R v Lugela, 2023 ABKB 404

Court of King’s Bench of Alberta Citation: R v Lugela, 2023 ABKB 404 Date: 20230705 Docket: 201092665Q1 Registry: Calgary Between: His Majesty the King Crown - and - Samuel Lugela Accused _______________________________________________________ Reasons for Decision of the Honourable Justice P.R. Jeffrey _______________________________________________________ [ 1 ] September 11, 2020, marked the eve of Ethiopian new year. On that night the Portico Hookah Lounge in southeast Calgary was full.

When it closed, a few hours after midnight, September 12, its patrons made their way out onto the sidewalks, the parking lot and onto the adjacent street and alleys. But they did not immediately disperse. One group of them gathered almost in the middle of the adjacent street. Samuel Lugela was among them. [ 2 ] A man jogged towards that group aiming an aerosol canister and spraying its contents. Samuel Lugela was gripping a loaded handgun, the barrel tucked just inside the waist of his jeans. He drew it up and without hesitation shot the man down. Then he shot him again.

The man died soon after. [ 3 ] Samuel Lugela was convicted of second-degree murder. This decision addresses his appropriate sentence. Circumstances of the Offence

[ 4 ] Remote security cameras recorded the shooting. The cameras were positioned on the back of the buildings lining the alley adjacent to the scene and also on taxi and Uber vehicle dashboards as their drivers awaited customers. [ 5 ] The darkness of the night was lessened by streetlights, car head lights, the glow of the outer lights of the Lounge and the lights on the backs of other stores and shops nearby. [ 6 ] A few of the men in Lugela’s group appeared a bit agitated. Not so Lugela.

He remained on the perimeter. [ 7 ] Abdurahaman Indiris, the murder victim, came from the outside corner of the Lounge building toward the loosely arrayed group of about a dozen men that included Lugela. Indiris was running at a very slow jogging pace. He held in his right hand an aerosol canister. He aimed the canister toward the group and began spraying as he approached. One man turned his head abruptly and ran that direction away from the group. Some men just turned away from the spray.

Some men appeared to not react at all, remaining as just as they were. [ 8 ] No one in the group moved toward Indiris to halt his advance or to push him away or to take him down or to knock the canister out of his hand. Only Lugela pulled out a weapon at the sight of Indiris, any kind of weapon. To all but the man who turned aside from the spray and left the group, Indiris’ approach with the aerosol canister seemed to be of no significance nor of any threat. [ 9 ] Lugela did not react to avoid the spray. He did not move back, turn his head, or cover his face or eyes.

Rather, in measured fashion, Lugela simply lifted the loaded and ready handgun, that he was already gripping in his right hand, from out of the front of his jeans where he held it tucked the entire time and aimed it at Indiris. Lugela didn’t hold that pose as if to caution Indiris to stop or to slow him up. Without a moment’s hesitation Lugela pulled the trigger, firing a bullet into Indiris. [ 10 ] Indiris dropped down partially, onto the street, floundering. The rest of the men began to scatter. [ 11 ] Indiris was posing no threat to anyone. He needed immediate medical assistance. He was entirely vulnerable.

He no longer held the aerosol canister. Nothing was being sprayed any more, anywhere, and certainly not towards Lugela. Yet Lugela very deliberately, with both hands, chambered another bullet into the gun, raised it a second time, stood steady and fired a second shot directly into Indiris. [ 12 ] Indiris slumped fully to the road. [ 13 ] The camera recordings reveal no obvious explanation for the sudden and brutal slaying. [ 14 ] There was no apparent reason for Lugela shooting Indiris. The aerosol spray was not very close to Lugela. Indiris was slowing as he reached the group.

The approach of Indiris seemed not terribly menacing. Shooting him was out of all proportion to the circumstances. Even if the first shot was in some incomprehensible way a response to Indiris releasing a spray into the air, the same cannot be said of the second shot. At the time of the second shot there was not even a hint of any personal risk of harm to Lugela that he was repelling. [ 15 ] Lugela’s sudden and unconscionably violent act remains a mystery.

No rationale for the killing is apparent, nor has any been offered or any remorse shown. [ 16 ] From all the circumstances of the entire approximately 12-hour time frame recording of the circumstances prior, during and after the shooting, I am left with the distinct impression that Lugela came that night prepared to shoot someone if necessary, but by evening’s end he was itching for a reason to shoot anyone – perhaps just to be seen doing so. Indiris just came upon him at the wrong time.

