R. v. Cole, 2014 NSSC 140

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Cole, 2014 NSSC 140 Date: 20140410 Docket: CRH417680 Registry: Halifax Between: Her Majesty the Queen v. Justin Joseph Charles Cole and Jonathan David James Murphy Judge: The Honourable Justice Felix A. Cacchione Heard: November 18-21, 2013, November 28, 2013 January 9, 2014, March 11, 2014, April 1, 2014 and April 10, 2014, in Halifax, Nova Scotia Written Decision: April 16, 2014 Counsel: Melanie Perry, for the Crown Pavel Boubnov, for Mr. Cole Eugene Tan, for Mr.

Murphy By the Court (Orally): [ 1 ] The accused Justin Cole and Jonathan Murphy were charged on a 19 count indictment.

They were jointly charged with: attempted murder contrary to s.239(1)(a); using or threatening to use a weapon in committing an assault s.267(a); break and enter into a dwelling with intent to commit an indictable offence s.348(1)(a); use of a firearm while committing an assault with a weapon s.85(1)(a); possession of a weapon for a purpose dangerous to the public peace s.88(1); carrying a concealed weapon without a Firearms Act authorization s.90(2)(a); possession of a firearm without a licence and registration s. 92(1); possession of a loaded restricted firearm s.95(2)(a); pointing a firearm without lawful excuse (87)(1); and two charges of discharging a firearm with intent to endanger life s.244.

[ 2 ] The accused Cole was charged alone with possession of a firearm while prohibited from doing so by an undertaking s.117.01(1); possession of a firearm while prohibited from doing so by a probation order s.117.01(1); two charges of failing to abide by the conditions of an undertaking s.145(3); two charges of failing to abide by the conditions of a probation order s.733.1(1)(a). [ 3 ] The accused Murphy was charged alone with possession of a firearm while prohibited from doing so by a prohibition order s.117.01(1) and possession of ammunition while prohibited from doing so by an order of prohibition. [ 4 ] Both accused were convicted of break and enter into a dwelling; possession of a weapon for a purpose dangerous to the public peace; carrying a concealed weapon; possession of a weapon without a license and registration; possession of a loaded firearm and possession of a weapon while prohibited. [ 5 ] The accused Cole was also convicted of using or threatening to use a weapon in committing an assault; using a firearm while committing an assault with a weapon; failing to comply with conditions of an undertaking and failing to comply with the conditions of a probation order. [ 6 ] The accused Murphy was also convicted of possessing a firearm and ammunition while prohibited by an order of prohibition. [ 7 ] Both accused were acquitted of attempted murder, pointing a firearm without lawful excuse and two counts of discharging a firearm with intent to endanger life. [ 8 ] The evidence leading to the convictions and acquittals was fully set out in my oral decision of November 28 th , 2013. [ 9 ] A brief

summary of the facts is as follows: THE FACTS [ 10 ] The offences arose from two separate incidents which occurred approximately one hour apart on the evening of January 25 th , 2013. Earlier that day Cole had been in contact with the victim, Mr. Willner who was a drug dealer, regarding the purchase of a large quantity of marijuana. The deal did not go ahead because Cole had not produced the money for the drugs. The drugs were not kept at Willner ’ s residence. Willner was exercising access rights to his young son when both accused arrived at his home. Cole wanted Willner ’ s assistance in a drug ripoff.

Willner refused and an argument ensued between he and Cole. In the presence of Willner ’ s young son, Cole produced a 9mm pistol and fired a shot which penetrated the ceiling. [ 11 ] The accused left the residence and Willner contacted his live-in girlfriend, Cole ’ s sister Kelly, at work and she returned to their apartment. Willner told her in private what had happened in the presence of his son. [ 12 ] A short time after Ms. Cole ’ s arrival the apartment door was forced open breaking the interior door frame. Both accused ordered Ms. Cole to leave the apartment with the child and the dog.

The accused Cole told his sister that she would be needing a new boyfriend. Murphy repeatedly told her to take the child and leave. As she was preparing to leave Willner tried to put his shoes on saying that he was going with his son. Murphy grabbed him and pulled him back. Cole then called to Murphy by his given name at which time Murphy pulled out a loaded 45 calibre semi-automatic pistol. [ 13 ] Ms. Cole left the apartment and the police were called. Upon their arrival the accused were still in the apartment. They hid in the bathroom.

They were arrested as they tried to leave the apartment. [ 14 ] The police found the firearm, a 45 caliber Colt semi-automatic pistol, in a laundry hamper in the bathroom. Cole was obviously under the influence of alcohol and/or drugs that evening. This was noticed by both the police officers who dealt with him and

his sister. [ 15 ] Both Cole and Murphy have extensive records including offences of break and enter and offences of violence. Cole at age 24 has a record of nine prior convictions as an adult and 20 convictions as a young offender. His young offender record began when he was 13 years old. [ 16 ] Murphy at age 27 has a record of 28 prior convictions as an adult and one conviction for mischief as a youth. His sole conviction as a young offender was at age 16. His adult record began when he was 19.

