SUPERIOR COURT OF JUSTICE

Court File No. 12510/10

HER MAJESTY THE QUEEN

v.

KEN MULLIN

REASONS FOR SENTENCE

Before THE HONOURABLE JUSTICE C. BOSWELL

On January 10, 2012, at OSHAWA, Ontario

APPEARANCES :

M. Gillen Counsel for the Crown

M. Segal Counsel for Ken Mullin

TUESDAY JANUARY 10, 2012 :

UPON RESUMING:

...SUBMISSIONS BY MR. GILLEN

...SUBMISSIONS BY MS. SEGAL

THE COURT: Sorry for the delay.

MS. SEGAL: That’s all right.

REASONS FOR SENTENCE

BOSWELL J. (Orally and Written):

Overview :

[ 1 ] On November 2nd, 2011, a jury convicted Mr. Mullin of second degree murder in the death of his former common law spouse, Sherry Martin. On February 24th, 2009, Ms. Martin was found dead in the front foyer of the home she shared with Mr. Mullin in Oshawa . She had been stabbed once in the chest. She was found by police and paramedics who responded to a 911 call placed by Ms. Martin’s friend, Jennifer Brent. When police first arrived on the scene, Mr. Mullin was just exiting the front door of the home. He told the first officer on scene to arrest him. He subsequently made a number of inculpatory statements to the police, including that he did it, he killed Ms. Martin, that he must have stabbed her and that he was “guilty as charged”.

[ 2 ] At the trial before an Oshawa jury, Mr. Mullin denied that he killed Ms. Martin, notwithstanding what he’d told the police. He said that she was the author of her own death, by having stabbed herself in the chest. He explained that he had lied to the police when he told them he’d killed her. He had done so, he said, because he knew the police were going to keep asking him questions and he figured the way to get them to stop would be to tell them what he thought they wanted to hear.

[ 3 ] The jury rejected Mr. Mullin’s evidence about how Ms. Martin died. They convicted him of second degree murder. And in doing so, they clearly found that he stabbed Ms. Martin in the chest and that, when he did so, he intended to kill her, or at least cause her bodily harm that he knew would kill her or he was reckless as to whether it would kill her or not. After the jury’s verdict came in, they were asked to provide recommendations in terms of parole ineligibility. Once their recommendations were received, the jury was discharged and the matter was put over for sentencing, with a pre-sentence report ordered in the meantime.

General Principles :

[ 4 ] Now, pursuant to Section 235(1) of the Criminal Code of Canada , a conviction for second degree murder carries with it an automatic life sentence. There is no discretion with respect to that part of the sentence. There remains some discretion, however, in terms of fixing the period of parole ineligibility. As part of the imposition of punishment on Mr. Mullin, the Court must fix a period of parole ineligibility of anywhere between 10 and 25 years, according to Section 745 (c) of the Criminal Code . The sentencing hearing focused, under the circumstances, on the issue of parole ineligibility and these sentencing reasons likewise focus on that narrow issue.

[ 5 ] In fixing a period of parole ineligibility, the Court must have regard to the factors set out in Section 745.4 of the Criminal Code , which include the character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendations, if any, made by the jurors who heard the case, as to the appropriate period of ineligibility. In this instance, two jurors made no recommendation, while 10 jurors recommended a period of parole ineligibility of 10 years.

[ 6 ] The Court must also, of course, have regard to the fundamental purposes of sentencing as codified in Section 718 of the Criminal Code . Those purposes, long recognized by the common law, include the denunciation of unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims and to the community, and the promotion of a sense of responsibility in offenders and acknowledgment of the harm done.

[ 7 ] Section 718.1 of the Criminal Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating or mitigating circumstances. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances.

