IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

R. v. McGenn,

 

2018 BCSC 1942

Date: 20181113

Docket: 66276

Registry: Chilliwack

Regina

v.

Shayne Daniel Duncan McGenn

 

Before: The Honourable Madam Justice Devlin

 

Oral Reasons for Sentence

Counsel for the Crown:

L.J. Kenworthy

T.J. Dotten and

D.T.R. Loucks

Counsel for Defendant:

J.B. Turner

Place and Date of Trial/Hearing:

New Westminster, B.C.

October 2, 3, 2018

Place and Date of Judgment:

New Westminster, B.C.

November 13, 2018


 

I.                 INTRODUCTION

[1]             On September 17, 2018, I found Mr. McGenn guilty of manslaughter for killing David Delaney on February 7, 2016, in the apartment Mr. Delaney shared with Mr. McGenn. Mr. Delaney was strangled to death and his decomposed body was located inside his bedroom of the apartment on February 23, 2016.

[2]             Sentencing submissions took place on October 2 - 3, 2018. Today, I am imposing a sentence on Mr. McGenn.

[3]             The Crown seeks a sentence of ten-and-a-half years’ imprisonment. The defence submits that a sentence of seven years is appropriate.

Circumstances of the Offence

[4]             In my Reasons for Judgment, indexed as R. v. McGenn, 2018 BCSC 1614 (“Reasons”), I set out in detail the circumstances of the offence; accordingly, I will summarize the material facts in brief for the purposes of these sentencing reasons. Mr. McGenn strangled Mr. Delaney to death at approximately midnight on February 7, 2016. An argument took place between the two men which quickly escalated to a physical confrontation that ended after a violent struggle and Mr. Delaney’s strangulation (at para. 123). Mr. McGenn left Mr. Delaney’s body in Mr. Delaney’s bedroom for weeks until he was discovered on February 23, 2016.

[5]             The altercation was dynamic and took place over a short period of time. Mr. McGenn was the aggressor. At para. 135 of the Reasons, I describe the circumstances leading up to Mr. Delaney’s death as follows: “at the time Mr. McGenn placed the belt around Mr. Delaney’s neck, Mr. Delaney had been cut and stabbed, he no longer had the knife, he was laying chest down on the bed with his arms and head dangling off the side after having been violently kneed in the head multiple times by Mr. McGenn”.

[6]             After Mr. McGenn killed Mr. Delaney, Mr. McGenn remained in the apartment along with Ms. Sather and their infant child with Mr. Delaney’s dead body in the bedroom until leaving for Penticton on February 12, 2016. Mr. McGenn continued to use Mr. Delaney’s debit card and his vehicle. In addition, Mr. McGenn used Mr. Delaney’s cell phone after the killing and impersonated Mr. Delaney to conceal his death from others. Mr. McGenn sent messages from Mr. Delaney’s phone to Mr. Delaney’s co-workers, friends and family claiming that Mr. Delaney was sick or too busy to explain his sudden absence. Mr. Delaney’s step-son Mr. Doucette, and his ex-wife, Ms. Gilbertson, were among those misled by these messages.

[7]             The harm caused by Mr. McGenn’s impersonation on those who knew Mr. Delaney is evidenced in the messages Mr. McGenn exchanged with Ms. Gilbertson, who is Mr. Delaney’s ex-wife. Between February 15 and 23, 2016, Mr. McGenn pretended to be Mr. Delaney and exchanged a series of messages with Ms. Gilbertson regarding the withdrawal of some money from Ms. Gilbertson’s bank account. In these messages Mr. McGenn fabricated excuses and promised to meet Ms. Gilbertson to repay the money. On the strength of these lies, Ms. Gilbertson waited over two hours in a parking lot for whom she believed was Mr. Delaney to arrive. The extent to which Mr. McGenn impersonated the deceased to conceal what he had done to Mr. Delaney heightens the seriousness and severity of the circumstances of the offence. Not only did Mr. McGenn bring about Mr. Delaney’s death, he took deliberate and conscious steps to cover up the crime for selfish gain. His farce in posing as Mr. Delaney only exacerbated the pain and devastating effects of Mr. Delaney’s death for those who knew him and temporarily kept Mr. McGenn from discovery by authorities.