His criminality has continued unabated except for periods of incarceration. [ 17 ] The aggravating factors in this case are: that an occupied residence was broken into; a firearm was discharged; it was discharged in the presence of a child, and the accused, knowing that there was a child in the residence who had become visibly upset by the discharge of a firearm, returned to the apartment a second time again in possession of a firearm. [ 18 ] There are no mitigating factors in the present case. [ 19 ] Both accused, by their actions, showed a total disregard for the life and safety of others.

Their prior criminal convictions show that they have used weapons in prior assaultive behaviour. The circumstances leading to the convictions in this case demonstrate that both had access to and were prepared to use firearms in pursuing their goal. Each has shown an unwillingness to abide by court orders. [ 20 ] Crown counsel recommends a global sentence of 10 years for Cole and nine years for Murphy. [ 21 ] Counsel for Cole suggests a global sentence in the range of seven to eight years.

He points to his client ’ s young age and his remorse as stated in the presentence report as factors which the Court must consider in deciding whether rehabilitation should also play a

part in the sentence. [ 22 ] Counsel for Murphy suggests that absent his client ’ s record, a sentence of three to five years would be an appropriate sentence, but given his prior record a global sentence in the range of five to seven years would be fit and proper. He also submits that enhanced credit should be given on a 1.5 to 1 basis for injuries sustained by Murphy while in pretrial detention. [ 23 ] There is no merit in this submission for enhanced credit. Murphy greatly exaggerated his injuries.

For example, he told the author of the presentence report that he suffered a broken arm and fractures of both arms as well as a shattered jaw which required metal plates and screws to mend. [ 24 ] Murphy ’ s medical records from the correctional facility were spoken to by Ms. Champion, a nurse from that facility. She indicated that, as a result of an altercation with another inmate, Murphy suffered an undisplaced fracture of his right nasal bone and required some sutures to close a cut above his eye.

No fracture of either arm was noted and x-rays taken of his jaw showed metal hardware in his jaw, but this was determined to be from surgery performed in approximately 2005. The only injuries Murphy suffered were the result of his altercation with another inmate. His time spent in segregation or confined to his cell was the direct result of his behaviour and the disregard for the rules of the institution.

Murphy ’ s record for institutional incidents speaks against any enhanced credit being given for pretrial detention. [ 25 ] The circumstances of each offender is set out in the presentence report prepared for the Court. Cole is 24 years old and has a grade 9 education. He was on probation at the time of the present offences. He was not exposed to alcohol or drug abuse in the home. His parents separated when he was four years old. There was very little discipline or guidance in the home. He has anger management issues as evidenced by his record.

One of his prior assaults was in relation to his mother. [ 26 ] Cole recognizes that alcohol abuse has had a negative impact on his life but he has never even thought about seeking treatment for this. He began smoking marijuana at age five and continued until age 18. Despite this he has never taken any substance abuse programs and claims that he has no problems with drug use. He stated regret for the offences. This regret was not because of what he did, but because of what he put his family through. It is noteworthy that a 9mm pistol used in the present offences, together with other

firearms, were found in the search of his mother ’ s home. [ 27 ] Murphy is 27 years old with a grade 10 education. His father abused alcohol and his parents ’ common law relationship ended because of this when he was about two years old. His father moved to Alberta where he still resides. Murphy was raised in a single parent home until age seven when his mother entered into a relationship where her partner physically abused her in Murphy ’ s presence. This relationship ended but was followed by one which began when Murphy was about nine years old.

He developed a rapport with this new father figure, however when Murphy was age 13 his father figure was convicted of murder. Murphy advised the probation officer that it was at around this time when his life began to go down hill. He stopped playing sports and began associating with a negative peer group. He claimed he was never mistreated by his mother and always maintained a good relationship with her. However, he also stated that he cannot continue to meet with his mother and her associates because he now knows that this is not the right lifestyle.

He fears for his safety when released and wants to relocate so that he can start life anew. [ 28 ] He has reconnected with his father in the last two years and his father is making more of an effort to build a relationship with him. Mr. Murphy, Sr. was contacted in preparation for the presentence report and acknowledged the limited contact with his son over the years, but suggested that his son is now ready to turn his life around. Mr. Murphy, Sr. suggested that he could provide employment opportunities and an apprenticeship program for his son.

He states that his son finally realizes that he cannot continue on the path he has taken so far. He says he is committed to helping his son. [ 29 ] The presentence report shows that after completing grade 10 Murphy began doing odd jobs. He was last employed when he was 21 years old. Mr. Maloney, a construction manager for a contracting company, has offered employment to him when he becomes available for work. [ 30 ] Murphy was diagnosed with ADHD at a young age. He was prescribed medication for this condition which he took until he was 17.

