R. v. Murphy, 2011 NLCA 16

Date: 2011020 8 Docket: 09/92 Citation: R. v. Murphy , 2011 NLCA 16 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : DENNIS MURPHY APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, Mercer and White, JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (General Division) 200910T0059 Appeal Heard: December 8, 2010 Judgment Rendered: February 8, 2011 Reasons for Judgment by Welsh, J.A. Concurred in by Mercer and White, JJ.A. Counsel for the Appellant: Derek Hogan Counsel for the Respondent: Robin Fowler Welsh, J.A.:

[1] Dennis Murphy was tried by a jury and convicted of one count of sexual assault and two counts of breach of probation. Thisappeal against sentence turns on whether the trial judge erred by taking into account aggravating factors that had not been proven, and inimposing twenty-four and twelve month sentences for breaches of probation. BACKGROUND [2] I begin by noting an unusual procedure resulting from a request by Mr. Murphy who, while represented by legal aid counselfor purposes of an appeal against sentence, was unable to access legal aid for an appeal against conviction.

Though he has notabandoned his appeal against conviction, Mr. Murphy was unwilling to proceed with that appeal without counsel, and as a result,requested that his appeal against sentence proceed first. This Court acceded to his request. This appeal is, therefore, being treated as anappeal against sentence only. [3] A jury convicted Mr. Murphy of sexual assault, contrary to section 271(1) of the Criminal Code, and two counts of breach ofprobation, contrary to

section 733.1(1)(

a) of the Code. He was sentenced to fifty-four months imprisonment for the sexual assault,twenty-four months to be served consecutively for one breach of probation and twelve months to be served concurrently for the secondbreach of probation. The total of seventy-eight months imprisonment was reduced by twenty-four months to account for twelve monthsalready served prior to sentencing. [4] The assault took place during the early morning hours of September 5, 2008. The complainant testified that, during theassault, which took place in a vehicle, Mr.

Murphy had ripped off her pants and underwear, that he had grabbed her by the neck in achoking manner, and that he had punched her in the face. The complainant testified that, after the assault, she jumped out of the car andknocked on the doors of nearby houses until she obtained assistance from Rodney Walsh and his wife. Mr. Walsh testified that thecomplainant was agitated but not crying, and that she asked him to call the police. The police arrived within a few minutes and took thecomplainant to the hospital. [5] The error in sentencing alleged by Mr.

Murphy is that the judge took into account factors that had not been proven beyond areasonable doubt and, in particular, that he failed to reconcile the complainant’s testimony that she was punched in the face and chokedwith other evidence suggesting any injuries to her face and neck were not connected to the assault. In his decision ((2009), 2009 NLTD138 , 289 Nfld. & P.E.I.R. 333), the trial judge stated: [9] By far, the most aggravating factor in relation to the sexual assault is the fact that violence was used. The evidence of thecomplainant, which the jury had to accept, was that Mr.

Murphy punched [the complainant] in the face and grabbed her around the throatwhile he was forcing sexual intercourse on her in the front seat of his car. There was bruising on her face and neck and a long markalong her right side where he tore her underwear off and threw them out the car window. [6] Based on the assault, the jury also convicted Mr. Murphy of two counts of breach of probation, contrary to section733.1(1)(

a) of the Criminal Code. ISSUES [7] The preliminary issue is whether leave to appeal should be granted. At issue in the appeal is whether the trial judge erred by:(1) considering as aggravating factors in sentencing that the complainant was punched in the face and choked, and (2) imposing twenty-four and twelve month sentences for breaches of probation. ANALYSIS Leave to Appeal [8] Leave to appeal is required because this is an appeal as to sentence only (section 675(1)(

