster care because of her father’s aggressive behavior. She felt “lost” throughout this time and “scared” of her father. It seems that through her childhood years her parents were both addicted to alcohol and her mother admits to being “passive” and “unavailable.” Murdock remembers her home being well cared for, however.

She indicates she has a strong family bond with all members of her family and speaks to both of her parents weekly. [ 75 ] Ms Murdock’s mother indicated to the report writer that she thought her daughter would do what she could to please Kennedy, even though she knew better. It seems that the four year off and on relationship was very difficult for Murdock as Kennedy went back and forth between her and the mother of one of his children. Murdock’s mother saw her daughter as craving stability with Kennedy and being very intent on pleasing him and convincing him to remain with only her.

This extended to following him from community to community when he moved. [ 76 ] Ms Murdock claimed to have been “blacked out drunk” the night of the offence, but it seems, from counsel’s submissions this memory gap related to earlier that night. She gave a detailed statement to the police the next day reviewing when Mrs. Simpson woke up, what she was told, the fact that she took her rings off her fingers and the cash out of her wallet and jewellery from her jewellery box.

She says that she “always thinks about that old lady” and “not a day goes by” that she does not “feel bad knowing she’s scared all the time.” [ 77 ] Ms Murdock has a very limited, unrelated criminal history – a single count of drive over .08. She continues to struggle with an addiction to alcohol that seems to date back to her teen years when she would skip classes to drink and was suspended for “smelling like booze”.

AGGRAVATING AND MITIGATING FACTORS - MURDOCK [ 78 ] Ms Murdock did not gain information about Mrs. Simpson through an employment situation, or plan this attack so the aggravating factors are not as extensive as they are with Mr. Kennedy. [ 79 ] She did participate in a home invasion type robbery against a vulnerable and elderly victim and stood by while threats of violence were used and violence occurred. The Crown conceded that Ms Monchka had effectively abandoned the robbery when she struck Kennedy over the head.

Ms Murdock, despite raising concerns about the violence, did not abandon the robbery. [ 80 ] It is to her credit that she has pled guilty and spared Mrs. Simpson the extra trauma of testifying. I also have considered her role in the offence in assessing her overall culpability. On December 20 th , 2010 she had a very minor, unrelated criminal record. She had a history of following around her boyfriend and trying to convince him to commit to their relationship. As her mother said in the Pre- Sentence Report she thought her daughter would do whatever she needed to do to please Kennedy. This is the terrible result.

I have considered that this type of behavior seems to be out of character for Ms Murdock in assessing her overall culpability. [ 81 ] I have also considered Ms Murdock’s culpability with an eye on her background. She was raised in a home with a passive and unavailable mother who was a product of the Indian Residential School system; raised with addiction and domestic violence as part of the fabric of her childhood; and raised by parents who moved regularly for no known reason other than desired “change”. [ 82 ] Both accused have indicated they have aboriginal heritage.

This was much more fully fleshed out in Ms Murdock’s material. Mr. Kennedy’s aboriginal background is less clear but counsel pointed to his childhood marked by inconsistent parenting and neglect along with violence and alcohol abuse and suggested this is typical of some of the impacts of the systemic disadvantages aboriginal people in this country have had to face. In considering, as required, the “unique systemic or background factors which may have played a

part in bringing (them each) before the courts”, and “the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection” my task was much easier with Ms Murdock due to the quality of information offered but still considered with Mr. Kennedy. [ 83 ] The Supreme Court, in reminding courts about the importance of restraint in the use of incarceration, particularly when it comes to aboriginal offenders, wrote earlier this year in R. v.

Ipeelee , 2012 SCC 13 , that : “Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely – if ever – attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability.

As Greckol J. of the Alberta Court of Queen’s Bench stated, at para. 60 of R. v. Skani, 2002 ABQB 1097 , 331 A.R. 50 , after describing the background factors that lead to Mr.

Skani coming before the court, “[f]ew mortals could withstand such a childhood and youth without becoming seriously troubled.” Failing to take these circumstances into account would violate the fundamental principle of sentencing – that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. ” DECISION ON SENTENCE [ 84 ] As Chief Justice Scott wrote in the Ross ( supra ) case: “[h]ome invasion robberies are a particularly serious and egregious threat to the sanctity of one’s home, and the safety of the community as a whole.” [ 85 ] The sentencing objectives which must be given primary consideration, to recognize the seriousness of this offence, are denunciation and deterrence. [ 86 ] This community and others must be confident that elderly citizens can manage their own care and needs without worrying about being targeted by criminally inclined casual workers.

