R. v. Sinclair, 2011 ABQB 652

Court of Queen ’ s Bench of Alberta Citation: R. v. Sinclair, 2011 ABQB 652 Date: 20111026 Docket: 100972140Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Ashley Rose Sinclair Accused _______________________________________________________ Reasons for Sentence of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] Ashley Rose Sinclair plead guilty to the manslaughter of Angel Bird on July 31, 2010. [ 2 ] Ms. Sinclair has agreed to a Statement of Facts which has been entered as an exhibit in these proceedings.

I will summarize it briefly. [ 3 ] Ms. Sinclair and Ms. Bird who were close friends were together drinking and partying on the evening of July 30, 2010. They went with a male, Lazslo Sari, who they had met a few weeks earlier, to a bar where they stayed for about an hour. Then they went to a house that Mr. Sari was looking after while the owners were out of town. They continued to drink and party together at this house. Ms. Sinclair started an argument with Ms. Bird. At about 2:00 a.m. on July 31, a friend of Mr. Sari ’ s, William Littlejohn arrived at the house. The argument between Ms. Sinclair and Ms.

Bird escalated. Ms. Sinclair appeared to be very angry with Ms. Bird, and confronted her about her having had sex with Mr. Sari on some previous occasion. This upset Ms. Sinclair because Ms. Bird was engaged to Ms. Sinclair ’ s brother.

[4] Mr. Sari and Mr. Littlejohn left the room in which Ms. Sinclair and Ms. Bird were arguing. At about 2:30 a.m. Ms. Sinclairobtained a serrated kitchen knife and stabbed Ms. Bird in the chest area. Mr. Sari had re-entered the room and saw Ms. Sinclair stab Ms.Bird. He grabbed Ms. Sinclair’s hand and prevented her from continuing to stab Ms. Bird. [5] Mr. Littlejohn, who did not see the stabbing, heard Ms. Bird say, “She stabbed me, I can’t believe she stabbed me.” [6] Mr. Sari emphatically told Ms. Sinclair to leave and saw her leave out the back door of the house with the knife. [7] Mr.

Littlejohn called police and emergency services for assistance. Ms. Bird was taken to hospital. Surgery was performed. Ms. Bird died while in surgery at 6:25 a.m. An autopsy confirmed that Ms. Bird died from a stab wound to the chest. There was asecond stab wound to Ms. Bird’s shoulder that would not have been lethal. [8] Ms. Sinclair went to a nearby 7-11 store where she used the phone to call Azem Klinaku, with whom she had a relationshippreviously, and who is the father of her baby daughter. She asked him to come and pick her up.

A clerk in the store overheard Ms.Sinclair say, “I fucked up, I messed up,” while talking on the telephone. [9] Mr. Klinaku picked up Ms. Sinclair at the 7-11 and took her to her apartment. She could not get into her apartment becauseshe did not have her key. She told him she had stabbed Ms. Bird. She then saw the police helicopter overhead and hid in a bush to avoiddetection. She then got back in the car and drove to Mr. Klinaku’s sister’s house. Mr. Klinaku told Ms. Sinclair they would need to gettheir baby who was at Ms. Sinclair’s sister’s house, and flee the city. Mr.

Klinaku suggested a plan for that purpose. They went to Ms.Sinclair’s sister’s residence. Ms. Sinclair’s sister would not let them in. She called the police. When the police arrived Mr. Klinaku andMs. Sinclair ran away and evaded police. They were eventually tracked down after Ms. Sinclair called her sister in a second attempt toobtain her child. [10] Ms. Sinclair is 20 years old. She was 19 at the time of the offence. She has a baby daughter. She has substantial familysupport. As to prior criminal activity, Ms.

Sinclair plead guilty to a charge of common assault in 2007 in the Northwest Territories butdid not appear for sentencing and the matter went to warrant. She was also on judicial interim release in respect of three other chargeslaid in 2007 in the Northwest Territories. Those charges have also not been dealt with and a warrant in respect of them was outstandingat the time of Ms. Sinclair’s arrest on these charges. Mr. Royal indicated that Ms. Sinclair moved to Edmonton with her mother with theresult that these Northwest Territories matters were not dealt with.

Therefore, though strictly speaking she has no criminal record, thereare 5-year-old youth criminal proceedings against her that are outstanding because of her failure to appear. [11] Ms. Sinclair waived a preliminary inquiry and plead guilty at an early stage of the proceedings. She has been in custodysince August 1, 2010 - 14 months and 25 days. [12] Ms. Hussain for the Crown submits that a fit sentence is in the range of 8 to 12 years. Mr. Royal, for Ms. Sinclair, submitsthat the appropriate range is 4 to 6 years. [13] Counsel referred to R. v.