b) of the Criminal Code). The test tobe applied is whether the appeal is “frivolous in the sense of having no arguable basis or sufficient merit” (R. v. Jesso (2008), 2008NLCA 30 , 276 Nfld. & P.E.I.R. 147 (NLCA), at paragraph 13; R. v. Perrier (2009), 2009 NLCA 61 , 293 Nfld. &P.E.I.R. 92 (NLCA), at paragraph 23). [9] It cannot be said that Mr. Murphy’s appeal against sentence is frivolous. The appeal raises substantial questions as towhether the trial judge erred in his consideration of aggravating factors, and in imposing the maximum sentence for breach of probation. Accordingly, leave to appeal is granted. Sentence for Sexual Assault [10] Section 724(3)(

e) of the Criminal Code specifies that aggravating factors considered in sentencing must be proven beyond areasonable doubt. Where, as in this case, the guilty verdict was delivered by a jury, section 724(2) provides direction as to the proof offacts: Where the court is composed of a judge and jury, the court (

a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and (

b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either partywith respect to that fact. [11] The elements essential to a jury’s verdict of guilty of sexual assault contrary to section 271(1) of the Criminal Code are set outin R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330: [23] A conviction for sexual assault requires proof beyond a reasonable doubt of two basic elements, that the accused committed the

actus reus and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching. The mens rea is the intentionto touch, knowing of, or being reckless of or willfully blind to, a lack of consent, either by words or actions, from the person beingtouched. Violence such as punching and choking is not an essential element of the offence. [12] It follows that, in this case, the complainant’s testimony that she was punched in the face and choked during the assault was notessential to the jury’s verdict that Mr. Murphy was guilty of sexual assault.

The trial judge erred when he stated that the evidence ofviolence of this type had to have been accepted by the jury in returning a guilty verdict. Rather, to take account of these as aggravatingfactors, it was necessary for the trial judge to apply section 724(2)(b), and to be satisfied that those facts had been proven beyond areasonable doubt. In R. v. Ferguson, 2008 SCC 6 , [2008] 1 S.C.R. 96, McLachlin C.J.C., for the Court, explained the rationaleunderlying this requirement: [22] First, the trial judge erred in attempting to reconstruct the logical reasoning of the jury.

The law holds that the trial judge mustnot do this, and for good reason. Jurors may arrive at a unanimous verdict for different reasons and on different theories of the case: R.v. Thatcher, (SCC), [1987] 1 S.C.R. 652. It is speculative and artificial to attribute a single set of factual findings to thejury, unless it is clear that the jury must unanimously have found those facts. Where any ambiguity on this exists, the trial judge shouldconsider the evidence and make his or her own findings of fact consistent with the evidence and the jury’s findings. [13] In convicting Mr.

Murphy of sexual assault, the jury clearly accepted the portion of the complainant’s testimony regarding theessential elements of the offence. However, it cannot be assumed from this that her evidence regarding the punching and choking wasalso accepted. Mr. Murphy, who testified that he had not punched or choked the complainant, submits that there was, in fact, evidencethat was inconsistent with the complainant’s testimony, and that the judge failed to address the inconsistencies.

In addition, he submitsthat the complainant’s credibility was questionable given that her testimony in some respects contradicted her statements to police. Tosupport these submissions counsel referred to the following:

(1) The complainant testified that she had not had sexual intercourse with Mr. Murphy before the date of the assault, whereas she hadtold the police officer that she had had consensual sexual intercourse with him two, three or four times before that date. Thecomplainant, who admitted to previously working as a prostitute, explained that she thought sexual intercourse meant fellatio. I note thatthis information would be relevant to assessing the complainant’s credibility only because it demonstrated the inconsistency in hertestimony compared with her pre-trial statements.

(2) The complainant testified that she was a “bit tipsy” on September 5, 2008, but that the drinking did not affect her memory, whereasshe told the police officer in her statement on September 6 that she was “really drunk” and could not remember how she got homebecause, “I was like loaded right”.

(3) While the complainant first testified that she had not smoked marihuana on September 5, 2008, she later testified that she had done so,but not with Mr. Murphy, though he had given the marihuana to her.

(4) The complainant testified that Mr. Murphy punched her in the face so hard that she “blacked out” and her nose bled. Defencecounsel alleged that her split lip, which appeared in the photographs, was due to an infection in her mouth. The complainant said that theback of her mouth had been infected earlier, but not on the night of the assault. However, she had told the police officer on September 5,2008 after the assault that she had an infection in her mouth.

