Court File and Parties
Court File No. CR 11-00009598
SUPERIOR Court of Justice
her majesty the queen
v.
JASON MURCHISON
reasons for SENTENCE
Before THE HONOURable JUSTICE M. FUERST
on March 21, 2013, at NEWMARKET, Ontario
APPEARANCES:
C. Elmasry Counsel for the Crown
P. Sherman Counsel for Jason Murchison
THURSDAY, MARCH 21, 2013
REASONS FOR SENTENCE
Fuerst J (Orally)
[1] Jason Murchison was convicted by me of committing two robberies. He conceded his guilt at the conclusion of the Crown’s case.
[2] At the outset of the trial, he pleaded guilty to a number of related offences, including breach of a prohibition order.
The Circumstances of the Offences
[3] On October 19, 2011, Mr. Murchison robbed a pharmacy in Markham and a convenience store in Ajax. He obtained a few Ritalin tablets in the robbery of the pharmacy, and about $80 in the robbery of the convenience store.
[4] Mr. Murchison told the pharmacy technician that he had a gun, although I was unable to find beyond a reasonable doubt that he in fact was armed with a firearm. He openly carried an expandable baton during the convenience store robbery.
[5] The pharmacy technician provided a victim impact statement in which she said that as a result of the robbery, she takes an antidepressant and suffers from recurring nightmares of the robbery.
[6] On his arrest a few days after the robberies, Mr. Murchison was in possession of a car that he had stolen and used in the robberies. The expandable baton was found in the car. At the time, Mr. Murchison was bound by a weapons prohibition order as well as by a probation order.
The Circumstance of Mr. Murchison
[7] Mr. Murchison is 27 years old. He has a very lengthy criminal record that dates back to 2001, when he was a young person. It includes numerous property offences and more than a dozen failures to comply with court orders. Of most concern is that Mr. Murchison was convicted of assault with a weapon on two separate occasions in 2008, and of robbery in 2010. He received a sentence of 18 months in jail, which is the longest jail term imposed on him to date. A weapons prohibition order was made. He breached that order by carrying the baton he used in the robbery of the convenience store. He also was bound when he committed the pharmacy and convenience store robberies by a probation order imposed in 2010.
[8] Mr. Murchison has a grade nine education. By his own admission, it has been a long time since he held any significant employment. He has no family support in the Greater Toronto area, but his mother and other family members who live in Saskatchewan may be able to assist him if he relocates there after serving his sentence.
[9] The pre-sentence reporter provided the following apt description of Mr. Murchison’s behaviour while in the community:
“In the last 3 years Mr. Murchison has spent more time incarcerated than in the community. He has become further and further entangled in the Criminal Justice System. Thus far, he has demonstrated an inability to follow the laws of society or the conditions of his Court Orders.”
[10] His behaviour in jail has been markedly better than his conduct in the community. Since his incarceration in 2011, he has had only one misconduct. By his own choice, he has been housed in segregation because he prefers to be alone.
[11] Mr. Murchison denies that he has any mental health issues, but he has been taking antidepressant medication for about five years. He also takes medication for Attention Deficit Hyperactivity Disorder.
The Positions of the Parties
[12] Crown counsel Ms. Elmasry and defence counsel Mr. Sherman join in submitting that the appropriate global sentence is one of five years in jail, less credit for time spent in pre-trial custody. Ms. Elmasry asks that I allocate the five years so that there is a consecutive term for the breach of prohibition order. They agree that Mr. Murchison, who was not the subject of a S. 515(9.1) order, and whose behaviour while in jail was positive, should be credited for pre-trial custody at the rate of one and a half days for each day served, for a total of 25 months, leaving a sentence to be served of 35 months. Ms. Elmasry seeks a lifetime Section 109 weapons prohibition order, and a DNA order. Mr. Sherman consents to both orders.
The Principles of Sentencing
[13] The objectives of sentencing long recognized at common law have been codified in Section 718 of the Criminal Code. They are: 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 or the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.
[14] 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 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.
Analysis
[15] The principles of denunciation and deterrence, both general and specific, are paramount in this case. The offences committed by Mr. Murchison are very serious, and reflect a worrisome escalation in his criminal activity.