Laberge (1995) 1995 ABCA 196 , 165 A.R. 375 where Fraser, C.J.A. discussed thedetermination of a fit sentence is a case of manslaughter. Determining where the accused fits on the extremely wide range of possiblesentences for manslaughter involves an assessment of the moral blameworthiness of the accused, that is, an assessment of the intent ofthe accused at the time the crime was committed, as revealed by the act which caused the death and any other indications of theaccused’s intent.

Fraser, C.J.A. identified 3 categories or degrees of moral blameworthiness based on an objective assessment of theunlawful act which caused the death: 1. Where it was likely to subject the victim to the risk of bodily harm which was neither trivial nor transitory. 2. Where it was likely to subject the victim to risk of serious bodily injury.

3. Where it was likely to subject the victim to risk of life-threatening injury. [ 14 ] Here Ms. Sinclair stabbed Ms. Bird in the chest with a knife. Such

an act, objectively assessed, is one which obviously subjects the victim to risk of life-threatening injury. On an objective assessment, Ms. Sinclair ’ s moral blameworthiness is in the third category identified in Laberge . The objective seriousness of Ms. Sinclair ’ s act is increased by the fact that it involved the use of an obviously dangerous weapon in an obviously dangerous way, and that she stabbed Ms. Bird in a part of her body where vital organs are located. Features of the circumstances which would tend to decrease the moral blameworthiness are the fact that in Ms.

Sinclair ’ s mind there was some provocation: Ms. Bird ’ s unfaithfulness to her fiancé, Ms. Sinclair ’ s brother, and her participation in a heated argument; and the fact that there was but one lethal stab wound and no, or at least very little, additional gratuitous violence. [ 15 ] Laberge indicates that in addition to assessing the unlawful act objectively, the Court, in measuring the relative moral blameworthiness of the accused ’ s conduct, should consider what inferences can reasonably be drawn from the circumstances as to the accused ’ s subjective intent. [ 16 ] Ms. Sinclair ’ s act in stabbing Ms.

Bird was spontaneous and impulsive. It was done in anger which apparently was fuelled by an argument and by alcohol. There is no indication that Ms. Sinclair brought the knife to the scene. Very shortly afterward Ms. Sinclair recognized her act to have been wrong. She was heard to tell Mr. Klinaku that she had messed up. She had stabbed her close friend. From these circumstances I infer that she did not subjectively intend to cause Ms. Bird life-threatening injury. This consideration ameliorates the conclusion reached by the objective assessment. [ 17 ] In my view, Ms.

Sinclair ’ s leaving the house where the stabbing occurred and attempting to evade police is not of great significance in assessing Ms. Sinclair ’ s moral blameworthiness in stabbing Ms. Bird. It appears that most of those acts were undertaken at someone else ’ s suggestion. I also infer that Ms. Sinclair, in attempting to evade police, was in significant part acting out of concern for her infant child. I also do not consider it aggravating that the accused left the scene without herself calling for help because she left knowing that others remained at the scene to help Ms.

Bird. [ 18 ] In Laberge the act which caused death was forcefully striking an infant against the floor in reaction to the child ’ s uncooperative wriggling when the accused was attempting to change its diaper. The act was in the second Laberge category so, objectively assessed, Mr. Laberge was less morally blameworthy than Ms. Sinclair. Ms. Sinclair ’ s act (grabbing a knife and stabbing Ms. Bird in the chest with it) involved more deliberation than the act of the accused in Laberge - it was less impulsive. Like Ms. Sinclair, Mr.

Laberge acted impulsively and clearly without thinking of the likely serious consequences of his act. The accused lost his temper. [ 19 ] In Laberge the Court of Appeal held that a fit sentence was 4.5 years. [ 20 ] Both counsel referred me to several cases, each one bearing similarities to the case at hand. I have arranged my discussion of them in order of decreasing length of sentence. In all of the cases the accused plead guilty. [ 21 ] R. v. Sangha , 2001 ABQB 373 – The accused, who was very drunk, stabbed the deceased with whom he had spent the day drinking, 10 times in the neck, chest and abdomen.

He also strangled the deceased with a telephone cord. The violence was in the context of an argument over $200.00 which the deceased had earlier paid the accused for fixing his car but had demanded back. The accused was 45 years old and an alcoholic. He had a lengthy criminal record. The Court noted that this was not a case where death followed upon a single punch, push or stab wound. It involved many life-threatening stabs and strangulation. The Court held that a fit sentence was 9 years. [ 22 ] R. v. Willier , 2008 ABCA 33 – The accused, who was drunk, initiated an argument with the deceased.