(5) The complainant acknowledged that [B.H.] had punched her in the neck on August 30, 2008, which caused bruising. [K.D.] wholived in the same residence as the complainant testified that he had seen the assault by [B.H.] and that, as a result, she had red marks onher face, neck and arms. However, he testified that he had not noticed bruises in the days following the incident.

(6) Mr. Walsh, who provided assistance to the complainant after she knocked on his door, testified that the complainant was a “bitagitated” and that she stayed with the Walshes until the police arrived about fifteen or twenty minutes later. He said he had not observedany injuries to the complainant’s hands, feet or face, which, he said, was all he could see.

(7) The police officer who took the complainant to the hospital testified that she was extremely upset. He said he did not see anyphysical marks to the complainant’s face or hands which was all he could see. [14] It was, of course, open to the trial judge to accept the complainant’s testimony that she was punched in the face and choked. However, the above testimony would, in the absence of explanation, raise a reasonable doubt on this point.

In light of section 724(2)(b)of the Criminal Code requiring the trial judge to make findings of fact on issues not essential to the jury’s guilty verdict, failure to makethe necessary findings prior to applying these as aggravating factors resulted in an error in principle. Because consideration of thealleged punching and choking as aggravating factors was significant in the decision, the sentence must be set aside. In R. v.

Rowe(2008), 2008 NLCA 3 , 273 Nfld. & P.E.I.R. 38 (NLCA), Rowe J.A., for the majority, explained: [36] As set out above, I see taking into account an improper aggravating factor as an error in principle. That being said, it may be thatan aggravating factor of little significance that the sentencing judge has taken into account, but that he or she should not have, should notbe treated as an error in principle.

However, where (as here) the aggravating factor is significant in the sentencing decision, its(improper) consideration by the sentencing judge fundamentally undermines the validity of the sentence and warrants that decision beingset aside. [15] In

summary, the trial judge erred by concluding that the jury had to have accepted the complainant’s testimony that she waspunched and choked because such violence was not essential to the verdict that Mr. Murphy was guilty of sexual assault. He furthererred by failing to make the findings of fact necessary to establish those aggravating factors beyond a reasonable doubt. Since thosefactors were clearly significant in the sentencing decision, the sentence of imprisonment must be set aside and a fit sentence imposed bythis Court (section 687(1) of the Criminal Code).

[16] Counsel for Mr. Murphy submits that an appropriate sentence for sexual assault in the circumstances of this case would bethree and one-half years imprisonment. He acknowledged the seriousness of the assault and other relevant factors such as Mr. Murphy’scriminal record and the fact that the complainant was eighteen years of age at the time of the assault while Mr. Murphy was forty-seven. The allegations that the complainant was punched and choked, not having been proven, cannot be taken into account as aggravatingfactors. There was no pre-sentence report and no victim impact statement.

Counsel for the Crown agreed that, should the appeal beallowed, three and one-half years would be a fit sentence. [17] I begin with counsel’s submission that the range of sentence for sexual assault is three to five years. He referred to the decisionin R. v. Vokey (2000), 2000 NFCA 14 , 186 Nfld. & P.E.I.R. 1 (NLCA), where Cameron J.A., for the majority, stated: [19] Here, the sentence imposed of 18 months is clearly outside the range generally appropriate for sexual assault, involving sexualintercourse, where the offender is an adult and in a position of trust vis-à-vis his minor victim.

The appropriate range, absent specialcircumstances, is that stated by the Crown before this court, that is, three to five years. … [18] In R. v. Nasogaluak, 2010 SCC 6 , [2010] 1 S.C.R. 206, LeBel J., for the Court, commented on the relevance of rangesof sentences: [44] The wide discretion granted to sentencing judges has limits. It is fettered in part by the case law that has set down, in somecircumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions inaccordance with the principle of parity enshrined in the Code.