Victim Impact Statements

[8]             I wish to acknowledge that a great number of family members and friends of Mr. Delaney have attended some or all of this trial. Many read their victim impact statements at the sentencing hearing including Mr. Delaney’s son and daughter and many of his siblings. They stood bravely before the Court and shared with all of us their private stories of pain and suffering over the tragic loss of their father and brother. They are heartbroken over their loss and devastated that they lost their loved one in such tragic circumstances. From the moment they first heard the shocking news of Mr. Delaney’s death their lives have been dramatically altered. They also shared their memories of Mr. Delaney as a kind, considerate, generous, optimistic person who will be missed by all who knew him.

[9]             This is a tragic case. Clearly, David Delaney’s family – his children, his siblings and his friends – are devastated and they continue to suffer daily. Undoubtedly, what makes this tragic situation even worse is knowing how their loved one died. The sentence I impose today cannot possibly alleviate the pain and suffering that they have endured and will continue to endure as a result of this tragedy. But it will afford some measure of justice.

Mr. McGenn’s Circumstances

[10]         Details of Mr. McGenn’s background were provided primarily through his testimony at trial and submissions of counsel. Mr. McGenn is 36 years-old and was 33 at the time of the offence.

[11]         He was born in the Lower Mainland and primarily lived and grew up with his mother, Donna McGenn. Although he was not close to his own father, Mr. McGenn appears to have been close to his paternal grandfather who was of South Asian descent. Mr. McGenn testified that when he lived with Ms. McGenn in Penticton until he eventually left, he had average relationships with all of his three stepfathers who lived with his mother. One of those stepfathers was the deceased, David (Dave) Delaney, whose relationship with his mother took place when Mr. McGenn was a young adult.

[12]         In 2000, Mr. McGenn graduated high school in Penticton.  After graduation, he found work fighting fires in the summer as a qualified firefighter and roofing work in the off season. He also worked in some forestry jobs. He trained in roofing and also received training as a cook, primarily from Mr. Delaney. In fact, they worked together at his mother’s restaurant in Penticton which eventually closed. Mr. McGenn testified that since high school, he has struggled with drug use including the use of heroin. By 2010, he regularly used heroin and continued the habit but for a short period of time when he worked as a cook in Saskatchewan. However, when he returned to BC in 2015, just before working at Big River with Mr. Delaney, Mr. McGenn resumed using drugs.

[13]         Mr. McGenn has two children, a son from a previous relationship and a young daughter with Ms. Sather who he has known since high school. His ability to continue a relationship with his children is of particular importance to him.

[14]         At the time of the incident, Ms. Sather and their infant daughter had travelled down from Penticton to stay with Mr. McGenn and Mr. Delaney in Mr. Delaney’s apartment. Neither of them had employment and both were drug addicts.

[15]         Mr. McGenn did not have a criminal record at the time of the commission of this offence. However, while in custody on this matter, Mr. McGenn was charged with a number of offences pertaining to a robbery which occurred on May 22, 2014, at a Penticton pharmacy. On April 25, 2018, Mr. McGenn was sentenced to a total sentence of five years less credit for 24.9 months, for a net sentence of two years and nine months.

Position of the parties

[16]         The Crown submits that the appropriate range of sentence is 9-12 years imprisonment less credit for the time Mr. McGenn has spent in pre-trial custody, to run consecutive to the sentence for robbery Mr. McGenn is currently serving. The Crown also seeks several ancillary orders. The Crown submits that a sentence of ten-and-a-half years will fulfil the principles of sentencing, particularly deterrence and denunciation which it submits is of paramount importance in this particular case.

[17]         The Crown takes the positon that there are several aggravating aspects of this case which puts this case appropriately on the “near murder” end of the manslaughter spectrum. In particular, the Crown points to the vicious attack on the defenceless Mr. Delaney who was in the sanctity of his own home, and Mr. McGenn’s extensive efforts to conceal Mr. Delaney’s death from Mr. Delaney’s family and friends.

[18]         In making these submissions, the Crown relies on the cases of R. v. Green, 2001 BCCA 672 [Green]; R. v. Park, 2016 MBCA 107 [Park]; R. v. McGenn, 2018 BCSC 742; R. v. McCormick, 2017 BCSC 145 [McCormick]; R. v. Quigley, 2016 BCSC 2184 [Quigley]; R. v. Kalsi, 2018 BCSC 777 [Kalsi]; R. v. McKenzie, 2009 BCSC 1820 [McKenzie]; R. v. T.J.N., 2004 BCCA 374 [T.J.N.]; R. v. Dhanoa, 2012 BCSC 1215 [Dhanoa]; and R. v. Scott, 2014 BCSC 2457 [Scott].

