R. v. Mader

2010 BCSC 1505 R. v. Mader IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Mader, 2010 BCSC 1505 Date: 20100318 Docket: 62599 Registry: Kelowna Regina v. Grant Lewis Fralic Robert Scott Juker Daniel James Mader Ramoncito Jabilgas Viejon Before: The Honourable Madam Justice Beames Oral Reasons for Sentence (Re Accused Daniel Mader) Counsel for the Crown: M. Nadon Counsel for the Accused Mader: D. Gaffar Place and Date of Hearing: Kelowna, B.C. March 18, 2010 Place and Date of Judgment: Kelowna, B.C. March 18, 2010 [1] THE COURT: On February 11, 2010, Daniel James Mader pled guilty to manslaughter in conjunction with the death of Jody Elliott on or about November 2, 2005. Crown and defence have filed an agreed statement of facts this morning with respect to this matter. If a transcript of my reasons is ordered, I will attach a copy of the same to my reasons. The agreed statement of facts fully sets out the facts in this matter, and it was read aloud in the courtroom this morning. Accordingly, my review of the circumstances of this offence will be relatively brief. I will say that in addition to the statement of facts that has been put before the court, I presided over the voir dire in this matter which included hearing extensive evidence with respect to the circumstances, the roles each participant played, and the playing of the statements taken by the police from each of the participants. [2] By way of overview, I will say this. Mr. Jody Elliott was shot twice. He was placed into a car with Mr. Mader, Grant Fralic, Robert Juker and Rex Viejon, and he driven to a remote location where he was severely beaten and left for dead. Mr. Fralic, Mr. Juker and Mr. Viejon, but not Mr. Mader, returned to the scene several hours later, and Mr. Elliott was again beaten and then dismembered. Mr. Fralic, Mr. Juker and Mr. Viejon were arrested on their way back from the place where they had left Mr. Elliott's body. Mr. Elliott's ear was found in the pocket of one of Mr. Fralic's articles of clothing. Mr. Elliott's head and hands were later found in the vehicle the three had been riding in at the time they were stopped and arrested. Mr. Mader was arrested the next day. As counsel for Mr. Mader said in the course of her submissions today, what happened to Mr. Elliott is almost indescribable and it certainly, in my words, is incomprehensible. He was brutally attacked, and there is no way to minimize the events that transpired and that led up to his death. [3] All four men, that is, Mr. Fralic, Mr. Viejon, Mr. Juker and Mr. Mader, were charged with the first degree murder of Jody Elliott. After a lengthy voir dire, and specifically on November 28, 2008, Mr. Fralic entered a guilty plea to the charge of second degree murder. The judge who presided over his sentencing proceeding sentenced Mr. Fralic to life imprisonment with parole ineligibility set at 10 years. Mr. Juker entered a guilty plea to manslaughter on October 2, 2009. I imposed an effective sentence of eight-and-a-half years. Mr. Viejon entered a guilty plea to manslaughter on February 4, 2010, and I sentenced him to an effective sentence of 11 years. It is the position of Crown counsel today that Mr. Mader should receive the same sentence that I imposed on Mr. Viejon. Counsel for Mr. Mader says that the appropriate sentence is one closer in range to that imposed on Mr. Juker. Specifically, she says the appropriate sentencing range in this case should be seven to nine years, and she submits that the effective sentence and appropriate sentence should be seven years. [4] The role played by each of the original four co-accused, as I will describe them, was different. Mr. Fralic was clearly the "ringleader" of the events that led to the brutal and horrific murder of Mr. Elliott. He was, I accept from all that I have heard in this case, taking directions from a "Mr. Big" type of crime boss, and Mr. Fralic enlisted his three co-accused to assist him in carrying out the orders he was receiving. [5] As I said in the course of sentencing Mr. Viejon, Mr. Viejon knew of the initial plan to assault Mr. Elliott and then of the amended plan to kill Mr. Elliott. Mr. Viejon provided some of the cash that was eventually paid as a reward to two individuals who brought Mr. Elliott to Mr. Fralic. Mr. Viejon failed to withdraw from the events at any time prior to the time that he locked himself in a car and refused to participate in the final killing and dismemberment of Mr. Elliott. In an overall sense, Mr. Viejon effectively filled the role of Mr. Fralic's second-in-command. Mr. Viejon was present for all of the relevant and significant events leading up to and including the beating and killing of Mr. Elliott, although on the agreed statement of facts put before me on his sentencing, he did not participate directly in the