But it must be remembered that, while courts should pay heed to theseranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordancewith the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is notnecessarily unfit.

Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community inwhich the offence occurred. [19] One of the difficulties in setting ranges for sexual assault offences arises from the different circumstances in which they occur. It is difficult to apply the same range simply on the basis that the assault involved sexual intercourse. For example, a sexual assaultinvolving intercourse against a minor by a person in a position of trust will generally invite a more serious sentence.

Differentconsiderations may be taken into account when the victim is unconscious as, for example, in R. v. Tuglavina, 2011 NLCA 13. Similarly,an assault against a spouse falls into a different category, as, for example, in R. v.

R.G. (2003) 2003 NLCA 73 , 232 Nfld. &P.E.I.R. 273 (NLCA). (These examples are intended only to demonstrate possible types of categories, not appropriate ranges ofsentence.) While each case must be considered in light of its unique circumstances, and special factors may result in a sentence fallingoutside the normal range, a more refined range of sentences, taking account of similar and distinguishing general characteristics of acategory, would assist the courts in achieving the principle of parity. In the absence of refinement, the range becomes of limitedassistance.

Indeed, the result is more situations in which a judge will find the need to impose a sentence outside the range. The questionthen becomes whether the range has been extended or whether there were, in fact, special circumstances taking a particular case outsidethe normal range for that category of offence. See, for example, R. v. Hunter (1994), (NL CA), 119 Nfld. & P.E.I.R.298 (NLCA), where Steele J.A., for the majority, denied the Crown’s appeal in a case involving sexual assault with intercourse: [19] The sentence imposed was a period of twenty months’ imprisonment and probation.

That is not the sentence I would havegiven. I consider it to be at the very lower end of the range. The sexual assault, traditionally described as a rape, was in my opinion,sufficiently serious to warrant a somewhat longer term of incarceration.

Nevertheless, having said that, I conclude that the sentence isnot so inordinately low or so unreasonable that this court is obliged to interfere. [20] In the case now before this Court, counsel accepted a range of three to five years, submitting that an appropriate sentencewould be three and one-half years imprisonment given the aggravating factor of violence based on the tearing of the complainant’sclothes, a fact which had been proven beyond a reasonable doubt. The question of whether the suggested range was appropriate for thiscategory of offence was not argued.

However, a sentence of three and one-half years as submitted by both counsel is not inconsistentwith sentences imposed in comparable situations. Examples include the following.

(1) In R. v. Tucker (1996), (NL CA), 141 Nfld. & P.E.I.R. 148 (NLCA), O’Neill J.A., for the majority, reduced asentence for sexual assault from five years imprisonment to three years. In that case, the complainant was eighteen and Mr. Tucker wasforty-four years of age. The complainant was a friend of Mr. Tucker’s daughter. There were three incidents that took place in Mr.Tucker’s vehicle. The first time, the complainant asked Mr. Tucker to drive her to meet his daughter. Instead, he took her to a secludedplace where he forcibly removed some of her clothing and attempted sexual intercourse.

The second and third incidents occurred whenthe complainant agreed to go for a drive at Mr. Tucker’s request. During the third incident, there was forced removal of thecomplainant’s clothing and sexual intercourse. Mr. Tucker had a criminal record dating back to 1970 which included convictions forsexual offences. The dissenting judge on the appeal would have imposed a sentence of three and one-half years imprisonment.

(2) In R. v. Curtis (2000), (NL SC), 192 Nfld. & P.E.I.R. 179 (NLTD), Mr. Curtis, who had a record for assaultrelated offences and threats, forced his way into the complainant’s residence in the early morning hours and sexually assaulted her. Hethreatened her with physical harm if she told anyone and threatened to return. He was sentenced to three and one-half yearsimprisonment.

