R. v. Murphy, 2021 NLSC 170

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Murphy , 2021 NLSC 170 Date : December 15, 2021 Docket : 202006G0060 Her Majesty The Queen v. Shane EdmOnd Murphy Before: Justice Peter A. O'Flaherty Edited Reasons for Judgment Given Orally Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: November 24, 2021 Date of Oral Judgment: December 14, 2021 Appearances: Alison J. Manning Appearing on behalf of the Crown Marcus A. Evans, Q.C. Appearing on behalf of the Offender

Authorities Cited: CASES CONSIDERED: R. v. Lundrigan, 2012 NLCA 43; R. v. Pitcher (2012), 1012 A.P.R. 37, 326 Nfld. & P.E.I.R. 37 (N.L. Prov.Ct.); R. v. Cowan, 2021 SCC 45; R. v. Green, 2021 NLSC 139; R. v. Penney, 2005 NLCA 31; R. v. Summers, 2017 NLCA 20; R. v. S.T.,2014 NLTD(G) 111; R. v. Roberts, [2007] N.J. No. 377, 2007 CarswellNfld 332 (Prov. Ct.); R. v. Saunders (2011), 314 Nfld. & P.E.I.R.205, 977 A.P.R. 205 (N.L. Prov. Ct.); R. v. Farrell, [2013] N.J. No. 280, 2013 CarswellNfld 306 (Prov. Ct.); R. v. Crocker (1991), (NL CA), 93 Nfld. & P.E.I.R. 222, 292 A.P.R. 222 (Nfld.

C.A.) STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT O'Flaherty, J.: INTRODUCTION [1] On Sunday, January 13, 2020, at 1:40 a.m., a report was received by the Royal Canadian Mounted Police (RCMP) of amultiple alarm at JJ Billiards and Lounge, on Main Street in Burin, Newfoundland and Labrador.

An RCMP officer who responded tothe scene confirmed there had been a break and enter at the premises. [2] A winter snowstorm was in progress that night and so a second RCMP officer who was on the way to the location from theMarystown detachment decided to stop any vehicle he saw traveling from the direction of Burin. The first vehicle he encountered wasbeing driven by Shane Edmond Murphy (the “Offender”), and Anthony Cyril Farrell (“Farrell”) was in the front passenger seat.

Theofficer stopped the vehicle at 1:55 a.m. and when he saw Farrell, who was known to the police to be a burglar, and a large pry bar and aset of wire cutters in plain view on the back seat, the latter covered with ice on the blade, he concluded he had grounds to arrest bothmen for the break and enter at JJ Billiards and Lounge. During a search incident to arrest, Farrell was found in possession of $4,360.00in twenty dollar bills. [3] A number of charges were laid against the Offender and the Crown elected to proceed by indictment. On July 2, 2020, Mr.Murphy elected to be tried in this court by a judge and jury.

He was arraigned on August 20, 2020, and entered not guilty pleas on a five-count indictment, which read as follows: Count #1: On or about the 13th day of January, A.D. 2020 at or near Salt Pond, Burin, in the Province of Newfoundland and Labrador,did break and enter a certain place to wit: JJ Billiards and Lounge situate at Main St., Salt Pond, Newfoundland and Labrador with intentto commit an indictable offence therein contrary to Section 348(1)(

a) of the Criminal Code; Count #2: On or about the 13th day of January, A.D. 2020 at or near Salt Pond, Burin, in the Province of Newfoundland and Labrador,did have in his possession property to wit: Money, not exceeding five thousand dollars knowing that all or part of the property wasobtained by the commission in Canada of an offence punishable by indictment contrary to Section 354(1) of the Criminal Code andpunishable by

