Ontario Court of Justice

Date: 2023 07 25 Court File No.: 22-81103363 Windsor, Ontario

BETWEEN:

HIS MAJESTY THE KING

— AND —

KEVIN MURPHY

Before Justice Shannon L. Pollock

Heard on: June 1, 2023 Reasons for Sentence Released on: July 25, 2023

Counsel: Andrew Telford-Keogh..................................................................... Counsel for the Crown Evan A. Weber............................................................................. Counsel for the Defendant

Pollock J.:

[1] Mr. Murphy entered a guilty plea to one (1) count of aggravated assault. To say that the victim was impacted by this offence would be an understatement. The offender is genuinely remorseful to the greatest degree of that statement.

[2] By way of an agreed statement of fact as well as video evidence of a portion of the incident and submissions of counsel, I learned that on October 15, 2022 Mr. Murphy had been at a celebration for the upcoming wedding of his sister during which he received the knife used in the incident as a groomsman’s gift. While driving his vehicle he was rear-ended twice by a vehicle in which the victim was a front seat passenger. The other vehicle left the scene. This is the first of three (3) locations where this incident occurred.

[3] Mr. Murphy had been involved in a hit and run accident earlier in 2022 in which a vehicle he was driving was struck and the other driver was never located or charged. Mr. Murphy received some injuries in the earlier incident and was emotionally impacted by it as well. I heard that this was what was in his mind when he followed the vehicle which had struck him on the night of October 15, 2022.

[4] The other vehicle was followed by Mr. Murphy to a second location where that other vehicle lost control and struck a fire hydrant. At this location, Mr. Murphy got out of his vehicle to take pictures of the other vehicle when it struck Mr. Murphy’s body.

[5] Mr. Murphy was stabbing at the front and rear tires to stop the vehicle from leaving. This is where the victim took a video which has become an exhibit on this sentencing hearing. The video shows an enraged Mr. Murphy reaching in the driver’s side window, striking the driver, holding a knife in his hand and screaming multiple times “You wanna get stabbed?”. Mr. Murphy grabbed the driver by the throat with one hand while he held the knife in the other.

[6] The vehicle containing the victim, Mr. Susko, fled again and drove to the driver’s residence which is the third location involved in this incident. Mr. Murphy once again followed the vehicle to this location where he again approached and began assaulting the driver. At this point, the victim, Mr. Susko, exited the passenger side to intervene, pushing Mr. Murphy into the open car door. Mr. Murphy began to fight Mr. Susko. During this fight, Mr. Susko was stabbed in the abdomen. It appears as though no one, including Mr. Murphy, realized the stabbing had occurred when it did.

[7] The driver of the other vehicle asked Mr. Murphy to stop. He asked Mr. Murphy not to call the police. He offered Mr. Murphy money for the damages. Mr. Murphy left.

[8] I heard that Mr. Susko noticed discomfort in his abdomen. He looked down to see that he had been stabbed and that a portion of his intestines was protruding. He also had a deep cut across the top of his eye. Mr. Susko underwent surgery and a portion of his colon was removed. He received 34 staples and spent 6 days in the hospital.

[9] When the driver of the other vehicle was located by police, he was heavily intoxicated. When Mr. Murphy was located, he had injuries consistent with an altercation. He was co-operative with the police.

[10] The Crown seeks an eighteen (18) month custodial sentence followed by two (2) years of probation, a ten (10) year section 109 order, a DNA order (which is primary), forfeiture of the knife as well as restitution in the amount of $18,600.00 which includes restitution for lost earnings and physical therapy.

[11] The defence submits that a conditional sentence is the appropriate sentence in this case because of the unique set of circumstances and the fact that this is completely out of character for the offender as demonstrated by the 30 character letters provided. The defence submits that the purpose, principles and objectives of sentencing can be met by a conditional sentence in the range of eighteen (18) to twenty-four (24) months. I am advised that he is a suitable candidate for electronic monitoring. In the alternative, the defence seeks an intermittent sentence.