(3) In R. v. Gauthier (1996), 108 C.C.C. (3d) 231 (BCCA), Mr. Gauthier was the father of the fifteen year old victim’s friend. He had aminimal unrelated criminal record and a drinking problem. He sexually assaulted the victim when she was in bed and had been sleeping. The victim suffered physical and emotional trauma. The trial judge found Mr. Gautier was in a trust relationship to the victim. He wassentenced to three years imprisonment. [21] In light of the case law and the particular circumstances in this appeal, a term of imprisonment of three and one-half years, assubmitted by counsel, is a fit sentence for the sexual assault conviction. Breaches of Probation

[22] At the time of the assault, Mr. Murphy was on probation. He was found guilty of breaching the condition to keep the peace andbe of good behaviour in two probation orders in effect at the time, contrary to

section 733.1(1)(

a) of the Criminal Code. The Crownproceeded by way of indictment for which the maximum penalty is two years imprisonment.

Section 733.1(1) provides: An offender who is bound by a probation order and who, without reasonable excuse, fails or refuses to comply with that order is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (

b) an offence punishable on

summary conviction and is liable to imprisonment for a term not exceeding eighteen months, or to a fine notexceeding two thousand dollars, or both. [23] At trial, neither counsel dealt to any extent with an appropriate sentence for the breaches of probation. Crown counsel, withoutaddressing the individual charges, simply submitted that a sentence in the range of six years in total would be appropriate. Counsel forMr. Murphy suggested a sentence of six months for the breaches of probation.

On appeal, counsel for the Crown submitted that therewas no basis on which to disturb the trial judge’s sentence of two years, while counsel for Mr. Murphy submitted that, given a previoussentence of nine months for breaches of court orders, one year would be a fit sentence.

This case demonstrates the importance ofaddressing sentencing for probation order violations in more detail at trial, particularly where the circumstances may support asubstantial sentence. [24] In his sentencing decision, the trial judge provided just a short comment on the breaches of probation while imposing themaximum sentence of two years for the first count: [24] The fact that you, Mr. Murphy, were on probation at the time of this offence, coupled with the number of previous breaches ofprobation and related types of offences, is one of the main reasons for the sentence I am about to impose. [25] Mr.

Murphy would you please stand? In relation to Count No. 1 on sexual assault, I am imposing a period of imprisonment of54 months. In relation to Count No. 2 on breach of probation, I am imposing a period of imprisonment of 24 months. This lengthyperiod reflects some 60 previous convictions you have accumulated without any rehabilitative result in the past.

These 24 months willbe consecutive to the 54 months on Count No. 1. [26] As to Count No. 3, breach of probation, because it is the result of a breach of Count No. 1 as well, I am imposing a period of 12months, which will run concurrent to Count No. 1 and Count No. 2. … [25] For the reasons discussed below, in determining the sentence the trial judge erred in relying solely on “some 60 previousconvictions” that Mr. Murphy had “accumulated without any rehabilitative result in the past”.

In the circumstances of this case,restricting consideration to this factor resulted in an overemphasis of one factor and a failure to consider other relevant factors. Thisamounts to an error in principle. Further, a detailed review of Mr. Murphy’s record does not support relying on the conclusion that, infact, he had some sixty convictions for breaches of court orders. This error, fundamental to the trial judge’s sentencing decision, resultedin a palpable and overriding error. The sentences for breach of probation must, therefore, be set aside, and fit sentences imposed by thisCourt (R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at paragraph 90; R. v. White (2007), 2007 NLCA 44 , 270Nfld. & P.E.I.R. 351 (NLCA), at paragraph 3). [26] In determining a fit sentence, several issues must be considered, including the rationale for sentencing for breaches of courtorders and the effect of previous convictions.

Regarding the latter, relevant considerations would include: analysis of previoussentences, ranges of sentences, the nature of the breaches both current and past, and convictions that may have resulted in multipleconvictions under one order for one event or delict. [27] I begin by noting that breaches of probation are viewed as serious because they indicate a failure by the offender to complywith court orders. For this reason, breaching a court order will generally result in a sentence to be served consecutively to a sentence forthe related offence. In R. v.

Hennebury (1996), (NL CA), 138 Nfld. & P.E.I.R. 56 (NLCA), Cameron J.A., for theCourt, explained: [7] It is our view that the offences were separate ones and normally would attract consecutive sentences, as would the breaches ofprobation. There is little point in imposing probation if there is to be no penalty for breaches. … [28] Similarly, in R. v.

