R. v. Abraham (G.V.), (2011) 272 Man.R.(2d) 216 (QB)

• Judge: McKelvey, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: December 06, 2011
• Jurisdiction: Manitoba
• Citations: (2011), 272 Man.R.(2d) 216 (QB);2011 MBQB 299;272 Man R (2d) 216

R. v. Abraham (G.V.) (2011), 272 Man.R.(2d) 216 (QB)

MLB headnote and full text

Temp. Cite: [2011] Man.R.(2d) TBEd. DE.033

Her Majesty The Queen v. Gerald Vernon Abraham (accused)

(CR 11-01-31003; 2011 MBQB 299)

Indexed As: R. v. Abraham (G.V.)

Manitoba Court of Queen's Bench

Winnipeg Centre

McKelvey, J.

December 6, 2011.

Summary:

The 31 year old accused pleaded guilty to manslaughter in the victim's beating death. The Crown sought 6-8 years' imprisonment. The accused sought 3.5 years' imprisonment, with double credit for 676 days' pre-trial custody.

The Manitoba Court of Queen's Bench sentenced the accused to five years' imprisonment, less double credit for 676 days' pre-trial custody.

Criminal Law - Topic 5882

Sentence - Manslaughter - The 23 year old intoxicated victim allegedly ran towards the 31 year old accused and his common law spouse in a threatening manner - The accused, allegedly in self-defence, slammed the victim onto the ground - The accused admittedly punched and kicked the victim in the head while he lay defenceless - The accused stated that he "just kept going" - The accused left the victim on the side of the road, where he died - The accused pleaded guilty to manslaughter - The Crown sought 6-8 years' imprisonment - The accused argued for 3.5 years' imprisonment, with double credit for 676 days' pre-trial custody - The accused had a criminal record dating from his youth - Most offences were property-related, but he had convictions in 2003 and 2004 for assault causing bodily harm and spousal assault - No offences since 2006 - The accused had made significant changes in the last few years, including dealing with addiction problems and counselling - He expressed remorse almost immediately - He claimed to be protecting his spouse from a threat initiated by the victim and his crime resulted from going too far in doing so - Aggravating circumstances included his criminal record for violence, leaving the victim on the side of the road, and failing to call for medical assistance - The Manitoba Court of Queen's Bench sentenced the accused to five years' imprisonment, less double credit for pre-trial custody.

Cases Noticed:

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 11].

R. v. Csincsa (M.A.P.) (1993), 85 Man.R.(2d) 241; 41 W.A.C. 241 (C.A.), refd to. [para. 16].

R. v. Crane (P.) (1993), 88 Man.R.(2d) 17; 51 W.A.C. 17 (C.A.), refd to. [para. 16].

R. v. Sinclair (T.) (2009), 240 Man.R.(2d) 135; 456 W.A.C. 135; 2009 MBCA 71, revd. (2011), 418 N.R. 282; 268 Man.R.(2d) 225; 520 W.A.C. 225; 270 C.C.C.(3d) 421; 2011 SCC 40, refd to. [para. 16].

R. v. Cascisa (T.J.) (2001), 160 Man.R.(2d) 94; 262 W.A.C. 94; 2001 MBCA 168, refd to. [para. 29].

R. v. Clemons (C.) (2003), 173 Man.R.(2d) 161; 293 W.A.C. 161; 2003 MBCA 51, refd to. [para. 30].

R. v. Beltran (B.R.), [2006] Man.R.(2d) Uned. 108; 2006 MBQB 45, refd to. [para. 35].

R. v. Phillips, 2005 ONCJ 498 (C.J.), refd to. [para. 37].

R. v. Stewart (M.), [2005] Yukon Cases (TC) 74; 2005 YKTC 74, refd to. [para. 38].

R. v. Geddes (J.G.J.), 2005 CarswellMan 386 (Q.B.), refd to. [para. 38].

R. v. White Man Left (D.), [2005] A.R. Uned. 472; 2005 ABPC 105, refd to. [para. 38].

Counsel:

Debbie Buors, for the Crown;

Leonard J.W. Tailleur, for the accused.

This matter was heard before McKelvey, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment orally on December 6, 2011.