R. v. Valente, 2012 ABQB 151

Court of Queen ’ s Bench of Alberta Citation: R. v. Valente, 2012 ABQB 151 Date: 20120302 Docket: 091212563Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Andrew Valente Accused _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.M. Ross _______________________________________________________ Background and Facts [ 1 ] Mr. Preshendra Pillay died as a result of an assault by two men: Mr. Valente and Mr. Reaugh.

It was a despicable crime, in which two younger and stronger men assaulted a lone smaller and weaker stranger in the street, without provocation. They pushed or knocked him down and kicked him while he was on the ground. Having said that, it was also a very brief assault, it lasted mere seconds, and the kicks did not cause any injury. Mr. Pillay's death was caused when he fell and hit the back of his head. Pre-Sentence Report

[ 2 ] The probation officer who prepared the Pre-Sentence Report noted that Mr. Valente was generally cooperative during the interview. Prior to the interview he stated that he was directed by his lawyer not to talk about the circumstances surrounding the offence and he provided a letter to this effect. Mr. Valente did not express remorse or emotion in relation to the offence to the probation officer. [ 3 ] The probation officer characterizes his report as positive, noting that Mr. Valente is a first time offender, has the support of family members and is productively employed.

However, the probation officer felt that he was unable to develop a full and true sense of Mr. Valente, including his level of risk to the community, because was unable to discuss the offence or the motivation behind it.

Sentencing Principles [ 4 ] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. [ 5 ] We must also: • denounce unlawful conduct • deter the offender from committing the crime again • send a message to the community that behaviour such as that involved in this case is not to be tolerated • protect the public by separating the offender from the public • assist the offender in his rehabilitation • provide reparation to the victim or the community where harm has been done • promote responsibility in the offender and encourage the offender to acknowledge harm done.

Aggravating Factors [8] There are four key aggravating factors. First, the assault was perpetrated by two men against a stranger on the street, a stranger who was smaller and obviously weaker than them. Second, the assault was unprovoked. Third, there was some degree of planning associated with the attack; it was not a spontaneous act. Fourth, the offenders kicked the victim when he was on the ground. Mitigating Factors [9] This is Mr. Valente’s first offence. He is a relatively young man, 30 now and 28 at the time of the offence.

He has, up until the offence, and since it, while on judicial interim release, been a productive member of society, consistently employed, assisting to support his common law wife and her young daughter. He has many very supportive members of his family and friends. By my count, 41 letters of support were provided on his behalf. The persons writing those letters all indicated that they were aware of Mr. Valente’s conviction for manslaughter, that they were surprised by it because it was so out of character for him, and that they would support him in his rehabilitation.

Victim Impact Statements [10] The victim’s mother and father provided victim impact statements which highlight the terrible impact of losing a son in such horrific circumstances.

[11] I hope that they can someday remember their son’s life rather than his death, and can remember in a positive way the lovethat they shared. I understand, especially while legal proceedings are not completed, how difficult that can be. I hope that they can alsocome to understand, as Justice Sanderman said to them at the sentencing of Sean Reaugh, that the sentence assigned by the court is noreflection of the value of their son’s life’s worth. The sentence does not attempt to make up for the loss of their son; obviously, it couldnot do this in any event. The sentence is determined, not by their loss, but by the criminal culpability and responsibility of thewrongdoer. Analysis (

a) The Three Categories of Manslaughter [12] In assessing criminal culpability for the offence of manslaughter, I am guided by R v Laberge (1995), 1995 ABCA 196, 165 AR 375, [1995] AWLD 588 (CA), where the Court of Appeal stated at para 6: All unlawful act manslaughter cases have two common requirements - conduct which has caused the death of another; and fault shortintention to kill. However, despite these common elements, the offence of unlawful act manslaughter covers a wide range of casesextending from those which may be classified as a near accident at the one extreme and near murder at the other . . .

Different degrees ofmoral culpability attach to each along a continuum within that spectrum. It is precisely because the sentence for manslaughter can rangefrom a suspended sentence up to life imprisonment that the court must determine for sentencing purposes what rung on the moralculpability ladder the offender reached when he committed the prohibited act.