Prince, (SCC), [1986] 2 S.C.R. 480, at page 503, Dickson C.J.C., for the Court, commentedregarding probation orders: …Plainly, breach of probation is an offence designed to protect the effective operation of the criminal justice system, a societal interestwhich is entirely different from that protected by an offence such as assault. … (See also: R. v. Poker (2009), 2009 NLCA 33 , 287 Nfld. & P.E.I.R. 22 (NLCA), at paragraphs 17 to 23.) [29] At the time of the offence of sexual assault, Mr.

Murphy was bound by two probation orders, one which would have expiredapproximately one month after the assault took place and the other which would not have expired for more than two years. To assess theeffect of Mr. Murphy’s criminal record for breach of court orders, it is necessary to review the relevant convictions and consequentsentences. I note that, prior to convictions entered on June 17, 2008, the Crown proceeded by way of

summary conviction for which themaximum sentence is eighteen months. To reflect the seriousness of Mr. Murphy’s continuing failure to comply with court orders, theCrown proceeded by way of indictment in the two most recent cases. In addition to the two breaches of probation orders in this case, thefollowing summarizes Mr. Murphy’s history, according to the criminal record which was filed:

(1) June 17, 2008: - Three breaches of a probation order (indictable)

Time served (four months) plus one day imprisonment for each offence

(2) October 1, 2007: - Making harassing telephone calls - Seventeen breaches of a probation order (summary conviction) - Seventeen breaches of an undertaking or recognizance - Four failures to comply with appearance notice or summons Thirty-one days imprisonment and three years probation, all served concurrently

(3) June 7, 2006: - Failure to comply with a probation order Time served (unknown) plus one day imprisonment and six months probation

(4) April 14, 2005 - Making harassing telephone calls - Two breaches of a probation order (summary conviction) One hundred and one days imprisonment and three years probation, all served concurrently

(5) February 16, 2005: - Two breaches of an undertaking or recognizance Five days imprisonment

(6) October 15, 2003: - Two counts of failure to attend court - Two breaches of a probation order (summary conviction) - Three breaches of an undertaking or recognizance Sentence suspended and one year probation

(7) January 17, 2003: - One breach of a probation order Fourteen days imprisonment and one year probation

(8) October 25, 2002: - Mischief related to property and forcible entry - One breach of an undertaking or recognizance Time served (unknown) plus thirty days imprisonment and one year probation, all served concurrently [ 30 ] The first substantial sentence for breach of probation occurred on June 17, 2008. In that case, violations of the Highway Traffic Act were the underlying cause. In particular, Mr. Murphy was driving a backhoe without a valid driver’s licence, and he had a passenger in the vehicle who was sitting on the floor and obviously not wearing a seat belt.

He was arrested on February 3, 2008, and having been denied bail, served about four and one-half months imprisonment prior to his guilty plea and sentencing on June 17, 2008. This Court

has no information as to why he was denied bail. In his oral decision, the trial judge rejected the Crown’s request for a sentence of oneyear imprisonment: … You know, nine months in prison for driving on the road with a passenger that doesn’t have a seatbelt and that while you don’t havea driver’s licence, albeit that you are on probation. That should be enough. .. … So, quite frankly, you know, the need to send you down to prison for another three months in the general population, I don’t see thepoint in doing that. I don’t think it’s necessary in all the circumstances.

So the bottom line here is that I’ve endorsed on the Information taking into account the four and a half months of pre-trial custody andtwo-for-one credit of nine months and today’s date I’m actually sentencing you to one day in jail considered served concurrent on each ofthese counts. … … I agree with the Crown that there is no need for any further probation order. You are on probation still for a very long period of timein respect of the probation order that I made back in October of last year. … [31] The trial judge then specifically cautioned Mr.

