R. v. Hussein, 2011 ABQB 601

Court of Queen ’ s Bench of Alberta Citation: R. v.

Hussein, 2011 ABQB 601 Date: 20110930 Docket: 100827195Q1 Registry: Calgary Between: Her Majesty the Queen - and - Johar Sirage Hussein Corrected judgment: A corrigendum was issued on October 3, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of Chief Justice Neil Wittmann _______________________________________________________ INTRODUCTION [ 1 ] The accused was arraigned on a charge of second degree murder, that he did on July 8 th , 2010, at or near Calgary, Alberta, unlawfully cause the death of Bak Joseph Malok.

He entered a not guilty plea to that charge upon his arraignment, but by agreement between the Crown and his counsel, entered a guilty plea to a reduced charge of manslaughter.

[ 2 ] The Court was advised that the defendant was made fully aware of the provisions of section 606(1.1) of the Criminal Code , that he understood he was making the plea voluntarily and understood that the plea was an admission of the essential elements of the offence, the nature and consequences of the plea and that the Court was not bound by any agreement made between the accused and the prosecutor. FACTS [ 3 ] The sentencing hearing thereafter proceeded on the basis of an Agreed Statement of Facts. Excerpts from the Agreed Statement of Facts, entered as Exhibit 1, include the following:

Summary 4. On July 8, 2010, Johar Hussein (“the Accused” or Hussein”) was at the Mezzaluna bar. He got into a fight with Bak Joseph Malok (“the Deceased” or “Malok”). During this fight, the Accused unlawfully stabbed the Deceased. The Deceased died in hospital. The cause of the Deceased’s death was the injuries inflicted upon him by the Accused. The Crown admits the Crown could not have proven that the Accused had the mens rea necessary for a conviction for second degree murder. Background 5.

The offence took place at the Mezzaluna bar which was located at 920 36 Street, N.E. in the City of Calgary in the Province of Alberta. At the time of the offence, the Mezzaluna had a reputation as a bar where fighting was not uncommon. The Accused had been at the Mezzaluna on earlier occasions when fights broke out. The accused had also been told about fights and other violence that had taken place at the bar or involving bar staff or "regulars". 6. On July 8, 2010, the Accused went to the Mezzaluna with Jacqueline Fisher ("Fisher") and Korena La Fayette ("La Fayette").

Fisher was the Accused's girlfriend at the time. La Fayette is Fisher's cousin. It was Fisher's birthday. Fisher and La Fayette were regulars at the bar. They went to the Mezzaluna because drinks were cheap and it was close to where La Fayette was living at the time. 7. Before going to the bar on July 8, 2010, the Accused took a knife from Fisher's bedroom. The knife was described as a folding knife and the blade was estimated to be two inches long. He carried it in his pocket. On a prior occasion, the Accused had asked Fisher if he could have the knife.

She had told him, "no" because it had been a gift to her from a prior employer. 8. At the bar, Fisher and La Fayette drank excessively. They were both very drunk by the time the fight that gave rise to the charges happened. The Accused had drunk some alcohol, but he was not intoxicated at the time of the fight. 9. The Deceased was with two companions on the night of his death. They were known at the bar as trouble makers. The Accused believed that the Deceased and his companions had sold drugs at the bar in the past. He also believed that they had been in fights at the bar in the past. The Fight 10.

Just before the fight, the Accused was outside of the bar smoking with Anthony Redmond ("Redmond"). Redmond was also a regular at the bar and was dating one of the bar staff. There were other patrons outside smoking or drinking on the bar patio.

11. The Deceased and his companions approached the bar. Redmond engaged them. Redmond told them they were not welcome at the bar and they should leave. Other bar patrons began to gather around Redmond and the Deceased and his companions. Angry words were exchanged between the Deceased's group and Redmond's group. The Accused was part of Redmond's group. During this part of the fight, the Accused saw the Deceased repeatedly making a motion behind his back. The Accused suspected that the Deceased had a weapon in the back of his pants. 12. Redmond and the Deceased's argument became physical.

Both threw punches at the other. The Deceased punched Redmond. The Deceased's punch connected with such force that Redmond buckled at the knees and he went down. Other bar patrons moved Redmond away from the fight. 13. While Redmond and the Deceased were fighting, more bar patrons had gathered and were also engaging the Deceased and his companions in an angry verbal exchange. These other patrons included a woman named Sharon Evans ("Evans"). At some point during the fight with Redmond, the Deceased went to punch Redmond but missed and hit Evans.