The purpose of this exercise is to ensure that the sentenceimposed fits the degree of moral fault of the offender for the harm done. [Emphasis added.] [13] The Court of Appeal held that one factor that determines moral culpability is the nature of the unlawful act, in terms of therisk that would flow from that act in the view of a reasonable person. Would a reasonable person have foreseen a risk of bodily harm, ora risk of serious bodily injury, or a risk of life-threatening bodily injury?

A higher degree of risk involved in the act, assessedobjectively, brings with it a greater moral blameworthiness for engaging in that act despite the risk. [14] Based on the degree of risk, the Court of Appeal created three categories of moral culpability for manslaughter: the lowestcategory, where there is a risk of bodily injury; the middle category, where there is a risk of serious bodily injury, and the highestcategory, where there is a risk of life-threatening injury.

In addition to the objective risk of bodily injury, sentencing courts are directedto consider evidence of subjective awareness of the risk of injury (para. 17), and a range of other factors, including the use of a weapon,the degree of force, violence or brutality, the degree of deliberation or planning, provocation, the time involved, and the element ofchance in the resulting death (para. 19). [15] The Crown’s position is that this offence is in the middle category.

The Crown argues that when two men, acting together,assault a smaller and weaker man and knock him down, there is, objectively, a risk of head injury which is a risk of serious injury. TheCrown’s submission to this effect in the sentencing proceeding for Mr. Raeugh was accepted by Justice Sanderman. But I am not boundby this determination: R v Christie, 2004 ABCA 287 at paras 40, 45-46. [16] Defence counsel argued that I am bound to sentence Mr.

Valente on the basis of the lowest Laberge category because, inmaking a finding of guilt, I commented that it was objectively foreseeable that the assault would result in bodily harm that was neithertrivial nor transitory, as opposed to serious bodily harm. [17] I do not agree that my findings in relation to conviction are determinative for sentencing purposes. To convict, the trier of factneeds to be satisfied beyond a reasonable doubt that the minimum requirements of the offence are met.

In the context of manslaughter,the minimum requirement is objective foreseeability of bodily harm that is neither trivial nor transitory. That is the end of the inquiry atthe conviction stage. The trier of fact does not need to go any further. [18] The purpose of fact-finding at the sentencing stage is very different. If minimum requirements for the offence translated into

binding findings of fact for sentencing purposes, nearly every offender would receive the most lenient sentence contemplated by therelevant offence. This would violate the central tenet of sentencing: that the sentence must be proportional to the gravity of the offence:Criminal Code, s. 718.1. [19] To counter Mr. Royal’s argument, one need go no further than Laberge, supra.

In that case, the Court of Appeal drew a cleardistinction between the minimum requirements for the offence and the facts underlying a sentencing decision at paras. 7, 8, and 12: The first point is that, for sentencing purposes, one must make a clear distinction between fault in terms of an offender's mens rea at thetime of commission of an offence and fault in terms of the offender's overall moral blameworthiness for the crime. The two are not thesame. Confusion sometimes arises because fault for conviction purposes generally turns on the question of an offender's mens rea.

Thisdoctrinal aspect looms large in assessing criminal culpability because of the need to ensure that the offender's mental state meets theconstitutionally required level of moral blameworthiness to convict him of the offence in question: R. v Martineau (SCC), [1990] 2 S.C.R. 633. However, for sentencing purposes, a court is not limited to evaluating moral blameworthiness in terms of an offender's mental state.Indeed, it would be quite wrong to engage in that kind of a contextual analysis. That is because the offender's level of moral culpabilitywill be influenced by other factors. ...

I now turn to what has been one of the dominant, if not the predominant, factors affecting a court's assessment of moral fault inmanslaughter cases, mens rea. To convict an accused of unlawful act manslaughter, the Crown must first prove the actus reus and themens rea associated with the underlying act. Then, at a minimum, the Crown must prove objective foresight by the accused of the risk ofbodily harm which is neither trivial nor transitory; R. v. Creighton (SCC), [1993] 3 S.C.R. 3; R. v. DeSousa (SCC), [1992] 2 S.C.R. 944.

From this minimum level of the accused's mental state at the time of commission of the crime,one moves up the mens rea culpability ladder. [Emphasis added.] [20] The Court of Appeal repeated the reasoning in Laberge in more forceful terms in R v Poucette, 1999 ABCA 305 at para 10: The sentencing judge incorrectly applied Laberge. The Supreme Court of Canada cited Laberge with approval in R. v. Stone (1999), (SCC), 134 C.C.C (3d) 353, Bastarache J. noting at 446 that “even for impulsive killings, there are different degrees ofmoral culpability”.

