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SENTENCING - Homicide - Second degree murder - Imprisonment - Parole ineligibility - Sentence imposed on co-accused

Monday, September 27, 2021 @ 9:26 AM  

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Appeal by Cabrera from the life sentence, with a 15-year period of parole ineligibility, imposed following his conviction, by jury, of second-degree murder. The then 19-year-old appellant was part of a group attack on the 19-year-old victim at a nightclub. The appellant used a car key while punching the victim. His appeal from conviction was previously dismissed. The appellant had no previous record and an excellent employment record. Two jurors recommended the appellant serve 10 years before being eligible for parole, while the others made no recommendation. The period of parole ineligibility for the appellant’s co-accused, who also had no previous record and an excellent work history, was fixed at 12 years. Four jurors recommended the co-accused receive a 10-year period of parole ineligibility.

HELD: Appeal allowed. The trial judge did not point to evidence he relied on in support of his conclusion that the appellant had a more central role in the assault than his co-accused. Using a car key in the assault, which appeared not to have resulted in serious injury, was not significantly more aggravating than the co-accused’s repeated kicking of the victim, to warrant an increase of three years of parole ineligibility. The appellant’s participation in the offence was indistinguishable from that of his co-accused for sentencing purposes. With that and their nearly identical backgrounds, the trial judge erred in not applying the parity principle. The period of parole ineligibility was reduced to 12 years. Dissenting reasons were provided. Sentence: life imprisonment; 12-year period of parole ineligibility.

R. v. Cabrera, [2021] A.J. No. 1182, Alberta Court of Appeal, P.W.L. Martin, T.W. Wakeling and S.J. Greckol JJ.A., August 31, 2021. Digest No. TLD-September272021001