[19]         The defence submits that the applicable range of sentence is between five and eight years and that a seven year sentence, less credit for pre-trial custody, would be appropriate in this matter considering the totality principle and the fact that Mr. McGenn is currently serving a five year sentence for robbery. In imposing a sentence on Mr. McGenn, I am mindful that where consecutive sentences are imposed, the combined sentence should not exceed the overall culpability of the offender per s. 718.2(c) of the Criminal Code, R.S.C. 1985, c. C-56 [Code].  Counsel has referred me to the cases of R. v. Carte, 2017 BCSC 2421 [Carte]; and R. v. Basran, 2017 BCSC 691 [Basran] for range of sentence and R. v. Golic, 2017 BCSC 2244 [Golic], rev’d on different grounds by R. v. Golic, 2018 BCCA 152, with respect to post-offence conduct. While counsel concedes there was a breach of trust he takes issue with Crown’s submission that this was akin to a spousal situation as in Scott and the other cases relied on by the Crown. Additionally, counsel referred me to paras. 16-19 of Golic in support of his submission that I should be cautious when considering post-offence conduct in determining the appropriate sentence. Counsel also submits there are a number of mitigating factors including the fact Mr. McGenn has expressed genuine remorse and has always accepted responsibility for the death of Mr. Delaney. Further, Mr. McGenn has a relatively minor criminal record and has demonstrated a commitment to rehabilitation since being in custody.

principles of sentencing

[20]         Sections 718 – 718.2 of the Code set out the fundamental principles and purposes to be considered by the courts in sentencing.

[21]         Section 718 provides that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions with reference to six objectives. These include denunciation of unlawful conduct; deterrence of the offender and other persons from committing offences, separation of the offenders from society where necessary; assistance in the rehabilitation of offenders; provision for the reparations for harm done to victims or to the community; and the promotion of a sense of responsibility in offenders and acknowledgement of the harm done to victims or to the community.

[22]         Sections 718.1 and 718.2 of the Code delineate a number of sentencing principles that guide judges in crafting a just sanction that will give meaningful effect to one or more of the codified sentencing objectives:

718.1  A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2  A court that imposes a sentence shall also take into consideration the following principles:

(a)  a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing …[omitted]

(b)  a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c)  where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d)  an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e)  all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[23]         When determining a fit and proper sentence a sentencing judge must consider all relevant factors. Counsel agree that the sentencing principles that must prevail in this case are denunciation of this particular conduct, deterrence of similar conduct by both Mr. McGenn and others, and the protection of the public.

RANGE OF SENTENCE FOR MANSLAUGHTER

[24]         The offence of manslaughter carries a maximum sentence of life imprisonment. No minimum sentence applies in the circumstances of this case.

[25]         In Green, the Court of Appeal at para. 10, noted the range of sentence for manslaughter as follows: 

[10] The maximum sentence for manslaughter is life imprisonment. It has been said that the range of sentence for this offence is from a suspended sentence to life imprisonment. I think, however, that most cases fall within the period of 4 to 15 years. A sentence below or above that range is imposed only in a case involving special circumstances.

[26]         The determination of where a particular case falls within this general range is informed by its facts, including the circumstances surrounding the commission of the offence and the offender's personal context.

[27]         Counsel put a number of sentencing authorities before me and I have read them. During submissions, counsel took me through these cases and drew my attention to both the similarities and distinguishing features of those cases to this one.  I will briefly summarize the cases but I do not consider it necessary to discuss each of these authorities at length in these reasons as ranges of sentence are merely suggestions and not rules. As Newbury J.A. stated in R. v. Smith, 2017 BCCA 112, sentencing ranges are “not ‘straightjackets’ … [they] are not hard and fast categories and do not preclude lesser or greater sentences if the circumstances or applicable principles in a particular case warrant” (at para. 35). I am further instructed by Golic which states, “sentencing for manslaughter is, more than a lot of offences, fact driven, as the circumstances can vary widely from near accident to near murder.” (Golic at para. 49).

[28]         The Crown submits that their cases establish that a range of 9 – 12 years imprisonment is appropriate where the person killed was a trusted friend, relative, parent or spouse.

