R. v. McArthur (E.), (2013) 427 Sask.R. 180 (CA)

• Judge: Richards, C.J.S., Lane and Ottenbreit, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: December 19, 2013
• Jurisdiction: Saskatchewan
• Citations: (2013), 427 Sask.R. 180 (CA);2013 SKCA 139

R. v. McArthur (E.) (2013), 427 Sask.R. 180 (CA);

    591 W.A.C. 180

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. DE.052

Eric McArthur (appellant) v. Her Majesty the Queen (respondent)

(1866-CR; 2013 SKCA 139)

Indexed As: R. v. McArthur (E.)

Saskatchewan Court of Appeal

Richards, C.J.S., Lane and Ottenbreit, JJ.A.

December 19, 2013.

Summary:

The 26 year old accused was convicted of attempted murder (see [2008] Sask.R. Uned. 199). The victim was shot in the chest and left to die in the context of gang punishment. Following an assessment under s. 752.1 of the Criminal Code, the Crown applied under s. 753.1(3) to have the accused declared to be a long-term offender. The Crown sought a sentence of 15 years' imprisonment followed by the maximum 10 year supervision order. The accused did not challenge a long-term offender designation. He submitted that an appropriate sentence would be five years' imprisonment followed by a five year supervision order.

The Saskatchewan Court of Queen's Bench, in a judgment reported (2010), 356 Sask.R. 270, declared the accused to be a long-term offender on the basis of the substantial risk of him re-offending violently. The court sentenced the accused to 17 years' imprisonment, less 51.25 month's credit for 41 months' pretrial custody (1.25 to 1 basis), for a net sentence of 12 years and eight months' imprisonment. The maximum 10 year supervision order was imposed. The accused appealed his conviction and the 17 year sentence imposed.

The Saskatchewan Court of Appeal dismissed the appeal against conviction and sentence.

Criminal Law - Topic 1263

Murder - General principles - Intention - [See Criminal Law - Topic 2625 ].

Criminal Law - Topic 2625

Attempts, conspiracies, accessories and parties - Attempts - Intention - A gang decided to punish the victim (one of its own) for failing to assault a non-gang member, as the victim had been ordered to do - The 26 year old accused stood up, pointed a sawed-off shotgun at the victim's upper chest from two feet away, and fired - When the victim stood up, the accused punched him in the face, knocking him down - Others also beat the victim - The victim was wrapped in a sheet and thrown into a bathtub - The accused and others fled the house - No medical assistance was rendered or sought - The victim survived - The trial judge found the accused guilty of attempted murder - The accused appealed, arguing that the evidence was insufficient to support a finding of the requisite intent to kill, and consistent with his claim that the shooting was accidental - The Saskatchewan Court of Appeal dismissed the appeal - It was a rational inference that anyone who fired a sawed-off shotgun at the victim's chest (vital organs) from only two feet away intended to kill the victim - Further, the post-shooting activities could support an inference that the shooting was a deliberate intent to kill - Finding the accused guilty of attempted murder was "a verdict a properly instructed jury acting judicially could reasonably have rendered" - See paragraphs 6 to 14.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by the evidence - [See Criminal Law - Topic 2625 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - The 26 year old accused was sentenced to 17 years' imprisonment, less credit for pre-trial custody, for attempted murder for shooting the victim at point blank range in the chest with a sawed-off shotgun - The accused appealed against sentence, arguing that the trial judge gave insufficient weight to the fact that the accused was an aboriginal offender with a disadvantageous upbringing - The Saskatchewan Court of Appeal rejected the argument - The accused's aboriginal heritage and his personal circumstances were at the centre of the hearing - The accused was effectively arguing that he should get a sentence discount merely because he was aboriginal - That position was untenable - The accused had the onus of explaining how his aboriginal heritage and his personal circumstances were relevant to the offence for which he was being sentenced - He failed to do so - See paragraphs 17 to 25.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - [See Criminal Law - Topic 5881 ].