The Accused did not actually see the Deceased hit Evans but learned of it from the crowd's reaction. 14. Fisher was incensed by the Deceased hitting Evans. She began to yell at the Deceased. La Fayette was inside the bar and saw Fisher yelling at the Deceased. La Fayette came out and stood beside Fisher and began berating the Deceased as well for "hitting a girl". The Accused was standing beside Fisher and La Fayette while they berated him. The crowd was still around the Deceased and his companions. Up until this time, the Accused had been attempting to calm people down and separate the opposing groups. 15.

At some point, the Accused took the knife he had with him out of his pants pocket, having seen the Deceased reaching behind himself in a fashion that made the Accused suspect that the Deceased was armed. 16. While Fisher and La Fayette were berating the Deceased, the Accused began to fear for their safety. The Accused put himself between the girls. While talking to the Deceased's companions, the Accused saw the Deceased make a movement that he thought was threatening toward Fisher and La Fayette. The Accused attacked the Deceased. The Accused stabbed the Deceased in the stomach with a punching motion.

The Deceased began to stumble. 17. The Accused very quickly had the Deceased down on the ground. While the Deceased was down and the Accused was on top of him, the Accused again stabbed the Deceased with the knife. He remembers punching the Deceased with the knife at least twice while they were on the ground. 18. The Accused realized he had seriously injured the Deceased. 19. The Accused got up off the Deceased. The other patrons moved in and continued to assault the Deceased. The Accused quickly looked across the crowd. He saw that Fisher was unharmed. He immediately left the bar. 20.

The duration of the punching and stabbing of the Deceased by the Accused was very short. Witnesses estimated it to have lasted mere minutes. 21. None of the people who were present for the fight and interviewed by police actually saw the Deceased with a weapon. Police did not find a weapon. The Deceased's companions said he did not have a weapon. 22. Bar staff had called the police by this time. The crown dispersed as they heard the police sirens. The Accused had left the area by the time police arrived. The Deceased's Injuries

23. Upon police arrival, it was immediately apparent that the Deceased was very seriously injured. The first police responders arrived at the bar at 11:07 pm. Malok was lying motionless on the ground. He was not wearing any clothing on his upper torso and his face was bloodied. Police checked Malok for signs of life. Malok had a pulse and was breathing shallowly but he was otherwise unresponsive. Police could see a stab wound under Malok's right arm and a second stab wound to Malok's lower abdomen. 24. Police called EMS. EMS arrived within five minutes.

EMS took Malok to the Foothills Medical Centre at approximately 11:21 PM. They arrived at hospital at 11:33 PM. Malok was first taken to a trauma bay. He was then taken to an operating room at approximately 11:59 PM. Malok underwent two surgeries. This aggressive medical intervention was not successful in saving his life. Malok died in the morning of July 9, 2010. 25. Malok was 20 years old at the time of his death. 26. An autopsy was performed. A pathologist, Dr. Belenky, performed the autopsy examination. Dr. Graeme Dowling, the Medical Examiner, prepared the autopsy report. It is admitted that Dr.

Dowling is qualified to give expert opinion evidence on the cause of death. The Accused admits that Dr. Dowling determined the cause of death correctly. 27. Dr. Dowling determined that the cause of Malok's death was stab wounds of the chest and abdomen. 28. Dr. Dowling noted a number of injuries on Malok's body including the following: a. At least one stab wound on the right side of the front of the chest that was "associated with internal injuries of the right lung, the right hemidiaphragm, and of the liver"; this would is estimated to be approximately 2 cm long and in excess of 10 cm deep. b.

A stab wound located in the lower abdomen near the right groin which damaged two major blood vessels and the small bowel; this wound measures approximately 2 cm in length and is estimated to be in the range of 10-15 cm deep. c. A deep cut over the left side of Malok's forehead which extended down the outer surface of the skull; and d. a cut or stab wound over the back of the left hand. 29. A copy of Dr. Dowling's autopsy is attached to these facts at TAB 1. The Police Investigation: The Accused's Destruction of Evidence: The Accused's Confession 30.