Section 355(

b) of the Criminal Code; Count #3: On or about the 13th day of January, A.D. 2020 at or near Salt Pond, Burin, in the Province of Newfoundland and Labradorwithout lawful excuse, did have in his possession an instrument suitable for the purpose of breaking into a place to wit: a crowbar andpair of wire cutters under circumstances that give rise to a reasonable inference that the said instrument had been used for such purposecontrary to Section 351(1) of the Criminal Code; Count #4: On or about the 13th day of January, A.D. 2020 at or near Salt Pond, Burin, in the Province of Newfoundland and Labrador,Shane Edmond Murphy and Anthony Cyril Farrell did conspire together to commit the indictable offence of Break and Enter by planningto break into JJ Billiards and Lounge situate at Main Street, Salt Pond, Newfoundland and Labrador contrary to Section 465(1)(

c) of theCriminal Code; Count #5: On or about the 13th day of January, A.D. 2020 at or near Salt Pond, Burin, in the Province of Newfoundland and Labrador,did commit mischief by willfully damaging without legal justification or excuse and without colour of right, property to wit: the powermeter, belonging to Newfoundland Power that was attached to 114 Main St., Burin, Newfoundland and Labrador, the value of which didnot exceed five thousand dollars contrary to Section 430(1)(

a) of the Criminal Code and punishable by Section 430(4) of the CriminalCode. [4] At trial the jury was told that the theory of the Crown case was that the Offender and Farrell planned to commit the break andenter with intent, that Farrell broke in and entered JJ Billiards and Lounge, and that the Offender had aided Farrell by driving the vehicleused in committing the crimes. Mr. Murphy took the stand and defended the charges on the basis that he had received a call from Farrelland was asked by him to come to Burin to pick him up.

He admitted that he picked Farrell up on Main Street in Burin at about 1:30 a.m.,and admitted that the tools were in his vehicle before January 13, 2020, but testified that he had no involvement in or knowledge of the

break and enter at JJ Billiards and Lounge. The jury rejected that defence and on September 20, 2021, Mr. Murphy was found guilty by the jury on all five counts in the indictment. [ 5 ] On November 24, 2021, I heard submissions on sentencing from the Crown and the Defence. Recognizing that there was a degree of planning and combined effort involved, both the Crown and the Defence submitted that an appropriate sentence for the Offender would include a period of incarceration on the offence of break and enter with intent.

On the basis of the authorities provided by counsel, and their submissions, I accepted that an appropriate sentence for Mr. Murphy would have to include a period of incarceration and I therefore remanded him in custody on November 24, 2021. The purpose of today’s hearing is to provide my decision on the fit sentence for the Offender. sentencing positions of parties The Crown sentencing submission [ 6 ] The Crown argues that an appropriate sentence in the circumstances would include a sentence of between 12 months and 18 months incarceration for the break and enter with intent.

The Crown submits that this offence involved a degree of planning and that the high end of the range of sentences for a break and enter to a commercial premises is three years. The Crown submits that the Offender drove the vehicle with the breaking-in tools used by Farrell to enter the premises, and drove Farrell away from the premises after the break and enter with the breaking-in tools and stolen property.

The evidence established that significant damage was caused to the steel door of the premises, such that it had to be replaced, that the electrical service power meter owned by Newfoundland Power was damaged and had to be replaced, and the ATM owned by the business was destroyed and had to be replaced. [ 7 ] The Crown further submits that a considerable sum of money, $4,360, was stolen from the ATM in the premises. The Crown tendered the Victim Impact Statement of the business owner, Ms.

Wanda Barron, attesting to the stress on the owners and employees of the business, the expense and effort required to repair all the damage, and the disheartenment and feeling of violation suffered from having someone break in and destroy the property you worked to build.

The Crown also filed a Statement of Restitution confirming that the economic losses to the business resulting from the theft and damage to property amounted to $9,295. [ 8 ] The Crown submitted that an appropriate sentence for both possession of stolen property and for conspiracy is six months, and that an appropriate sentence for both mischief by damage to property and for possession of breaking-in instruments is three months. Accepting that in the circumstances the offences constituted a single criminal adventure, the Crown agreed that the sentences for the offences may be ordered to be served concurrently.

The Crown submitted that there should be a period of supervised probation ordered upon the Offender’s release with the conditions to include the usual statutory conditions, a condition that the Offender attend counselling as required for mental health and addiction issues, and conditions ordering him not to contact or communicate with Anthony Farrell, Wanda Barron, or Ken Barron, and a condition that he remain away from JJ Billiards and Lounge. [ 9 ] The Crown requested that the Offender be required to provide samples of bodily substances for the DNA data bank.