He used alcohol during his teenage years and began smoking marijuana at age 14. He began smoking marijuana regularly after he stopped taking his prescribed medication for ADHD. He has never been involved in any counselling or programming for substance abuse. [ 31 ] Murphy accepted responsibility for his actions. He stated that he reconnected with the co-accused Cole, a childhood friend, after his last period of incarceration. He told the author of the presentence report that he felt more protected being around someone who had firearms.

Murphy also advised the author that after his release he wants to relocate so that he can be away from his negative peer group, live with his father, become employed and attempt to lead a normal life. [ 32 ] A victim impact statement was filed by Kelly Cole, sister of the accused Justin Cole. This statement sets out the psychological and financial effects of these offences on her. Mr. Willner did not file a victim impact statement. [ 33 ] Ms. Cole has suffered depression and has relocated because of the fear generated by the actions of the accused.

She feels unsafe around others and finds it difficult to trust anyone. She has gone from being a happy and outgoing person to being angry and sad. The stress has affected her relationship with her live-in boyfriend and she has had suicidal thoughts. [ 34 ] The move to a new province has taken her away from family and friends. It has caused financial hardship and interrupted her education. The loss of her employment here has meant the loss of medical and dental coverage causing further financial hardship.

The cost of relocating, the initial lack of employment and the need to refurnish a new residence because of the sudden relocation has added to her financial hardship. [ 35 ] I have considered the principles of sentencing codified in sections 718 to 718.2 of the Criminal Code .

In this case: because a firearm was used in conjunction with a break and enter into an occupied residence; because the firearm was discharged in the residence; because each accused has a substantial and related record and because each accused has shown an unwillingness to abide by court orders and a total disregard for the life and safety of others, the primary objective of the sentence must be denunciation and deterrence both specific and general. Each accused has shown, through past behaviour, that sanctions allowing them to remain in the community have not worked.

There is, therefore, a need to separate them from society.

[36] The offences were serious and there was a real danger of serious injury or death because of the presence and use of a firearm. A message must be sent to those who choose firearms or think about using firearms in committing offences that such behaviour will notbe tolerated and will be met with severe consequences. The community at large must be protected from those who are prepared to usefirearms in the pursuit of their illegal objectives.

Given the number of convictions entered, the totality principle must also be consideredin this sentencing. [37] While both accused are legally responsible for the criminal acts perpetrated on January 25th, 2013, the evidence presented attrial satisfies me that Cole was the instigating and driving force behind the events of that evening. It was Cole who had access to thefirearm used. It was Cole who wanted Willner to assist him in a drug ripoff. It was Cole who discharged the firearm. [38] Murphy was present and assisted Cole, but I view his role as more of a backup follower than that of a leader.

He followedCole’s directions. Although Murphy also possessed a firearm, it was only brandished after Cole directed him to do so. Murphy did notdischarge the firearm. [39] It is clear from the contents of the presentence report and his criminal record that Cole has no insight into his behaviour or theharm it has caused to others. He has demonstrated a complete unwillingness to address his substance abuse issues and angermanagement issues. He has chosen to lead his life as an outlaw who listens to no one but himself. He puts his own wants and needsahead of those of others.

Rehabilitation does not appear to be a prospect for Cole. [40] Murphy’s rehabilitation on the other hand shows a faint glimmer of hope in that he appears to have some insight into hisbehaviour and where that behaviour has lead him and where it will continue to lead him if he does not change. He appears to have somesupport from his biological father for his rehabilitation. That support alone, however, will not be enough to change his present course. He must gain insight into his drug abuse issues and address them in a meaningful way if he is ever to be rehabilitated. He has to-date notdone so.

Perhaps he can begin reflecting on these issues and addressing them in a meaningful way during his next period ofincarceration. [41] The issue of res judicata or the rule against multiple convictions must be addressed as convictions have been entered on somecounts having the same essential elements as others. [42] The rule against multiple convictions in some cases prohibits the registration of multiple convictions for related offencesarising from the same factual situations.

For the rule to apply there must be sufficient proximity as between the facts and as between theoffences which form the basis of the charges against the accused. [43] Whether the factual relationship between the offences is sufficiently proximate to be seen as the same factual situation dependson such things as remoteness or proximity of the events, the presence or absence of intervening events and whether the accused actionswere related to each other by a common objective. [44] Whether the legal relationship between the offences set out in the indictment is sufficiently proximate is determined by whetherthe constituent elements of one offence are in essence the same as those of another offence for which the accused has been convicted.