Indiris advanced more quickly toward the group of men that included Lugela and so Lugela shot him. [ 17 ] Those circumstances of the entire evening that leave me thinking Lugela had come prepared to shoot someone if necessary and then itching to shoot just anyone, include his having possession of the handgun from at least the time that he openly brandished it on the dance floor inside the Portico Lounge. The video recording is clear in that regard, that it was a gun he held in his right hand out for all to see, leaving me no doubt on the point.

The crowds and the noise from music and voices conspired for it to go unnoticed by Lounge staff. [ 18 ] Those circumstances also include his again outside the Lounge holding the gun in his right hand ready for quick use, with a bullet already chambered, the barrel tucked only into the waist band of his jeans, by the time he joined the others on the street. He could not have known that Indiris would jog towards the group spraying anything, but he was armed and ready to shoot his weapon. He did so at a person, any person, without hesitation. It happened to be Indiris.

Mandatory Portion of Sentence [ 19 ] As required by law, I sentence Samuel Lugela to life in prison, require him to provide a DNA sample (compulsory for this primary designated offence), and I prohibit him from ownership or possession of firearms for life. [ 20 ] The questions that remained and that are left to my discretion, are setting the period of parole ineligibility and the application for restitution from a bystander suffering property damage, on his own behalf and for his subrogated property insurer. Period of Parole Ineligibility Law

[ 21 ] The period of parole ineligibility cannot be less than 10 years and cannot be more than 25 years. I am to assess whether Lugela should have to wait a period longer than 10 years before his suitability to be released into the general public is assessed: R v Shropshire ,1995 SCC 47, at para 29. [ 22 ] The broad range of possible periods of parole ineligibility, from 10 years to 25 years, reflects the broad range of severity of such murders and the varying degrees of moral culpability of each offender: Shropshire at para 31. [ 23 ] Not every offence of second-degree murder is the same.

Section 745.4 of the Code directs me to set the period of parole ineligibility having regard to the offender’s character, “the nature of the offence, and the circumstances surrounding its commission”. [ 24 ] Mitigating and aggravating factors are also to be considered. [ 25 ] In addition to those three broad categories found in

section 745.4 of the Code , attention is paid to the sentencing principles and, as counsel emphasized, showing restraint and attempting parity with other sentences with comparable circumstances and offender character. [ 26 ] The Alberta Court of Appeal in R v Ryan , 2015 ABCA 286 , at para 57 , lists 17 factors that if present might increase the period of parole ineligibility. Positions of Crown and Defence [ 27 ] The Crown says a period of parole ineligibility for 20 years is appropriate.

The Defence says the cases concluding 20 years of ineligibility “involved much, much more significant aggravating factors” and that “I would suggest that 18 years ought to be viewed as the absolute outer limit and in fact something more like 15, 16 years would be appropriate.” Analysis [ 28 ] I described above the circumstances of the offence and the circumstances surrounding its commission. [ 29 ] Regarding Lugela’s personal circumstances, he is 31 years old. He was 28 at the time of the murder. He has a loyal girlfriend, who attended most trial days and testified in his favour on a voir dire .

He has two sisters and four brothers, one of which is serving a life sentence for second-degree murder and ineligible for parole for 18 years. That case and this are eerily similar. Another of his brothers has been surveilled by the Calgary Police on suspicion of narcotics offences. [ 30 ] Since the age of about 20, Lugela has accumulated a record of 42 criminal convictions. 9 are firearms related offences, 2 are for obstructing a peace officer, others are narcotics related, and a great many are for failing to comply with release conditions.

Escalating consequences for his pattern of offences have not yet elicited the desired changes in behaviour. His promises mean nothing to him and he demonstrates a complete disregard for authority.

The Crown’s description is apt, that he displays a “protracted propensity to continuously disregard any court order and break the law …[a] pattern of dangerous recalcitrance…”. [ 31 ] Lugela filed as a sentencing exhibit the pre-sentence report (the “ PSR ”) prepared about him before he was sentenced in the Provincial Court on weapons offences, for which he was convicted late November 2021 – a year after his gunning down Indiris in the street.

At the time of the murder Lugela had been released pending trial on those weapons charges, just 15 days earlier, on various conditions including to not possess a firearm. [ 32 ] In the PSR Lugela is reported as intending further education, plus self-describes as conflict averse. However, upon his conditional release for those offences his behaviour belied both representations.

There was no evidence that in the days following his release until his arrest for this murder, or while in custody since, that he took any steps to pursue any further education. [ 33 ] And the trial evidence showed his manner with other people to not be conflict averse but the opposite. Lugela was threatening and domineering in his interactions just outside the Portico Lounge and inside, both near its entry way and on the dance floor as he brandished a handgun.