Instead of making restitution a condition of the probation order, the Crown requested that a stand-alone order of restitution be made against the Offender in favor of the business in the amount of $9,295. The Defence Sentencing Submission [ 10 ] The Defence agreed with the Crown’s submission that a period of supervised probation upon the release of the Offender was appropriate and did not oppose the DNA order.

The Defence accepted that a conviction for the offence of break and enter with intent into a place other than a dwelling house usually attracts a period of imprisonment, but took issue with a sentence of 12-18 months, submitting that the range of sentencing for similar offences was a period of incarceration between 1-12 months, and that a fair sentence for the Offender was 6 months. The Defence submitted that cases involving an impulsive “smash and grab” break and enter attracted sentences at the low end of that range, some as low as one month (citing R. v.

Lundrigan , 2012 NLCA 43 ), and suggested that a planned break and enter for the theft of an ATM would, depending on the offender, attract a sentences toward the high end of the range, which he suggested was 12 months (See: R. v. Pitcher (2012) , 1012 A.P.R. 37, 326 Nfld. & P.E.I.R. 37 (N.L. Prov. Ct.) ). [ 11 ] The Defence submitted that the circumstances of this case are quite unusual because in most cases involving a planned break and enter the offender typically has a prior criminal record, either as a youth or an adult. In this case Mr. Murphy is a thirty-five-year-old first offender.

The implicit suggestion was that responsibility for the plan likely came from Farrell who has a prior record for break and enter. [ 12 ] The Defence submitted that the pre-sentence report in this case spoke to a person with a bad drug problem and a troubled history, but one who had never been in trouble with the law until his conviction for these serious offences. According to the Defence, the Offender is a sympathetic first offender with mental health and substance abuse issues, which contributed to his criminal behavior according to his mother and spouse.

The Defence acknowledged that there is no evidence from an independent source in support of that submission.

Finally the Defence noted the Offender is in a long-term relationship with a partner, with whom he has two sons, however it was acknowledged the Offender has decided not to live with his partner or children for a number of years due to his addiction issues and behavior. [ 13 ] The Defence further argues that a restitution order should not be made against the Offender for two reasons, first because he is in receipt of income support and would not realistically be able to pay thousands of dollars in restitution, and secondly because it would be unfair as the money was seized from Farrell and not from the Offender.

Finally, the Defence submitted that the victim fine surcharge should be waived as it would cause undue hardship to the Offender. discussion The Purpose, Objectives, and Principles of Sentencing [ 14 ]

Section 718 of the Criminal Code , R.S.C. 1985, c. C-46 , (the “ Code ”), provides that 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.” [ 15 ] This fundamental purpose is achieved by imposing sanctions on offenders that have one or more of the following objectives: ▪ denouncing unlawful conduct; ▪ deterrence of the offender and other persons from committing offences; ▪ separation of offenders from society, where necessary; ▪ assisting in the rehabilitation of offenders; ▪ to provide for reparations of harm done to victims, or the community; and ▪ to promote a sense of responsibility in offenders and acknowledgment of harm done to victims and the community. [ 16 ]

Section 718.1 provides that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

Section 718.2 further provides that a sentence should be increased, or reduced, to account for any relevant aggravating or mitigating circumstances. In

section 718.2(

a) a number of deemed aggravating circumstances are enumerated.

Section 718.2 goes on to provide the following guidelines for arriving at a fit and proper sentence: (

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

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

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

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 17 ] The purpose, objectives, and principles of sentencing set out in s. 718 et seq. of the Code , as interpreted by the courts, provide the framework for the imposition of a fit sentence on the Offender. The Circumstances of the Offences [ 18 ] In R. v.

Lundrigan , supra, at paragraph 24 , the Court of Appeal confirmed that a fit sentence is “one that takes account of the circumstances of the offences and the offender.” I will therefore review the nature and the circumstances of the offences. [ 19 ] In finding Mr.

