R. v. Aburto (M.E.), 2009 BCCA 446

• Judge: Lowry, Frankel and Neilson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 14, 2009
• Jurisdiction: British Columbia
• Citations: 2009 BCCA 446;(2009), 277 B.C.A.C. 29 (CA)

R. v. Aburto (M.E.) (2009), 277 B.C.A.C. 29 (CA);

    469 W.A.C. 29

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. DE.006

Regina (respondent) v. Marlon Ernesto Aburto (appellant)

(CA033127; 2009 BCCA 446)

Indexed As: R. v. Aburto (M.E.)

British Columbia Court of Appeal

Lowry, Frankel and Neilson, JJ.A.

October 14, 2009.

Summary:

The accused was convicted of manslaughter in the beating death of the victim. He was sentenced to 12 years' imprisonment, less 28 months' credit for almost 14 months' pre-trial custody, leaving a sentence of nine years and eight months' imprisonment. The accused appealed, submitting that the sentence was excessive.

The British Columbia Court of Appeal dismissed the appeal.

Criminal Law - Topic 5882

Sentence - Manslaughter - The 33 year old accused and another man, armed with billy clubs or batons, broke into a motel room and repeatedly struck two victims - One died of his injuries - The accused's intention was to enforce his right as the only person permitted to sell drugs out of the motel - The accused was charged with second degree murder, but convicted of manslaughter - The accused, who immigrated to Canada from Nicaragua at age 13, had 13 prior convictions between 1992 and 2001 - His record included assault, assault with a weapon (3), possession of a weapon, assault causing bodily harm, break enter and theft, aggravated assault (2), possession of stolen property (2), possession of a weapon and possession of a scheduled substance - He was sentenced to 12 years' imprisonment, less 28 months' credit for almost 14 months' pre-trial custody, leaving a sentence of nine years and eight months' imprisonment - The British Columbia Court of Appeal dismissed the accused's sentence appeal - The sentence was not demonstrably unfit - The court rejected the submission that "there is a de facto ten-year 'cap' on manslaughter sentences" - Denunciation and deterrence were the primary sentencing considerations - This was a planned, unprovoked and callous beating to intimidate others respecting control of the drug trade - The victims were innocent persons having no involvement in the drug trade - Strong judicial disapprobation was required.

Cases Noticed:

R. v. Gillies (A.J.) (1998), 107 B.C.A.C. 157; 174 W.A.C. 157 (C.A.), refd to. [para. 17].

R. v. Henderson (E.) et al. (2005), 207 B.C.A.C. 14; 341 W.A.C. 14; 192 C.C.C.(3d) 366; 2005 BCCA 3, refd to. [para. 19].

R. v. Ansari (S.) (2009), 275 B.C.A.C. 157; 465 W.A.C. 157; 2009 BCCA 381, refd to. [para. 19].

R. v. Kenworthy (C.J.) (2009), 269 B.C.A.C. 235; 453 W.A.C. 235; 2009 BCCA 197, refd to. [para. 19].

R. v. Monk (D.J.) (2005), 215 B.C.A.C. 41; 355 W.A.C. 41; 198 C.C.C.(3d) 495; 2005 BCCA 394, refd to. [para. 19].

R. v. Barton (B.W.) et al. (2003), 180 B.C.A.C. 286; 297 W.A.C. 286; 2003 BCCA 206, refd to. [para. 19].

R. v. Friedrich (G.W.) (1994), 55 B.C.A.C. 75; 90 W.A.C. 75 (C.A.), refd to. [para. 19].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 27].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 27].

Counsel:

L.J. Helps, for the appellant;

M.J. Brundrett, for the Crown/respondent.

This appeal was heard on October 14, 2009, at Vancouver, B.C., before Lowry, Frankel and Neilson, JJ.A., of the British Columbia Court of Appeal.

On October 14, 2009, the judgment of the Court of Appeal was delivered orally and the following opinions were filed:

Frankel, J.A. - see paragraphs 1 to 28;

Lowry, J.A. - see paragraphs 29, 31;

Neilson, J.A. - see paragraph 30.