I followed this trial very closely for personal reasons, and there are few aspects that you're not highlighting.
Four of the other six defendants were acquitted because their defense teams argued (and the jury presumably agreed) that they had been led unwittingly into this situation by Mr. Dadshani, who apologized with evident sincerity to them.
Drug dealing was acknowledged.
And I'm not sure how you get a seventeen year stretch out of five plus six.
And I'm not sure how you get a seventeen year stretch out of five plus six.
Two-for-one (12) plus five. The judge made up his own formula, however, allowing 10 years for time served and tacking on five more--his sentence was, formally speaking, 15 years.
Look, I don't have a lot of sympathy for Dadshani, as I think I indicated. But how many other 15-year sentences for manslaughter have you ever heard of?
"And I'm not sure how you get a seventeen year stretch out of five plus six."
It's legal math.
So the actual time served will be twelve years.
The original charge was first degree murder.
A verdict of manslaughter means that the jury did not find that the Crown proved beyond ANY reasonable doubt that Dadshani and his five companions went to Midway with the express purpose of murdering Chaar.
The sentencing process give a judge the authority to set the sentence within a continuum. The murder of a dealer by other dealers, in this case, obviously did not meet the legal standard for guilty verdict on the murder charge; but sorry, it's very hard for me to see racial prejudice in here.
Again, a 15-year sentence for manslaughter is almost unheard of: and in this case the victim was at least to some degree the author of his own misfortune.
Maybe the judge was just pissed that five of the six got away, and decided to have his way with the sixth. But the reference to Khawaja was disturbing, and it obviously got the lawyers upset--the case isn't even remotely on point.
The maximum sentence would have been life. Dadshani got twelve (NOT fifteen) years.
There are certainly at least two options.
a) The heavy sentence was due to racial prejudice on the part of Justice Justice Hugh McLean.
b) The heavy sentence was due to the facts that the murderer was an admitted drug dealer with prior convictions who killed another dealer with a sword in a kid's recreation centre, acknowledged and apologized for involving the acquitted others.
Since (b) is real and (a) is supposition, I know which premise I support.
With respect, McLean formally handed down a fifteen-year sentence.
Dadshani had previously served time for robbery. And he deserved jail for out-thugging another thug in any case.
But deal with the difficulties: 1) He had been drawn to the location, not chosen it; 2) He was almost immediately fired on by a buddy of the victim; 3) Since he was acquitted on a previous murder charge, that couldn't conceivably be an "aggravating factor," as the judge maintained; 4) The Khawaja case was utterly irrelevant, but formed a key part of the sentencing rationale; 5) 15-year sentences for manslaughter are, as noted, almost unheard-of (see the examples of sentencing that I linked to).
I'm not flat-out accusing the judge of conscious racial prejudice, but, as I said, his decision, with its gratuitous mention of a convicted terrorist, doesn't pass the sniff test. I predict the sentence will be reduced on appeal.
He had been drawn to the location, not chosen it;
Yeah, don't you just hate it when somebody "draws" you against your will into kids' recreation centres to commit your indictable offences?
No evidence was led that he intended to commit anything. Otherwise the murder charge would have stuck. He was fired upon after he arrived. That should count for something.
I think the key point here is that the judge is using a sentencing rationale from a single case to justify overturning years and years and years of precedent - important precedent.
The double-time credit for incarceration before trial is an important thing. It means that we are holding you while you are innocent - charged, but not convicted - as the justice system wends its way through to trial.
That presumption of innocence is very, very important. And double-time is both an incentive for the system to work faster, and an acknowledgment of the fact that we've removed certain rights as a citizen from you, and that we don't take that removal lightly.
For a single judge to throw that away during sentencing a fairly routine case (I mean, manslaughter is rare in terms of the number of cases judges hear, but it's a certainty that similar cases have been tried, argued, and judged) is ... flabbergasting.
3) Since he was acquitted on a previous murder charge, that couldn't conceivably be an "aggravating factor," as the judge maintained;
The aggravating factor was not the earlier charge, but the fact that the accused had committed the crime in question while being subject to release conditions (while being prosecuted for the earlier charge) - the charge itself was irrelevant. The release conditions were likely things like "don't carry weapons", "don't associate with convicted criminals", "don't use swords to kill people", etc.
