Ontario Court of Justice

Date: 2016-02-05

Court File No.: Toronto 4817 998 15-75006990-00

Between:

Her Majesty the Queen

— AND —

Jeffrey Murphy

Before: Justice Richard Blouin

Guilty Pleas entered: September 28, 2015

Sentencing Hearing held: January 25, 2016

Oral Ruling on Sentence given: January 25, 2016

Written Reasons for Sentence released: February 5, 2016

Counsel:

Mr. Neville Golwalla — counsel for the Crown

Mr. Donald Powell — counsel for the defendant Jeffrey Murphy

BLOUIN, J.:

Introduction

[1] In the morning of February 12, 2015 the victim in this case, Zachary Hamilton, left the residence of the defendant on Gower Street in Toronto. The two had been drinking together the night before. Around 8:45 a.m., Hamilton received a phone call from Murphy regarding the defendant's missing cell phone. Mr. Hamilton returned to 40 Gower to assist Murphy in locating the phone since he hadn't stolen it.

[2] Mr. Hamilton attended the defendant's bedroom where he saw Murphy pick up a handgun from the bed and point it at Hamilton, threatening to shoot him. Murphy fired a bullet toward Hamilton that missed him. Hamilton, soon thereafter, ran for the door. He was able to get out of the house, but was shot at a second time while he was on the front lawn. This time the bullet struck Hamilton in the face, entering through his nose, and lodging in the neck/jaw area. Later, in hospital, it was surgically removed.

[3] Hamilton, covered in blood, ran to a nearby café for assistance. Citizens in the café contacted police. Eventually, officers from the Emergency Task Force attended 40 Gower. The defendant was removed, and later a search warrant was executed which located a .32 calibre handgun and ammunition.

[4] Mr. Murphy's brother had been sleeping in an adjacent bedroom at the time of this incident. Sometime earlier that morning, the defendant's mother, Marie, had taken the defendant's young child to school. At first reluctant, Mr. Hamilton provided a KGB audiotaped statement to police. Gunshot residue connected the defendant to the prohibited handgun.

Preliminary Hearing

[5] On the first day of a scheduled three-day Preliminary Hearing (September 28, 2015), the defendant entered a guilty plea to five offences. He had initially been charged with Attempted Murder and once that charge was off the table, a guilty plea to the charges below was made possible. I must sentence him on the following five counts:

1. Possession of a Firearm without a Licence – s. 92(1)
2. Possession of a Loaded Prohibited Firearm – s. 95(1)
3. Aggravated Assault – s. 268(2)
4. Reckless Intentional Discharge Firearm – s. 244.2(1)
5. Fail to Comply with Recognizance – s. 145(3)

[6] The Sentencing Hearing was adjourned to allow preparation of a Pre-Sentence Report and a Gladue Report. On two further occasions, the sentencing was adjourned to allow completion of the Gladue Report.

Position of the Parties

[7] The Crown sought a sentence of nine years (minus pre-trial detention) relying essentially on the Court of Appeal decision in Bellissimo, 2009 ONCA 49, which set the range of sentence in serious gun-related offences at 7 to 11 years. The defence submitted that I ought to impose a sentence of five years after taking into account pre-trial detention credit of 13.75 months. The pre-trial credit of 13.75 months was arrived at by agreement of both parties.

Exhibits

Criminal Record

(Including Youth Entries)

[8]

Date	Offence	Sentence
2000-10-27	Escape Lawful Custody	Probation 12 months
2001-02-07	Robbery; Possession Under	Probation 24 months
2003-06-16	Possession for the Purpose of Trafficking	Probation 18 months
2004-06-15	Obstruct Peace Officer	Probation 12 months (4 days pre-trial detention)
2005-01-31	Obstruct Peace Officer	$300 fine (5 days pre-trial detention)
2005-09-21	Utter Threats; Theft Under	$300 fine; Probation 18 months (6 days pre-trial detention)
2008-01-08	Fail to Comply Recognizance x2	10 days (18 days pre-trial detention)
2008-01-25	Dangerous Operation Motor Vehicle	Probation 24 months
2008-10-28	Assault with a Weapon; Assault; Weapons Dangerous; Fail to Comply Recognizance	Probation 12 months (77 days pre-trial detention)
2009-06-11	Obstruct Police Officer; Fail to Comply Recognizance	26 days custody
2010-05-17	Dangerous Operation Motor Vehicle; Possession Cocaine; Fail to Comply Undertaking	60 days custody (4 months pre-sentence detention)
2011-12-20	Drive Disqualified	19 days custody; 24 months probation
2012-09-10	Mischief Under; Fail to Comply Recognizance	$350 fine (6 days pre-trial detention)
2014-04-18	Assault	$50 fine; Probation 12 months

Pre-Sentence Report

[9] Mr. Murphy, now 30, grew up in a single-parent family where alcohol abuse was "rampant". Despite this he received significant care and attention as a child. He gravitated to a negative peer group around 13. He has a sporadic employment record and a long history of substance abuse issues, and had consumed alcohol on the date of this offence. The alcohol was combined with methadone, which he is taking pursuant to a methadone program. He has learning disabilities, and has a grade 9 education. His mother and sister provide a stable family situation at this time which will aid in rehabilitation.

