Docket: 1866 -CR Eric McArthur Appellant - v. -, 2013 SKCA 139

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 139 Date: 2013-12-19 Between: Docket: 1866 -CR Eric McArthur Appellant - and - Her Majesty the Queen Respondent Coram: Richards C.J.S., Lane and Ottenbreit JJ.A. Counsel: Jeffery Deagle for the appellant W. Dean Sinclair for the respondent Appeal: From: 2008 SKQB 513 and 2010 SKQB 219 Heard: November 1, 2013 Disposition: Dismissed Written Reasons: December 19, 2013 By: The Honourable Mr. Justice Lane

In Concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Ottenbreit Lane J.A. [1] The appellant appeals his conviction of attempted murder by shooting with a firearm. The incident occurred on December 29,2006. He was sentenced as a long-term offender to a term of incarceration of 17 years and a 10-year long-term supervision order wasimposed. He was given credit of 51 months one week for time spent on remand. In addition to appealing his conviction, he appeals thelength of the term of incarceration.

He does not challenge the long-term offender designation nor does he appeal the length of the long-term supervision order. [2] The victim and the accused were members of a criminal street gang known as the Native Syndicate. The victim had beenordered by the appellant to beat someone up but failed to do so and was told he would be beaten as a punishment. The appellant, thevictim and other members of the gang met in a gang member’s house and began consuming drugs and alcohol.

Suddenly the appellantstood up, pulled out a sawed-off rifle, pointed the gun at the victim, and shot the victim at point-blank range in his upper left chest. Therange was approximately two feet. After being shot, the victim rose from the chair and the appellant punched him in the face. When thevictim fell to the floor, two other Native Syndicate members began beating on him. When all were finished they wrapped the victim in asheet, dragged him to a bathroom and threw him in the bathtub.

The appellant and the others then fled the house. [3] At trial, the appellant claimed the gun accidentally discharged and denied any intent to kill or even wound the victim. Both theappellant and the victim testified and the ultimate issue was credibility. The trial judge charged himself on the issue of credibility,applying the principles set out in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. [4] The trial judge found the appellant’s testimony with respect to gang conduct not to be credible nor was his testimony theshooting was an accident.

The trial judge found the appellant “to be self-serving and deceitful in his demeanor and testimony” (2008SKQB 513 at para. 27). He found the victim’s testimony and the inconsistencies in his evidence related only to aspects which were notcritical to the actual shooting and convicted the appellant.

The trial judge found the appellant had the requisite intent to kill the victimwhen he shot him in the upper left chest near the heart when the judge said, “It defies logic to infer that by shooting the victim so closeto the heart that the accused could have meant anything other than to kill the victim” (para. 28). [5] The trial resulting in the conviction was held in 2008 and because of the appellant’s health problems his sentencing as a long-term offender (“LTO”) did not occur until 2010. I. Conviction appeal – arguments of the parties A.

The Appellant [6] The appellant argues there was not sufficient evidence to establish he had the specific intent to murder. He contends the onlyevidence is the wound resulting from the point-blank shot and says all of the other evidence is consistent with his claim the shooting wasaccidental. He accepts there is jurisprudence—R. v. Bains (1985), 7 O.A.C. 67 (C.A.)—referred to later in this judgment—where it wasfound it is open to the trial judge to draw a rational inference that when a handgun, pointed at a vital portion of the body of the victim, isfired at close range, the accused intended to kill the victim.

However, the appellant argues the parties were all members of the samegang and the victim was “only” expecting a short beating for failing to do what he had been ordered to do. He says there was noindication the victim was threatened with being killed and the idea that the victim would be shot and killed was contrary to the victim’sown testimony that he thought he was going to be given a beating. There was no conversation surrounding the firearm going off andhitting the victim. There was no evidence of anyone being angry.

No medical evidence was tendered to substantiate the wound waspotentially lethal or would likely lead to imminent death. The appellant argues the trial judge erred by failing to consider all of thecircumstances. [7] The appellant contends the trial judge further erred by giving undue weight to the actions taken after the fact of the shooting toformulate the inference of a specific intent to kill.