When the sentencing judge accepted Poucette’s guilty plea, he obviously concluded that Poucette had the requisitemens rea to commit the offence. He then had to consider Poucette’s moral culpability for sentencing purposes, an exercise quite differentfrom assessing mens rea for conviction purposes... [Emphasis added.] [21] The seminal case of R v Gardiner, (SCC), [1982] 2 SCR 368 at 414-415 confirms the distinction betweenconviction and sentencing, albeit in the context of a guilty plea.

The Court stated as follows: ...a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more.Beyond that any facts relied upon by the Crown in aggravation must be established by the Crown. If undisputed, the procedure can bevery informal. If the facts are contested the issue should be resolved by ordinary legal principles governing criminal proceedingsincluding resolving relevant doubt in favour of the offender.

[Emphasis added.] [22] The message of the jurisprudence is consistent with the powers and duties given to the sentencing judge by the CriminalCode. Before determining the sentence, the court must give the prosecutor and the offender an opportunity to make submissions withrespect to any facts relevant to the sentence to be imposed: s. 723(1).

In determining a sentence, the court may accept as proven anyinformation disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and offender: s. 724(1).Where there is a dispute with respect to any fact that is relevant to the determination of a sentence, the prosecutor must establish by proofbeyond a reasonable doubt the existence of any aggravating fact: s. 724(3).

In determining the sentence, a court shall consider anyrelevant information placed before it, including any representations or submissions made by or on behalf of the prosecutor or theoffender: s. 726.1. [23] Finally, I find some additional guidance in the procedure that applies to jury trials. It is settled law in Canada since R v Brown(1990), (SK CA), 53 C.C.C. (3d) 521 at 528-30 (Sask CA), rev’d on other grounds (SCC), [1991] 2SCR 518 that the sentencing judge is not bound to assume that the jury took the most lenient view of the facts which would support theverdict.

Instead, he/she has to form his own view of the facts, with any doubt being resolved in favour of the Accused. This is consistentwith the approach I consider to be correct: the sentencing judge is entitled to consider all relevant evidence, while any aggravatingfactors must be proven beyond reasonable doubt. [24] In this case, the evidence does not suggest that Mr. Valente intended to kill or seriously harm Mr. Pillay or had a recklessdisregard as to whether death might result. The nature of the assault was not one that, objectively, carried with it a risk of life-threatening injuries.

There was an element of chance in the injury that resulted in Mr. Pillay’s death. This was not a near murder or in thehighest of the Laberge categories. But, at the same time, this manslaughter cannot be described as near accident. Where two larger menfollow a smaller weaker man out into the street, and assault him by pushing or knocking him down and kicking him as he lies on theground, I accept that there is, objectively speaking, a risk of serious injury associated with these actions. The Crown has discharged therequirement of s. 724(3)(

e) of proving this aggravating factor beyond a reasonable doubt. As a result, I find that this case falls into thesecond Laberge category. [25] Having said this, I observe that the Alberta Court of Appeal revisited the Laberge approach in R v Wharry, 2008 ABCA 293at para. 56 and confirmed that the Laberge categories are not, in any event, associated with rigid sentencing ranges: The approach in Laberge does not fix any numbers for any of the categories.

Nor, for that matter, does it insist that a case in a particularcategory will necessarily be responded to by a sentence which might not also fit a different category. There are, after all, other factors toconsider. Laberge proposes a careful consistency in approach, not arithmetic. (

b) The Parity Principle [26] The principle of parity in sentencing is raised here, as Mr. Valente’s co-accused has already been sentenced. Parity requiresthat I consider Mr. Raeugh’s sentence, although different individual circumstances may warrant a different sentence: R v Christie, supra. [27] Mr. Reaugh pled guilty to manslaughter and robbery on November 10, 2011, very shortly before the scheduled trial date ofNovember 14. He was sentenced pursuant to the joint submission of Crown and defence counsel to a period of 6 years on themanslaughter, 3 years concurrent on the robbery. Mr.