[ 8 ] In a case of a conviction for second degree murder, an automatic life sentence ensures that the offender is separated from society. While the potential for rehabilitation remains a factor for consideration, in the face of a mandatory life sentence with a minimum 10 year period of parole ineligibility, its significance is reduced, relative to other sentencing situations: see R. v. McKnight (1999), 1999 3717 (ON CA) , 44 O.R. (3d) 263 (C.A.) , at page 39 .

[ 9 ] With these general principles in mind, I turn to an examination of the factors required by Section 754.4 of the Criminal Code . I will discuss the circumstances of the offence and the offender and I will touch upon the impact on the victims of this offence, then explore the aggravating and mitigating circumstances and discuss what parole ineligibility I believe is appropriate in the circumstances, having regard to similar offences committed by other offenders.

Circumstances of the Offence:

I’ll begin with the circumstances of this offence.

[ 10 ] Certain facts are relatively clear in this case, while others remain, and likely always will remain, unresolved.

[ 11 ] At the time of the offence, Mr. Mullin was engaged as a construction contractor, working on a renovation project at an Oshawa pub. The pub opened for lunchtime business, so the construction work started quite early in the morning and finished by lunch. On February 24, 2009, after his work finished for the day, Mr. Mullin stayed behind at the pub and had a pint and a half of beer with co-workers. He then proceeded to another local pub where he consumed more beer, perhaps another seven, finally heading home sometime around nine p.m.

[ 12 ] Mr. Mullin and Ms. Martin had been together for about 20 years. In his statement to the police, introduced as part of the Crown’s case, Mr. Mullin described a relationship that had become quite acrimonious near the end. He told the police that he was being “bitched at from the time he got up until the time he went to bed.” The day prior to the murder, Mr. Mullin and Ms. Martin had argued about money. The argument continued into the next morning. Typically, Ms. Martin got up with Mr. Mullin in the early morning. She made him coffee and drove him to work (because he didn’t have a driver’s licence). She didn’t do these things for him, however, on February 24, 2009. Moreover, she cut off his cell phone, he says, to retaliate because he refused to give her money the previous day.

[ 13 ] While enjoying his post-work beverage with his co-workers in the early afternoon of February 24th, Mr. Mullin was heard to say that he was so frustrated about the cell phone that he could strangle Ms. Martin. His boss, to whom he made the comment, did not take it seriously. Mr. Mullin had always been a quiet and respectful person.

[ 14 ] Ms. Martin was on the telephone with her friend, Jennifer Brent, when Mr. Mullin arrived home after 9 p.m. on February 24th. Ms. Brent testified that Ms. Martin told her that she was in her bedroom and heard Mr. Mullin coming in. There was a bang and Ms. Martin said she’d heard Mr. Mullin fall down and she was going to go out of her room to investigate. Ms. Brent cautioned her against doing so. Ms. Brent then overheard an argument between Mr. Mullin and Ms. Martin. Their voices got louder, until they became shouts. The argument began about Mr. Mullin coming home late and then it turned into an argument about an ashtray. She heard Ms. Martin shout, twice, “Take your fucking hands off me”, and then she heard a loud pitched scream. Then the phone went dead. Ms. Brent frantically attempted to call back a number of times. Eventually Mr. Mullin answered the phone and, according to Ms. Brent, he told her that Ms. Martin was “silent now and could not talk.” He said he’d knocked her out.

[ 15 ] Mr. Mullin confirmed in his testimony that there was an argument between him and Ms. Martin when he got home. According to his testimony, Ms. Martin was aggressive with him from the time that he returned home. She threw an ashtray at him at one point and dumped a bag of his cigarettes onto the floor. He said he eventually told Ms. Martin that he was going to have a shower and go to bed. As he walked by her in the hall, he heard the phone (which he says she was using to give Ms. Brent a play-by-play of their argument) fall to the floor. He spun around and saw that she was fainting. He grabbed hold of her hands and gently laid her to the floor. It was at that moment that he says he saw the knife blade protruding from her chest. He pulled it out. He picked up the phone and he panicked and he called Ms. Brent back, instead of calling 911. He said he told her that “something bad had happened to Sherry” and upon hearing that Ms. Brent threatened to kill him. He then threw down the phone and attempted to hang himself in the basement. Before he passed out, however, he changed his mind. He walked upstairs, saw that the police had arrived and he surrendered himself into police custody.