He argues it is a more reasonable inference to draw that he would have been nervous,anxious and scared over the incident which would have caused him to flee the scene, especially since all of the evidence seemed toconfirm the parties were under the influence of drugs and alcohol. B. The Respondent [8] The respondent says it was open on all of the circumstances to draw the reasonable inference the appellant intended to kill thevictim. The appellant was standing over the victim and shot him on his left side near his heart from about two feet away.

After theshooting, the appellant punched the victim to the floor and then either participated in, or watched, his fellow gang members participate ina prolonged beating leaving the victim helpless. The victim was wrapped in a sheet, dragged to the bathroom, thrown in the bathtub, andthen abandoned. Finally, says the respondent, it was open to the trial judge to consider the post-shooting actions as a reason to reject the

appellant’s claim the shooting was accidental. II. Decision regarding the conviction appeal [9] We are all of the view the conviction appeal must be dismissed. The trial judge made essential findings of credibility and hisfindings are entitled to great deference. This Court’s role in an appeal founded on s. 686(1)(

a) is to determine whether a properlyinstructed jury, acting reasonably, could convict on the facts in evidence before the trier of fact (see: R. v. Yebes, (SCC),[1987] 2 S.C.R. 168). When an appellate court applies the Yebes test, it must show great deference to the findings of credibility made attrial (see R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122 at p. 131). [10] The offence of attempt to commit murder requires the Crown to prove beyond a reasonable doubt that the accused had the specificintent to kill the victim (R. v. Ancio, (SCC), [1984] 1 S.C.R. 225).

In this case, the appellant stood up, pulled out adeadly sawed-off rifle and, at close range, shot the victim in the chest near his vital organs. In our view, it was clearly a reasonableinference for the trial judge to draw, in the circumstances, that the appellant intended to kill the victim. [11] In R. v. Bains, supra, Cory J.A. (as he then was), for the Court, in explaining the rationale for drawing such an inference, said atpara. 27: All firearms are designed to kill. A handgun is a particularly insidious and lethal weapon.

It is easy to carry and conceal, yet at closerange, it is every bit as deadly as a .50 calibre machine gun. It follows that when, at close range, a handgun is pointed at a vital portionof the body of the victim and fired, then in the absence of any explanation the only rational inference that can be drawn is that the gunwas fired with the intention of killing the victim. No other reasonable conclusion can be reached: a deadly weapon was used in the verymanner for which it was designed - to cause death.

It is appropriate to conclude that in these circumstances the gun was fired in orderthat it might fulfil its design function and kill. An element of surprise arises only if death does not occur. [emphasis added] [12] I would also refer to R. v. M.A.A., 2012 BCCA 402, 328 B.C.A.C. 189 where the Court found intent when it said: [12] … He pointed and fired a loaded handgun at the chests of three men in turn in what the judge found on the testimony of thewitnesses was methodical and deliberate.

It could not be suggested that, because of his eyesight, he did not appreciate that is what he wasdoing three times over in rapid succession. He must, in the absence of evidence to the contrary, be presumed to have intended the naturalconsequences of his actions. The chest cavity is the center of a person's vital organs. The natural consequence of firing a gun into thechest of a person standing a few feet away is that the person will die.

That is what the appellant did and his intention must be clearregardless of the strength of his vision. [13] The post-shooting activities can clearly be seen as supporting an inference the shooting was a deliberate intent to kill. Theappellant wrapped the victim up in a sheet and left him to die in the bathtub. The appellant fled the scene without calling any medicalassistance for the victim and this too suggests he intended to kill the victim. [14] This was a verdict a properly instructed jury acting judicially could reasonably have rendered and we see no basis for this Court tointervene in the conviction. III.

THE SENTENCE APPEAL [15] The appellant raises the following two grounds on this issue:

(1) The trial judge failed to give sufficient weight to s. 718.2(

e) of the Criminal Code and did not consider the circumstances of theappellant, in particular his being a young aboriginal offender; and

(2) The trial judge failed to consider the principle of parity in sentencing and the sentence imposed was outside the range of sentencesfor the predicate offence. For the reasons that follow, the sentence appeal must be dismissed. [16] By way of background to this issue, this is the appellant’s record from the sentencing decision: 1995-12-23 - Commits Sexual Assault … (Information Y204492). 1996-05-08 Convicted of Sexual Assault (Information Y204492) - Sentenced to 18 months probation

1997-06-28 - Commits Mischief under $5000 (Information Y204636) 1997-07-06 - Commits break/enter and theft in Kisbey, SK (Information Y204637) 1997-07-09 - Commits Arson (Information Y204698) and Breach of Disposition (Information Y204215) 1997-07-09 In custody, charged with Mishef [sic] (Information Y204636), Arson (Information Y204698), Breach of Disposition (Information Y204215), and Break/enter and theft (Information Y204698).