Police interviewed a number of Mezzaluna patrons immediately after the fight between the Accused and the Deceased. Police identified the Accused as a likely suspect early on in the investigation. The Deceased's companions and another person who was at the bar told police they had seen the Accused with a knife and identified him as "the stabber". Police began to try and make contact with the Accused. For example, they made a number of phone calls to his cell phone, leaving messages for him to contact them. 31. The Accused told people shortly after the fight that he had stabbed the Deceased.

He knew he had seriously injured the Deceased. 32. None of the Accused or his friends knew that the Deceased had died until it was reported on the news later on in the day of July 9, 2010. After learning that Malok had died, the Accused contacted police. He made arrangements to turn himself in. 33. The Accused was arrested on July 10, 2010. He gave an interview to the police.

34. The Accused destroyed and hid evidence in an initial effort to thwart the police investigation. He later decided to "come clean"with the police. 35. The clothes the Accused had been wearing to the bar had the Deceased's blood on them. The Accused washed his clothes and thentook them to a charity donation box. He told the police where they could find the clothes. 36. The Accused told police he had disposed of the knife. He gave police a number of versions of where he had thrown the knife.Eventually, he told police that he had hidden the knife in an urn at Fisher's cousin's home.

When the police searched the cousin's home,the knife had been removed. Police have never been able to recover the knife. 37. In the interview, the Accused told police that during the fight, he was scared for Fisher and La Fayette. He said he just reacted andhis worry and anger with the Deceased took over. He admitted to stabbing the Deceased. The Accused admitted that he had no lawfulexcuse for stabbing the Deceased. He admitted he should have removed the girls from the area and walked away. He expressed remorsethat the Deceased had died. [4] The Confidential Autopsy Report prepared by Dr.

Graeme Dowling was attached as Tab 1 to Exhibit 1. Hussein agrees thatthe report is accurate in terms of the cause of death of Malok, in that the stabbing by the accused caused the death of Malok. TheAutopsy Report includes the statement that there are five sharp injuries located over the forehead, left shoulder, right anterior chest wall,right inguinal region and the extensor surface of the left hand. The inguinal stab wound is estimated to be in the range of 10-15 cm deep. The stab wound located in the right anterior chest wall appears to measure slightly in excess of 10 cm.

The cause of death on the autopsyreport was stated to be stab wounds of chest and abdomen.

SUMMARY OF THE PARTIES’ POSITIONS [5] The Crown took the position that a fit and proper sentence based on the authorities was in the range of 7-9 years lessappropriate credit for time served in pre-sentence custody since July 10, 2010. The accused took the position that a fit and propersentence was 5 years less credit for time served. Authorities Cited by the Parties [6] In support of the position of the Crown, it cited the following authorities: sections 718, 718.1, 718.2,

section 236 of theCriminal Code; R. v. Laberge, (1995) 1995 ABCA 196 , 165 A.R. 375 (Alta. C.A.); R. v. Bazinet, 2005 ABCA 388 (Alta.C.A.); R. v. Sousa, [1991] B.C.W.L.D. 2316 (B.C.C.A.); R. v. Willier, 2008 ABCA 33 (Alta. C.A.); R. v. Gray, 2003 ABQB 473; R. v.Left, 2005 ABPC 105 (Alta. P.C.). The accused cited: R. v. Wharry, 2007 ABQB 462; R. v. Griffiths, 2006 ABPC 316, section 719(3.1)of the Criminal Code.

Argument of the Crown [7] In arguing that the fit and proper sentence for this accused is 7 - 9 years incarceration, less time served, the Crown indicatedthey were putting forward their case on the basis that Laberge stood for the proposition that the moral culpability of Hussein should falltoward the near murder end of the spectrum as opposed to the near accident end of it.

In this regard, the Crown argued that the threebroad groups of unlawful acts articulated by Chief Justice Fraser in Laberge, namely those which are likely to put the victim at risk of, orcause bodily injury, those which are likely to put the victim at risk of, or cause serious bodily injury, and those which are likely to put thevictim at risk of, or cause life threatening injuries, compelled this Court to find that, in this case, Hussein’s unlawful act put the victim atthe risk of, or caused life threatening injuries when one is called upon to evaluate the mental state of Hussein at the time of thecommission of the offence.

[ 8 ] In support of this contention, the Crown offered the evidence from the Agreed Statement of Facts that Hussein knowingly brought the knife to the bar, a drinking establishment, that it was a folding knife which, to be used, had to be removed from his pocket and opened, which took some deliberation, and that he immediately proceeded to stab the victim Malok in the groin, and thereafter, having gotten Malok on the ground, again stabbed him with the knife at least twice. [ 9 ] The Crown also argued that objectively Hussein’s intent must be assessed at putting Malok at the risk of, or causing life threatening injuries.