When such a relationship is taken advantage of the court will respond forcefully to condemn the criminal behavior and serve as an example to like-minded people and the offenders before the court that future similar activity would be met with similar lengthy penitentiary terms. [ 87 ] This forcefulness of sentence must be consistent with other sentences given to similar offenders for similar offences in this jurisdiction. The Crown’s suggestion that a 12 – 15 year range is appropriate was not supported by case law and, in light of all of the

circumstances of this offence and the background of Mr. Kennedy, would have been a disproportionate penalty. [ 88 ] The community was properly outraged by this crime against an elderly, vulnerable citizen. It is understandable that emotions are high and that community members want to see a significant sentence to give voice to their horror and dismay. An emotional desire to see things put right speaks more to a need for vengeance than retribution, however. There is an important distinction between the two which then CJ Lamer wrote about in R. v. M. (C.A.) (supra).

He wrote that: “Vengeance, as I understand it, represents an uncalibrated act of harm upon another, frequently motivated by emotion and anger, as a reprisal for harm inflicted upon oneself by that person. Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct.

Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more .” [ 89 ] In my view, an appropriate punishment which addresses denunciation and deterrence and holds Mr. Kennedy to account for his behavior, and no more , is nine years incarceration. He will also be subject to a mandatory 10 year weapons prohibition pursuant to s. 109.

This is a primary designated offence so I am required to authorize taking of samples suitable for DNA analysis – and I will order that be done within the next 30 days. [ 90 ] I have considered Shanna Mae Elizabeth Murdock’s background, including the Gladue factors outlined above, her very limited and unrelated criminal record along with her secondary role in the offence, the role and sentence of Brittney Monchka, and what seems to be Ms Murdock’s strong need to please Mr. Kennedy.

I have also assessed the pull of that desire to please in the context of her background of having been a victim of domestic violence and having been raised with violence. All of these facts convince me that, despite her participation in what turned out to be a violent home invasion, her penalty should fall quite far below the usual range for this type of case. [ 91 ] Shanna Mae Elizabeth Murdock – you are sentenced to three and a half years for housebreak enter and commit robbery on December 20 th , 2010.

Further, as penalty for failing to comply with your recognizance by attending Dauphin you will serve 30 days consecutive to that time. For being party to theft at the local liquor store you are sentenced to 30 days concurrent. There will also be a mandatory 10 year weapons prohibition pursuant to s. 109 and a DNA order with samples suitable for analysis to be taken within the next 30 days. TIME SERVED [ 92 ] Both individuals have spent significant periods of time in custody. Mr.

Kennedy – since December 23rd, 2010 and Ms Murdock – from December 23 rd , 2010 to her release on April 15 th , 2011 and then from January 30 th , 2012 until today’s date. [ 93 ] The Criminal Code gives the court discretion to give credit for time already served, and deduct it from the total sentence. [ 94 ] A practice had developed in recent years of fairly routinely giving a credit of 2 days for every day spent in custody. This ratio “reflect[ed] not only harshness of the detention due to the absence of programs”, according to the SCC in R. v.

Wust, 2000 SCC 18 , “… but reflect[ed] also the fact that none of the remission mechanisms contained in the Corrections and Conditional Release Act apply to that period of detention.” [ 95 ] So there were two very basic rationales for awarding this time – the fact that remand time is not shortened by statutory remission or the possibility of early parole and that pre-trial detention was often harder, with fewer possibilities for programming and harsher conditions than in post-sentence situations.

This regime changed on February 22, 2010, when the Truth in Sentencing Act was proclaimed. [ 96 ] The former s. 719(3) set no parameters for the exercise of judicial discretion when awarding credit for pre-sentence custody other than that such credit be for “time spent in custody…as a result of the offence.” The new ss. 719(3) and (3.1) are much more restrictive.

They read: “719(3) In determining the sentence to be imposed on a person convicted of an offence, the court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

719(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent incustody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person wasdetained in custody under subsection 524(4) or (8).” [97] It appeared, when the

section first began being applied, that credit of more than one day for every day spent in custody wouldbe relatively rare. Then Justice Green of the Ontario Court of Justice wrote R. v. Johnson, 2011 ONCJ, 268 C.C.C. (3d) 423 and thelandscape shifted. He wrote, at paragraph 162, that “[a]s I see it, the central issue comes down to the meaning of those five words thatspan the 1:1 and 1.5:1 regimes: “if the circumstances justify it”. Applying appropriate canons of statutory

interpretation, and read in thesentencing framework in which it is embedded, the word “circumstances” in this phrase includes the loss of remission and delayed paroleeligibility which, in turn “justify” a credit enhancement beyond a maximum ratio of 1:1.” [98] Justice Green’s decision set off an avalanche of caselaw interpreting those five words across the country. There are two generalcompeting schools of thought. One group agrees with Justice Green and has been routinely granting 1.5:1 credit to almost all prisoners.

