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SENTENCING - Homicide - Manslaughter - Particular sanctions - Imprisonment - Sentencing considerations - Mitigating factors - Remorse - Sentencing precedents or starting point - Character evidence

Thursday, April 26, 2018 @ 8:39 AM  

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Appeal by the offender, Rasberry, from a sentence for manslaughter. The offender used three knives to stab the victim to death. The victim suffered 23 stab wounds, 14 incised wounds, and 11 bruises or abrasions. The victim and offender were neighbours. The offender stated that the victim and his wife attended their home following a barbeque hosted by the victim. Later that evening, in the offender's home, the victim accosted the offender and threatened to sodomize him and his wife. The offender alleged a struggle ensued, which led to the fatal stabbing. The offender was convicted of manslaughter. The trial judge concluded that the offender reasonably believed he faced a threat of grievous bodily harm, and that he was entitled to respond with force to defend himself and his wife. He further found, however, that the force used went beyond that necessary for self-defence. The presence of provocation justified a conviction for manslaughter rather than second degree murder. The offender was sentenced to seven years' imprisonment. The manslaughter conviction was affirmed in a separate appeal. The offender appealed the sentence.

HELD: Appeal dismissed. The trial judge did not misconceive the facts as they related to sentencing. The sentence imposed sufficiently accounted for the prevalent mitigating factors, including character evidence and the offender's profound remorse. There was no authority to attribute additional weight to the issue of provocation beyond that accorded by the trial judge. Given the evidence of the wounds suffered by the victim, there was no reviewable error in the trial judge's conclusion that this was not a case of near self-defence. The sentence imposed fell within the appropriate range for manslaughter and was a fit sentence. Sentence: Seven years' imprisonment.

R. v. Rasberry, [2018] A.J. No. 377, Alberta Court of Appeal, R.L. Berger, M.S. Paperny and J. Watson JJ.A., March 29, 2018. Digest No. TLD-April232018008