[29]         In Green, the offender pleaded guilty to manslaughter. He was on a crack cocaine binge when he killed the victim, who were both friends and crack cocaine addicts. There were 37 knife stab wounds to the victim’s body. The offender in this case had eviscerated the victim’s body with a shard of glass and left the internal organs exposed. He had no previous criminal record or history of violence. The Court of Appeal upheld his sentence of seven years’ imprisonment as fit.

[30]         In McCormick, the offender received a sentence of 12 years following a guilty plea to manslaughter for brutally beating his 64 year-old mother to death. The Court noted that the crime was matricide and a breach of trust given the maternal relationship the victim had with the offender. The nature of this crime evinced the offender’s high degree of moral blameworthiness.

[31]         In Quigley, the offender stabbed his former fiancé 26 times in her kitchen. He pleaded guilty, and received a joint submission of 12 years for a crime that fit within the range of cases referred to as aggravated manslaughter, or near murder. The crime took place in the context of a domestic relationship which the deceased was trying to exit. Additionally, she was defenceless at the time of the attack.

[32]         The offender in Kalsi pleaded guilty to killing his 70 year-old wife in their home where she was entitled to feel safe and secure. Her status as a spouse or intimate partner was a statutory aggravating factor. In this case, the offender’s conduct was classified as falling at the higher end of the range of manslaughter sentences as “akin to murder”; the attack was brutal and the victim was left to die. The Crown and defence had a joint submission. He received 11 years’ imprisonment less credit for time served.

[33]         The offender in McKenzie had a history of assault with his former partner and he killed her by asphyxiation. He pleaded guilty to the manslaughter. The Court noted her vulnerable position. The offender was sentenced to six years and six months after credit for pre-trial custody; without credit for pre-sentence custody, he would have received a nine year sentence.

[34]         In T.J.N., the offender choked his girlfriend and left her and she aspirated on her own vomit. He initially pleaded guilty to a charge of manslaughter and was sentenced to seven years’ imprisonment. He diverted suspicion away from himself for approximately three weeks. On appeal, he was credited 30 days’ pre-trial credit instead of 18 months’ that was credited to him at sentencing.

[35]         In Dhanoa, the offender had a fraught relationship with his wife. After an argument over leaving the offender after he provided finances to his family, the offender killed his wife by grabbing her and squeezing her neck. He then concealed her body and reported her missing. He pleaded guilty; he would have received a sentence of seven years and six months absent pre-trial custody; with that credited to the accused, Schultes J. sentenced the offender to a further period of imprisonment for two years and five months.

[36]         The offender in Scott choked his girlfriend to subdue her, then passed out on top of her. She had wanted to end their tumultuous relationship. In the days following her killing, the offender lied to the deceased’s friends about where she was and sent them on a “wild goose chase” to find her (at para. 49). He pleaded guilty and was sentenced to seven years minus credit for pretrial custody.

[37]         A common dynamic in each of the Crown’s cases involves domestic, intimate or spouse-like relationships that are markedly different from Mr. Delaney’s relationship with Mr. McGenn. While I accept that these men had a cordial and familial-type relationship, their relationship dynamic is sufficiently distinguishable from the breach of trust or spousal manslaughter cases to which the Crown refers. The level of spousal or partner vulnerability and trust in those cases are not reposed in equal measure from Mr. McGenn in Mr. Delaney. However, this does not diminish the fact that there were trust-like aspects in their relationship.

[38]         Counsel for Mr. McGenn relies on Carte to support his position that a sentence of seven years is appropriate in this case. Mr. Carte pleaded guilty to manslaughter and was sentenced to seven-and-a-half years. However, the facts in Carte are clearly distinguishable from those before me.

[39]         In Carte, the victim was a stranger who Mr. Carte encountered on the street and who he decided to punch with a sharp item which severed an artery that resulted in his death. However, Mr. Carte did not display any further violence. In the present case, Mr. McGenn and Mr. Delaney were involved in a physical fight which culminated in Mr. McGenn’s decision to put Mr. Delaney in a sleeper hold with his belt to subdue him leading to the victim’s death. Like Mr. McGenn, Mr. Carte had a history of drug addiction. However, at the material time, Mr. Carte’s moral blameworthiness was diminished in light of his intoxication. Mr. McGenn was not similarly intoxicated at the time he strangled Mr. Delaney. In further contrast to the present case, Mr. Carte had a criminal record involving violence. However, Mr. Carte did not engage in a deliberate and callous fraud to conceal the death of the victim and to lead the deceased’s family and friends astray. Mr. McGenn’s post-killing conduct was done to cover up his actions. In this way, Mr. McGenn’s post-killing conduct is reprehensible and added further insult to the injury occasioned on Mr. Delaney’s family and friends. This type of deliberation and impersonation is absent in Carte. In my view, the circumstances of Mr. Delaney’s death are highly distinguishable from those in Carte and militate in favour of a higher sentence.