McArthur would remain in custody until sentenced on 1998-01-06 1998-01-06 - Convicted of: Mischef [sic] (Information Y204636) Arson (Information Y204698) Breach of Disposition (Information Y204215) Break/enter and theft (Information Y204698) - Sentenced to 14 months closed custody, plus 10 months probation on arson charge, and 3 months closed custody, concurrent, on all other charges. 1998-07-03 - Commits Escape from Lawful Custody - (Information 44620746) 1998-07-30 - Commits Armed Robbery (Information 44640946). 1998-07-30 - Arrested, and returned to custody 1998-08-20 - Convicted of: Armed Robbery (Information 44640946) Escape Lawful Custody (Information 44620746) - Sentenced to 2 years and 6 months closed custody, consecutive on armed robbery charge, plus 3 months closed custody, consecutive, on escape charge

1999-06-03 - Commits Escape from Lawful Custody (Information Y154359) 1999-06-18 - Convicted of: Escape Lawful Custody (Information Y154359) - Sentenced to 3-1/2 months closed custody, consecutive 2000-10-15 - Commits Unlawfully at Large (Information Y243112) 2001-01-01 - Commits Theft of Auto under $5 , 000 x 2 (Information Y249293) 2001-01-02 - Commits Theft of Auto Under $5 , 000 (Information Y249292) 2001-01-07 - Commits Theft of Auto Under $5,000 (Information Y249289) and Careless transportation of firearm (Information Y249285) 2001-01-07 - Arrested, and remains in custody until sentenced on 2001-01-17 (Information Y243112) 2001-01-17 - Convicted of: Unlawfully at large (Information Y243112) Theft of Auto under $5,000 x 2 (Information Y249293) Theft of Auto Under $5,000 (Information Y249292) Theft of Auto Under $5,000 (Information Y249289)

Careless transportation of firearm (Information Y249285) - Sentenced to a total of 7 months secure custody, concurrent to the remainder of his other sentences, plus a 2 year firearms prohibition 2001-06-18 Balance of McArthur’s secure custody sentence converted to open custody 2001-12-02 - Commits Unlawfully at Large, Theft of Rifle, and Breach of Firearms Prohibition Order (Information 24117305) 2001-12-03 McArthur arrested, and would remain in custody until sentencing on 2002-01-09 2002-01-09 - Convicted of (Information 24117305): Unlawfully at large Theft under Breach of Firearm Prohibition Order - Sentenced to 3 months, consecutive, on each charge, for a total of 9 months, plus 6 months probation, plus a 5 year firearm prohibition [sic].

And, remainder of his youth sentence converted to adult sentence, pursuant to s. 743.5(1) of the Criminal Code 2002-07-08 Released from custody, and probation order takes effect. 2002-08-24 - Commits Break, Enter and Commit Assault, Uttering Threats (See Information 24149157 and related Indictment), as well as Evading Police, Impaired Driving and Breach of Probation (See Information 24149157) 2002-08-24 McArthur arrested, and would remain in custody until sentenced on 2003-02-20 2002-11-19 Convicted of (Information 24149157): Evading Police Impaired Driving Breach of Probation - Sentenced to 30 days on the evading police, 14 days consecutive on the breach of probation, and $700 fine plus one year driving prohibition on the impaired driving charge.