Subjectively, the Crown says there is no proper inference to be drawn by this Court that Hussein intended otherwise. [ 10 ] The Crown acknowledges there are other factors to be considered, namely whether the act was impulsive or spontaneous, as those terms are used in Laberge .

The Crown argues that Hussein acted out of worry and anger for the safety of the two women he was with. [ 11 ] The Crown cited Sousa , Willier , Gray , and Left because they all concern manslaughter sentences arising from stabbing deaths. [ 12 ] Bazinet was cited by the Crown for the proposition that the “most significant” sentencing principles that must be reflected in a sentencing of this Court, are deterrence and denunciation.

There, the court said that individual rehabilitation is secondary to the paramount principles of general deterrence and denunciation, where there is extreme violence by a knife wielding individual. It is to be noted that in Bazinet , the conviction was for aggravated assault and possession of a weapon for a dangerous purpose, not manslaughter; there was no death involved. [ 13 ] In Sousa , a decision of the British Columbia Court of Appeal, the Court upheld a sentence of 7 years and in so doing, indicated it was “at the high end of the range of sentences for manslaughter” in the circumstances before it.

The case involved the use of a knife which had a 5 inch filleting type of blade, and the offender took the knife with him to an arcade with the knowledge that there may be confrontation between the deceased and others, and the offender and others. The offender stabbed the victim suddenly and without warning, with enough force that the knife penetrated the victim’s heart, causing the wound from which he died.

The victim was 19 years of age at the time of his death and the offender had a prior criminal record as a young person and was 20 at the time of the appeal. [ 14 ] In Willier , the Alberta Court of Appeal indicated that the acts underlying the offence were within the highest category of moral blameworthiness, in terms of the Laberge factors. The case involved a fairly intoxicated offender. The offender was drinking at the Sawatsky residence most of the day. Her mother was threatened by Sawatsky at some point.

The offender returned to her residence, obtained two knives, went back to the Sawatsky residence, and threatened to kill him whereupon Sawatsky left. Still in possession of the two knifes, the offender went to the bedroom where the deceased was sitting on the bed and after an argument, the offender pushed the deceased onto the bed and stabbed her four times in the abdomen. [ 15 ] The Court of Appeal found an appropriate sentencing range would be 8 to 12 years based on aggravating and mitigating factors.

The aggravating factors included bringing knives to the residence, stabbing the deceased four times in the abdomen, that the deceased was unarmed, and that the offender took no steps to assist the deceased, and left the residence while the mortally wounded deceased was still alive. Mitigating factors were that the offender entered a guilty plea, had no criminal record and cooperated in the investigation and upgraded her education while in custody.

Ultimately, the Court sentenced the offender to 8 years, less credit for time served. [ 16 ] In Gray , a decision of this Court, the offender was celebrating his 18 th birthday on judicial interim release while a young person. The deceased, a 22 year old university student, 6'8" in height, 216 pounds, met the offender, 5'11", 180 pounds, at a night club and the deceased instigated a fight with the offender. After the fight was broken up, the parties were ejected from the club.

The deceased challenged the offender again to fight with him in the parking lot, at which point the offender went towards the deceased and produced a butterfly knife, which he swung at the deceased causing a single stab wound to the chest, penetrating the heart causing death. [ 17 ] The Crown has argued that a butterfly knife is, as found by the Court, a weapon calculated to inflict harm on persons. The sentence was 5 years for manslaughter. In doing so, Watson J. (as he then was), indicated that the case fell within the second category in Laberge , not the third category.

Watson J., found that he was satisfied beyond a reasonable doubt that the offender had the intent to cause serious harm to the deceased but he wasn’t persuaded beyond a reasonable doubt that he intended life threatening harm.

[ 18 ] In Left , Hironaka P.C.J. did a Laberge analysis, concluding that the most important factor is the nature and quality of the unlawful act by the offender. He noted that the event was an unprovoked assault, that the offender chased the victim after the victim fell to the ground and stabbed the victim several times, the fatal stab wound being 10 cm deep. Hironaka P.C.J., found that the offender knew or ought to have known, that repeatedly stabbing the victim while he lay on the ground was likely to put the victim at the risk of, or caused life threatening injuries.

