R. v.Murphy, 2011 NSSC 410

SUPREME COURT OF NOVA SCOTIA Citation: R. v.Murphy, 2011 NSSC 410 Date: 20111027 Docket: CRH 329528 Registry: Halifax Between: Her Majesty the Queen v. Matthew Murphy __________________________________________________________________ SENTENCING __________________________________________________________________ Judge: The Honourable Justice Kevin Coady Sentencing: October 27, 2011 Counsel: Denise Smith for the Crown Matthew Murphy, Self-Represented By the Court : [ 1 ] On June 21, 2011, Mr.

Murphy was convicted of conspiracy to commit murder and attempted murder. [ 2 ] The details of those convictions are set forth in 2011 NSSC 245 . Much of the compelling evidence in support of conviction is to be found in a series of intercepted phone communications and a video surveillance that took place at the scene. [ 3 ] In that decision I concluded that Mr. Murphy was a member of a conspiracy to kill Jason Hallett. [ 4 ] I provided the following reasons for that conclusion starting at paragraph 49:

The evidence clearly establishes that Mr. Murphy was with Mr. LeBlanc when he took the call from Ms. Hachey. He then travelled to the IWK with Mr. LeBlanc when contact was made with Messrs. Marriott and Smith. He was with Mr. LeBlanc at the hospital and left with him after the shooting. The 6:40pm intercept establishes that Mr. LeBlanc handed his phone to Mr. Murphy who continued the conversation with Mr. Smith. He made the following comments: “Ah, well, they’re right there.

In that loop around” “Yeah, they’re goin’ that’s where they’re goin’ now?” “They gotta come, I don’t know what street they gotta come out on, but they’re lookin’. We see them right now.” “Go on, go on the straight street and you’ll pull over” “Don’t pull into the hospital.” “Yeah, they’re well, they’re right there on the right” [51] The 6:44pm intercept indicates that Mr. Murphy continued to instruct Mr. Smith as Mr. Hallett approached the Cherokee. The following are Mr.

Murphy’s words: “Yeah, they’re back in front” “Right in the loop” “They’re jumpin’ in the Cherokee” “Yeah, they’re gonna be pullin’ right out on that street that we were just on” This language supports my conclusion that Mr. Murphy was a probable member of this conspiracy. The next step is to determine, on all of the evidence, whether the Crown has proven beyond a reasonable doubt that he was a member. [52] There is no evidence that Mr. Murphy was a member of this conspiracy before getting into Mr. LeBlanc’s Mustang.

There is no evidence that he did anything in furtherance of the conspiracy after leaving the scene with Mr. LeBlanc. The critical question is whether he was part of the conspiracy while he was at the scene. [53] Mr. Murphy testified in this trial. He testified that he knew nothing of a plan to kill Mr. Hallett at any time. He testified that Mr. LeBlanc invited him to get in the Mustang, smoke some weed and get something to eat. He testified that while on that drive Mr. LeBlanc gets a call but says nothing about it. Another call happens and Mr.

LeBlanc tells him that he has to go to the hospital as his “woman” is concerned. Mr. Murphy stated that Mr. LeBlanc said that it would only take a second to check out his girlfriend. [54] Mr. Murphy testified that he took the phone from Mr. LeBlanc because Mr. LeBlanc was rolling a joint. He stated that he was told to take the call from Mr. Smith. Mr. Murphy acknowledged hearing Mr. LeBlanc say “blaze the Cherokee” but stated that at the time he

understood him to say “Blazer or Cherokee.” He testified he did not hear any shots. He testified that he left the scene with Mr. LeBlanc and was dropped off at a bus stop where he took a bus home. [55] Mr. Murphy denied hearing Mr. LeBlanc’s side of the intercepted communications because he was not listening and could not care less what he was talking about. He insisted that when they got to the hospital he had no idea anything was coming and that the only reason for the stop was to check on Ms. Hachey. Mr. Murphy testified that the words he spoke to Mr. Smith were at the direction of Mr. LeBlanc.

He testified that he did not hear about the shooting until three days later. [ 5 ] After applying the principles in R.v. W.D. I rejected Mr. Murphy’s testimony and convicted him of this conspiracy. [ 6 ] I stated at paragraph 58 as follows: [58] I find, on all of the evidence, that it has been proved beyond a reasonable doubt that Mr. Murphy was a member of the conspiracy to kill Mr. Hallett. I find that his involvement was short and that he was swept up in the activities of Messrs. LeBlanc, Smith and Marriott. Mr. Murphy’s words to Mr. Smith betray his testimony. [ 7 ] I also convicted Mr.