2003-02-20 Convicted of (Indictment dated November 20, 2002): Break, Enter and Commit Assault Uttering Threats - Sentenced to 6 months (in addition to one year credit for time spent on remand), plus 10 year firearms prohibition, and order to provide DNA sample. 2003-06-19 Release from custody 2003-08-26 - Commits Possession of Stolen Property, and Fail to Remain at Scene of Accident (Information 24214022) 2004-10-04 - Commits Theft Under $5,000 (Information 24220429) 2004-10-09 - Commits Assault x 2 (Informations 24220423 and 24220424), and Resisting Arrest (Information 24220425) 2004-10-09 Arrested and held in custody until 2004-10-13 2004-10-13 Released on Bail (Informations 24220423, 24220424, 24220425 and 24220429) 2004-10-27 - Commits Aggravated Assault (Information 24210019), Theft Under $5,000 and Breach of Undertaking (Information 24220488) and Breach of Undertaking (Information 24220477) 2004-10-27 Arrested and held in custody until date of sentencing (2005-05-11) 2005-05-11 Convicted of: Aggravated Assault (Information 24210019) - Sentenced to 30 months, minus 386 days credit for time served on remand, plus lifetime firearms prohibition Assault (Information 24220423) – 6 months consecutive Assault (Information 24220424) – 6 months concurrent Resisting Arrest (Information 24220425) – 6 months concurrent

Possession of Stolen Property (Information 24214022) – 6 months concurrent Fail to Remain at Scene of Accident (Information 24214022) – 6 months concurrent Theft Under $5,000 (Information 24220429) – 6 months concurrent Theft Under $5,000 (Information 24220488) – 6 months concurrent Breach of Undertaking (Information 24220488) – 3 months concurrent Breach of Undertaking (Information 24220477) – 3 months concurrent Total sentence imposed: 704 days 2006-08-25 Released on bail undertaking, re: s. 810.2 Recognizance (Information 37225081) 2006-12-29 Commits Attempted Murder of Cody Favel I will expand on some of the convictions in the consideration of the issue of parity. [17] The appellant contends the trial judge failed to give adequate weight to the fact the appellant was, at the time of the offence, ayoung aboriginal.

The appellant restates the concern voiced in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 and R. v.Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 regarding the overrepresentation of aboriginal people in the criminal justice system. He saysthe sentencing judge, while canvassing some of his circumstances, failed to give adequate reference to his aboriginal upbringing orwhere he came from. He says the facts referred to by the sentencing judge pertain only to his interaction with both the Social ServicesSystem and the Justice System with very little discussion about his family background.

To summarize, the appellant says the sentencingjudge failed to consider the full offender and failed to consider the full picture of the person. [18] The sentencing judge said, “In terms of mitigating factors, there is no question that the circumstances of Mr. McArthur’supbringing are to be considered as mitigating…. I have been requested by the defence to consider R. v. Gladue…in imposing sentence. Irecognize that as an aboriginal offender, Mr. McArthur’s unique circumstances are to be considered.

I have referred to thesecircumstances earlier in my judgment and have considered them in the imposition of what I consider to be a fit and proper sentence”(paras. 152 and 154 of the sentencing judgment 2010 SKQB 219). [19] The appellant focuses on those particular paragraphs as the basis for his argument the Gladue factors were not given theappropriate weight. However, the appellant ignores the trial judge’s numerous earlier references to his personal history, including hisaboriginal heritage, and his review of his personal history as well as the psychological assessment prepared by Dr. Holden.

In addition,there was the testimony of the appellant, the testimony of his common-law wife, that of an elder who testified on the appellant’s behalf(but who had seen the appellant prior to the predicate offence), and the testimony of Mr. Nelson, a mental health therapist who alsotestified on behalf of the appellant. [20] Simply put, the appellant’s aboriginal heritage and his personal circumstances were at the centre of the LTO hearing. There wasboth testimony and documentary evidence as to his background.

The sentencing judge reviewed much of the evidence but of course hewas not required to discuss all of the evidence provided an appellate court can be satisfied the sentencing judge understood and grappledwith the essential issue which, in this case, he clearly did. [21] The appellant’s argument seems to rely in essence on only the very fact he is an aboriginal. There is no reference to his moralculpability and the gravity of the predicate offence in his argument. [22] The argument made by the appellant suggests no more than he ought to get a discount simply because he is an aboriginal.

This isan untenable position—see R. v. Popowich, 2013 ABCA 149, 544 A.R. 312. The appellant does not explain how his aboriginal heritageand his personal circumstances are relevant to the offence. [23] The majority of the Alberta Court of Appeal in Popowich said: [24] While an offender does not have to prove a causal link between his aboriginal status and the particular offence, some relevancemust be shown. There is no sentence discount merely for being aboriginal. The sentencing judge held only that he “grew up as an

inheritor of the legacy of the residential schools of this country”. This reflects an error in principle, as it appears to apply an automatic discount because of the experiences of his ancestors. The sentencing judge never discussed how the respondent’s aboriginal heritage had any relationship to this offence. Indeed, because the respondent never explained why he and his accomplices attended on these premises to stab the complainant, it would likely have been impossible to draw that conclusion.