Murphy that he could face a substantial sentence of imprisonment if hebreached his probation again. He told Mr. Murphy: … So you’ve also got to understand that the general rule is that if people don’t learn and stop committing crimes that as time goes by thelength of time they do in prison just gets longer and longer and longer … [32] However, to use this nine month sentence as a benchmark for future sentences is flawed. The trial judge in that case did notmention the principles of sentencing. He accepted that Mr.

Murphy had served four and one-half months and that this would becalculated as nine months based on double credit. The trial judge did not indicate whether he would have imposed a lesser sentence hadthe time not already been served. In the result, the nine month sentence is of little or no assistance in determining a fit sentence in thecase now before this Court. [33] Further, where the Crown is requesting a significant increase in penalty for a given repeat offence, the court may consider, asone factor, what has been described as the “jump effect”.

The principle is that sentences should generally be increased gradually,avoiding sudden, substantial increases, or “jumps”. This principle is most frequently applied to avoid a substantial increase that would beinconsistent with rehabilitation where that is a significant sentencing factor (R. v. White, supra, at paragraphs 5 to 8). The jump principledid not affect the sentence in White because, in that case, the offender, who had received a significant increase in sentence, had notdemonstrated he was a good candidate for rehabilitation.

Rather, he had been convicted of assault causing bodily harm having had alengthy record including convictions for common assault and several convictions for assault causing bodily harm. [34] While Mr. Murphy has demonstrated a repeated failure to comply with court orders, and rehabilitation cannot be said to be asignificant sentencing factor, another consideration in determining whether the jump effect may apply is the nature of the offence. Breach of a court order will generally occur together with another offence, the latter being the central focus of the sentencing process.

While failure to respect and comply with a court order is a serious matter, it is, nonetheless, by its nature such as to warrant a moregradual, rather than a sudden, substantial increase in penalty. These factors apply in the case now before this Court and are consideredtogether with other relevant factors in determining a fit sentence. [35] I turn next to the range of sentences applicable for breach of a court order. Generally, a sentence in the range of one to threemonths imprisonment, or up to six months where the Crown proceeds by way of indictment, is imposed for the breach of a probationorder (R. v.

Oxford (2010), 2010 NLCA 45 , 299 Nfld. & P.E.I.R. 327 (NLCA)). In Oxford, this Court concluded that the trialjudge had misstated the range which he said was “well settled”, and was six to twenty-four months “for those who commit this offenceand who have a history of doing so” (Oxford, at paragraph 99).

The Court referred to the trial judge’s decision in the case now beforethis Court (Murphy) and, without comment, noted that the factual circumstances were markedly different from those in Oxford. (I notein passing that the facts on which the Court relied in referencing the Murphy decision are, of necessity, modified by this decision.) InOxford, regarding the lower end of the range, the Court adopted the conclusion in R. v.

Gibson (2010), 293 Nfld. & P.E.I.R. 242(NLTD), quoting from that decision: [101] … “Sentences for breach of probation of one month or less have been accepted as appropriate and have been routinely imposed in thisjurisdiction even when there is an existing record.” [36] In Oxford, this Court reduced the five and twelve month sentences imposed by the trial judge, explaining: [102] Obviously, the trial judge misstated the law as regards the sentencing range for “breaches of court orders”.

Then, based on thatmisstatement, he went on to impose a sentence of five months for breach of a “no contact” condition with the complainant (summaryconviction) and 12 months for further breaches of the “no contact” condition (indictable). [103] Instead, we conclude that sentences of three months total for the two

summary conviction offences (one for breach of undertakingand two for breach of probation order) and six months for the indictable offence would be well within the normal range for such anoffender as Mr. Oxford in circumstances similar to those in this case, other than that a plea bargained joint submission is involved here. … [37] An additional consideration raised in this case and related to the range of sentence is the imposition of a maximum sentence. Itis clear that a maximum sentence for an offence will be imposed only rarely. In R. v.