Victim Impact Statement

[10] Mr. Hamilton relates that he has Post-Traumatic Stress Disorder. He sees danger wherever he goes. He has permanent scarring and disfigurement on his nose and neck. He was in hospital for two weeks having "life-saving surgery". He is also concerned for his safety.

Apology Letter

[11] Mr. Murphy apologized for the victim's injuries from what he termed a "thoughtless, impulsive act" on his part. He stated he had no intent to harm him.

Gladue Report

[12] Mr. Murphy is an Aboriginal person as defined by the Constitution Act. His father, Orville, is Ojibway. Orville's family history regarding residential schools is not known. Mr. Murphy has had little contact with his father. From 2001 to 2011 Mr. Murphy was addicted to oxycodone. He has been in the methadone program for the last four years. The report failed to make any direct connection between the "unresolved trauma" many indigenous people have suffered from the Indian Act, and Mr. Murphy's current situation. The writer recommends Mr. Murphy serve his sentence in a facility in which he can access Aboriginal programing. When released, they recommend a referral to a Gladue Aftercare Worker.

Mitigating Factors

[13]

• A guilty plea entered at the first available opportunity (when Crown not proceeding on Attempt Murder charge).
• Remorse (Apology letter).
• Prospects for rehabilitation. The defendant has a supportive family and undertook numerous programs while in detention.
• Aboriginal offender. I recognize the intergenerational, unresolved trauma associated with the systemic mistreatment of indigenous peoples, and the use of alcohol and drugs, factored into the defendant's rash, violent response that morning.

Aggravating Factors

[14]

• The defendant has a significant criminal record, a prior history of violence and a prior history of endangering the public (two convictions for Dangerous Operation Motor Vehicle).
• The defendant was on probation for a violent offence (Assault) with a term not to possess a weapon.
• The defendant was charged with offences of violence and released on a $2500 surety house arrest bail one week before these offences. The release was done on consent of both parties, and contained a term that he not possess a weapon.
• Serious long term physical and psychological injuries to the victim. It was only luck that prevented death.
• The defendant fired two bullets. He fired one shot in his house to frighten the victim so as to allow recovery of his cellphone. A second shot was fired when the defendant pursued the victim on to the front lawn.
• The shooting occurred outside of the house, and in a place open to public access. In fact, at 8:45 on a Thursday in February, it would not have been too surprising to find children on their way to school in a residential area such as this.
• The defendant's brother was sleeping in the adjacent bedroom. His mother had left with Mr. Murphy's child to attend school within the hour before the shooting.
• This was a strong Crown case. The victim provided an audiotaped statement containing guarantees of reliability. A search warrant on the defendant's home located the .32 calibre handgun. Gunshot residue was found on the hands of the defendant.

Conclusion

[15] It is difficult to look at the facts of other cases to catalogue the aggravating and mitigating factors to compare against those present in this case. However, when I look at the range set out by the Court of Appeal, I am satisfied this case tends toward the upper end of that range. I find the sentences imposed in Bellissimo (supra), Liang 2009 ONCA 426, and Jefferson 2014 ONCA, to be of assistance in that conclusion.

[16] Accordingly, I conclude the appropriate sentence to be 9 years. Had it not been for a consideration of the Gladue factors, and the Crown position of 9 years which would have been considered by Mr. Murphy when his pleas were entered, I would have imposed a sentence higher than 9 years.

[17] The sentence on the Reckless Intentional Discharge count will be the minimum sentence of 5 years. Subtracted from that will be the 13.75 months of pre-trial detention credit. The remainder will be a sentence of 3 years, 10 months, 7 days.

[18] A consecutive sentence of 4 years will be imposed on the Aggravated Assault count. The Possession of Loaded Firearm will be 3 years concurrent. The Fail to Comply Recognizance will be 60 days concurrent. The Possession of Unlicensed Firearm count is the same transaction as the Possession count above, and therefore will be stayed pursuant to R. v. Kienapple.

[19] In totality, the sentence will be jail from today's date (January 25, 2016) forward for 7 years, 10 months, and 7 days.

[20] I will recommend, pursuant to a request on page 19 of the Gladue Report, that the defendant be sent to a facility that can offer Aboriginal programming.

Released: February 5, 2016

Signed: "Justice Blouin"