R. v. Murray (D.W.), (2015) 372 Nfld. & P.E.I.R. 44 (NLTD(G))

• Judge: Marshall, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: October 22, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 372 Nfld. & P.E.I.R. 44 (NLTD(G))

R. v. Murray (D.W.) (2015), 372 Nfld. & P.E.I.R. 44 (NLTD(G));

    1158 A.P.R. 44

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. OC.028

Her Majesty the Queen v. David Wayne Murray

(201501G2008; 2015 NLTD(G) 147)

Indexed As: R. v. Murray (D.W.)

Newfoundland and Labrador Supreme Court

Trial Division (General)

Marshall, J.

October 23, 2015.

Summary:

The accused inmate was charged with aggravated assault, assault with a weapon and assault causing bodily harm.

The Newfoundland and Labrador Supreme Court, Trial Division (General), in a decision reported at (2015), 371 Nfld. & P.E.I.R. 27; 1158 A.P.R. 27, found the accused not guilty of aggravated assault and guilty of assault with a weapon and assault causing bodily harm. The court conditionally stayed the charge of assault causing bodily harm based on the Kienapple principle.

The Newfoundland and Labrador Supreme Court, Trial Division (General), sentenced the accused to 14 months' imprisonment and 12 months' probation. The court gave the accused 644 days credit for 429 days spent on remand, which credit exceeded the sentence. The court also imposed a firearms prohibition, a DNA order and a victim surcharge.

Criminal Law - Topic 5806

Sentencing - Co-accused - Sentence parity - The 32 year old accused inmate was convicted of assault with a weapon - In the moments preceding a 25 second physical altercation, the victim, who was also an inmate, repeatedly threatened to seriously injure and kill the accused - The accused threw his coffee at the victim and punched him - The victim punched him back - The accused and two other inmates (Grech and Glasco) began pummelling the victim with numerous punches and kicks - The victim was overpowered - The accused retrieved a broken broom handle and used it to strike the victim several times on the head and upper body while the victim was on the ground covering his head and face with his hands - The victim suffered three lacerations, two of which required six stitches each - He also broke a hand bone, but it was not established that the broken bone had been inflicted by the accused - He was at the hospital for a couple of hours - He was not prescribed any medications - The stitches were removed in prison, and minor scars remained - The accused had 86 prior convictions, including convictions for violent offences - The Newfoundland and Labrador Supreme Court, Trial Division (General), noted that Glasco was sentenced to 13 months' imprisonment and 12 months' probation for assault causing bodily harm, while Grech was sentenced to 11 months' imprisonment and 18 months' probation for assault - Unlike the accused, both Glasco and Grech pleaded guilty - However, unlike Glasco and Grech, the accused had been provoked and in imminent danger - The court sentenced the accused to 14 months' imprisonment and 12 months' probation - The court gave the accused 644 days credit for 429 days spent on remand, which credit exceeded the sentence - The court also imposed a firearms prohibition, a DNA order and a victim surcharge.

Criminal Law - Topic 5848

Sentencing - Considerations on imposing sentence - Provocation - [See Criminal Law - Topic 5806 ].

Criminal Law - Topic 5883

Sentence - Assault with a weapon or assault causing bodily harm - [See Criminal Law - Topic 5806 ].

Cases Noticed:

R. v. Daviau (D.C.) et al. (2008), 444 A.R. 56; 2008 ABPC 103, refd to. [para. 14].

R. v. Amorim (G.P.) et al., [2014] A.R. Uned. 505; 2014 ABPC 142, refd to. [para. 20].

R. v. Philpott (G.) (2011), 308 Nfld. & P.E.I.R. 119; 958 A.P.R. 119; 2011 NLTD(G) 30, refd to. [para. 27].

R. v. Lewis (M.P.) (2002), 212 Nfld. & P.E.I.R. 145; 637 A.P.R. 145 (N.L.T.D.), refd to. [para. 27].

R. v. Wheeler (C.P.) (2011), 315 Nfld. & P.E.I.R. 25; 981 A.P.R. 25 (N.L. Prov. Ct.), refd to. [para. 28].

R. v. Glasco (J.D.) (2015), 372 Nfld. & P.E.I.R. 22; 1158 A.P.R. 22; 2015 NLTD(G) 133, refd to. [para. 33].

Counsel:

Patricia Carpenter, for the Crown;

Nick Westera, for the accused.

This sentencing was heard at St. John's, N.L., on October 22, 2015, by Marshall, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following judgment on October 23, 2015.