The sentence was in the 6 ½ year range with credit for 14 months, pre-disposition custody, for a net sentence of 4 years. [ 19 ] The Crown also pointed out the aggravating and mitigating factors in each of the above cases, and in each case, the factors were different. Argument of the Offender [ 20 ] Much time was spent by the offender’s counsel in distinguishing the cases put forward by the Crown on various bases. For example, he distinguished the weapon in Sousa where the accused was taking it for protection in case he had to use it, that it was a weapon with a 5 inch blade.

Also, in Willier , it was noted that the offender armed herself with two knives for the purpose of seeking out Sawatsky. [ 21 ] Hussein’s counsel refers to Gray , as suggesting that this case is ample support to place the case of moral culpability in the second Laberge category, not the third, and that this is why 7 years is at the high end of the range.

As stated, a butterfly knife was used in Gray , it was a prohibited weapon, the accused was on judicial interim release, and the deceased was not actively aggressive towards the accused prior to the stabbing, also the accused showed no real remorse for his actions. [ 22 ] In citing Wharry , the offender’s counsel indicates that this decision from this Court, is a good

summary of general principles, even though the sentence for manslaughter was 12 years. In Wharry , the offender fired 3 shots from a vehicle with a 45 calibre handgun and killed an innocent pedestrian. In assessing the moral culpability of the offender, Greckol J., put Wharry ’s conduct in the middle category of the Laberge cases, and found that he intended to fire randomly in the direction of a group of innocent young people, putting them at risk of serious bodily injury, without being motivated by the intent to kill.

She of course considered all of the other factors outlined in sections 718 , 718.1 , and 718.2 of the Criminal Code , including the aggravating and mitigating circumstances, the criminal record of the offender and the personal circumstances of the offender, prior to fixing the sentence for manslaughter at 12 years. [ 23 ] In citing Griffiths , a decision of Maher P.C.J., the offender was 18 years old and went to a house party, and was involved in what was described as a scuffle.

The offender apparently went home with his friend, realized he had lost or left his cell phone at the party, and returned to the party with his friends after they had assembled a baseball bat, a pipe, a pool cue, and an aluminium hockey stick, as well as a can of pepper spray, and on their way they stole a license plate from another vehicle and put it on the vehicle they were using. [ 24 ] The victim was pepper sprayed and the offender swung at him with a bat after he was down, striking him repeatedly. The cause of death was a single blow to the head, inflicted by the bat.

The deceased was not involved in the earlier scuffle at the house party, and had not been drinking, but rather was acting as a designated driver. In assessing the conduct of the unlawful acts of the offender, in the context of the three broad groups referred to in Laberge , Maher P.C.J. indicated that the moral culpability of the offender was such that he must be taken to intended serious bodily harm. After considering factors including no prior criminal record, the prior character of the offender, his age, community and family support, Maher P.C.J. imposed a conditional sentence of 24 months less a day.

THE VICTIM IMPACT STATEMENT [ 25 ] A Victim Impact Statement was read to the Court by the deceased’s father, Joseph Malok. It contains a heart wrenching expression of sorrow and anguish in mourning the loss of his son. The statement refers to Bak Malok as a kind, respectful person whose loss was felt by his father, his family, including his siblings and his community. It speaks of the pain Joseph Malok and his wife and children still endure every day. PERSONAL CIRCUMSTANCES OF THE OFFENDER

[26] Exhibit 2 was tendered to show that on April 8, 2005, the offender was convicted of common assault pursuant to

section 266of the Criminal Code in Calgary. Further, that on January 18, 2008, the offender was convicted of unauthorized possession of a firearm(section 91(1); possession of a loaded, prohibited restricted firearm (section 95(1)); and dealing with a firearm or restricted weaponcontrary to regulations (section 86(2)). The sentence imposed was 12 months, less credit for pre-trial custody. [27] Hussein is now 27 years old and was 26 years old at the time of the offence. He was born in Saudi Arabia. His family lived inEthiopia and in Italy.

His father and mother live here and he has younger brothers living in Calgary. He attended Forest Lawn HighSchool, although he is a few credits short of attaining his Grade 12 Diploma. He has been engaged in a number of forms of employment,the longest being with a major furniture outlet for some 5 years and at the time of the offence was working as a forklift operator. CREDIT FOR PRE-SENTENCE CUSTODY [28] It is common ground that Hussein has been in custody since July 10, 2010, for a total of approximately 64 weeks.

