R. v. McClenaghan (M.A.), 2011 ABCA 266

• Judge: Côté, Conrad and Bielby, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 20, 2011
• Citations: 2011 ABCA 266;(2011), 513 A.R. 319

R. v. McClenaghan (M.A.) (2011), 513 A.R. 319; 530 W.A.C. 319 (CA)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. SE.093

Her Majesty the Queen (respondent) v. Murray Archibald McClenaghan (appellant)

(0903-0130-A; 2011 ABCA 266)

Indexed As: R. v. McClenaghan (M.A.)

Alberta Court of Appeal

Côté, Conrad and Bielby, JJ.A.

September 26, 2011.

Summary:

The accused shot his friend and business partner three times. The accused was charged with first degree murder and possession of a weapon (pump action shotgun) for a purpose dangerous to the public peace. The accused was found not guilty of first or second degree murder. For the offences of manslaughter and possession of a weapon, the jury found the accused guilty, but not criminally responsible on account of mental disorder. The Crown appealed.

The Alberta Court of Appeal, in a decision reported at 437 A.R. 247; 433 W.A.C. 247, allowed the appeal and ordered a new trial. A jury convicted him of second degree murder. They found that the accused was suffering some form of mental disorder at the time of the killing but rejected a defence of not criminally responsible on account of mental disorder. The accused appealed.

The Alberta Court of Appeal, in a decision reported at 482 A.R. 343; 490 W.A.C. 343, dismissed the appeal. The sentencing judge increased the accused's parole eligibility to 14 years. The accused appealed. He argued that the sentencing judge erred by failing to find that the mental disorder was a mitigating factor in increasing the eligibility period as he did.

The Alberta Court of Appeal dismissed the appeal. The sentencing judge did not err in principle. The period of eligibility chosen was not outside the range of a demonstrably fit period of parole eligibility.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - [See Criminal Law - Topic 5881 ].

Criminal Law - Topic 5834.7

Sentencing - Considerations - Mental illness or disorder - [See Criminal Law - Topic 5881 ].

Criminal Law - Topic 5881

Sentence - Murder - The 63 year old accused shot his friend and business partner three times - They had been having business difficulties and got into argument - A jury convicted the accused of second degree murder - They found that the accused was suffering some form of mental disorder at the time of the killing but rejected a defence of not criminally responsible on account of mental disorder - He had a long employment history, a stable marriage and 13 letters of reference - A sentencing judge increased the accused's parole eligibility to 14 years - He described the murder as a brutal senseless killing of an unsuspecting and defenceless friend and business partner about a dispute over money - The accused's behaviour indicated a high degree of moral culpability and seriousness - Mitigating factors were: a very minor prior criminal record, no significant history of violence, not likely to re-offend, actions were out of character, he turned himself into the RCMP several hours after the offence, and there was some remorse - Aggravating factors were: the intentional shooting in the back of the defenceless victim with a 12 gauge shotgun by an experienced hunter, with at least one shot fired while the victim was on the ground, the lack of any assistance or call for medical help demonstrating callous behaviour, and the contents of the victim impact statements - The accused appealed, arguing that the sentencing judge erred by failing to find that the mental disorder was a mitigating factor in increasing the eligibility period as he did - The Alberta Court of Appeal dismissed the appeal - The sentencing judge did not err by failing to mitigate specifically for any mental disorder here - He gave credit for the fact that the actions were out of character, which was, in part, attributable to the mental state - The period of eligibility chosen was not outside the range of a demonstrably fit period of parole eligibility.

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, refd to. [para. 8].

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; 105 C.C.C.(3d) 327, refd to. [para. 8].

R. v. Tremblay (W.D.) (2006), 401 A.R. 9; 391 W.A.C. 9; 2006 ABCA 252, refd to. [para. 12].

Counsel:

D.C. Marriott, Q.C., for the respondent;

C.B. Davison, for the appellant.

This sentence appeal was heard on September 20, 2011, before Côté, Conrad and Bielby, JJ.A., of the Alberta Court of Appeal, who filed the following memorandum of judgment on September 26, 2011.