Valente was not convicted of robbery. Motive to rob is a serious aggravating factorthat was admitted to in relation to Mr. Raeugh, but has not been proven beyond a reasonable doubt in relation to Mr. Valente. However,in the absence of intent to rob, one is left with the aggravating factor that the assault was an entirely gratuitous act of violence withoutany provocation on Mr. Pillay’s part. [28] There is in my view some difference in the degree of planning and premeditation of the offence as between Mr. Reaugh andMr. Valente.

I commented on this in my earlier decision, when I held that it had not been proven beyond a reasonable doubt that Mr.Valente intended to rob Mr. Pillay. The Crown’s theory was that Mr. St. Peter was a conduit of information regarding Mr. Pillay’s PINfor his bank card. Mr. St. Peter knew Mr. Raeugh, and spoke to him for some time after he had an opportunity to view Mr. Pillay’s PIN.At this time, Mr. Valente was in the company of other persons, not involved in this event. Mr. Valente spoke to Mr. Reaugh a short timebefore Mr. Pillay left the club. Defence counsel has submitted, and I agree, that Mr.

Raeugh was the leader and Mr. Valente the followerin the planning leading up to the assault. On the other hand, the evidence regarding the assault itself was that they were both equallyinvolved. I note that the Crown has provided case law to the effect that joint assailants should be regarded as equally responsible for theconsequences of an assault: R v Cador, 2010 ABCA 379, 502 AR 69, R v MacIntyre (1992), 1992 ABCA 319 , 135 AR 166, 33WAC 166 (CA). In other words, both offenders are equally responsible for Mr. Pillay’s death, regardless of which one may have struck

the blow that killed him. But that, in my view, does not prevent me from taking into account differences in their roles leading up to theassault. Planning and deliberation are aggravating factors: Laberge, supra at paras. 8, 23, 49. Thus, differences in the extent of planningand deliberation must be relevant considerations. [29] There are more important differences between the two offenders, Mr. Reaugh and Mr. Valente. In Mr. Reaugh’s favour, heplead guilty.

The Crown conceded at his sentencing that he was entitled to significant credit for the guilty plea, as the Crown faced someissues at trial, and conviction was not inevitable. Justice Sanderman held that Mr. Reaugh was entitled to a substantial discount inrelation to sentence due to his acceptance of criminal responsibility. Mr. Valente, on the other hand, was convicted after a trial. He wasentitled to his day in court, and should not be penalized for this. But he is not entitled to the benefit that flows from a guilty plea. [30] In another respect, Mr. Reaugh was in a much worse position than Mr.

Valente, in that he had a lengthy and serious criminalrecord, including two previous robbery convictions and a previous conviction for aggravated assault. Justice Sanderman said that the badrecord was a “really aggravating feature”, noting that Mr. Raeugh had been before the courts for 19 years, first as a youth and later as anadult, and that his record was somewhat related to the offences before the court. The relevance of the record is that it indicates that Mr.Reaugh’s potential for rehabilitation is not promising. In contrast, with first offenders like Mr.

Valente, the courts proceed on the basisthat rehabilitation is a real possibility that should be carefully considered and fostered. And in this case, 41 people who know Mr.Valente supported the view that his prospects for rehabilitation are excellent. (

c) Authorities Crown Cases R v MacIntyre (1992), 1992 ABCA 319 , 135 AR 166, 33 WAC 166 (CA). [31] This case dealt with a series of assaults by a group of young men on a disabled victim, which eventually resulted in an injuryto his leg that lead to his death. As in the present case, it was impossible to determine from the evidence which of the assailants inflictedthe blow that was responsible for the victim’s death.

The court in MacIntyre noted a number of aggravating factors — that the attackersacted as a gang, that the victim was mentally disabled, and that the assaults were gratuitous. [32] The Court of Appeal imposed sentences, before taking into account time in pre-trial custody, of 18 months and 2 years less aday. This decision predates Laberge, supra, but it may fall in the low Laberge category. Normally, an injury to the victim’s leg would notbe expected to be as serious as an injury to the head.

R v Olsen (1994), 1994 ABCA 111 , 149 AR 142, 63 WAC 142 (CA). [33] This case involved an assault on the street by three persons against one. The attack was not completely one-sided: the groupof three was coming to the aid of a prostitute who was in a dispute with the victim. The attack was nonetheless not an ordinaryconsensual street fight; the attack was on an intoxicated victim, and the attackers kicked the victim when he was down. Mr. Olsen wasshown not to have administered the fatal blow.

