R. v. Ross (K.S.), (2013) 562 A.R. 122 (QB)

• Judge: Veldhuis, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 17, 2012
• Citations: (2013), 562 A.R. 122 (QB);2013 ABQB 274

R. v. Ross (K.S.) (2013), 562 A.R. 122 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. MY.155

Her Majesty the Queen v. Khurrum Sheik Ross (101174340Q1; 2013 ABQB 274)

Indexed As: R. v. Ross (K.S.)

Alberta Court of Queen's Bench

Judicial District of Calgary

Veldhuis, J.

May 8, 2013.

Summary:

The accused pleaded guilty to aggravated assault after attacking the victim with a meat cleaver at a C-Train station. The accused struck the victim in the head, back and arm, causing the victim numerous lacerations, some serious. The accused alleged that he was under the influence of crack and alcohol and that he "lost it" in response to the victim's bullying of him and his family. The Crown sought 8-9 years' imprisonment. The accused sought a sentence equal to whatever the court credited him for the 31 months pre-sentence custody.

The Alberta Court of Queen's Bench sentenced the accused to seven years' imprisonment, less one to one credit for the 31 months of pre-trial custody, leaving a sentence of four years and five months to be served.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - Section 719(3.1) of the Criminal Code gave a sentencing judge a discretion to depart from the "normal" 1.0 to 1.0 credit for pre-trial custody and award up to 1.5 to 1.0 enhanced credit "if the circumstances justify it" - The Alberta Court of Queen's Bench discussed what type of "circumstances" would justify enhanced credit - Enhanced credit was not limited to "exceptional" circumstances - Loss of parole eligibility, remand conditions and sentencing delays remained relevant considerations, but there had to be an evidentiary basis to award enhanced credit - Dietary, religious and medical circumstances could constitute circumstances justifying enhanced credit - The court stated that "I also do not find that the general frequency of showers, shaves, haircuts, fresh clothing, lock-downs or the occurrence of double or, rarely, triple bunking justify enhanced credit. Without evidence to suggest that these issues created onerous conditions, I cannot see how they justify a move away from the standard 1-1 credit. ... For conditions to be deemed onerous, they must be based on a comparison to practical conditions in custody, not one's conditions in freedom." - See paragraphs 45 to 80.

Criminal Law - Topic 5938

Sentence - Aggravated assault - The 30 year old accused pleaded guilty to aggravated assault after attacking the victim with a meat cleaver at a C-Train station - The accused struck the victim in the head, back and arm, causing the victim numerous lacerations, some serious - The accused alleged that he was under the influence of crack and alcohol and that he "lost it" in response to the victim's bullying of him and his family - Arresting officers did not notice any signs of impairment or drug use - The Crown sought 8-9 years' imprisonment - The accused sought a sentence equal to whatever the court credited him for the 31 months pre-sentence custody - The accused had a prior conviction for a vicious knife attack (10 years in the past) - The attack took place in a public area and stopped only when the victim escaped when the accused was distracted by bystanders - The accused gave the meat cleaver to an unidentified person to hide and fled the scene, but only after brandishing the weapon at on oncoming train - The victim did nothing to provoke the attack - Deterrence and denunciation, and protection of the public, were the paramount sentencing factors - The Alberta Court of Queen's Bench sentenced the accused to seven years' imprisonment, less one to one credit for the 31 months of pre-trial custody, leaving a sentence of four years and five months to be served - The court rejected the accused's request for enhanced credit (1.5 to 1.0) based on loss of remission, onerous remand conditions and delay in sentencing - See paragraphs 1 to 81.

Cases Noticed:

R. v. J.L.M.A. (2010), 499 A.R. 1; 514 W.A.C. 1; 2010 ABCA 363, refd to. [para. 19].

R. v. Arcand - see R. v. J.L.M.A.

R. v. Jiang (X.) (2010), 518 A.R. 76; 2011 ABQB 182, refd to. [para. 20].

R. v. Bazinet (G.O.) (2005), 384 A.R. 347; 367 W.A.C. 347; 2005 ABCA 388, refd to. [para. 22].

R. v. Morrisseau (M.R.), [2010] A.R. Uned. 938; 2010 ABPC 404, refd to. [para. 24].

R. v. Gholamrezazdehshirazi (M.) (2008), 451 A.R. 326; 2008 ABPC 198, refd to. [para. 25].

R. v. Doerksen (K.D.) (1995), 172 A.R. 226 (Q.B.), refd to. [para. 27].

R. v. Blackrabbit (M.J.), [2011] A.R. Uned. 712; 2011 ABPC 281. refd to. [para. 29].

R. v. Jamieson (D.J.), [2009] A.R. Uned. 68; 2009 ABCA 208, refd to. [para. 30].

R. v. Mellstrom (1975), 22 C.C.C.(2d) 472 (Alta. C.A.), refd to. [para. 32].

R. v. Summers (S.) (2013), 302 O.A.C. 322; 2013 ONCA 147, refd to. [para. 46].

R. v. Johnson, 2011 ONCJ 77, refd to. [para. 47].

R. v. R.H., 2010 ONCJ 735, affd. [2011] O.A.C. Uned. 357; 2011 ONCA 396, refd to. [para. 47].

R. v. Hason - see R. v. R.H.

R. v. Billard (A.A.) (2011), 304 N.S.R.(2d) 265; 960 A.P.R. 265; 2011 NSPC 31, refd to. [para. 47].

R. v. Dann (A.C.A.), [2011] N.S.R.(2d) Uned. 84; 2011 NSPC 22, refd to. [para. 47].

R. v. Morris (K.A.), [2011] O.T.C. Uned. 5206; 2011 ONSC 5206, refd to. [para. 47].

R. v. Sharkey (R.), [2011] B.C.T.C. Uned. 1541; 2011 BCSC 1541, refd to. [para. 47].

R. v. Sabatine, 2011 ONCJ 310, refd to. [para. 47].

R. v. Abubeker, 2011 ONCJ 337, refd to. [para. 47].

R. v. Stonefish (S.T.) (2012), 288 Man.R.(2d) 103; 564 W.A.C. 103; 2012 MBCA 116, refd to. [para. 51].

R. v. Wuttunee (F.W.), [2012] A.R. Uned. 846; 2012 ABPC 348, refd to. [para. 56].

R. v. Kunath (D.W.) (2013), 554 A.R. 185; 2013 ABQB 71, refd to. [para. 56].

R. v. Ledesma (M.R.), [2012] A.R. Uned. 68; 2012 ABPC 10, refd to. [para. 58].

R. v. Karachov (2002), 4 C.R.(6th) 137 (Ont. C.J.), dist. [para. 70].

R. v. Prince, 2006 ONCJ 349, refd to. [para. 71].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 719(3) [para. 43]; sect. 719(3.1) [para. 44].

Counsel:

Gordon Haight, for the Crown;

Maggie O'Shaughnessy, for the accused.

This matter was heard on September 17, 2012 and March 14-15, 2013, before Veldhuis, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on May 8, 2013.