Murphy guilty of break and enter with intent and possession of breaking-in instruments, the jury would have had to determine that the Offender intended to help Farrell commit the break and enter with intent using the breaking-in instruments in his vehicle on January 13, 2020, and that the Offender knew that Farrell intended to commit the break and enter with intent using the breaking-in instruments on January 13, 2020.

The maximum sentence for break and enter with intent to commit an indictable offence in a place that is not a dwelling house, and the maximum sentence for possession of breaking-in instruments knowing they are intended to be used for that purpose, is in each case imprisonment for a term not exceeding ten years. Objectively, these are considered serious crimes in the Code . [ 20 ] In finding Mr. Murphy guilty of conspiracy, the jury would have had to determine that the Offender and Farrell had together planned to commit the break and enter with intent on January 13, 2020.

The maximum sentence for conspiracy to commit the indictable offence of break and enter with intent is also imprisonment for a term not exceeding ten years. Objectively, the offence of conspiring to commit a break and enter with intent is also a serious crime. [ 21 ] Finally, in finding Mr. Murphy guilty of possession of stolen property and mischief by damage to property, the jury would have had to determine that the Offender intended to help Farrell to commit the offences and knew that he intended to commit the offences.

The maximum sentence for possession of stolen property not exceeding five thousand dollars, and the maximum sentence for mischief by damage to property to a value of less than five thousand dollars, is in each case imprisonment for a term not exceeding two years. These crimes are less serious. [ 22 ] The planning and commission of the offences in this case are aggravating factors. In conspiring with Farrell to commit a pre- meditated break and enter using the breaking-in instruments in the vehicle, I conclude the Offender knew that considerable damage

would likely result to the premises and the property of JJ Billiards and Lounge. This is in fact what occurred. Both JJ Billiards and Lounge and Newfoundland Power suffered damage to their property to the extent that in each case it had to be replaced at a significant cost. The photographs entered in evidence by the Crown showed that this break and entry was a wanton and destructive criminal act in which the steel door was damaged beyond repair, the power meter was destroyed, and the ATM was completely destroyed, and for some reason a bottle of rum was poured over the remains of the ATM.

The Circumstances of the Offender and the Pre-sentence Report [ 23 ] A key consideration in the determination of a fit sentence is the circumstances of the Offender and the prospect that Mr. Murphy may be rehabilitated. After all, as Rowe J.A. noted in R. v. Lundrigan (at para. 24 ), “[i]t is important to recall that the best protection for society is that the offender not re-offend.” [ 24 ] The pre-sentence report filed with the court indicates the Offender is a 35-year-old resident of Marystown. He has no prior criminal record or youth record, which is a positive factor.

He reports having a good family support relationship with his mother and his older sister, however contact was unable to be made with the latter for the report. Mr. Murphy has a Grade 9 education and attributes his leaving school at that time to untreated ADHD. The Offender has a spotty work history, and reports he has been in receipt of income support for the last three or four years, but he has at times pursued meaningful employment.

In the report the Offender reflects on his negative associations with others and the use of drugs while unemployed, in particular over the past year, and indicates that he is now ready for a change and would like to return to school or secure employment and become self-sufficient. [ 25 ] The Offender reports that he suffers from mental health and substance abuse issues, which his mother and partner link to his recent criminal behavior.

He traces these issues back to his school days, when he had low self-esteem and untreated ADHD, and says his mother would not allow him to receive medication as she did not believe in it. He relates his current substance abuse to anxiety and depression. In the pre-sentence report the Offender states that he was diagnosed with “Borderline Bi-Polar Disorder,” however he confirms he has not been under the care of a psychiatrist for “approximately a year” and contact was unable to be established with his psychiatrist.

In addition, the report contains references to counselling and treatment for substance abuse the Offender took “years ago” or “a number of years ago,” but again the author of the report was unable to independently substantiate the information provided by the Offender. The report’s author states that the Offender understands he needs professional treatment, but “it is evident he is experiencing problems with sustained motivation and commitment.” [ 26 ] I accept from the report that the Offender’s mental health and substance abuse issues are an obstacle to rehabilitation.