For example, in some of his one-to-one encounters Lugela would place his hand behind the neck and head of the other person, pull their heads tightly down toward his chest and then, while holding them there uncomfortably and seemingly unable to extricate, speak directly into their ears from above, before releasing them. I have only the visual recordings, no audio, so I don’t know what was said, but I am confident from what I see that he was not speaking words of endearment.

His behaviours are shows of power and assertions of dominance, not conflict avoidance. [ 34 ] Given these inconsistencies between what he said to the PSR writer and the trial evidence of his actual behaviour, I have no reason to doubt the accuracy of the PSR’s description of Lugela’s conduct in custody as incorrigible and non-compliant, at times uncontrollable. [ 35 ] Regarding the victim and his survivors, his death had, and continues to have, a devastating effect on Indiris’ family. His father collapsed in shock at the news of his son’s death.

His sister “Mana” has difficulty sleeping at night, her grief unbearable. She has been in and out of the hospital as a consequence. With neither Mana or Indiris now earning incomes, the family could not stay in their house and had to move. Apparently, Indiris’ brother “Mandefro” blames himself. He was present at the shooting, is the one who dragged Indiris to a car soon after the shooting and crashed that car while rushing to the hospital.

He is said to suffer mental health issues. [ 36 ] Indiris volunteered his time to help new students and to assist at the Mustard Seed Street Ministry, a service of Christians and churches in Calgary. He was good with cars but had decided to enrol at college after inspiring his sister Mana to do so. His death caused her to withdraw. [ 37 ] The needless waste of any life is an unspeakable travesty, but particularly Indiris’ life given all its contributions to those

around him and given all the promise his future held from his trajectory of dedication to others, hard work, and growth. [38] No explanation for the shooting was offered by Lugela to the victim’s family after his conviction. Lugela said nothing at hissentencing and displayed no remorse, or any emotion for that matter. He also declined to cooperate in the generation of an offencespecific pre-sentence report from which Indiris’ family may have gleaned some limited insight into how they came to lose him. [39] There are no mitigating factors in this case. [40] Aggravating factors present are: a.

Using a firearm in the commission of an offence. b. Possessing the firearm while under two separate prohibitions against possessing one. c. Breaching his personal recognizance, of just 15 days earlier, to not possess a firearm. d. Committing the crime while on judicial interim release. e. His prior record of criminal convictions. [41] Lugela says the aggravating effect of his prior record is attenuated “because … there are no offences of violence; there are noassaults.” He says the convictions under

section 129 for obstruction or resisting arrest are “almost never an offence of violence.”However, in R v Houle, 1985 ABCA 275, an appeal from convictions for resisting arrest, obstructing a peace officer, and assaulting apeace officer, Stevenson JA (as he then was) stated at para 3 (underlining added): We are not concerned with whether the acts constituted assaults, or other offences, we are concerned solely with the question whetherthe acts attracted the greater gravamen attached to interference with peace officers in the execution of their duty.

Thus, whether or not the s 129 convictions involved violence, their severity or gravity is greater than for an assault, all other things beingequal. [42] The following are factors from the list in Ryan at para 57 that might result in an increase in the period of parole ineligibility,that are present in this case: a. Gratuitous violence. b. Murder committed while on bail or probation. c. Murder committed in the presence of an innocent bystander/non-party. d.

Preparatory steps leading to the murder. [43] The shooting was gratuitous since the reason for it remains a mystery, it was committed in the absence of any provocation infact and it appears indiscriminate. [44] Other people at risk were nearby for both shots plus at least one more shot that Lugela fired from across the street soon after. [45] The preparatory steps leading to the murder included Lugela coming to the scene with a weapon ready for use.

The weaponwas not in the glove box of a vehicle, but on his person, in his shooting hand at the ready, with bullet chambered. [46] In respect of Lugela’s preparatory steps, the impression I discuss at paras 16 to 18 above, of Lugela by night’s end itching toshoot most anyone, is not a finding of fact I make. It’s just a supposition and does not affect my decision on the appropriate sentence Butthe circumstances leaving me with that impression are relevant circumstances for determining the period of parole ineligibility. I do findas a fact that Lugela took steps preparatory to his second-degree murder.

He accessed and held the handgun before standing in the groupof men on the street outside the Lounge at closing. He gripped it in his shooting hand readily accessible with the barrel held tucked justinside his jeans waist band; it was loaded and readied for firing. Why he did so is supposition. That he did so is not. He may havebrought it that night to give to or return to someone else. He may have just been carrying it for someone else. He may have brought it towave about unloaded as a threat to others. He may have brought it for protection if placed at risk for any reason.