Again, the onus of proving this potentially mitigating circumstance was on the respondent. [24] I would also refer to Ipeelee , supra where, at para. 83 , the Supreme Court states: [83] …This is not to say that those factors need not be tied in some way to the particular offender and offence.

Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence. [ 25 ] We are of the view the appellant is not successful on this ground. [ 26 ] I now turn to the issue of parity.

The sentence imposed of 17 years reduced by a remand credit is higher than any sentence imposed by this Court for an attempt to commit murder. [ 27 ] The appellant cites a number of Saskatchewan authorities but for the purposes of this appeal it is only necessary to deal with the case of R. v. Bear , 1997 SKCA (SentDig) 56 which is the case resulting in the highest sentence upheld by this Court for attempted murder (and which authority I note did not establish a sentencing range for this offence).

The other cases cited by the appellant had lower sentences. [ 28 ] The facts of that case are briefly set out from the appellant’s factum: This is a matter of a 31 year old male with a relatively minor record. The victim was 80 years old at the time and living in a home alone in Lipton, Saskatchewan. She was awoken by a blow to the head and struck repeatedly. She was dragged off the bed and sexually assaulted. She was bound at the arms and feet and as she was trying to escape, her left hand was broken by the accused to prevent the escape.

She was choked until she passed out, dragged into the basement, tied up and flammable material thrown on her body which was then set alight. He was sentenced to 14 years on the attempted murder charge with 6 years consecutive on the sexual assault charge.

The court noted that the whole episode of one of “stark horror and noted that he sanctity of the elderly victim's home was violated”. [ 29 ] It must be noted that, notwithstanding the horrific actions of the accused in Bear , he had a relatively minor record consisting of eight driving offences, one of causing a disturbance, two of failure to appear and two assaults. The accused was 31 years of age. He was sentenced to 14 years on the attempted murder charge with six years consecutive on the sexual assault charge. [ 30 ] I compare Bear’s record to that of the appellant herein which was set out above.

The appellant by his own admission first began fighting at age 10. At approximately age 12 and one-half, he sexually offended against his younger female cousin.

There is no question he had a very unfortunate upbringing, usually in and out of foster care and as a temporary ward, but as set out in the psychological assessment his record consisted of 31 convictions in 22 different criminal categories and out of those there were 10 convictions in nine different criminal categories for violence-related offences. [ 31 ] Included was a conviction for arson in which the accused and a co-accused attempted to burn a house on his home reserve. The two obtained a gas/oil mixture and attempted to set fire to the house with four people residing in there at the time.

Their first attempt failed and the accused returned to the home to start the fire again. He also had a gun which was to be used to shoot one of the residents. [ 32 ] In 1998 he was convicted of armed robbery when he went into a bar with a sawed-off .12 gauge shotgun. He was wearing a mask and the gun was loaded. He also had extra cartridges in his pockets. He aimed the gun at staff and a patron.

In 2003 he was convicted for break and enter and committing an assault. [ 33 ] In 2005 he was convicted of two assaults and aggravated assault and one of these assaults was on his common-law partner. [ 34 ] This is obviously not a litany of all of the offences committed by the appellant, nor a recitation of the circumstances surrounding them, but it does paint a picture of a seriously troubled and dangerous individual with a long history of violence who has refused to change his ways.

I also note the trial judge found the circumstances of the predicate offence to be in furtherance of a criminal enterprise. [ 35 ] The respondent refers to R. v. Carelse , 2013 SKQB 15 , 411 Sask. R. 263 where, in a horrendous case of spousal abuse, the accused with little or no violent criminal history was sentenced to 16 years for attempted murder. I also note R. v. M.D. , 2007 SKQB 365 and R. v.