I do not find however a direct causal relationship to his criminal behavior exists. The connection is not addressed in the report, except by the Offender’s mother and partner, and it appears speculative to me because the Offender has no record of prior criminal behavior outside of these offences and has had these mental health and addiction issues for the last 20 years. [ 27 ] Unfortunately, the Offender’s relationship with his partner and children does not provide an evidentiary basis to conclude the Offender has strong family support. On the one hand Mr.

Murphy claims to have an ongoing relationship with his common-law partner, and a “really good relationship” with his son and his step-son, but at the same time both Mr. Murphy and his partner indicate he decided to move out three to four years ago because of his substance abuse issues and that he lives in a rental unit paid for by the provincial government.

The Offender now expresses a willingness to change and to secure counselling and treatment to attempt to reconcile with his partner and children, but by his own admission, he recognizes that his lifestyle and environment is how he “associated with people that were negative.” [ 28 ] On the question of whether the Offender has taken responsibility for his criminal behavior and acknowledged the harm he has done to the victims and society generally, the report once again contains a narrative that is contradictory.

The report records the statement that the Offender does not agree with “everything he was charged with,” noting, “I don’t think it was right that I was charged with everything…it’s not right…never had evidence to convict…only aiding and abetting.” The Offender also appears to blame Farrell for putting him in this position while at the same time he acknowledges he has himself to blame for putting himself in such a situation.

The Offender expressed remorse for the harm suffered by the victims of the crime, but his last statement to the author was “[i]f I am found guilty I am going to jail for something I didn’t do”. [ 29 ] As I noted above, part of the plea in mitigation was that the Offender became involved in committing these offences as a result of his association with Farrell, who has a prior record for burglary, and that his responsibility was therefore somewhat lessened.

In oral submissions however, the Defence acknowledged that the law does not distinguish between principal offenders and parties to an offence for the purposes of criminal liability. The law provides that an aider or helper is guilty of the same offence as the principal offender, regardless of the different ways in which they each participated in the offences ( R. v. Cowan , 2021 SCC 45 , at para. 29 ).

As the Supreme Court of Canada put it in Cowan , “the person who provides the gun is guilty of the same offence as the person who pulls the trigger.” [ 30 ] Overall, based on the pre-sentence report, I accept that Mr. Murphy has expressed a willingness to change his ways, but there is a lack of evidence that he has taken any of the necessary steps to move in the direction of rehabilitation by working, or otherwise. I therefore conclude that the prospects for rehabilitation of the Offender at this juncture are uncertain.

Clearly, in order to return to meaningful employment and establish a functional life with his partner and children he will need to first address his addiction issues, and to do that he will need to find the structure, the motivation, and the commitment to treatment, which he has been unable to find so far. The Range of Sentences for Break and Enter Offences [ 31 ] I turn now to a review of the sentencing rulings for similar offences in the province. I would begin however by endorsing the comments of Noel, J. in R. v.

Green , 2021 NLSC 139 , at para. 52 , to the effect that no two cases are ever really alike and the case law operates as a guide to the exercise of my discretion: Like cases should be decided alike. The inherent paradox in this principle is that no two cases are actually alike. That is why sentencing judges are afforded proper discretion to fix an appropriate sentence to the particulars of the specific offences and offender. The case law is merely a guide. My discretion must be exercised judicially with proper consideration of the cases for similar offenders, offences, and circumstances.

[ 32 ] The Crown referred the Court to the following cases in support of its position that the Offender should receive a sentence of 12 to 18 months imprisonment: i. In R. v. Penney , 2005 NLCA 31 , a case on appeal, a youthful offender with a significant record pleaded guilty to break and enter with intent, while he was on parole, to a pharmacy where he stole a quantity of prescription drugs.

Both the majority and the dissenting judge concluded that 24 months imprisonment was a fit sentence, and Rowe, J.A. in dissent concluded that the sentence might well have been longer had the offender not cooperated with the police; ii. In R. v. Summers , 2017 NLCA 20 , another case on appeal, the thirty-two-year-old offender and two accomplices broke into a pharmacy to steal narcotics. Mr. Summers pleaded guilty and had an extensive criminal record. The Court of Appeal upheld a sentence of three years imprisonment based on the ruling in R. v.