Murphy of the attempted murder of Jason Hallett. I found that he was a party to this offence and commented at paragraph 68 as follows: [68] In the case of Mr. Murphy there is ample evidence that he was an abettor. The intercepted words and his attendance at the scene, support this conclusion. I cannot find that when he got into Mr. LeBlanc’s Mustang he knew what was coming. I further cannot conclude that when Mr. LeBlanc took the call from Ms. Hachey he knew what was coming. I do find that when he learned that Messrs.

Smith and Marriott were on the way to the hospital that he knew something bad was going to happen to Mr. Hallett should he be located. Things changed for Mr. Murphy when, at 6:40pm, Mr. LeBlanc handed him the phone. The words he spoke to Mr. Smith amounted to a targeting of Mr. Hallett for either Mr. Marriott or Mr. Smith. The comments of Mr. LeBlanc prior to the phone exchange, as well as the arrival of Messrs. Smith and Marriott, were a clear indication that murder was in the air. The words of Mr. Smith saying “gimme, gimme the gat” was a clear indication to Mr. Murphy that a gun was in play.

Notwithstanding, he continued to direct Mr. Smith about Mr. Hallett’s location as observed and commented upon by Mr. LeBlanc. It was in these short minutes that Mr.

Murphy became a party to the attempted murder of Jason Hallett. [ 8 ] The sections of the Code that apply call for maximum sentences of life imprisonment, section 239(1) states as follows: Anyone who attempts by any means to commit murder is guilty of an indictable offence and liable [...] (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life, and to a minimum punishment of imprisonment for a term of four years. [ 9 ] Section 465(1) states as follows: Except where otherwise expressly provided by the law, the following provisions apply in respect of conspiracy: (

a) every one who conspires with any one to commit murder or to cause another person to be murdered, whether in Canada or not, is guilty of an indictable offence and liable to maximum term of imprisonment for life. [ 10 ] Both are considered by our community and society as very serious offences as is evidence by the potential for life sentences.

[ 11 ] The facts supporting these convictions have been described by Ms. Smith as a “botched first degree murder” and I do not quibble with her words. [ 12 ] The critical distinction between Mr. Murphy and Messrs. LeBlanc, Marriott and Smith lie in the area of moral culpability or blameworthiness. [ 13 ] Mr. Murphy did not enter into the enterprise with knowledge of what was going to happen. Yet when it was obvious to him what was going down, he did not get out of the Mustang and immediately leave the area. Had Mr. Murphy not taken the phone from Mr.

LeBlanc it is unlikely he would have been convicted. [ 14 ] I recall evidence that the police did not know of Mr. Murphy prior to November 18, 2008. On the other hand, police knew Mr. LeBlanc, Mr. Smith and Mr. Marriott and were able to recognize their voices almost immediately. [ 15 ] Mr. Murphy has a short record which arose in 2008. It consists of a conspiracy to traffic in narcotics with the same players and a failure to attend court.

This suggests to me that at that time he was becoming involved in the criminal community. [ 16 ] There can be no question but that the criminal acumen of the other three offenders was well known to Mr. Murphy yet he agreed to hang out with Mr. LeBlanc, the most notorious of all three. [ 17 ] I compare Mr.

Murphy to the mythological Icarus who flew too close to the sun and his wings melted from the heat. [ 18 ] It is likely that this marginal contact with the criminal element was the cause of his involvement with the three others and it is also likely that this factor was the reason he did not abandon the enterprise as soon as he was aware of what was happening. [ 19 ] Mr. Murphy’s involvement obviously grew out of his desire “to play with the big boys.” Now all the so called “big boys” are falling and Mr. Murphy is following them. [ 20 ] Notwithstanding these comments, I do not see Mr.

Murphy in the same way that I see Messrs. Marriott, LeBlanc and Smith. [ 21 ] I am satisfied that Mr. Murphy is not a dangerous man as were the others. I see him as basically a good person who allowed himself to fall in with the criminal crowd. [ 22 ] Why? I do not know, it is a puzzle! [ 23 ] The comments in the Presentence Report satisfy me that everyone around Mr. Murphy could see, and were surprised, that he was hanging with a notoriously dangerous group of people. [ 24 ] The Crown suggests that he was 25 years old and that he was old enough to know better and to resist that pull.

In other words, he cannot be clothed with the “follower” designation. [ 25 ] I find that Mr. Murphy does not have the skills, or the maturity, that one might expect form all 25 year-old individuals. [ 26 ] I have had enough face to face contact to be able to draw that conclusion. The bottom line is that he did get involved at the scene.

[ 27 ] The principles of sentencing are set forth in the Criminal Code .

