R. v. Chareka, 2013 NSSC 320

IN THE SUPREME COURT OF NOVA SCOTIA Citation: R. v. Chareka, 2013 NSSC 320 Date: 20131008 Docket: CR. Ant. No. 407674 Registry: Antigonish Between: Her Majesty the Queen v. Patrick Chareka Judge: The Honourable Justice N. M. Scaravelli. Sentencing Date: October 8, 2013 Counsel: Allen Murray and Darlene Oko, for the Crown Gerald MacDonald, for the Defendant By the Court : [ 1 ] Mr. Chareka has entered a guilty plea for the offence of second degree murder. The mandatory sentence for second degree murder is imprisonment for life. What remains to be determined is a period of parole ineligibility. Pursuant to

Section 745 (

c) of the Criminal Code , the range of parole eligibility for second degree murder is between 10 and 25 years. [ 2 ] The governing principles are protection of the public and general deterrence.

Section 745.4 of the Code provides the factors which must be considered in determining the calculation of minimum eligibility for parole. They include the character of the offender, the nature of the offence and the circumstances surrounding its commission. In addition the court is required to consider the principle that a sentence should be similar to sentences imposed on similar offenders, for similar offences, committed in similar circumstances. [ 3 ] A detailed agreed statement of facts has been submitted to the court. Briefly, on March 16, 2011, Mr.

Chareka brutally struck his spouse Ottilia Chareka numerous times in the head with a hammer while she was sleeping causing her death. At the time of her murder one of the younger children was sleeping beside her and other children were present in the house. At the time of the murder, Mr. and Mrs. Chareka were involved in separation proceedings in family court over issues of custody and child support. There was also conflict regarding the matrimonial home. Psychiatric assessments reveal that Mr. Chareka suffers from a mental disorder described as delusional disorder. MITIGATING CIRCUMSTANCES

[ 4 ] Mr. Chareka entered a guilty plea to second degree murder prior to trial. Preliminary inquiry was waived. This avoided the necessity of his children having to testify. [ 5 ] Mr. Chareka does not have a criminal record. He is well educated possessing a Ph. D. in statistics. [ 6 ] Although Mr. Chareka acknowledges he appreciated the nature and quality of his act and knew that it was wrong, he has been diagnosed with a delusional mental disorder. AGGRAVATING FACTORS [ 7 ] Mr. Chareka committed a brutal act of violence on the victim by repeatedly striking her on the head with a hammer while she was sleeping.

The children were present in the home at the time. He was motivated by resentment and anger. He acted with complete disregard for the consequences to his children. [ 8 ] This is a crime of domestic violence which is an aggravating factor pursuant to

Section 718.2 (a) (ii) of the Code . JOINT SUBMISSIONS [ 9 ] The crown and defence have made a joint submission of a period of parole ineligibility of 13 years. Sentencing is in the discretion of the trial judge. However, our Court of Appeal and other courts in the country encourage acceptance of a negotiated plea and joint submission on sentencing unless the sentencing is not in the acceptable range, is contrary to public interest or would bring the administration of justice into disrepute. See R vs. MacIvor [2003] NSCA 60 .

This was a case of negotiated plea bargaining where both parties considered evidentiary issues which could possibly affect the outcome of the trial. [ 10 ] I have reviewed a number of cases referred by counsel, including R. vs. Hawkins [2011] NSCA 7 , R. vs. Ward [2011] NSCA 78 and R. vs. Hartling [2011] NSSC 506.

While the facts of each case are unique, the authorities set out a range of parole eligibility for second degree murder between 12 and 15 years where there is a need to increase the period of ineligibility beyond the standard minimum 10 year period. [ 11 ] The sentence must communicate the community ’ s revulsion and abhorrence of this type of domestic violence. The victim was a vulnerable spouse who resided in the matrimonial home with her children when she was murdered. Mr.

Chareka ’ s actions destroyed the family unit and deprived his younger children the opportunity to live in a nurturing environment with their mother. This calls for a parole ineligibility period in excess of the minimum range set out in the authorities and I find a period of 13 years parole ineligibility to be in the acceptable range. [ 12 ] I want to make it clear that a sentence of life imprisonment is just that, sentenced for life. The parole eligibility period does not mean that Mr.

Chareka would necessarily be released on parole upon the expiration of 13 years. [ 13 ] It is the sentence of this court that Mr. Chareka be sentenced for imprisonment for life without eligibility for parole until he has served at least 13 years of his sentence. [ 14 ] The court will also grant ancillary orders requested by the crown, specifically

Section 109 mandatory firearm order for life and

Section 487.051 DNA order.