Itis only if there is no additional and distinguishing element between the offences that the requirement of sufficient proximity isestablished: R. v. Prince, (SCC), [1986] 2 S.C.R. 480 (S.C.C.). [45] Cole was convicted of assault with a weapon s.267(

a) and possession of a weapon for a purpose dangerous to the public peaces.88(1). There is no additional and distinguishing element between these two offences. The requirement of sufficient proximity has beenestablished and the conviction under s.88(1) is stayed: R. v. Briscoe (1992), (BC CA), 76 C.C.C. (3d) 563 (B.C.C.A.);R. v. Arnill (1999), 41 W.C.B. (2d) 175 (Ont. C.A.). [46] Cole was also convicted on two counts of failing to comply with the conditions of an undertaking dated January 16th, 2013 and two counts of failing to comply with the conditions of a probation order dated December 8th, 2010.

The conditions breached withrespect to the undertaking and the probation order were failure to keep the peace and be of good behaviour and not to possess firearms orother prohibited or restricted weapons or ammunition.

[ 47 ] The convictions entered arose from the same factual situation. There were no intervening events and the accused ’ s actions were related to each other by a common objective of forcing the victim to assist him in a drug ripoff. The constituent elements of the two offences of failing to abide by the condition of an undertaking are the same. The only difference between the two is the condition breached. The same applies for the two offences of failing to comply with the terms of a probation order.

Accordingly the convictions on breaching an undertaking and breaching a probation order by failing to keep the peace and be of good behaviour are stayed. [ 48 ] Cole ’ s record as a young offender and adult shows four prior convictions for break and enter.

The break and enter in the present case was more serious than the previous ones he committed because the dwelling house was occupied and a firearm was used and discharged during its commission. [ 49 ] The sentence for Cole is as follows: On Count#2, the charge of using or threatening to use a weapon in committing an assault contrary to s.267(a), one year incarceration; on Count #3, the charge of breaking and entering contrary to s.348(1)(a), four years incarceration consecutive; on Count #4, the charge of using a firearm in the commission of an offence contrary s.85(1)(a), one year consecutive; on Count #6, the charge of carrying a concealed weapon contrary to s.90(2)(a), six months consecutive; on Count #7, the charge of possessing a firearm without a license and registration contrary to s.92(1), six months concurrent; on Count #8, the charge of possession of a loaded firearm contrary to s.95(2)(a), three years consecutive; on Count #12, the first charge of possession of a firearm while prohibited by an undertaking contrary to s.117.01(1), six months consecutive; on Count #13, the second count under s.117.01(1), six months consecutive; on Count #15, the charge of failing to comply with a condition of an undertaking contrary to s.145(3), six months consecutive; and on Count #17, charge of breaching a condition of probation order contrary to s.733.1(1)(a), six months consecutive.

The total sentence is one of 11 ½ years in a federal institution. [ 50 ] There will also be an order made against Cole under. s.487.051 s. s. 1 and 2 of the Criminal Code for the provision of a DNA sample, as well as an order under s.109 of the Criminal Code prohibiting Cole from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 51 ] Murphy was convicted of fewer charges than Cole, however his record is longer than that of Cole.

Murphy has some insight into what has lead him to his present situation and also has some support from his father. He must, however, address his substance abuse issues if he is to turn his life around. I am aware that there should be parity of sentence where two accused commit an offence together, but there is also a need to tailor a sentence according to the circumstances of the offender and the circumstances of the offence. As I stated previously, I am satisfied that Murphy was not the instigator of these offences and his participation was secondary to that of Cole.

It is for these reasons and the fact that he was convicted of fewer offences that he will be treated somewhat differently. [ 52 ] On Count #3, the charge of break and enter contrary s.348(1)(a), four years incarceration; on Count #5, the charge of possession of a weapon for a purpose dangerous to the public peace contrary to s.88(1), six months consecutive; on Count #6, the charge of carrying a concealed weapon contrary to s.90(2)(a), six months consecutive; on Count #7, the charge of possessing a firearm without a license and registration contrary to s.92(1), six months concurrent; on Count #8, the charge of possessing a loaded firearm contrary to s.95(2)(a), three years consecutive - this is a minimum mandatory sentence; on Count #18, the charge of possessing a firearm while prohibited contrary to s.117.01(1), six months consecutive and on Count #19, possessing ammunition while prohibited, 6 months concurrent.

The total sentence is therefore 8 ½ years in a federal penitentiary. [ 53 ] There will also be an order under s. 109 of the Criminal Code prohibiting Murphy from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and ammunition for life. There will be an order under s.491 of the Criminal Code forfeiting the Colt 45 calibre semi-automatic pistol and ammunition to the Crown. As well, there will be a DNA order under s.487.051 of the Criminal Code. [ 54 ] This is all on a go forward basis. No enhanced credit.

__________________________ Cacchione, J.