Section 718 states as follows: The fundamental purpose of sentencing is 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; (

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 the offenders, and acknowledgement of the harm done to victims and the community. [ 28 ] The factors of denunciation, deterrence and separation must play a significant role in this sentencing, but nowhere near as much as was the case with the other three co-accused. [ 29 ] Rehabilitation is a more significant factor in Mr. Murphy’s case. [ 30 ] I have every reason to accept that Mr.

Murphy is a good candidate for rehabilitation as a life time goal. [ 31 ] The Presentence Report supports that, there are lots of good character references and support for him. [ 32 ] Also I take note of the factor that he spent 31-32 months of house arrest without incident. [ 33 ]

Section 718.1 states as follows: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 34 ] This

section introduces the principle of proportionality to the sentencing process. This requires that full consideration must be given to both the gravity of the offence and the moral blameworthiness of the offender. I have already referenced the moral blameworthiness earlier in my comments.

[35]

Section 718.2 requires me to take into account various principles when sentencing. That

section states as follows: A court that imposes a sentence shall also take into account 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. [36] Balancing the mitigating and aggravating factors is fundamental to arriving at a fit and proper sentence. [37] This

section also sets forth a number of “deemed” aggravating factors. I do not find that sub sections (i), (ii), (iii) and (

v) haveany application to Mr. Murphy. [38] Subsection (iv) states that associating the conviction with a “criminal organization” is deemed an aggravating factor. I do notfind this applies to Mr. Murphy. These prosecutions were not based on “criminal organization” principles even though they involvedpersons associated with street gangs. [39]

Section 718.2(b)-(

e) provides further directions on sentencing. These subsections are as follows: (

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

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. [40] This subsection has no application to Mr. Murphy as a minimal custodial sentence is legislated. [41] Subsection (

e) states: (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders withparticular attention to the circumstances of aboriginal offenders. [42] Obviously Mr. Murphy does not qualify for consideration under this principle. [43] There are a number of aggravating factors at play in Mr.

Murphy’s situation. - This was a botched 1st degree murder; - The fact that this shooting unfolded in such a busy location outside of the IWK Hospital and the impact of this public shooting on thecommunity and their sense of security. - The fact that the shooting took place while there were a number of similar shootings in the Halifax community. While this cannot beblamed only all on Mr. Murphy, R. v. Brown, 2009 ONCA 563 , [2009] O.J. No. 2908 (Ont. C.A.) permits me to take this intoconsideration.

- Mr. Murphy’s criminal record that arose while he was getting involved with the street gang crowd. [ 44 ] There are a number of mitigating factors: - The positive Presentence Report; - The fact that Mr. Murphy’s active involvement in these offences was brief and not anticipated. - The fact that there are many good qualities in Mr. Murphy’s character, obviously he cares for his family and his community in ways, more than just words. - The support that Mr. Murphy’s family and community have shown throughout this ordeal. - The prospects for rehabilitation. I find that it is unlikely that we will see Mr.

Murphy before the courts again on criminal matters. - I accept that it has been well established that Mr. Murphy is remorseful for his involvement in these offences. - Also the clean bail time of 31-32 months without committing any breaches and without committing any further offences speaks very strongly in favour of rehabilitation and is therefore a mitigating factor. [ 45 ] There were few, if any, mitigating factors in the sentencing of Messrs. Smith, Marriott and LeBlanc. Mr.

Murphy has several. [ 46 ] The Crown argues for a sentence of 6-8 years in a federal prison. [ 47 ] The defence asks for leniency based on Mr. Murphy’s level of involvement. [ 48 ] There is a four-year minimum in relation to the attempted murder with a firearm which I most honour. [ 49 ] I understand there was a short period of time, seven weeks of remand. I am not going to factor that into the mathematical formula. It will be considered in the overall disposition. [ 50 ] Also, Mr. Murphy has been on bail under strict house arrest conditions for over 2 ½ years.

I believe that this is a factor I should consider in arriving at the overall disposition. [ 51 ] This will be Mr. Murphy’s first “real” exposure to prison. [ 52 ] I think it is fair to say that he will not need as much time to get the message and to attain rehabilitation as many other offenders. [ 53 ] Furthermore I want to fashion a sentence that recognizes that too much incarceration can lead to further criminalization.

[ 54 ] This is a case where the offence is horrific and its impact on the community and victim is great. [ 55 ] This is a case where Mr. Murphy’s culpability is much less than his co-accused. [ 56 ] This is a case where rehabilitation is very much in play, which after all, is the most effective and significant way to protect society. [ 57 ] On the conspiracy to commit murder charge, I impose a sentence of five years. On the attempted murder charge, I impose a sentence of five years concurrent for a total sentence of five years. [ 58 ] There will be a DNA Order issued and I am proclaiming a lifetime weapons prohibition as well. [ 59 ] Good luck Mr. Murphy. J.