Cheddesingh, 2004 SCC 16 , [2004] 1S.C.R. 433, McLachlin C.J.C., for the Court, commented: [1] …We agree with the appellant’s counsel that terms such as “stark horror”, “worst offence” and “worst offender” add nothing to

the analysis [regarding imposition of a maximum sentence] and should be avoided. All relevant factors under the Criminal Code , R.S.C. 1985, c. C-46, must be considered. A maximum penalty of any kind will by its very nature be imposed only rarely (see A. Manson, The Law of Sentencing (2001), at p. 106) and is only appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness.

As is always the case with sentencing, the inquiry must proceed on a case-by-case basis. … [ 38 ] In the case before this Court, the trial judge imposed the maximum sentence because of the large number of previous convictions. He did not deal with these in any detail. He did not consider the nature of the breaches or the circumstances in which they arose. It is not disputed that Mr. Murphy has an abysmal record for failure to comply with court orders to keep the peace and be of good behaviour, to appear in court and to report to the local police station when required.

However, a more detailed analysis of the record is required. [ 39 ] First, a review of the informations and probation orders for which convictions were entered on June 17, 2008 and on October 1, 2007 leads to the conclusion that some of the convictions are for more than one charge under the same probation order for the same event. For example, the sentences on June 17, 2008 involved three charges but only two probation orders. In particular, the probation order issued on October 1, 2007, had three conditions: 1. To keep the peace and be of good behaviour; 2.

Not to contact or communicate with a specified person (not relevant to the June 17 th convictions); and 3. Not to operate a motor vehicle upon a highway unless in full compliance with the governing legislation. Operating a vehicle without a licence in violation of the Highway Traffic Act was the basis for two charges, under conditions one and three, for breaches of that order. This resulted in two convictions under one probation order based on a single event or delict. This constituted an error. [ 40 ] It is breach of the probation order that is the offence.

A breach may be proven based on failure to comply with one or more conditions in the court order, but only one conviction may be entered for breach of the order in respect of one event or delict. A similar error occurred with respect to the October 1, 2007 convictions. Accordingly, while Mr. Murphy certainly has a totally unacceptable number of breaches of court orders, the number, when analyzed according to proper principles, is not as high as stated by the trial judge. [ 41 ] In addition to the number of breaches, the nature of the breaches is also a relevant consideration.

The conditions breached related to: operating a motor vehicle when not in full compliance with relevant legislation (driving without a valid licence and passenger not wearing a seatbelt); making harassing telephone calls; failing to comply with an appearance notice or summons; mischief related to property and forcible entry (2002); and consequential failure to keep the peace and be of good behaviour.

There is no record of convictions for violent or sexual offences. [ 42 ] Considering all the above factors, six months imprisonment is a fit sentence for breach of the probation order made on October 31, 2007, this sentence to be served consecutively to the sentence imposed for sexual assault. Six months imprisonment is also a fit sentence for breach of the probation order made on April 14, 2005, this sentence to be served concurrently with the sentences imposed for the other convictions. CONCLUSION AND DISPOSITION [ 43 ] Leave to appeal is granted, and the appeal is allowed.

The trial judge erred by considering as aggravating factors in sentencing that the complainant was punched in the face and choked. Further, in the circumstances, he erred in principle by relying solely on “some 60 previous convictions” when imposing sentences for breaches of probation. [ 44 ] Accordingly, the sentences of imprisonment imposed by the trial judge for sexual assault and breaches of probation are set aside and replaced with the following: 1. With respect to the conviction for sexual assault, three and one-half years imprisonment; 2.

With respect to the conviction for breach of the probation order made on October 1, 2007, six months imprisonment to be served consecutively to the sentence for sexual assault; and 3. With respect to the conviction for breach of the probation order made on April 14, 2005, six months imprisonment to be served concurrently with the sentences for the other convictions. [ 45 ] In accordance with the decision of the trial judge, the total sentence shall be reduced by twenty-four months to take account of time served prior to sentencing.

The remaining provisions of the trial judge’s order as to sentence are affirmed. ________________________________ B. G. Welsh, J.A. I Concur: ______________________________ K. J. Mercer, J.A. I Concur: ______________________________

C. W. White, J.A.