Penney , the level of planning, and the record of the offender, and it made no comment on the submission by Mr. Summers that had the theft involved electronics instead of narcotics the range of sentence would be 9 to 12 months; iii. In R. v. S.T. , 2014 NLTD(G) 111, this court sentenced a 42-year-old offender who pleaded guilty to one count of break and enter with intent at a local business to 20 months imprisonment.

The offender had a significant record, but not for the offence of break and enter, and his pre-sentence report concluded the prospect for rehabilitation was poor as he had a limited work history, he was involved in an “on-and-off” relationship, and he had a lot of personal problems but did not ask for help; and, iv. In R. v. Roberts, [2007] N.J. No. 377, 2007 CarswellNfld 332 (Prov. Ct.) , a 24-year-old offender pleaded guilty to a break and enter with intent into a restaurant in Corner Brook by breaking a window, and possession of a breaking-in tool.

He did not have any prospects for immediate employment and he had a lengthy record. The Crown proceeded by

summary conviction on the offence and the court ordered a sentence of six months for break and enter, noting the sentence would have been 12 months had the Crown proceeded by indictment, and 5 months for possession of the breaking-in instrument. [ 33 ] The Defence referred the Court to the following cases in support of its position that the Offender should receive a sentence of 6 months imprisonment: i. R. v.

Lundrigan , 2012 NLCA 43 , a case on appeal in which a youthful first offender with mental health problems was sentenced to one month for a “smash and grab” offence at a convenience store, and three months for a break-in at a law firm in which he acted as the lookout; ii . R. v. Pitcher (2012), 1012 A.P.R. 37, 326 Nfld. & P.E.I.R. 37 (N.L. Prov. Ct.) , a case in which the accused and two other men broke into the Arnold’s Cove Lion’s Club and removed the ATM resulting in $3,800 damage to the building and ATM.

The accused had fourteen prior convictions for break and enter and was on probation at the time of the offence, and he received a sentence of 12 months; and iii . R. v. Saunders (2011), 314 Nfld. & P.E.I.R. 205, 977 A.P.R. 205 (N.L. Prov. Ct.) , a case in which the 20-year-old accused pleaded guilty to break and enter into the St. Paul’s United Church in Deer Lake, a break and enter into Elwood High School in Deer Lake, and a break and enter into the Deer Lake Public Library. The accused had a lengthy and related record and the Crown proceeded by

summary conviction. Applying the totality principle, the trial judge sentenced the offender to 6 months, less two days pre-sentence custody, on the break and enter into the library, and 3 months consecutive on the breach of probation, with the remaining offences to be served concurrently. [ 34 ] I have considered the decisions above, and in addition I have reviewed R. v. Farrell , 2013] N.J. No. 280, 2013 CarswellNfld 306 (Prov. Ct.) , which provides an analysis of the range of sentences for break and enter with intent in this province.

Based on these rulings, I conclude that the range of sentences for a break and enter with intent involving a commercial premises is quite broad, and can extend from a starting point of a conditional sentence to a period of incarceration of three years. In R. v. Summers , supra, the Court of Appeal in 2017 upheld a sentence of three years for a break and enter with intent in a pharmacy.

This is the most recent appeal case to which I was referred on sentencing for break and enter with intent in a commercial premises. [ 35 ] Based on my review of the break and enter cases, it appears that the facts and circumstances of this case resemble most closely the facts in Pitcher , in that both involved an ATM, however there is no evidence in that case regarding the damage to property and the degree of planning, which are aggravating factors in this case.

In terms of the circumstances of the offenders, while each are of course unique, except for the absence of a prior record the circumstances of the Offender are not unlike those of the offender in R. v. S.T. , in terms of his age, work history, and level of family support. Overall, what is evident to me from the number of rulings is that, despite the success of the police in detecting many of the criminals responsible, the offence of break and enter with intent in commercial premises is still being committed with a worrying frequency in this province. This supports the view that any sentence I impose on Mr.

