R. v. Fattah (A.A.), (2009) 460 A.R. 262 (CA)

• Judge: Côté, Paperny and Rowbotham, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: June 16, 2009
• Citations: (2009), 460 A.R. 262 (CA);2009 ABCA 229

R. v. Fattah (A.A.) (2009), 460 A.R. 262 (CA);

      462 W.A.C. 262

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. SE.034

Her Majesty the Queen (respondent) v. Arafat Abdul Fattah (appellant)

(0603-0070-A; 2009 ABCA 229)

Indexed As: R. v. Fattah (A.A.)

Alberta Court of Appeal

Côté, Paperny and Rowbotham, JJ.A.

June 16, 2009.

Summary:

The accused was found guilty of second degree murder and attempted murder.

The Alberta Court of Queen's Bench, in a decision reported at (2006), 393 A.R. 369, sentenced the accused to concurrent terms of life imprisonment and directed that he serve 21 years of that sentence before becoming eligible for parole. The accused appealed from the order of parole ineligibility of 21 years.

The Alberta Court of Appeal dismissed the appeal.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - The accused was found guilty of second degree murder and attempted murder - He was sentenced to concurrent terms of life imprisonment without eligibility for parole for 21 years - The accused appealed from the order of parole ineligibility of 21 years, arguing that the sentencing judge erred in considering future dangerousness in raising the parole ineligibility - The accused submitted that an extended period of parole ineligibility was not required to address a history of violence or a risk of danger to the public - The Alberta Court of Appeal disagreed, stating that "In Shropshire, the Supreme Court made clear that though denunciation and assessment of future dangerousness were not the only considerations for extended period of parole ineligibility, nevertheless those two criteria properly form part of the analysis, and specifically that 'future dangerousness can fall within the rubric of the 'character of the offender'" - The court found no error in the sentencing judge's consideration of this factor - See paragraphs 7 to 8.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - The accused was found guilty of second degree murder and attempted murder - The accused had attended at a car lot where he used a handgun to fire nine shots at the murder victim and at least two shots at the attempted murder victim - The accused had been involved in an escalating feud with the murder victim prior to the shootings - Both victims were unarmed - The accused was 21 years old at the time of the offences and had an extensive criminal record - He was on probation and subject to a weapons prohibition order at the time of the shootings - The accused was sentenced to concurrent terms of life imprisonment without eligibility for parole for 21 years - The accused appealed from the order of parole ineligibility of 21 years - The Alberta Court of Appeal dismissed the appeal - The court stated that "the moral culpability of the appellant is extremely high and the circumstances demonstrate a considerable degree of planning, vigilante justice and aggravating circumstances including the use of a restricted weapon while prohibited by court order from using any weapons" - The period of parole ineligibility imposed by the sentencing judge was not demonstrably unfit - The sentencing judge considered and weighted the appropriate factors - See paragraphs 9 to 15.

Criminal Law - Topic 5881

Sentence - Murder - [See second Criminal Law - Topic 5670 ].

Cases Noticed:

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37; 129 D.L.R.(4th) 657, refd to. [para. 4].

R. v. Ly and Duong (1992), 78 Man.R.(2d) 209; 16 W.A.C. 209; 72 C.C.C.(3d) 57 (C.A.), refd to. [para. 7].

R. v. Diebel (A.L.) (2007), 422 A.R. 377; 415 W.A.C. 377; 2007 ABCA 418, refd to. [para. 7].

Counsel:

T.L. Couillard, for the respondent;

P.L. Moreau, for the appellant.

This appeal was heard on June 16, 2009, before Côté, Paperny and Rowbotham, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment of the Court of Appeal was delivered orally from the bench by Paperny, J.A., on June 16, 2009, and was filed on June 22, 2009.