Criminal Law - Topic 5881

Sentence - Murder (incl. attempts) - The 26 year old accused was convicted of attempted murder for shooting the victim and leaving him to die - The victim was a fellow gang member - Following an assessment under s. 752.1 of the Criminal Code, the Crown applied under s. 753.1(3) to have the accused declared to be a long-term offender - The Crown sought a sentence of 15 years' imprisonment followed by the maximum 10 year supervision order - The accused did not challenge a long-term offender designation, but submitted that an appropriate sentence would be five years' imprisonment followed by a five year supervision order - The trial judge declared the accused to be a long-term offender - There was a substantial risk of the accused re-offending violently, but a reasonable possibility of eventually controlling the risk in the community with proper treatment and support - The accused had 31 prior convictions, including 10 involving violence - He had a polysubstance abuse issue and an anti-social personality disorder with psychopathic traits - He showed no remorse - He had limited education, no steady employment and an anger management issue - It was unclear whether the accused terminated his gang involvement - The judge sentenced the accused to 17 years' imprisonment, less 51.25 month's credit for 41 months' pretrial custody (1.25 to 1 basis), for a net sentence of 12 years and eight months' imprisonment - The maximum 10 year supervision order was imposed - The Saskatchewan Court of Appeal dismissed the accused's sentence appeal - The court stated that "while very heavy, the sentence imposed below was not an unfit sentence in light of the callous and premeditated nature of the crime, the fact it was committed in furtherance of gang discipline, and the [accused's] criminal record. The sentencing judge reviewed the sentencing principles and the aggravating and mitigating factors. No error in principle has been demonstrated and his decision is entitled to great deference" - See paragraphs 15 to 42.

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 3].

R. v. Bains and Grewal (1985), 7 O.A.C. 67 (C.A.), refd to. [para. 6].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 9].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 9].

R. v. Ancio, [1984] 1 S.C.R. 225; 52 N.R. 161; 2 O.A.C. 124, refd to. [para. 10].

R. v. M.A.A. (2012), 328 B.C.A.C. 189; 558 W.A.C. 189; 2012 BCCA 402, refd to. [para. 12].

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. 17].

R. v. Ipeelee (M.), [2012] 1 S.C.R. 433; 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 2012 SCC 13, refd to. [para. 17].

R. v. Popowich (M.J.) (2013), 544 A.R. 312; 567 W.A.C. 312; 2013 ABCA 149, refd to. [para. 22].

R. v. Bear, 1997 SKCA 56 (Sent.Dig.), refd to. [para. 27].

R. v. Carelse (B.K.) (2013), 411 Sask.R. 263; 2013 SKQB 15, refd to. [para. 35].

R. v. D.M. (2007), 303 Sask.R. 93; 2007 SKQB 365, refd to. [para. 35].

R. v. Wolfe (D.R.), [2009] Sask.R. Uned. 185; 2009 SKQB 448, refd to. [para. 35].

R. v. Anderson (M.) (2012), 292 O.A.C. 365; 2012 ONCA 373, refd to. [para. 36].

R. v. Chevers (C.) (2011), 282 O.A.C. 388; 2011 ONCA 569, refd to. [para. 36].

R. v. Gordon (M.A.) (2009), 246 O.A.C. 239; 241 C.C.C.(3d) 388; 2009 ONCA 170, refd to. [para. 36].

R. v. Maragh (M.) (2007), 229 O.A.C. 232; 2007 ONCA 681, refd to. [para. 36].

R. v. Lysak (D.J.) (2006), 401 A.R. 14; 391 W.A.C. 14; 2006 ABCA 327, refd to. [para. 37].

R. v. Boissonneault (M.J.) (2012), 280 Man.R.(2d) 114; 548 W.A.C. 114; 2012 MBCA 40, refd to. [para. 38].

R. v. Bryan (A.C.) (2008), 272 N.S.R.(2d) 246; 869 A.P.R. 246; 2008 NSCA 119, refd to. [para. 38].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 41].

Counsel:

Jeffrey Deagle, for the appellant;

W. Dean Sinclair, for the respondent.

This appeal was heard on November 1, 2013, before Richards, C.J.S., Lane and Ottenbreit, JJ.A., of the Saskatchewan Court of Appeal.

On December 19, 2013, Lane, J.A., delivered the following judgment for the Court of Appeal.