Hussein hasargued through his counsel, that he should be entitled to more than 1 for 1 credit for time served. In this regard, he cites section 719(3.1)of the Criminal Code. [29] The legislative scheme of section 719(3) and (3.1), is such that Parliament has told courts in Canada that they may take intoaccount any time spent in custody by a person as a result of the offence ... “but the Court shall limit any credit for that time to amaximum of 1 day for each day spent in custody”. The

section referred to by Hussein’s counsel, 719(3.1) is styled as an exception. Itsays: Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody .... [30] Here, Hussein’s counsel argues that a mitigating circumstance with respect to the sentence is the early guilty plea. The Crowndoes not disagree that this is a mitigating factor, but Hussein’s counsel goes further.

He says that Hussein was willing to plead guilty tomanslaughter a year ago, and that he ought not to be penalized for the Crown’s not accepting the guilty plea to the reduced charge ofmanslaughter then, rather than June, 2011, when the agreement to the reduced plea was reached. So, goes the argument, the offenderought to be given credit under what is described as an exception, in excess of 1 for 1, that is rather 1 and ½ days for each day spent incustody.

When asked during oral argument if there was any authority for this proposition, neither counsel offered any. [31] The Court is aware of its obligation to uphold the law. That does not mean turning an exception, according to a legislativescheme, into a normative exercise of discretion. The cases with respect to section 719(3) and its predecessor section, all considerexceptional circumstances for enhanced credit largely on the basis of the conditions under which that time is served.

What wasemphasized in previous authorities was the judicial discretion granted in exceptional circumstances to grant more than a normative two for one credit for pre-sentence custody: R. v. Sooch (2008), 2008 ABCA 186 , 234 C.C.C. (3rd) 99 (Alta. C.A.). There is nodoubt that Hussein has served what is commonly referred to as “hard time”. That includes a consideration of the lack of programs andservices in the remand centre compared to a penitentiary. The corollary also seems applicable.

That is, where an offender has had accessto programs and services in a remand centre, the Court is justified in exercising its discretion downward: R. v. B(A.J.) (2007), 2007 MBCA 95 , 51 C.R. (6th) 336 (Man. C.A.). [32] The Court is mindful of the discretion bestowed upon us, but also is mindful, that that discretion must always be exercisedjudicially. There must be a rational basis for it. Here, I am left without any rational basis upon which to exercise that discretion, at least inthe context of the traditional logic and reason for giving enhanced credit for pre-sentence custody.

I therefore decline to exercise it. Theoffender will have the credit mandated in section 719(3) of the Criminal Code, namely on a 1 for 1 basis, which time will be deductedfrom the gross sentence fixed by the Court. Notwithstanding this conclusion, I have considered the very early attempt to plead guilty as amitigating factor, as will be seen later in these reasons. THE ACCUSED’S STATEMENT TO THE COURT

[ 33 ] As is required by the Criminal Code , the Court asked the accused if he had anything to say before sentence was pronounced and he read his statement to the court. He apologized and referred to the incident as unreal, in a sense that he had a hard time accepting it was not just a bad dream. He indicated his thoughts and prayers were with the victim’s family. Hussein’s counsel also indicated that this was not the first time he had expressed remorse for his acts as indicated in the Agreed Facts. The Court accepts that his remorse is genuine.

THE SENTENCE [ 34 ] A court, in sentencing an offender, is required to consider the objectives of sentencing and other principles articulated in sections 718 , 718.1 and 718.2 of the Criminal Code . [ 35 ] Here, the Court finds there are many aggravating factors as follows: 1. Knowingly taking a knife to a drinking establishment; 2. Opening the folding knife and attacking the victim without being certain that the victim was carrying a weapon; 3. Applying brutal force with the knife after the first wound by getting on top of the victim, who was on the ground, and stabbing him again at least twice; 4.

Initially concealing or attempting to conceal evidence, namely the knife and attempting to wash the deceased’s blood from his own clothing and dispose of it. [ 36 ] The mitigating factors are: 1. The very early guilty plea and the attempt to plead guilty much earlier; 2. The offender’s expression of remorse; 3. The offender’s initial attempt to act as a peacemaker during Malok’s fight with Redmond; 4. The offender’s perception of a threat to his female friends, suspecting Malok may be armed. 5.