He may have brought itto show off his flouting the law which prohibited him from possessing it. He may have brought it intending to shoot someone. OnlyLugela knows.

The relevant fact here is that the ease of his shooting Indiris was a direct result of his being prepared to shoot, by hisbringing the gun in the first place (despite being again prohibited from doing so), loading it, and holding it poised for use. [47] I also consider Indiris’ vulnerability at the time of the second shot to be a relevant circumstance that, like the other factorslisted in Ryan, might result in (and here does result in) an increase in the period of parole ineligibility. [48] Lugela concedes that there was no external threat from Indiris at the time of the second shot and that that constitutes anaggravating factor, though he downplays its significance because of the brevity of time lapsing between the first and second shots.

Iaccept that point, it marginally tempers the aggravating effect. [49] I also agree with Mr. Moreau that the application of the sentencing principle of restraint in this context “requires the Crown… to provide a basis to ratchet up a sentence [from 10 years] rather than requiring the accused to ratchet it down [from 25 years]”. [50] On the principle of parity, he cautions against my following the trend that an academic

article he provided identifies as anupward creep in the length of ineligibility periods over time (D Parkes, J Sprott & I Grant, “The Evolution of Life Sentences for SecondDegree Murder: Parole Ineligibility and Time Spent in Prison”, 2022 1201). One of the conclusions in this paper, the one

relevant to Lugela’s position, is that sentencing for second-degree murder has become increasingly harsh over time with no public safety rationale for it. That is, the upward creep the writers say they observe, means that the earlier decided cases were correct and gradually they are no longer so. But it seems to me the opposite can be equally reasonably inferred – that now the decisions finally are correct whereas in the past they were erroneously lenient.

The data also lends itself to a wide range of other conclusions, such as that all the decisions are correct but over time society is increasingly violent and inhumanely brutish to each other, or that current Code sentencing policy is not yet having the desired deterrent effect. This illustrates just one of the dangers in presenting ostensibly expert opinion evidence during legal argument, when the qualifications, the factual foundation, and the thesis of the authors is not available for testing. For reasons of procedural fairness I have disabused myself of the

article during my deliberations. For an example of the cause of an increase in sentences not being the theorized creep but a change in the “gravity of the circumstances in this community at this time…”, see the decision of J Greckol in R v Gordon , 2007 ABQB 329 , at para 34 . [ 51 ] Parity seeks to impose similar sentences for similar offences of similar kind.

To that end, considering the cases presented by counsel, I agree with both counsel that the circumstances all in for the case before me are less extreme than in both R v Fouquet , 2005 ABQB 673 , and R v Fattah , 2006 ABQB 178 , for which 22- and 21-year periods respectively were imposed. [ 52 ] I have no reliable basis to know whether circumstances in southeast Calgary in 2020 were similar to those unique times in Edmonton identified by J Greckol in 2005 to 2007 in Gordon and so I do not consider for these purposes the sentencing consequence there of the murder “for no reason after a dinner party.” [ 53 ] I consider the closest constellation of circumstances and considerations to this case to be offered by, perhaps ironically, the decision in the case of Lugela’s younger brother Nelson, found at R v Lugela , 2019 ABQB 412 .

The sentencing Justice concluded 18 years of parole ineligibility to be appropriate in that case and the Court of Appeal found no error in his doing so: affirmed on appeal 2022 ABCA 15 . [ 54 ] Both murders were committed by handgun, with two shots into an apparent total stranger, in the presence of a crowd and following some preparatory steps. In Nelson’s case there was “an element of forethought and planning.... It was not an impulsive act.”: Lugela at para 66. That is true of this case also. In both cases the offender’s record of prior convictions included some offences of violence.

In Nelson’s case they may be more prevalent, but Nelson’s record was not provided in the decision, other than to say it was “extensive” and that it contained offences of violence.

The records of both spanned a comparable period of time. [ 55 ] Nelson Lugela’s offence was characterized by the additional factor in Ryan of circumstances of retaliation, revenge or enforcement, although another finding of the sentencing judge appears contradictory to that finding, a concern discussed in the appeal decision (paras 35 and 36). [ 56 ] Significantly, Samuel Lugela’s offence was characterized by the additional “ Ryan factor” of occurring while on bail. And his release on bail conditions were for precisely what he did in committing the murder: possessing a firearm.