assaults upon Mr. Elliott. [6] With respect to Mr. Juker, he was not present at the time of the shooting. He was, however, the driver of the vehicle in which Mr. Elliott was transported to the remote location (he said that he drove as a result of a threat made to him by Mr. Fralic), and Mr. Juker was the driver when he, Mr. Fralic and Mr. Viejon returned to the location and the final beating and dismemberment occurred. Mr. Juker at least assisted Mr. Fralic by holding open a cell phone to provide some light in the final beating and the dismemberment of Mr. Elliott. [7] Mr. Mader's role is set out in the agreed statement of facts to which I earlier referred. He is the person who shot Mr. Elliott in the leg and in the buttock. I accept that Mr. Mader did so because he was ordered to do so by Mr. Fralic. I also accept that he obeyed Mr. Fralic's commands because he was afraid of Mr. Fralic, given some recent violence inflicted upon him by Mr. Fralic over what could only be described as a modest drug debt. My recollection is that Mr. Mader spoke of his fear of Mr. Fralic in his very first interviews with the police following his arrest, and it is clear from all that I have heard that Mr. Juker, too, was afraid of Mr. Fralic. With respect to the shooting of Mr. Elliott, I accept that Mr. Mader was not trying to kill Mr. Elliott when he shot at him, and I accept that he subsequently hid the gun that he had used to do the shooting so that it could not and would not be used any further by him or the others in the events that were transpiring. Mr. Mader was present, as I have said earlier, when Mr. Elliott was first transported to the remote location. I accept that he knew nothing of the specific plans of Mr. Fralic, and then of Mr. Fralic and Mr. Viejon, with respect to a further assault upon or the killing of Mr. Elliott. However, it is clear and it is admitted pursuant to the agreed statement of facts that Mr. Mader, on orders from Mr. Fralic, did actively participate in the beating of Mr. Elliott once they arrived at the remote location where Mr. Elliott was eventually killed. I recognize in terms of Mr. Mader's role in the events that he did not accompany his co-accused back up the mountain and that he did not know of, at the time, nor participate in the final killing and dismemberment of Mr. Elliott. [8] With those facts and on that summary, I turn to the principles to be applied in this case. Section 718 through s. 718.2 of the Criminal Code set out the purposes and the principles of sentencing. Parliament has determined and has instructed judges that sentences are to be designed to achieve a variety of purposes. The purposes most relevant to the circumstances in this case are general deterrence, denunciation and rehabilitation. The Criminal Code requires that in imposing a sentence, a judge must take into account mitigating and aggravating circumstances, and it is a fundamental principle that a judge must impose a sentence which is similar to sentences imposed on like or similar offenders for similar offences in similar circumstances. [9] The aggravating factors in this case, in my view, include the sustained and violent attack on Mr. Elliott in which Mr. Mader participated, commencing with the shooting by Mr. Mader of Mr. Elliott, which shooting, I conclude, rendered Mr. Elliott effectively unable to escape and therefore more vulnerable; next, that Mr. Mader failed to withdraw from the events which might, and I stress the word "might", have been possible at the time that he left the group to go and hide the gun, but which I accept he could not realistically have done once they had all loaded into the car to take Mr. Elliott up the mountain; and finally, as an aggravating factor, I consider the very nature of a four-against-one attack, such as the one that was mounted on Mr. Elliott. [10] In terms of mitigating factors, those include in this case the guilty plea; the fact that Mr. Mader was a young man of the age of 22 at the time these events transpired, and who I accept was even younger and less mature than his chronological age given his learning disabilities and his history; the fact that Mr. Mader has no criminal record and comes before the court for sentencing as a first-time offender; and the genuine remorse that I find that Mr. Mader feels for the killing of Mr. Elliott, as quite eloquently expressed by him in the letter that has just been read aloud in court and that has been marked as Exhibit #5 in these proceedings. [11] I also take into account, in determining the appropriate sentence in this case, Mr. Mader's personal circumstances, that he is a Métis, that he was a drug addict and heavily using drugs at the time of his participation in these events, and that he was at best a foot soldier to Mr. Fralic of whom he was realistically afraid and by