[ 16 ] The jury obviously rejected Mr. Mullin’s evidence about who stabbed Ms. Martin. Their verdict is consistent with a finding that, at some point during the altercation, Mr. Mullin plunged a steak knife into Ms. Martin’s chest, hard enough to pierce her breastbone. The knife tore into her pericardial tissue, which almost immediately led to heart failure and death. Just exactly how it happened, may never be known. The same can be said for a large bruise found at the top of Ms. Martin’s skull during a post-mortem examination. How the bruise came to be there is a question that will remain unanswered in this case.

Circumstances of the Offender :

I turn now to the circumstances of the offender.

[ 17 ] Mr. Mullin is 43 years old – the youngest of three children in his family. He was raised by his mother, his parents having separated when he was quite young. In fact, it appears he had little contact with his father after the age of six. His father is now deceased.

[ 18 ] Mr. Mullin has no criminal record, though he entered a plea of guilty to a charge of uttering threats to Ms. Martin several years ago and was granted a conditional discharge.

[ 19 ] Mr. Mullin is a construction worker by trade. According to witnesses at trial, including his boss and a co-worker, he is a skilled tradesman, a quiet and unassuming man not given to violent outbursts. His demeanour was generally calm and respectful. A number of friends and supporters of Mr. Mullin filed letters with the Court on his behalf. They, too, describe Mr. Mullin as a hard-working, quiet and respectful man. He has been involved in ball hockey for many years and has the respect and friendship of his teammates and others in his league. Unquestionably, a violent and deadly assault was unexpected from Mr. Mullin and, it seems, entirely out of character for him.

[ 20 ] A pre-sentence report was ordered and prepared, though, frankly, it is of little assistance. Mr. Mullin provided some detail about his personal history, but in terms of the offence he elected to say nothing, given his stated intention to appeal. He denies being the author of Ms. Martin’s death. He presented the image of a sad and broken man during the course of the trial. He appeared remorseful and resigned to his fate in his videotaped statement to police. But one could not say that he is remorseful now, in terms of the offence, given his position that he is not responsible for Ms. Martin’s death.

[ 21 ] When asked if he wished to make direct submissions on sentence, as he is entitled to do, Mr. Mullin indicated that he was sorry for Sherry and wished she’d stabbed him instead of herself.

Impact on the Victims :

I turn now to the impact on the victims.

[ 22 ] The impact on the primary victim of this offence is obvious. Sherry Martin’s life – and everything that goes along with it - was stolen from her. But there are, of course, numerous other victims. Her three children. Her sister and her sister’s family. And her friends.

[ 23 ] The Court received three Victim Impact Statements that speak to the profound impact that radiates from the murder of a mother, grandmother, sister and friend. Ms. Martin was not without her own troubles and demons, to be sure. But she was also not without love. And those who loved her are deeply affected by her death and by the horribly unfair and tragic way in which she died. Her daughter, Danielle, spoke eloquently of the different ways her mother’s death has affected her. Replaying in her mind, over and over, the violent end to her mother’s life – hoping that she didn’t suffer. Fretting about her mother lying in the morgue and wanting to bring her home. Trying to care for her much younger brother, Dakota, 17 at the date of his mother’s death, whom she must now raise. Never having the chance to reconcile whatever injuries there were between them. Her mother will never meet her fiancé, never attend her wedding, never know any grandchildren that follow.

[ 24 ] Danielle had to speak for her older brother, David, who was too traumatized to attend court or to provide a statement of his own.