Merely 15 days after assuring the Court he would abide by the condition upon release. Significant also is that Samuel Lugela committed his murder while under two lifetime firearms prohibitions not Nelson’s 2-year prohibition. [ 57 ] Samuel Lugela’s continuous disregard to escalating consequences for his criminal conduct is demonstrated by his reoffending history.

He was released with a condition that he not possess a firearm, with a $2,000 cash deposit, then he armed himself with a shoulder bag containing a restricted loaded handgun, was arrested on that, released again but on a $3,000 cash deposit and conditions that included that he not possess any weapons including a firearm. 15 days later doing exactly that shot to death Mr. Indiris. [ 58 ] Nelson Lugela had as mitigating factors his relative youth and family support.

Samuel does not share the relative youth, and I received no indication of current or ongoing family support beyond his girl-friend’s display of support during the trial. [ 59 ] Nelson Lugela had the added factor of being diagnosed with a mental health disorder, that both levels of court reported. But the sentencing court held Nelson did not suffer from a mental illness (at para 58). The Court of Appeal noted that and added that the sentencing justice did not find Nelson suffered from a mental illness “that would be a mitigating factor in sentencing” (at para 18).

In this case similarly there is no diagnosis of mental illness on the part of Samuel that would be a mitigating factor in sentencing. [ 60 ] All things considered, then, I conclude the parity principle warrants a longer period of parole ineligibility for Samuel than Nelson. [ 61 ] I consider Lugela to not be suitable for release for 19 years; I sentence him to life in prison without eligibility for parole for 19 years.

The more significant of all the many circumstances factoring into that conclusion are his shooting Indiris the second time when Indiris was entirely vulnerable, the offence being committed so soon after yet again being released under a lifetime firearms prohibition and his personal promises, his demonstrated significantly diminished prospect of rehabilitation (evidenced by i. his self-interested erroneous representations, ii. his disregard for authority and the law, iii. his lack of “other-awareness” most notably by his callous disregard for the surviving victims of his crime – even if not genuinely remorseful or capable of remorse he had not the human decency to acknowledge their loss at his hands, and iv. his not being deterred from his offence by his own brother’s conviction and sentence), and parity with other sentences as discussed above.

Restitution Application [ 62 ] The Crown also asks the Court to include in Lugela’s sentence an award of monetary restitution for damages suffered by the property of a third-party present at the scene. [ 63 ] I decline to award restitution here. Lugela had no notice the Crown would request the Court consider as part of Lugela’s sentence the third party’s application for restitution. Procedural fairness dictates Lugela receive prior notice of the application before the Court hears and decides. That is dispositive of the application.

[ 64 ] Even if I did entertain the application, it would fail for the following additional reasons. The evidence does not support a finding that Lugela caused the damage. The claim is for reimbursement of the cost incurred to repair bullet hole damage to a vehicle at the scene. The damage occurred on the opposite side of the claimant’s car from where Lugela was standing when he fired his handgun. The damage could not have been caused by him.

The Alberta Court of Appeal decision in R v Bean , 2020 ABCA 409 , at para 24 , implies that a third party must prove causation before receiving restitution as part of an offender’s sentence. [ 65 ] The Crown says I can be satisfied on causation on the basis that Lugela fired the first shot “that kind of set off this cascade of criminal behaviour” and “but for” Lugela’s conduct the claimant’s vehicle would not have been damaged. [ 66 ] I disagree. That reasoning is based on possibility not proof. It is equally possible that the vehicle damage occurred at some other time and some other place.

It is not proven even on balance that the damage either occurred at the time in direct response to Lugela’s shooting or that it was a reasonably foreseeable reaction to Lugela’s shooting of Indiris. If Lugela could reasonably foresee that firing his handgun would likely result in someone else pointing a gun his direction shooting back, he would not have stood there in the middle of the street, reloaded the chamber of his gun, coolly raised it and fired a second time, let alone returned to the side of the street to fire a third time. He would have ducked for cover. He did not.

Conclusion [ 67 ] I sentence Samuel Lugela to life in prison, with no chance of parole for 19 years. I order he provide a DNA sample and I prohibit him from owning or possessing firearms for the remainder of his life. [ 68 ] The application for restitution is denied. [ 69 ] To the extent there may be any conflict between this decision and the shorter version rendered orally this morning, this version prevails. No victim surcharge is required of Samuel Lugela. Heard on the 25th day of May, 2023. Dated at the City of Calgary, Alberta this 5 th day of July, 2023. P.R. Jeffrey J.C.K.B.A.

Appearances: Matt Dalidowicz and Michelle Kai for the Crown Paul L. Moreau for the Accused, Samuel Lugela