whom he was ordered to do the things he did as I have described earlier. I also, in considering the aggravating and the mitigating factors, and in this case what I am dealing with are the mitigating factors, take into account the fact that Mr. Mader has taken some steps, although I consider them to be fairly modest steps at this point in time, towards his own rehabilitation, by taking two substance abuse management courses or programs while he was in custody or on remand, and by at least looking into some training and employment since he was released on bail in 2009. [12] Crown counsel provided me today with case authorities which Crown reviewed in the course of his submissions and which he says represent the appropriate range of sentences for a case such as this. Counsel for Mr. Mader also provided me with case authorities, which I read yesterday and which she reviewed for me today in the course of her submissions. I have also been provided with letters of support for Mr. Mader from family and from members of his community, and I consider that Mr. Mader's chances of a successful rehabilitation are greatly enhanced by the fact that he clearly has been able to gain or regain community and family support. [13] Counsel agree that Mr. Mader has spent three years, six months and two days in custody before he was released on bail and with respect to a small portion of which on a re-incarceration, if I can use that expression, which should be to his credit. The present state of the law in this country requires that Mr. Mader be given credit for that time and normally at a rate of two-for-one, given that the time spent in custody before disposition does not count towards parole eligibility and given that there is limited programming or facilities available for a prisoner on remand. There is no reason in this case for me to depart from the usual two-for-one credit in this case and, consequently, I will be giving Mr. Mader credit for seven years against the sentence that I will be imposing. [14] In considering the role of Mr. Mader compared to that of his co-accused, I find that Mr. Mader's moral culpability is slightly greater than that of Mr. Juker, primarily because of his direct physical involvement in the shooting and the assaults upon Mr. Elliott. I acknowledge and I find that Mr. Juker shared a fear of Mr. Fralic and that Mr. Juker was in a physically vulnerable state himself, which led to his failure to withdraw and his participation in the events that led up to the death of Mr. Elliott. On the other hand, Mr. Mader clearly was young and immature, particularly in comparison to Mr. Juker who was a very intelligent, articulate and emotionally mature man at the time, and Mr. Mader's youth and immaturity must be taken into account by this court in trying to compare the circumstances that I am dealing with today compared to the circumstances of Mr. Juker that I considered at the time of his sentencing. I will also say that it is absolutely clear beyond a shadow of a doubt that Mr. Mader's moral culpability with respect to the events that led to the death of Mr. Elliott is significantly less than that of Mr. Viejon and particularly than that of Mr. Fralic. [15] Mr. Mader, would you please stand up. [16] Having considered all of the material provided to me today and counsel's submissions and the circumstances of this case which I have just reviewed, as well as the sentences imposed on Mr. Fralic, Mr. Juker and Mr. Viejon for their roles in the killing of Mr. Elliott, and taking into account what you have written and which was read aloud by your counsel to me today with respect to your remorse for your involvement in the death of Mr. Elliott, I conclude that the appropriate sentence in this case is the same sentence that I imposed on Mr. Juker, namely, and effective sentence of eight-and-one-half years. As I have said you are entitled to seven years credit for the time you have already served. Consequently, Mr. Mader, I sentence you to one-and-one-half years of imprisonment in addition to the time you have already served. [17] I will also order a lifetime ban on weapons pursuant to s. 109 of the Criminal Code, and I will order that you provide a DNA sample pursuant to s. 487.051 of the Criminal Code. [18] Finally, Mr. Mader, I waive any victim surcharge that would otherwise be imposed in this matter. [19] Is there anything arising, counsel? [20] MS. GAFFAR: No, My Lady. [21] THE COURT: All right. Mr. Nadon. [22] MR. NADON: No, My Lady, thank you. [23] THE COURT: Mr. Mader, you have made great strides. I accept that completely. You have supporters here who I am sure will stand by you as time goes on. You must seize this opportunity to turn yourself around, to stay on the track you have been on in the last few years, and I wish you the best of luck in doing so. Beames J.