[ 25 ] Ms. Martin’s friend, Jennifer Brent’s Victim Impact Statement was read in by the Crown, as was the statement from Ms. Martin’s brother-in-law. Ms. Martin’s sister, Cathy, gutted by Sherry’s death, died herself within a year of Sherry’s murder. Though the cause of death was not described in the Victim Impact Statement, Cathy’s family firmly believes that Sherry’s murder was a contributing factor.

[ 26 ] Ms. Brent’s statement spoke of the hole that Ms. Martin’s death has left in her life. She has unrelenting sadness, nightmares, anxiety, fearfulness and trust issues. Her life is forever altered by Sherry’s tragic death.

Positions of Crown and Defence :

[ 27 ] Counsel are agreed in this case, that the established range of parole ineligibility for a violent, domestic homicide is 12 - 15 years. Where they differ is the point in that range upon which the facts of this case fall.

[ 28 ] Defence counsel reminded the Court that a range is merely a guideline and there may be factors that suggest an appropriate sentence outside of the established range. She pointed to the recommendations of the jurors and indicated that, in her view, an appropriate period of parole ineligibility would be 11-12 years.

[ 29 ] Crown counsel seeks a period of 13 years of parole ineligibility.

Mitigating and Aggravating Circumstances

[ 30 ] Section 718.2 of the Criminal Code mandates that the Court consider any relevant mitigating or aggravating factors relating to the offence or the offender that may increase or reduce the sentence to be imposed.

Mitigating Factors:

[ 31 ] I consider the following factors as mitigating:

(i) Firstly, Mr. Mullin has no criminal record and no history of violent behaviour;

(ii) Secondly, the violence on this occasion appears to have been impulsive and out of character for him;

(iii) Thirdly, 10 of 12 jurors recommended the minimum period of parole ineligibility, while two jurors made no recommendations at all.

Aggravating Factors:

[ 32 ] I consider the following other factors to be aggravating ones:

(i) Firstly, the sudden, extreme violence of the attack;

(ii) Second, the fact that the commission of the offence involved the abuse of a common law spouse;

(iii) Third, Ms. Martin was unarmed and unable to defend herself;

(iv) And fourth, parties who live together and share their lives are vulnerable to one another. They naturally trust one another not to bring harm to them. This offence was a significant breach of the trust that Ms. Martin reposed in Mr. Mullin.

Discussion:

[ 33 ] Numerous cases were cited to me by counsel reflecting the different periods of parole ineligibility within the established range. Having reviewed the cases provided to me, it is apparent that, as is always the case, the range of punishments imposed in different circumstances are the product of the individualized nature of sentencing and the considerable discretion that trial judges have in fashioning sentences. As former Chief Justice Lamer stated in R. v. M. ( C.A. ) , 1996 230 (SCC) , [1996] 1 S.C.R. 500 :

Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in the country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

[ 34 ] This was a case of a brutally violent domestic assault that resulted in the death of Sherry Martin. All of the cases cited to me were other examples of brutal domestic assaults that resulted in the death of a spouse or former spouse. To the extent that these things can be rated, it appears that the principal distinguishing feature across the cases is the brutality of the murder and any other aggravating circumstances that went along with it.

[ 35 ] At the high end of the range are cases like R. v. McKnight , which I’ve previously mentioned, where the accused stabbed his wife of 20 years to death. He attacked her as she came out of a washroom stabbing her repeatedly with a 10 inch serrated knife. She had over 50 defensive wounds, inflicted as she pled for her life. The attack lasted 10 to 15 minutes. Parole ineligibility was set by the Court of Appeal at 14 years.

[ 36 ] In R. v. Hill , 2011 ONSC 4382 , the accused strangled his wife to death. She was four months pregnant at the time. He buried her body and lied to the police about what had happened to her. The trial judge imposed a 15 year period of parole ineligibility.