Another group is of the view that interpreting the provision that broadly makes nonsense of s. 719(3) and subverts Parliament’s intention. [99] The first of what will surely be many Courts of Appeal to weigh in on this scholarly and thoughtful debate is Nova Scotia. On October 3rd they released R. v. Carvery, [2012] NSCA 107, in which they came to the same result as Johnson, directing an interpretiveapproach that considers the entire statutory framework of the sentencing regime rather than s. 719 in isolation.

They were concerned, forexample, that proportionality could not be addressed appropriately if inequities were allowed to stand between similar accused on releaseand those in the remand population. Their finding was clear – “if the circumstances justify it” includes consideration of the potential lossfor the offender of earned or statutory remission and parole.” [100] After considerable reflection and review of the case law I find myself on the opposite side of this debate. On September 18th ofthis year Justice Pomerance, of the Ontario Superior Court of Justice, delivered an oral judgment in R. v.

Caceres, 2012 ONSC 5214, [2012] O.J. No. 4421 which is representative of this second school of thought. Her reasoning is clear, logical and in my view,correct, in holding that 1.5:1 should not routinely include loss of statutory remission and early parole. I plan to quote her at length. 77 “…[O]ne must consider the language of the enactment understood in its proper context. It is true that Parliament allowedfor enhanced credit in s. 719(3.1) where “the circumstances justify it”, declining to require that the circumstances be “exceptional”, or“extraordinary” or “special”.

If subsection (3.1) is viewed in isolation, it could be seen to encompass a broad range of circumstances,including the almost universal factor of lost remission. However, this

interpretation cannot be sustained when subsection (3.1) is read inconjunction with subsection (3). Subsection (3) sets a general rule of credit on a one for one basis. It provides that the court “shall limitany credit for that time to a maximum of one day for each day spent in custody”. If enhanced credit is available on a routine basis, as aremedy for lost remission, then the courts are not limiting credit to a maximum of one day for each day spent in custody. In the result,subsection (3) would lose all meaning.

To hold that 1.5:1 credit is available on the basis of lost remission – a quasi-universal condition –is to effectively repeal subsection (3) and jump straight to subsection (3.1). This flies in the face of both the structure and language ofthe provision. Parliament would not rationally intend to enact a provision that is devoid of any practical effect. 78 In various decisions, the courts have extolled the virtues of allowing enhanced credit for lost remission and delayedparole.

A system that allowed such credit to be awarded on a routine basis would promote fairness and ensure that detained persons donot serve longer periods in custody than those who are released pending trial. I do not quarrel with the proposition that a liberalapproach to credit for pre-sentence custody is desirable. However, the question before me is not which approach is preferable rather; thequestion is which approach is the law. Whatever the merits of liberalized credit, I find that that was not the approach adopted byParliament when it enacted Truth in Sentencing.

Parliament made a deliberate policy decision to limit credit for pre-sentence custody toa ratio of 1:1 in routine circumstances of pre-sentence custody. Those routine circumstances include, by necessity, the absence of earnedremission. 79 Were it otherwise, Parliament could simply have amended s. 719 to provide for a general discretion to award credit for upto a maximum of 1.5 days for every day spent in pre-sentence custody. The fact that Parliament did not choose this route is itselfcompelling evidence of Parliament’s intent. The statute is not ambiguous.

It clearly stipulates that the rule of general application iscredit on a one for one basis. 80 For all of these reasons, I conclude that the usual ratio of credit for pre-sentence custody is that set out in s. 719(3) –namely, credit for up to 1 day for each day spent in pre-sentence custody. Section 719(3.1) allows that credit to be increased to amaximum of 1.5:1 where circumstances take the case outside of the norm. There is no need for those circumstances to be exceptional inthe case of being dramatic or extreme or rare.

But the circumstances must consist of something other than a universal or routine aspectof pre-sentence custody. Circumstances may involve conditions of detention; they may involve delay in sentencing that was beyond theoffender’s control; hardship based on the offender’s personal circumstances; or any number of other situations that may arise on a case

by case basis. They do not, however, lie in the mere fact that an offender has, by virtue of pre-sentence custody, been deprived of theright to statutory remission.” [101] My thanks to Justice Pomerance for her very helpful and timely decision. [102] In this case Mr. Kennedy never applied for bail. Dates for the two day January 30/31st, 2012 preliminary inquiry were offered on March 22nd, 2011 but not confirmed by defence counsel until June 28th, 2011.