[12] In a victim impact statement, Mr. Susko states that the stabbing left him incapacitated from doing any meaningful physical and social activity for four (4) months. The first two (2) months were the worst during which even the most basic tasks were extremely challenging and painful. He has lost trust in people and his sense of security has been extremely shaken. His relationships have suffered. Mr. Susko could not work due to the physical effect of the assault and he has had ongoing significant emotional impacts as a result as well.

[13] Mr. Susko was merely a passenger in the vehicle that was involved in the hit and run with Mr. Murphy’s vehicle. He only intervened as Mr. Murphy was assaulting the driver.

[14] The pre-sentence report and character letters presented on behalf of Mr. Murphy describe an offender who has no criminal record or history of violence, positive familial relationships, strong supports and a solid work history which includes his most recent position at a company he has worked at for ten (10) years and where he is a valued employee.

[15] Mr. Murphy is full of regret and remorse over his actions. He sought individual counselling and completed an alternative conflict resolution program. Reports from both of these resources were positive.

[16] Sentencing is always an individualized process. A court must take into account all of the factors and circumstances of an offence and the offender before it - while balancing that with public safety concerns, considerations regarding any victims as well as all of the statutory sentencing purposes and principles.

[17] A conditional sentence is only an appropriate sentence if the court is imposing a custodial sentence of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in the Criminal Code.

[18] The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: denunciation, both general and specific, deterrence, both general and specific, separation of offenders from society where necessary, rehabilitation, reparation and promotion of a sense of responsibility in offenders.

[19] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate and all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered.

[20] The issue for me to determine is whether I am satisfied that allowing Mr. Murphy to serve a sentence in the community would not endanger the safety of the community and would be in line with these sentencing objectives. Factors for consideration in relation to endangerment of the community include the risk of re-offending and the damage that could be caused if that were to occur.

[21] In offences of this nature, ones involving serious personal violence, denunciation and deterrence are the primary objectives. General deterrence can also play a part in the assessment of whether the imposition of a conditional sentence endangers the community.

[22] This is a very difficult decision. On the one hand, the offence is serious and involved the use of a weapon resulting in significant consequences and impact on the victim. On the other, the offender is a first-time offender with strong prospects for rehabilitation.

[23] The lack of criminal record, the length of time since this offence occurred without any further issues, the rehabilitative steps taken and the genuine remorse expressed suggest that allowing the offender to serve his sentence in the community would not endanger the safety of the community. That leaves me to determine whether the sentencing objectives of general denunciation and deterrence can be met by imposing a conditional sentence.

[24] In the Queen and Batisse, the Ontario Court of Appeal found that in serious cases and cases involving violence, general deterrence and denunciation are significant factors to be considered. The Court found, however, that it is an error to focus almost exclusively on general deterrence and to fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.: R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643 at paragraph 34.

[25] Counsel both provided case briefs for my consideration. As is common, both counsel are able to provide me with case law which support the positions that they take.

[26] The case law, as summarized by Justice Code in the Tourville decision, has identified three (3) different ranges of sentence for aggravated assault. The first being the low range which is defined as exceptional with an unusual degree of mitigation which allows a court to stray from a significant custodial sentence. The mid-range level, that of a high reformatory sentence, have been described as generally involving first offenders and some element of a consent fight with excessive force. This is the range of sentence in which the crown submits that Mr. Murphy’s circumstances and the circumstances of this offence land. The third range of penitentiary sentences of 4 – 6 years is reserved for those with serious prior criminal records or unprovoked and premediated assaults: R. v. Tourville, 2011 ONSC 1677, [2011] O.J. No. 1245 at paragraphs 27, 28 and 30.

[27] It is aggravating that Mr. Murphy pursued the vehicle in which Mr. Susko was a passenger and that he did so more than once. This whole incident could have been avoided had he remained in his vehicle and called for the authorities. The incident did start with Mr. Murphy being the victim of a hit-and-run. However, Mr. Susko was not the person driving the other vehicle.