[ 37 ] In R. v. Czibulka , 2011 ONCA 82 , the accused brutally beat his wife of 35 years to death. Her eyes were swollen shut and bruises covered her whole body. Her ribs were fractured in 25 places. Her diaphragm was lacerated and her breast bone broken. A period of 15 years parole ineligibility was upheld by the Court of Appeal.

[ 38 ] Cases where sentences were imposed, similar to the one sought by the Crown include R. v Bajrangie-Singh , 2003 47384 where the accused shot his wife 13 times with a 9 millimetre handgun. The Court of Appeal considered the circumstances of the murder horrific and brutal, but somewhat less so than was the case in McKnight . They reduced the period of 15 years of parole ineligibility imposed by the trial judge to 13 years.

[ 39 ] In R. v. Willis , 2007 ONCA 365 , the accused shot and killed her estranged husband in the head at close range. In fact, she pumped eight shots into him in rapid succession. The trial judge imposed a period of 13 years parole ineligibility on the accused and that sentence was upheld on appeal.

[ 40 ] In R. v. Pasqualino , 2008 ONCA 554 , the accused and his wife argued about money and sexual infidelity. When the accused’s wife said that she was going to leave him, he shot her six times. On conviction of second degree murder he was sentenced to life imprisonment, with no chance of parole for 13 years.

[ 41 ] I very much appreciate the cases that counsel have referred to me. I find it a particularly difficult task measuring the brutality of one horrific domestic murder against another. Of particular concern to me in this instance, is that the attack was sudden and violent and against a defenceless and unsuspecting woman in her own home. While I appreciate that Mr. Mullin and Ms. Martin may have had an acrimonious relationship, there was no evidence of prior violence of any significance and it appears that Mr. Mullin, as he told the police, just “lost it”. Ms. Martin could not have anticipated, when Ms. Brent cautioned her to stay in her room, that she might be leaving it for the last time.

[ 42 ] As sudden, brutal and horrific as this crime is, however, it lacks some of the important aggravating features present in cases like McKnight and Czibulka . In my view, it also lacks some of the brutality as in Bajrangie-Singh and Willis where firearms were utilized and the victims shot repeatedly.

[ 43 ] In my view, an appropriate period of parole ineligibility in this instance is 12 years. Such a period recognizes that this was a brutal, domestic murder of an unsuspecting and defenceless woman. It recognizes that Mr. Mullin takes no responsibility for the crime and has no remorse for his actions. But it also recognizes that Mr. Mullin has no criminal record and that the death, as brutal as it was, falls short of the brutality of the other cases I have mentioned.

[ 44 ] It also gives due consideration to the views and recommendations of the jurors, 10 of whom recommended the minimum 10 year period of ineligibility. They did not, of course, have the benefit of hearing sentencing submissions, nor are they familiar with the principles associated with sentencing in cases of brutal domestic homicides. That said, they listened attentively to all of the evidence in this case over a three week period. They deliberated for two long days and, one can only assume, made their recommendations thoughtfully. Though I am not, obviously, prepared to entirely follow those recommendations, they are deserving of some considerable weight.

[ 45 ] There is nothing, of course, that can replace the loss of Ms. Martin. The anguish that her death has caused to those close to her is unimaginable for those who have not endured a similar circumstance. I recognize that there is no sentence that I can pass today that will do anything to alleviate that anguish.

Sentence :

[ 46 ] Mr. Mullin, I sentence you, sir, for the murder of Sherry Martin, to life imprisonment, with no chance of parole for 12 years. In addition, I impose a weapons prohibition order under Section 109 of the Criminal Code for life and a DNA order under Section 487.051 of the Criminal Code .

THE COURT: Counsel, any further submissions?

MS. SEGAL: No, thank you, Your Honour. Thank you very much, Your Honour, for your careful consideration.

MR. GILLEN: No, thank you, Your Honour.

THE COURT: Counsel, thank you very much for your assistance...

MS. SEGAL: Yes.

THE COURT: ...throughout the trial and through the sentencing.

MATTER CONCLUDED