The deceased swung her fist at the accused 2 or 3 times but missed. The accused pushed the deceased onto a bed and began to stab her with a knife that she had brought to the scene. She stabbed the deceased 4 times in the abdomen. The accused turned herself in and was cooperative. She was 29, and had no prior record. She had three children. The Court of Appeal held the circumstances to be in the third Laberge category and that the sentencing range was between 8 and 12 years.

That the accused brought the knife to the scene and that she stabbed the unarmed deceased 4 times in the abdomen were considered aggravating features. The Court concluded that a sentence of 8 years before adjustment for pre-trial custody was fit.

[ 23 ] R. v. Left , 2005 ABPC 105 – The deceased without provocation assaulted the accused. The accused chased the victim for 120 feet. The victim fell to the ground. The accused stabbed the victim several times. There were 5 separate wounds. The Court found the circumstances to be in the third Laberge category. That the accused had cooperated with authorities, plead guilty early and expressed remorse mitigated sentence. The Court found that 6 ½ years was a fit sentence before adjustment for pre-trial custody. [ 24 ] R. v. Couterielle , 2003 ABPC 141 – The accused stabbed the victim twice.

One stab was superficial. The other was to the left side at the back of the chest. The deceased ’ s lung was perforated and he bled to death. The Court held the circumstances to be in the third Laberge category. It was considered aggravating that the accused left the scene without calling for help. The deceased was the accused ’ s drug supplier. He was also her friend. The Court held that a fit sentence before credit for pre-trial custody and before taking into account mitigating and aggravating factors (which included a guilty plea) was 6 ½ years. After adjustment a sentence of 4 years was imposed. [ 25 ] R. v.

Commanda, 2007 ABPC 51 – The accused stabbed the deceased, a close friend, in the course of a drunken argument which escalated into a physical fight which escalated into a knife fight. Both escalations of the fight were initiated by the deceased. The accused ’ s act was not self-defence because his actions were excessive in the circumstances. There were several stab wounds found on the deceased ’ s body. The Court held the situation to be in the third Laberge category.

That the accused was not the initiator of the fight and was, at least initially, defending himself, justified the conclusion that he did not subjectively intend to cause harm which put the deceased ’ s life at risk. The accused had a significant criminal record. He was young. He plead guilty. The Court imposed a sentence of 6 years for the manslaughter. [ 26 ] R. v. Beauchamp , 2002 ABCA 60 – The accused, who had been drinking, stabbed the deceased, who had also been drinking, several times after the deceased rolled the accused ’ s water truck and the accused was called out to the scene of the accident.

The accused offered no explanation for his action other than that he went crazy. There were between 5 and 8 stab wounds to the deceased ’ s neck and chest and hands. The accused plead guilty. The Court of Appeal held that a fit sentence was 4 years. [ 27 ] R. v. Poucette , 1999 ABCA 305 – The accused who had been drinking all day with a friend returned to his home with his friend. He had a knife on his person which he concealed to avoid his mother knowing he had it. He argued with his friend and his mother directed him to go to bed.

On his way to bed he exchanged angry words with the deceased who jumped up and came towards him. They grabbed each other and the accused ’ s earring was torn off. The accused forcefully plunged the knife he had with him into the deceased ’ s chest penetrating his heart and causing his death. The accused plead guilty, was aboriginal, young, had a drinking problem from an early age, had very strong family support, and did not have a significant criminal record. The Court of Appeal considered a fit sentence to be 3 years. [ 28 ] The mitigating features of this case are Ms.

Sinclair ’ s early guilty plea, her youth, and the fact that after her initial attempts to evade police, she was cooperative. [ 29 ] In my view, the range of sentence suggested by the Crown, 8 to 12 years, is too high. That range is appropriate for cases where there is greater indication of subjective intent to harm - in particular where there have been multiple stabs inflicted. Here there were two stabs, one of which was not to a vital part of the body and was superficial. The range suggested by Mr. Royal, 4 to 6 years, is in my view closer to the mark.

I place this case in the range created by the cases described above slightly below R. v. Commanda or in the middle of the range suggested by Mr. Royal. [ 30 ] In my view, taking into account the moral blameworthiness of Ms. Sinclair ’ s act, the mitigating factors already identified, the range of sentences indicated by the authorities and the principles of sentencing set out in the Criminal Code , I conclude that a fit sentence before adjustment for pre-trial custody is 5 years. From that I deduct 15 months in respect of the time Ms. Sinclair has already served.

Her remaining sentence is therefore 3 years, 9 months. [ 31 ] There will be a 10-year s. 109 weapons prohibition and a DNA order. Heard on the 7 th day of October 2011.

Dated at the City of Edmonton, Alberta this 25 th day of October 2011. Brian R. Burrows J.C.Q.B.A. Appearances: Domina Hussain for the Crown Peter Royal, Q.C. for the Accused