[16] The aggravating factors include:
Mr. Murchison was bound by two court orders, a probation order and a weapons prohibition order, when he committed the robberies;
The robberies involved the explicit threat of harm in the case of the robbery of the pharmacy, and the implicit threat of harm by the carrying of the baton in the case of the convenience store robbery;
Both robberies were committed when other customers were present in the pharmacy and the convenience store and exposed to potential harm;
The pharmacy technician has suffered psychological harm;
Mr. Murchison has an appalling criminal record that demonstrates his disrespect for court orders and a propensity to commit crimes of violence. It is questionable whether he can live in the community without putting others at risk.
[17] The mitigating factors include:
Mr. Murchison pleaded guilty to some of the offences, which is a sign of remorse and some degree of acceptance of responsibility for his wrongdoing;
He has been amenable to authority while in jail.
[18] In all the circumstances of the case, I accept the joint submission put to me by Crown and defence counsel. It appropriately takes into account the aggravating and mitigating factors, and accords with the applicable principles of sentencing.
[19] Mr. Murchison, please stand. I sentence you on count 1 (robbery of the pharmacy technician) to 4 years and 7 months jail, less credit for 25 months in jail, leaving a sentence to be served of 30 months jail; on count 2 (robbery of the convenience store operator) to 30 months jail concurrent; on count 3 (theft of the vehicle) to 24 months jail concurrent; on count 4 (possession of the stolen vehicle) to 24 months jail concurrent; on count 5 (occupying a vehicle in which there was a prohibited weapon) to 24 months jail concurrent; and on count 6 (breach of prohibition order) to 5 months jail consecutive to the sentence on all other counts.
[20] I order you to provide a sample of bodily fluids for DNA analysis. I impose a Section 109 weapons prohibition order for life.
[21] I recommend that Mr. Murchison undergo a mental health assessment at the penitentiary.
[22] In the global result, the sentence to be served is one of a total of 35 months in jail. You can sit down. Maybe Ms. Elmasry and Mr. Sherman you just want to double check my math.
MR. SHERMAN: Certainly, Your Honour.
THE COURT: I think I have it correctly, but....
MR. SHERMAN: Yes, I calculate it right down to the day, Your Honour, but I think by months that’s right.
THE COURT: I took into account we had a few extra days...
MS. ELMASRY: Yes.
THE COURT: ...because of the brief adjournment from last week.
MS. ELMASRY: Yes, that was fine. We had been calculating before for Madam Registrar.
THE COURT: I’m endorsing the indictment as follows: Mr. Murchison is sentenced on count 1 to 4 years 7 months in jail, less credit of 25 months for pre-trial custody leaving a sentence to be served of 30 months in jail; count 2, 30 months in jail concurrent; count 3, 24 months in jail concurrent; count 4, 24 months in jail concurrent; count 5, 24 months in jail concurrent; count 6, 5 months in jail consecutive to the sentence on all other counts so that the sentence to be served is 35 months in total. DNA order. Section 109 order for life. I recommend that Mr. Murchison undergo a mental health assessment at the penitentiary.
All right, is there anything further then?
MR. SHERMAN: Nothing I can think of, Your Honour, thank you.
MS. ELMASRY: Is Your Honour ordering a transcript to be sent...
THE COURT: Madam Reporter will do that automatically as I understand it.
MS. ELMASRY: Okay, that’s fine. Thank you.
THE COURT: Thank you very much.
RECESS
...UPON RESUMING:
THE COURT: I apologize for bringing you all back, it took longer than I anticipated it might, but Madam Registrar pointed out to me after I left the courtroom that I entered a Kienapple stay on count 4 on the last occasion, I think, Ms. Elmasry.
MS. ELMASRY: No, and I should have remembered that I did ask that.
THE COURT: No, no, I’m not faulting you at all, but...
MR. SHERMAN: I should have remembered.
THE COURT: ...I’m now remembering back, as I recall you had suggested it then that it would be the appropriate thing.
MS. ELMASRY: Yes.
THE COURT: Just because it might impact on the paperwork and what happens at the penitentiary I thought I had better correct it on the record. So on court 4 there is not a sentence recorded, rather as noted previously, there is a Kienapple stay.
MS. ELMASRY: Thank you.
THE COURT: It does not obviously affect the total period to be served in jail.
MS. ELMASRY: Thank you very much.
MR. SHERMAN: Thanks, Your Honour.
THE COURT: Thank you.