Wolfe , 2009 SKQB 448 where the offenders were sentenced to 18 years and life, respectively, for attempted murder. [ 36 ] The respondent also notes decisions out of the Ontario Court of Appeal where lengthy sentences were imposed for the crime of attempted murder. In R. v. Anderson , 2012 ONCA 373 , 292 O.A.C. 365, a life sentence was imposed on a first-time offender who invaded the home of an elderly woman, raped her and stabbed her three times with a knife.

Sentences of 12 and one-half years to 18 years imprisonment were imposed or upheld by that Court in cases involving premeditated attempts by young adults to kill other people with firearms and with the accused having few or no previous convictions for violence (see R. v. Chevers , 2011 ONCA 569 , 282 O.A.C. 388; R. v. Gordon , 2009 ONCA 170 , 241 C.C.C. (3d) 388; and R. v. Maragh , 2007 ONCA 681 , 229 O.A.C. 232). [ 37 ] The respondent also refers to a decision out of the Alberta Court of Appeal in R. v.

Lysak , 2006 ABCA 327 , 401 A.R. 14 where a 20-year sentence was reduced to 17 years on appeal where the offender tried to kill by shooting a family member twice in the head. The appeal court saw the accused’s record for violence as not being serious, however, given the circumstances of the offence, a 17-year sentence was still warranted. [ 38 ] The Manitoba Court of Appeal and the Nova Scotia Court of Appeal have also upheld lengthier sentences for attempted murder convictions. The Manitoba Court upheld a 14-year sentence on an accused who tried to murder another person with a firearm in R. v.

Boissonneault , 2012 MBCA 40 , 280 Man. R. (2d) 114. The accused had few previous convictions for violence. In R. v. Bryan , 2008

NSCA 119, 272 N.S.R. (2d) 246, the Nova Scotia Court of Appeal upheld a 15-year sentence for a man who tried to murder his wifewith a sword. The accused had no previous criminal record and had entered a guilty plea. [39] These decisions indicate the offence of attempted murder will properly attract serious sentences in situations which involve coldand calculated attacks even where the offender may not have a lengthy violent record.

It follows that serious attempts to murder bypeople with a history of violence warrant lengthier sentences. [40] The respondent notes the authorities cited by the appellant were decided over a decade ago.

It says that since that time Parliamenthas increased the penalties on those who try to kill another with a firearm and has also enacted legislation aimed at curtailing criminalgangs. [41] We are satisfied, while very heavy, the sentence imposed below was not an unfit sentence in light of the callous and premeditatednature of the crime, the fact it was committed in furtherance of gang discipline, and the appellant’s criminal record. The sentencingjudge reviewed the sentencing principles and the aggravating and mitigating factors.

No error in principle has been demonstrated and hisdecision is entitled to great deference (see R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163). The sentencing judge properly noted the“premeditated, calculated and brutal nature of the offence and the fact that this was committed in furtherance of a criminal enterprise”(para. 151 of the sentencing judgment) were aggravating factors. He took into account the aboriginal heritage and turbulent upbringingof the appellant and nevertheless concluded a lengthy sentence was appropriate. Sentencing of course is an individualized process.

InIpeelee, the Supreme Court reiterated that fact: [38] Despite the constraints imposed by the principle of proportionality, trial judges enjoy a broad discretion in the sentencing process. The determination of a fit sentence is, subject to any specific statutory rules that have survived Charter scrutiny, a highly individualizedprocess. Sentencing judges must have sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence andthe particular offender. Appellate courts have recognized the scope of this discretion and granted considerable deference to a judge'schoice of sentence.

As Lamer C.J. stated in R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 90: Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court ofappeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

Parliament explicitly vestedsentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code. [Emphasis inoriginal.] [42] I note further the appellant’s continuing reliance on the Gladue factors as a reason to reduce his sentence for violent crimes, whilepromising to learn and understand his aboriginal culture, but then immediately recommitting violently, demonstrates he has not changedhis attitude notwithstanding many opportunities to do so. The assessment report makes it clear the appellant will remain a danger toreoffend.

The public must be protected from this individual and a very lengthy term of incarceration is necessary. [43] In

summary, the appeal of conviction and sentence is dismissed. DATED at the City of Regina, in the Province of Saskatchewan, this 19th day of December, A.D. 2013. “Lane J.A.” Lane J.A. I concur “Richards C.J.S.” Richards C.J.S. I concur “Ottenbreit J.A.” Ottenbreit J.A.