[40]         In Basran, the offender received a sentence of five years and nine months after credit for pre-trial custody.

[41]         Counsel for Mr. McGenn acknowledged that a consecutive sentence to the sentence Mr. McGenn is presently serving is appropriate but that I must consider the totality principle and whether the cumulative sentence would be unduly long or harsh. While I agree that the totality principle applies and Mr. McGenn should not be crushed by a heavy sentence, I also agree “‘the offender ought not to be seen to be reaping benefits from his previous serious criminal misconduct’” (Park at para. 15 citing R. v. Johnson, 2012 ONCA 339).

[42]         I turn now to an application of the legal principles to the particulars of this case.

Application of the Sentencing Principles

(i)    Aggravating and Mitigating Factors

Aggravating Factors

[43]         In the present case, I find that there are several aggravating factors that must be considered when determining a fit sentence. Those factors include the nature of the offence; evidence that there was an abuse of a position of trust and authority; efforts to conceal the crime; and the impact of the crime on others.

(1) Nature of the offence

[44]         Mr. McGenn violently attacked the defenceless Mr. Delaney in Mr. Delaney’s own home, where he ought to have been able to feel safe. During the attack Mr. McGenn used a knife as was evidenced by the stab wound to Mr. Delaney’s neck and the defensive wounds on both hands. Further, Mr. McGenn violently kneed Mr. Delaney in the head multiple times. Then, following this vicious attack on Mr. Delaney and as he lay chest down on the bed, arms and head dangling off the side Mr. McGenn placed his belt around Mr. Delaney’s neck and proceeded to strangle him to death. After he killed Mr. Delaney, Mr. McGenn left Mr. Delaney’s body decomposing for five days as he, Ms. Sather and their child remained in the apartment. As a result, Mr. Delaney’s decomposed body was not discovered until weeks later.

(2) Breach of trust

[45]         As noted the attack is argued to be a breach of trust which is a statutory aggravating factor pursuant to s. 718.2(iii) of the Code. While I agree with counsel for Mr. McGenn this was not a situation akin to breach of trust arising in a spousal assault as in some of the cases relied on by the Crown, there was certainly ample evidence of a degree of trust between the two men. Mr. Delaney was not a stranger to Mr. McGenn. They had a close relationship and Mr. McGenn acknowledged that Mr. Delaney had never done a mean thing to him. It was Mr. Delaney who invited Mr. McGenn into his home and provided Mr. McGenn an employment opportunity. While I acknowledge that Mr. McGenn agreed to come to work at Big River to assist Mr. Delaney that too was based on their long standing, close relationship. Mr. Delaney generously shared his home, his car and even his bank card with Mr. McGenn. Mr. McGenn selfishly took advantage of Mr. Delaney’s generosity. Even more aggravating is the fact that Mr. McGenn continued to take advantage of Mr. Delaney’s generosity after his death by continuing to reside at his home, use his car, debit card and phone in blatant disregard for the consequences of his deception on Mr. Delaney’s family and friends.

(3) Efforts to conceal the crime

[46]         I find what Mr. McGenn did after he killed Mr. Delaney is particularly aggravating. He perpetuated a callous and cruel fraud on Mr. Delaney’s family and friends by impersonating Mr. Delaney in order to conceal the fact Mr. Delaney was laying dead and abandoned alone in his own home. Mr. McGenn selfishly attempted to cover up the crime. Mr. McGenn’s deception was elaborate. He went so far as to send messages to Mr. Delaney’s work pretending to be Mr. Delaney and explaining that he was too sick to come in and lying to Mr. Delaney’s friends that Mr. Delaney was too busy at work to talk while Mr. Delaney lay dead in his own house. The extent of Mr. McGenn’s deception is illustrated by the series of messages he sent to Mr. Delaney’s ex-wife, Ms. Gilbertson which were marked as Exhibit 1 on the sentencing hearing. As I stated earlier, when Ms. Gilbertson and others learned of Mr. Delaney’s death, Mr. McGenn’s deliberate deception caused them immense distress. I note in the Scott case, the offender similarly attempted to conceal the deceased’s body which constituted an aggravating factor that demonstrated a higher degree of moral culpability.