The offender’s later cooperation and confession with the police, including describing the location of the knife and the disposal of his clothing. [ 37 ] The Court considers the objectives in

section 718 of the Criminal Code to be concurrent. It is aware that the Court of Appeal in Bazinet , has said that denunciation and deterrence must be paramount, and individual rehabilitation must be secondary in the case of aggravated assault with a knife. I do not find it necessary, in imposing a sentence, to consider either a conflict between those objectives or a hierarchy. Hussein will be going to a penitentiary. The penitentiary will have programs and services and give him an opportunity to continue his education and to better himself. That is a form of rehabilitation.

Less jail time is not necessarily rehabilitative. [ 38 ] Returning to Laberge , the ultimate objective in arriving at a sentence for manslaughter is to place the offence as near murder or near accident, and in so doing, to assess the moral culpability of the offender. Considering all of the factors discussed earlier, I am

driven to the conclusion that the moral blameworthiness of the offender is such that there was a risk of inflicting life threatening injuries. [ 39 ] Notwithstanding that others on this Court may perceive that firing a handgun into a crowd of pedestrians or using a knife may only qualify in the category of an intent to inflict serious bodily harm, but not something that is life threatening, seems to me to be derived from a close examination of the facts of each case.

But here, how could it possibly be, that stabbing a person down on the ground, in the chest at least twice, with a knife that inflicted wounds of at least 10 cm deep, not be life threatening? [ 40 ] In addition, I must consider the criminal record of Hussein. Two and one-half years prior to this offence Hussein was convicted of possession of a restricted firearm, arguably a more dangerous weapon than a knife. [ 41 ] The Court also notes the Autopsy Report and Agreed Statement of Facts refer to stab wounds in excess of 10 cm deep in one place and 10-15 cm deep in another.

Also, that the blade of the knife, according to the Agreed Facts, was estimated to be 2 inches long. The Court takes judicial notice that 2 inches equates to 5.1 cm. Nowhere in the evidence has there been any explanation as to how a 2 inch blade can cause a wound 10-15 cm deep.

The only inference the Court can draw, is that either the blade was in fact longer, or the force applied resulting in the deep penetration was extreme. [ 42 ] The Court is mindful of the circumstances of the offence and the offender, the fear and anger of Hussein at the victim, whom he viewed to be a threat to the two women he was trying to protect. [ 43 ] Finally, I am mindful of the principles and guidance recently provided in R. v. Arcand , 2010 ABCA 363 .

In Arcand , at paragraph 299 , the majority indicated that the most important of the codified sentencing principles, that is the principles in the Criminal Code , set out in

section 718 , 718.1 and 718.2 is the governing proportionality principle. The emphasis “ must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. [ 44 ] This is the wording of

section 718.1 of the Criminal Code . The gravity of this offence involves a consideration of the harm or likely harm to the victim, here Malok. In this case, the ultimate harm, death. Also to be considered is the harm to society.

The degree of responsibility of the offender includes a consideration of many of the factors outlined above, including the Laberge spectrum of moral culpability in a manslaughter case, the offender’s personal circumstances as well as his mental capacity or reason for committing the crime. [ 45 ] Weighing all of these factors and in all of the circumstances, the Court imposes a sentence gravitating towards the Crown’s range of 7-9 years. Therefore, the gross sentence, before deducting credit for time served, will be 6½ years imprisonment.

Deducted from that 6½ years will be the time already served which I calculate to be 64 weeks leaving a net sentence of 5 years, 14 weeks. [ 46 ] In addition, there is no issue as between the Crown and defence, that the offender will be required to give a sample of his DNA in accordance with

section 487.051 of the Criminal Code and also will be subject a weapon’s prohibition pursuant to

section 109 of the Criminal Code for a period of 10 years. Heard on the 26 th and 27 th day of September, 2011. Dated at the City of Calgary, Alberta this 30 th day of September, 2011.

Neil Wittmann C.J.C.Q.B.A. Appearances: Gordon Haight and Pamela McCluskey for the Crown Allan Fay for the Accused _______________________________________________________ Corrigendum of the Reasons for Judgment of Chief Justice Neil Wittmann _______________________________________________________ Page 13 - Paragraph 38 - second sentence - the line should read: “to place the offence as near murder or near accident ” not “to place the offence as near murder or near manslaughter ”