[28] It is aggravating that Mr. Murphy brought a knife into the incident and was heard on the video shouting “Do you wanna get stabbed?” multiple times. I do remind myself that the knife was a gift he received that night and that his purpose in possessing it initially was to slash the car’s tires in order to stop it from leaving the scene a second time and that this was against the backdrop of him having been victimized in a hit-and-run accident approximately ten (10) months earlier.

[29] The impact on Mr. Susko is also an aggravating factor. He has been significantly affected physically, emotionally and financially. All due to his attempt to come to the aid of the driver of his vehicle.

[30] I have already outlined the mitigating factors that I must consider. In addition, it is a factor for my consideration that there was not an express intention to stab the victim. Mr. Murphy engaged in an assault while possessing the knife and has admitted objective foresight of the risk of bodily harm.

[31] On October 28, 2022, in the case of the King and Ali, the Court of Appeal for this province overturned a trial judge’s decision to impose a 15-month custodial sentence on 2 offenders who had been convicted of aggravated assault for a beating involving punches and kicks to the head which resulted in facial and eye injuries which were not permanent.

[32] This is a recent case by our Court of Appeal which addresses the very issues I have to decide in this case. The Court said the following:

“With respect, the trial judge’s treatment of the suitability of a conditional sentence involved two interrelated errors in principle, justifying appellate intervention.

First, the level of violence involved in this aggravated assault did not automatically exclude an appropriately crafted conditional sentence. Case law establishes that a conditional sentence can provide deterrence and denunciation, and thus may be appropriate for a crime involving violence, such as aggravated assault, even when deterrence and denunciation are paramount considerations. Conditional sentences have been found appropriate in cases when similar, or more extreme, violence has been present compared to what occurred here.

Second, given that a conditional sentence may be appropriate in a case involving violence, and in which it is necessary for the sentence to address denunciation and deterrence, a sentencing judge should determine whether one is appropriate by considering, and weighing, the ability of a conditional sentence to meet the deterrence and denunciation objectives and other relevant sentencing objectives, including restraint and rehabilitation. Here, the trial judge properly identified restraint in her general description of sentencing principles, and identified rehabilitation as an important sentencing goal for these appellants, but failed to consider them in relation to whether a custodial or conditional sentence was appropriate. The trial judge should have considered whether a custodial sentence or one served in the community would better address all of the relevant sentencing objectives − denunciation and deterrence and restraint and rehabilitation.” R. v. Ali, 2022 ONCA 736 at paragraphs 26-28

[33] The court went on to find that: “It was an error in principle for the trial judge to rule out a conditional sentence based on the level of violence in this case without considering the extent to which a conditional sentence could provide deterrence and denunciation, especially if punitive conditions were imposed, and without weighing all of the relevant sentencing objectives that were applicable in the factual circumstances.” R. v. Ali, 2022 ONCA 736 at paragraph 38.

[34] In assessing the totality of the circumstances of the offender, the offence, the purpose, principles and objectives of sentencing and the impact on the victim, I have reached the conclusion that a conditional sentence with strict conditions is the appropriate sentence.

[35] The sentence will be one of an eighteen (18) months conditional sentence with electronic monitoring. For the first twelve (12) months there will be a house arrest condition with appropriate exceptions. For the last six (6) months, there will be a curfew of 9:00 pm to 6:00 am.

[36] The conditional sentence will be followed by two (2) years of probation. In addition, there will be a DNA order, a section 109 weapons prohibition for ten (10) years and a section 491 order in relation to the knife.

[37] Further, there will be restitution in the amount of $14,626.00 due to Mr. Susko’s lost earnings which are a direct result of the physical harm to him from the commission of this offence by Mr. Murphy.

Dated: July 25, 2023 Signed: Justice Shannon L. Pollock