[47]         Further, a sentencing judge may consider post-offence conduct in relation to the specific circumstances of the accused to craft a fit sentence. The fitness of a sentence is informed by the character of the offender, their conduct or attitude; post-offence conduct may inform a judge’s assessment of the character of an offender and the potential for rehabilitation: R. v. Lynch, 2015 BCCA 140 at paras. 31 – 33; see also R. v. Angelillo, 2006 SCC 55; R. v. Ross, 2010 BCCA 314.

[48]         I previously mentioned Mr. McGenn’s callous ruse he used to deceive Mr. Delaney’s friends and family in order to conceal the crime. The perpetuation of this fraud speaks to Mr. McGenn’s level of moral blameworthiness and his prospects of rehabilitation; these actions evince a character that puts his own interests first without regard for those he has negatively impacted. While I accept that Mr. McGenn eventually felt remorse for his actions, impersonating Mr. Delaney in order to impede discovery of the crime is a factor that informs the application of the principle of deterrence to prevent Mr. McGenn from repeating this kind of deception and for which proper sanction must be given.

(4) Impact on others

[49]         The impact of Mr. Delaney’s death on the many family, friends and co-workers are set out in the Victim Impact Statements referred to earlier in these reasons. Mr. McGenn’s actions have had a long lasting and devastating impact on all who knew Mr. Delaney.

Mitigating Factors

[50]         In terms of mitigating factors, Mr. McGenn acknowledged that he was responsible for the death of Mr. Delaney. Mr. McGenn has expressed remorse and I accept that his apology is genuine.

[51]         Mr. McGenn did not have a criminal record at the time of this offence; however, as discussed earlier, in April 2018, he was convicted and sentenced in relation to a break and enter of a pharmacy in May 2014. I find this to be a neutral factor.

[52]         I am advised that Mr. McGenn made some efforts to rehabilitate while in custody and he expresses a desire to continue to do so. It is certainly laudable for Mr. McGenn to take steps to promote his own rehabilitation and I recognize that rehabilitation is a very important factor in sentencing. However, the emphasis of this factor’s importance cannot operate to the exclusion of other principles of sentencing, some of which command greater emphasis in such a case as this one.

(ii) Deterrence, Denunciation and Public Protection

[53]         In my view, the principles of deterrence and denunciation are of paramount importance in this particular case given the degree of violence Mr. McGenn employed and the devastating impact his crime had on Mr. Delaney’s friends and family.

[54]         It is important for the Court to denounce this conduct through the sentencing process. The events that took place in Mr. Delaney’s home have had a devastating, life-long impact on the lives of Mr. Delaney’s children, his many siblings, his friends and all who had the good fortune of knowing Mr. Delaney. The sentence I impose must serve to communicate society’s condemnation of the conduct by one who commits a vicious attack of a defenceless man in violation of the sanctity of his own home.

[55]         With respect to general deterrence, the sentence must communicate to other like-minded individuals that there will be severe consequences for those who choose to engage in this type of violence. Society cannot and will not tolerate this type of violent act.

[56]         As for specific deterrence, Mr. McGenn does not have a long criminal history. He does however, have a history of deceit and deception which he employs to satisfy his own selfish needs. As a result of his actions he has taken the life of a good friend, destroyed the relationship he had with Mr. Delaney’s own children and also perhaps most important to him, jeopardized any opportunity Mr. McGenn had to become involved in the life of his own two children.

(iii) Rehabilitation

[57]         While deterrence and denunciation are of paramount importance, I must also consider the principle of rehabilitation. Mr. McGenn has had a long history of drug abuse and by his own admission, he has a history of non-compliant behaviour. Counsel for Mr. McGenn referred to Mr. McGenn’s efforts to rehabilitate himself while in custody as evidencing his commitment to making a positive change.  As I stated earlier, I agree that the prospect of rehabilitation cannot be overlooked when crafting an appropriate sentence, but it is of secondary importance when dealing with the type of case before me.