Murphy must address the objectives of protection of the public and deterrence of other persons from committing break and enter offences in places other than dwelling houses. A Fit and Appropriate Sentence for Each of the Offences [ 36 ] In arriving at a fit sentence I have considered that these offences are serious crimes and that the manner of commission of these offences was aggravating. I have also considered their impact on the victims which was significant. I have also found the information contained in the pre-sentence report of assistance in taking account of the circumstances of the Offender.

The absence of a prior record lessens the need for specific deterrence and protection of the public from the Offender, however the pre-sentence report indicates the prospects for the Offender’s rehabilitation are uncertain given his lifestyle in his current environment. In my view the objective of rehabilitation of Mr.

Murphy would be assisted by a sentence that promotes a sense of responsibility for his criminal actions and provides him with an opportunity to begin to avail of the counselling services and treatment he requires for substance abuse and mental health issues. [ 37 ] Taking into account the submissions of counsel, the specific circumstances of the offence and this Offender, and the range of sentences and the rulings in similar cases, all viewed through the lens of the objectives and principles in s. 718 et seq ., I will impose a

sentence of 12 months imprisonment for the break and enter with intent, less 32 days for the 21 days the Offender has already spent incustody. [38] In terms of the offences of conspiracy to commit the offence and possession of breaking-in instruments, which are bothpunishable by a maximum of ten years imprisonment, I sentence the Offender to six months imprisonment for each offence. For each ofthe offences of possession of stolen property and mischief by damage to property I impose a sentence of three months’ imprisonment.

Are Concurrent Sentences Appropriate in This Case? [39] The Crown and Defence submitted that the offences committed by the Offender constituted one criminal adventure and that Imay impose concurrent sentences. The question of whether multiple sentences should be served consecutively, or concurrently, and thecircumstances in which concurrent sentences may be ordered was addressed in R. v. Crocker (1991), (NL CA), 93Nfld. & P.E.I.R. 222, 292 A.P.R. 222 (Nfld. C.A.), by Goodridge, C.J., who summarized the law on this point: 41 In

summary, consecutive sentences should be imposed unless there is a valid reason not to do so. Each sentence should be anappropriate one for the offence. Concurrent sentences may, but are not required to be, imposed where multiple convictions arise out ofseveral offences which constitute a single criminal adventure, and may also be imposed to achieve proper totality for multipleconvictions. [40] I agree with the submissions of the Crown and Defence that the offences constituted one criminal adventure and that concurrentsentences may be imposed.

I also find that there is no reason to exercise my discretion to order that the sentences, or any of them, beserved consecutively. [41] I find that the actions of the Offender and Farrell in planning and executing the break and enter with intent at JJ Billiards andLounge and the offences they participated in on January 13, 2020, are so closely connected as to constitute one single criminal event andconcurrent sentences will be imposed for the offences. disposition [42] I have decided that the Offender, who is a first offender, shall be sentenced to 12 months imprisonment, less 32 days for the 21days of pre-sentence custody served, for break and enter with intent to commit an indictable offence at JJ Billiards and Lounge.

Thesentences for conspiracy to commit the offence and for possession of breaking-in instruments shall be six months imprisonment for eachoffence, and the sentences for possession of stolen property and mischief by damage to property shall be three months imprisonment foreach offence. These sentences shall be served concurrently with the sentence for break and enter with intent, on the basis that togetherthey are all part of and constitute a single criminal adventure. [43] I order that Mr. Murphy shall report to an Adult Probation Officer within three days of his release.

The Offender shall be placedon supervised probation for a further period of 12 months from his release date on the usual statutory conditions along with therequirement that he participate in mandatory counselling for mental health and substance abuse issues, the condition that he not contact orcommunicate with Anthony Farrell, Wanda Barron, or Ken Barron, and the condition that he remain away from JJ Billiards and Lounge. [44] I am satisfied that a DNA order is in the best interests of the administration of justice in this case, and I order pursuant to s.487.051(3)(

b) of the Code that the Offender be required to provide samples of bodily substances for the DNA data bank upon request. [45] Given the financial circumstances of the Offender, and the limited prospects of recovery, I decline to make a Restitution Orderand the victim fine surcharge shall be waived. _____________________________ Peter A. O'Flaherty Justice