The attack was brief and did not involve any weapons, as in the case before me.Following a guilty plea, the sentencing judge imposed a 7.5 year sentence. The Court of Appeal allowed the Accused’s appeal, holdingthat a 7.5 year sentence was not in line with sentences in similar cases and reduced the sentence to 4 years. R v Merkle (1998), 1998 ABCA 351 , 228 AR 110, 188 WAC 110 (CA). [34] The victim died as a result of falling and hitting his head after a single blow. This case did not involve a group attack andthere was no kicking while the victim was down.

However, the offender had a significant criminal record including violent offences. Hewas sentenced after conviction at trial to 3.5 years. The Court of Appeal did not disturb the sentence.

R v McMahon (1996), 1996 ABCA 116 , 181 AR 251, 116 WAC 251 (CA). [35] The offender was sentenced after conviction at trial to 7 years. The offence involved a weapon, a blow to the head with aclub, which is a significant distinguishing factor. R v Guitar, 2001 ABCA 58, 277 AR 286. [36] A 10-year sentence was imposed by the Court of Appeal for a manslaughter conviction in a case in which two attackersbrutally beat the victim to death with two-by-fours. This was clearly a significantly different offence from that before the court today, asit involved weapons and prolonged violence.

R v Taylor (1998), 1998 ABCA 354 , 228 AR 170, 188 WAC 170 (CA). [37] A 6-year sentence following a conviction for manslaughter was upheld by the Court of Appeal.

The case involved a one-on-one assault, but significantly more prolonged and employing more extreme violence than the present case. [38] Sentences in a similar range have also been imposed following convictions for aggravated assault in relation to attacks of thissort where the victim did not die, but suffered serious head or brain injuries: see R v Cador, 2010 ABCA 379, 502 AR 69 — 7 years; R vGagliardi, 2000 ABCA 137 , 200 ABCA 137, 255 AR 346 — 7 and 9 years; R v Turner, 2005 ABCA 366, 380 AR 102 — 4years at trial, reduced to 3 years by the Court of Appeal.

While the attacks in these cases did not result in death, they involved moreprolonged and extreme forms of violence. The offenders in the last case were youthful first offenders, and the Court of Appeal held thattheir prospects for rehabilitation should not be underemphasized. Defence Cases R v Bruha, 2003 NWTSC 41, [2003] NWTJ No 56. [39] One offender pled guilty and the other was convicted after trial of manslaughter. The assailants had forced their way into thevictim’s apartment and beat him. The court imposed a 4-year sentence for the offender who pled guilty, and a 5-year sentence for theother offender.

R v Tabbara, [2009] OJ No 4397 (SCJ). [40] The offender’s friends confronted the victim and his friend by provoking them. After the victim turned his back and walkedaway, the offender punched him on the back of his neck. The blow caused hemorrhaging within and around the brain and led to thevictim’s death. The offender was convicted after trial and sentenced to 2 years less 6 days imprisonment, followed by 2 years probation. [41] During sentencing, the judge specifically considered the continuum of moral culpability set out in Laberge.

FollowingLaberge, he characterized it as a continuum between a “near-accident” and a “near-murder”. He held that the balancing of mitigating andaggravating factors of the offence would determine the location of the offence on that continuum: para. 63. The judge found that the casefell at neither the “near-accident” nor “near-murder” ends of the spectrum. No weapon was used, there was no planning or deliberation,and there was no other gratuitous violence or brutality. It was a spontaneous, impulsive act that took a split second. The Accused was ayouthful first offender. Additional Cases

R v An , 2011 ABQB 217 . [42] A 5 year sentence was imposed following a guilty plea to manslaughter. The offender struck his wife on the head after she revealed that she was having an affair with another man. The sentencing judge accepted that the offender did not intend to expose his wife to any serious injury: para. 45. However, objectively and taking into account the Accused’s strength, his wife was exposed to a risk of serious injury: para. 46.