4) The Khawaja case was utterly irrelevant, but formed a key part of the sentencing rationale;
The judge was likely referring to the Khawaja case not with regard to the sentence handed down, but as authority for the fact that judges are free to grant a 2-for-1 credit, no credit whatsoever or a credit based on calculations of their own devising. The judge need not have made such reference, since the power of judges to make such determinations is entirely unfettered (despite the apparent belief among many that the 2-for-1 credit is some kind of legal requirement).
15-year sentences for manslaughter are, as noted, almost unheard-of
I'm not sure they're quite that rare - even in the links you provided there's an eleven-year sentence, a ten-year sentence and a twelve-year sentence; in any event, comparing manslaughter sentences in a meaningful way is difficult to do since it covers an enormous range of activity - in this case, the judge evidently felt that the nature of the activity in question warranted a sentence towards the higher end of the scale
Hi, Bob--had a feeling you might turn up.
The point I was making under (3) was that he was acquitted, so that any previous release conditions (and violations thereof) seem no longer very relevant to the case at hand.
The cases to which I linked were grievous, but in every one of them the perps would have walked after six years' confinement before trial.
On Khawaja, the judge indeed needn't have made such a reference. So why did he, and why to a case that isn't remotely on point?
Clearly I'm getting too predictable...
The point I was making under (3) was that he was acquitted, so that any previous release conditions (and violations thereof) seem no longer very relevant to the case at hand.
I'd presume the rationale behind this would be that violating release conditions (which are functionally a court order) manifests a disrespect for the dignity/majesty/etc of the law, and so is relevant as an aggravating factor.
The cases to which I linked were grievous, but in every one of them the perps would have walked after six years' confinement before trial.
Agreed, and I'd argue that the sentences in those cases which you linked to were likely all too short (excluding potentially the foster mother one) but there are also a variety of distinctions which we could draw among the cases: the person convicted in those cases either wasn't the "primary" agent in the deaths in question, or there was no "aggravating" circumstances (one of the accused was apparently diagnosed as having suffered some kind of psychotic episode due to "provocation" - which, in the circumstances, is just obscenely offensive as a mitigating circumstance, but whatareyougonnado...). In any event, with respect to just the sheer number of years constituting the sentence, it's very difficult to draw analogies among manslaughter cases. With respect to the applicability of the 2-for-1 credit, that's a decision which is pretty much entirely up to the judge - and he didn't give Dadshani no credit, he just gave him a lesser credit - which, we might also note, is in line with the impending changes to the crediting provisions.
So why did he, and why to a case that isn't remotely on point?
It is on point solely with respect to the question of the crediting - it's not "authority" regarding credit, I suppose, but it's evidence that crediting is a flexible device, to be applied by the court in its discretion. That's how I read the reference - not as an analogy regarding the underlying facts of the cases, just an example relating to the crediting.
"No evidence was led that he intended to commit anything."
Dude. He arrived with five partners and a sword. He pursued Chaar into the centre, and continued the assault "even after delivering the “fatal blow” and being told to stop the “unbridled violence” by both a Midway employee and his own brother."
The jury acquitted on the greater charge, appropriately.
Manslaughter is a continuum that runs between a tragic accident with some element of a culpability to a killing that just fails to meet the strict legal test for first or second degree murder. In my opinion, the Justice felt that that this case leaned well toward the latter end of the continuum.
There's no question that the fellows who showed up from both groups were prepared for a rumble. Indeed, the Chaar side set up an ambush. Drugs were no doubt involved.
Dadshani, for his part, brought a sword to a gunfight. In the event, manslaughter was clearly committed. I was reacting too broadly to Peter's implication that the Dadshani party had arrived with the specific intention of committing offences. I'm not sure, however, that evidence was led that they did. They were prepared, however, for anything that might go down.
But I don't want to give the impression I'm sympathetic to the guy--only that the sentence and its rationale raise what I believe to be legitimate questions.
The two-for-one rule should be abandoned anyway. Accused prisoners who know they will be serving time are finding ways to delay their trials in order to reduce total time spent in prison. That this case took six years to come to trial suggests that this may have been the case here.
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