Guilty pleas were entered January 30th and the chargeswere remanded to a trial coordination date in March for preparation of Pre-Sentence Reports and to find a convenient date for sentencing. That did not happen, for reasons not provided to me, until August 8th at which time I reserved my decision until today. Thetime it took for sentencing after plea was substantial, beyond the control of either Murdock or Kennedy, and clearly a circumstance thatjustifies 1.5:1 credit. [103] Defence counsel suggests that the earlier time in custody involved harsh conditions and lack of programming for Mr. Kennedy. Mr.

Kennedy has obtained full-time work in the kitchen and is doing quite well in the institution. In other cases I have reviewed theclaim of harsh conditions was supported by specific evidence of such things as triple-bunking, unwarranted lockdowns, threats by otherprisoners, and lack of programming due to protective custody.

The claim of harsh conditions here is not supported by the evidence andthere is nothing out of the ordinary constituting circumstances that justify 1.5:1 credit for the time served prior to entering a guilty plea,for either party. [104] It is worth noting that there seems to be a trend, from judges who do not agree that 1.5 should be routinely awarded for all pre-sentence custody, towards granting 1.5 credit for time in custody post-plea. (See R. v. D.A.J. 2011 ONSC 5330 , [2011] O.J.No. 4026, R. v. Larochelle 2011 ONCJ 339 , [2011] O.J. No. 2985, and R. v. Abubeker [2011] O.J.

No. 2927) [105] I have prepared a net sentence calculation which counsel may review and advise as to accuracy. DELAYED PAROLE ELIGIBILITY [106] According to the Corrections and Conditional Release Act, SC 1992 c 20, offenders must serve either one-third of their sentence,or seven years (whichever is less) before being eligible to apply for parole. [107] There was a time when eligibility for parole was of no immediate concern to the court – it fell within the jurisdiction of theNational Parole Board. (See R. v. Zinck, 2003 SCC 6 , [2003] S.C.J.

No. 5) [108] In 1995, with the implementation of s. 743.6, a broadened statutory authority for the court to delay parole eligibility resulted inthe possibility of such an order becoming part of the sentencing process. I asked counsel whether this is an appropriate case forconsideration of this section. The Crown submits it is; for Mr. Kennedy alone. Defence disagrees. The

section reads, in part that: “s. 743.6 …where an offender receives…a sentence of imprisonment of two years or more…on conviction for an offence set out inSchedules I and II to that Act…prosecuted by indictment…the court may, if satisfied, having regard to the circumstances of thecommission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of theoffence or the objective or specific or general deterrence so requires, order that the portion of the sentence that must be served before theoffender may be released on full parole is one half of the sentence or ten years, whichever is less.” [109] The Supreme Court of Canada, in Zinck, (supra) noted that “[d]elayed parole is a decision that remains out of the ordinary andmust be used in a manner that is fair to the offender.” They envisaged a two-stage analytical process.

First the court “must determinewhat would be the appropriate punishment for the crime.” [110] “At this stage”, wrote Justice Lebel, “the analysis may shift to the exercise of the power to delay parole. The position of s. 743.6in the Criminal Code signals that it should not be applied in a routine manner. The power should not be exercised in a routine ormechanical way, nor invoked in connection with every jail term imposed for an offence covered by s. 743.6.”

[ 111 ] The Supreme Court recognized the difficulty of double-weighing factors already considered in the first round of sentencing analysis when determining if “this additional punishment” is required and cautioned again that this is a “special, additional form of punishment…[which] should not be ordered without necessity, in a routine way.” The prosecution has the burden of demonstrating that this additional punishment is necessary. [ 112 ] In written argument on this point the Crown appropriately reminded the court of the distressing circumstances of this offence, and the vulnerability of this victim.

As part of the consideration in s. 743.6 revolves around the character and circumstances of the offender, another look at the offender must also be taken as well. [ 113 ] Kennedy is an individual with quite a limited criminal record. He appears to have a significant problem with addiction which was not addressed with any suggested treatment the last time he was through the system.

He also presented to the report writer as someone who was genuinely remorseful for his actions the night in question and has impressed staff at Corrections as being polite, respectful and diligent. [ 114 ] In Zinck (supra) Justice Lebel discussed the decision-making process that the Parole Board is involved in, which is “largely based on the ongoing observation and assessment of the personality and behavior of the offender during his or her incarceration, which focuses on dangerousness and the offender’s ability to re-enter the community. (Dumont, supra, at p. 333).

Such a process may extend over several years and lead to decisions that are highly attentive to context and based, at least in part, on what actually happened during the incarceration of the offender.” [ 115 ] Even with the concerning circumstances of this offence, in light of Byron Kennedy’s progress in custody, his remorse over his actions, his limited prior record and the length of the penitentiary term already assessed with an eye on denunciation and deterrence, it is fit that his eligibility for parole be managed in the usual way by the Parole Board. ________________________ Harapiak, P.J.