[58]         In my view the particularly aggravating features of this case speak to Mr. McGenn’s moral blameworthiness as an offender, and the risk he presents to the public. Until Mr. McGenn deals with his underlying addiction issues the public requires protection from him.

(iv) Parity of Sentence

[59]         Section 718.2(b) requires that I consider the principle of parity. As Payne states, “[s]entences for manslaughter cover a wide spectrum and depend on their particular circumstances, which can range from near accident to near murder” (at para. 49). Additionally, the principle of parity is secondary to proportionality: R. v. Chen, 2017 BCCA 426 at para. 23. Proportionality is determined on both an individual basis in relation to the accused himself and to the offence which he commits, and by comparison with sentences imposed for similar offences committed in similar circumstances.

[60]         In my view, the nature of this offence, the circumstances surrounding the killing of Mr. Delaney places this case of manslaughter closer to the jurisprudential characterization of such an offence as “near murder”. While I was not satisfied that the Crown proved beyond a reasonable doubt Mr. McGenn’s intent for murder, this crime bears the badges of violence, breaches of trust, and concealment that demonstrates a level of culpability that separates this case from those where the death of the victim can be seen as an accident or akin to accident. While the law does not require such a label in finding an appropriate sentence, I find that it assists in demonstrating the severity of the offence and in illustrating the fitness of sentence that it should attract.

(v) The Totality Principle

[61]         Section 718.2(c) also requires that I respect the principle of totality where consecutive sentences are involved. The totality principle is a function of the general principle of proportionality and ensures that any cumulative sentence in the context of consecutive sentences does not exceed the overall culpability of the offender: R. v. M.(C.A.), [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327 (S.C.C.) at para. 42. I have considered this principle in coming to my decision.

[62]         As I previously mentioned, I am mindful that Mr. McGenn is currently serving a sentence for robbery. The totality principle requires that any aggregate sentence imposed on Mr. McGenn must be fit and proportionate. However, the imposition of this consecutive sentence is not unduly crushing on Mr. McGenn. Mr. McGenn’s sentence for the killing of Mr. Delaney must not be seen as a “reaping [of] benefits” as Park puts it, from his previous serious criminal misconduct in relation to the break and enter in the context of the imposition of the current sentence. The sentence which I will impose is commensurate with the level of overall moral culpability that Mr. McGenn has displayed.

DISPOSITION

[63]         As stated earlier, crafting the appropriate sentence in this particular case is a difficult exercise. It involves a careful examination of the circumstances of the offence, the nature and severity of the conduct of the offender together with the personal aspects of the offenders.

[64]         Balancing all of the relevant factors, I am of the view that a sentence of ten years is a proportionate, fit and proper sentence. This sentence recognizes the impact of Mr. Delaney’s death and is sufficient to denounce Mr. McGenn’s conduct and to deter him and others from engaging in such conduct in the future.

[65]         Mr. McGenn, please stand.

[66]         On the count of manslaughter in the death of David Delaney, I sentence you to ten years imprisonment.

[67]         The sentence shall run consecutive to the sentence you are presently serving.

[68]         I must also factor into the sentence the credit for your pre-trial custody. I have determined that you are entitled to credit for 208 days in custody which at a rate of 1.5:1, yields a total credit of 312 days. Therefore, your sentence will be 3,338 days or 9 years, 15 days.

Ancillary Orders

[69]         The Code mandates that I make a number of ancillary orders:

a)    Manslaughter is a primary designated offence within the meaning of s. 487.04 of the Code. As such, pursuant to s. 487.05(1), I make an order authorizing the taking of a sample of bodily substance from you, for the purpose of forensic DNA analysis and inclusion in the national DNA databank.

b)    Pursuant to s. 109(2) of the Code, you are prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for 10 years after release from your term of imprisonment.

c)     Under this same section, you are prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life, running from the date of this order.

d)    Pursuant to s. 737(1) of the Code, I order that you pay a victim surcharge in the amount of $200. Further, I exercise my discretion to make the $200 victim fine surcharge payable forthwith. Acknowledging no payment, I will impose one day in default of payment of the surcharge to be served concurrently with the sentence I imposed. No warrant of committal and no time to pay.

[70]         Finally, pursuant to s. 743.2 of the Code, I order that a copy of these Reasons for Sentence be forwarded to the Correctional Service of Canada.

[71]         Thank you counsel.

“Devlin J.”