The sentencing judge did not classify the Accused’s conduct according to the three Laberge categories; however, he did consider provocation as a mitigating factor: para. 47. R v Hickey , 2011 NSSC 186 , 2011 CarswellNS 288. [43] A 3.5 year sentence was imposed following conviction by a jury. The victim and the offender got into a verbal conflict at a bar. Outside the bar, the offender punched the victim once in the head, breaking many of his facial bones and causing his brain to rotate in his skull. The strength of the blow was due to the offender having been employed for years as a carpenter.

The offender had no criminal record. The sentencing judge found that the offender struck the victim in anger with a significant degree of force, and that his actions placed him in the middle of the near-accident/near-murder range. R v Carter , 2010 BCSC 853 , 2010 CarswellBC 1462. [44] A 5 year sentence was imposed following conviction at trial. The offender and a friend were drinking and wandering around aimlessly in public, confronting other males. Without provocation, they kicked and punched a 52-year-old intoxicated stranger and left him on the highway in the path of vehicles.

The offender had disguised himself with a balaclava. He did not have a criminal record, but had a history of alcohol abuse and was assessed as posing a moderate to high risk for violent recidivism. While he expressed remorse, he did not accept full responsibility. R v Braune , 2006 ONCJ, 68 WCB (2d) 546. [45] The 18-year-old offender had a grudge against the 19-year-old victim, and an altercation occurred after the offender showed up at the same place as the victim. The offender punched the victim, knocking his head into a cement wall. The victim later died. The offender pled guilty to manslaughter.

He had no criminal record, was remorseful, and was from a stable and supportive family. The pre-sentence report indicated that the incident was an isolated act and out of character for the offender. The offender was extremely unlikely to re-offend and was motivated to rehabilitate himself. [46] The sentencing judge characterized the attack as “a cowardly punch”, but not planned and effectively a spur of the moment action on the part of the offender. There was no extensive beating or a continuing course of physical assault. The sentence imposed was 2.5 years.

R v Henry , 2002 NSCA 33 , 203 NSR (2d) 40. [47] The offender witnessed the victim strike a woman leaving a bar, as a result of which he pinned the victim against the wall while the two argued. The offender then followed the victim, who was much smaller in stature and considerably intoxicated, and sucker- punched him in the jaw, causing the victim to hit his head on the pavement and die. The offender showed little remorse, indicating that he acted justly.

The sentencing judge imposed a sentence of 2 years less a day, on the basis that the offender had no criminal record and did not intend to cause “even serious bodily harm” to the victim. [48] The Court of Appeal ruled that lack of a criminal record was insufficient cause for what it called “extraordinary leniency”.

It found that “the aggravating circumstances of this case, especially the respondent's continued notion that his action was justified, and the predatory callousness of his intentional assault on a smaller, intoxicated man, demonstrate a moral blameworthiness that places this offence well beyond the near accident point on the spectrum.” Concluding a fit sentence should emphasize denunciation and deterrence, the Court of Appeal increased the sentence to 4 years.

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d) Application to the Present Case [49] This review of case law demonstrates that the “middle category” of manslaughter cases set out in Laberge covers a broad range of circumstances and therefore a wide range of sentences. The low end of the range is generally about 3.5 or 4 years’ imprisonment, although there are cases, such as Tabbara and Braune , where sentences of 2 or 3 years were imposed. The higher end of the range is generally about 6 or 7 years, although again there are unusual cases where higher sentences have been imposed.

The higher end of the range has mostly been applied where there were weapons involved or prolonged and extreme violence. [50] In comparing this case with other similar cases, I find that it gravitates towards the lower end of the middle Laberge category, given that no weapon was involved, and that the assault was very brief, 5 or 10 seconds in length, despite the aggravating factors of a two on one assault on a vulnerable victim. I therefore do not accept the Crown’s submission that a sentence in the 6 to 8 year range would be appropriate. I also find that the aggravating circumstances in this case elevate Mr.

Valente’s moral culpability above the 2 to 3 year range that is sought by defence in this case. [51] I acknowledge that I must consider the fact that Mr. Raeugh received a 6 year sentence following a guilty plea. If everything else were equal, one would expect that the co-accused pleading guilty would receive a lesser sentence than the co-accused who did not plead guilty. But everything else is not equal. One difference is that Mr. Raeugh took the lead in initiating the offence, although both participated equally in the actual assault. But the most important difference is that Mr.

Raeugh has been a repeat visitor in the courts for the past 19 years, with a serious record, including convictions for robbery and aggravated assault, while Mr. Valente is a first time offender who has been, until now, a productive and contributing member of society, and who has, even now, the support of a large group of family members and friends. This difference between the two offenders is, in my view, more significant than Mr. Raeugh’s guilty plea. [52] It might be argued that, in view of the very good prospects for rehabilitation, a sentence below the usual range would be appropriate.

But while rehabilitation is an important objective, it cannot overshadow the sentencing objectives of denunciation and deterrence. This was, as I started out by saying, a despicable offence. I accept that it was out of character for Mr. Valente, but I must take into account the very grave nature of the conduct that he did participate in on this one occasion, as well as the very grave nature of the consequences of that conduct. The Crown has submitted, and I accept, that there must be some part of Mr.

Valente’s character that his friends and family are not familiar with — the part that would allow him to join a friend or acquaintance in an attack on a defenceless person in the street. I am sure that Mr. Valente never imagined that the result of the attack would be as severe as it was, but reasonable persons would know that such an attack can have serious consequences. Mr. Valente’s decision to participate in the assault despite its inherent risk must be denounced by this court. Other persons must be deterred from taking the risk that he took. [53] There is also the issue of whether Mr.

Valente himself must be deterred from ever acting in this way again. The author of the pre-sentence report indicated that he was unable to come to a conclusion as to whether Mr. Valente poses a risk to society, because he was not given any insight into the motivation for the offence and whether Mr. Valente is remorseful. This was due to advice of Mr. Valente’s counsel, who wishes to preserve Mr. Valente’s position should he pursue an appeal and perhaps receive a new trial. These are Mr. Valente’s constitutional rights and he should not be penalized for relying on them. [54] Mr.

Valente did provide a statement to the court, read by his counsel, which does indicate remorse. Specifically, I find that the following portions of Mr. Valente’s statement indicate that he is remorseful: To my family and friends, we have always been there for each other and I have let you all down. ... There are many emotions that have run through my head but that of shame and utter disgust are the ones that remain at the very forefront. To the people of Edmonton, the city which I was born and raised in and that I love, my sincerest apologies. You all deserve a community that is safe to live, work and play in.

Most importantly, Mr. Pillays friends and family, I cannot begin to imagine the feelings associated with that of losing a loved one in such a way ... I know and fully understand how little consolation and closure these proceedings will have for you because I will one day return home but Preshendra Pillay will not and for that I am truly sorry.

[55] I accept, based on that statement, and the evidence about Mr. Valente’s behaviour as a positive and contributing member of society before and since this offence, and the assessments of 41 family members, friends and business associates, that this act was out of character for him and that he will be successfully rehabilitated. In my view, specific deterrence is of minimal concern here. The defence has conceded that a period of federal incarceration is called for, and I am satisfied that the objective of specific deterrence would be met by even the 2 year minimum period of federal incarceration.

The need to go beyond that minimum is not due to concerns about specific deterrence, but due to the sentencing objectives of denunciation and general deterrence. Sentence [56] Having considered all of these factors, I have concluded that a fair and fit sentence is 4 years imprisonment. Mr.

Valente spent 37 days in pre-trial custody, and is entitled to 2 months credit for that time, so the resulting sentence after giving credit for pre-trial custody is 46 months of federal incarceration . [57] There is a mandatory weapons prohibition applicable here because there has been a conviction for a violent offence with a maximum sentence of 10 years or more. Mr.

Valente is prohibited from possessing firearms and weapons as set out in s. 109(2) of the Criminal Code for 10 years following his release from imprisonment for this offence, and he is prohibited from possessing any prohibited or restricted firearm or weapon for life. [58] Manslaughter is a primary designated offence under s. 487.04 of the Criminal Code , and there is also therefore a mandatory order authorizing the taking of sample bodily substances for forensic DNA analysis in the ordinary course under s. 487.051(1) (

a) of Criminal Code . [59] The Victim Fine Surcharge will be waived as it would cause undue hardship in view of Mr. Valente’s incarceration. Heard on the 24 th day of February, 2012. Dated at the City of Edmonton, Alberta this 2 nd day of March, 2012. J.M. Ross J.C.Q.B.A. Appearances: Peter J. Royal, Q.C. For the Defendant

Elizabeth Wheaton for the Crown