R. v. Zhao

2020 BCSC 1552 R. v. Zhao IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Zhao, 2020 BCSC 1552 Date: 20201005 Docket: 26799 Registry: Vancouver Regina v. Li Zhao Corrected Judgement: The text of the judgement at paragraph 150 was corrected on July 6, 2021 Before: The Honourable Mr. Justice Schultes Oral Reasons for Sentence Counsel for the Crown: A.V. Lee Counsel for the Accused: I. Donaldson, Q.C. M.R. Begalka Place and Date of Hearing: Vancouver, B.C. September 11, 2020 Place and Date of Judgment: Vancouver, B.C. October 5, 2020 Introduction [1] On January 7 of this year, I found Mr. Zhao guilty of the offences of manslaughter and interfering with human remains in relation to the death of Gang Yuan, both committed on or about May 2, 2015, in West Vancouver. Circumstances of the Offence [2] The circumstances underlying Mr. Zhao's convictions were derived mainly from the statements that he gave to the police following his arrest, supplemented at certain points by the forensic evidence. [3] The background to the offences was that Mr. Yuan was Mr. Zhao's wife's cousin. He lived with the Zhaos in their large home in West Vancouver. He was a wealthy businessman who had previously spent a considerable amount of his time in China. [4] When they first came to Vancouver from Montreal, the Zhaos lived with him in a house that he then owned in Shaughnessy. He and Mr. Zhao had an ongoing business venture together, operating a farm in Saskatchewan, although it ran into legal difficulties. [5] Mr. Zhao disapproved of certain aspects of Mr. Yuan's behaviour - in particular, his multiple romantic partners, the manner in which he treated them, and the several children he had fathered with them. He also considered Mr. Yuan to be bad tempered. Despite this, they had an amicable relationship until the date of the offence. [6] Mr. Zhao was an avid hunter and owned several rifles. In fact, he and Mr. Yuan hunted regularly together and were planning to do so a few days after the day that these offences occurred. [7] The other important background fact is that the Zhaos have an adult daughter, the only child they were permitted to have under China's one‑child policy, to whom Mr. Zhao described himself as being extremely devoted. She was married at the time of the offences but was planning on getting a divorce. [8] Mr. Zhao told the police officer who later interviewed him that he had numerous ideas for inventions. One of these was a type of stand to keep a hunting rifle steady while shooting at a target. He had created a prototype for it using hiking poles. He kept these poles in the same gun bag as the rifle that he eventually used to shoot Mr. Yuan. He had previously mentioned this invention to Mr. Yuan and Mr. Yuan had expressed interest in it. [9] On the date of the offence, as Mr. Zhao was getting ready to leave his house to go on a hike, Mr. Yuan asked him how the invention was going. Mr. Zhao retrieved the poles from the gun bag and demonstrated the invention to him. This took place in the large front foyer of the house. Mr. Yuan expressed approval of the invention and offered to engage in a joint venture with Mr. Zhao, pursuant to which Mr. Zhao would receive a monthly salary. When Mr. Zhao asked why he would not receive shares in the venture, Mr. Yuan said that it was because it was such a simple invention, by which Mr. Zhao took him to be disparaging it. [10] Mr. Yuan then said he would give Mr. Zhao a 50‑percent share in the enterprise if he would allow Mr. Yuan to marry his daughter. He addressed Mr. Zhao's initial negative response by pointing out that he and Mr. Zhao's wife were not actually biologically related. Mr. Zhao said that when he saw that Mr. Yuan was serious, he became angry, describing the proposal as being incestuous in nature and, as he put it, "like a beast". At this point, Mr. Yuan struck him. He blocked the blow, but described himself as being unable to fight Mr. Yuan. [11] It would be useful to add at this point that Mr. Yuan was taller, heavier, and younger than Mr. Zhao, who is a relatively short and slight man, and who was in his mid‑fifties at the time. [12] Mr. Zhao backed up and noticed a hammer that had apparently been left in the foyer. He picked it up. Mr. Yuan threatened to "kick [him] to death" for grabbing the hammer and kicked at him. Mr. Zhao struck Mr. Yuan in the leg or foot with the hammer. Although Mr. Yuan was found during the autopsy of his remains to have a fracture to his right shin and fibula, I was unable to make the finding that this hammer blow caused it. [13] Mr. Yuan then went to grab the rifle from its location in the gun bag. In light of Mr. Yuan's bad temper, Mr. Zhao was concerned about what would happen once he had the rifle. He hit Mr. Yuan in the head with the hammer to prevent him to getting it. Based on the bloodstain pattern analysis evidence, I found that there were at least two such blows by Mr. Zhao with the hammer in that area of Mr. Yuan's head (and, in view of the different heights at which the stains were deposited, likely more), with Mr. Yuan positioned at different heights during them. I was also satisfied that one of these blows caused a fracture to the right rear part of Mr. Yuan's skull. [14] According to Mr. Zhao, they then began to fight over the hammer. This went on for some time, as he perceived it. He considered that "life was at risk" in their struggle, because of the likelihood that Mr. Yuan would strike him if he gained control of the hammer. [15] Eventually Mr. Yuan, whom he said was stronger, succeeded in wresting it away from him. They were almost at the front door at that point, so Mr. Zhao ran outside to the driveway. Mr. Yuan came towards him with the hammer. He ducked and Mr. Yuan fell to the ground. He then ran inside, grabbed the rifle, and loaded it. This involved clicking a magazine containing four bullets into the gun. His thought process at this time was that the situation was getting very serious. He was scared that Mr. Yuan would strike him with the hammer. He also described picking up the gun for self‑protection. [16] He did not go back into the house and call 9‑1‑1, he said, because "if he came in with the hammer, I'd be dead". [17] He pointed the rifle at Mr. Yuan and told him not to move. Mr. Yuan flung the hammer at him but it missed. Mr. Zhao, describing himself as scared and agreeing with the suggestion of the interviewer that he wanted to protect himself, fired the rifle. He thought that this shot hit Mr. Yuan because he was very close. Mr. Yuan then stared at him "with wide eyes" and had his hand in a position as if he wanted to "get" or hit Mr. Zhao. Mr. Zhao said he responded instinctively and fired the second shot. [18] He summarized the sequence at one stage of his statement in the following way: After I opened fire and saw his wide eyes, once I did this, I didn't know I thought he was going to get up and hit me, so I fired another shot so it was simultaneous [19] He realized that Mr. Yuan was dead after the second shot. [20] Based on an analysis of the gunshot residue around a wound to Mr. Yuan's neck tissue, which would have been just above his right collarbone, the firearms expert gave the opinion, which I accepted, that the muzzle of the rifle was less than 20 centimetres away from Mr. Yuan's skin, but farther away than actual contact with it, when that shot was fired. The pathologist identified the cause of death as a gunshot wound to this area of the neck. [21] The pathologist could not say definitively that a second shot had been fired. However, I was satisfied that Mr. Zhao's account of having fired two shots is accurate, based on what I found was a bullet hole to the collar of Mr. Yuan's shirt; the opinions of both the pathologist and the firearms expert that the gunshot residue on the neck was unlikely to have been deposited if the skin had been covered by clothing at the time; and the finding of two different bullet bases in Mr. Yuan's body and two ejected cartridges at the scene. [22] Nothing can be said about the distance of the rifle in relation to the shot through the collar of Mr. Yuan's shirt, only that it was fired at some kind of angle. [23] The rifle was a .17 calibre. It fires what the firearms expert described as "pretty much the smallest bullet that is out there." It was designed for hunting vermin such as mice and small rabbits. Firing shots from it requires putting a cartridge into the firing chamber by operating the bolt, which extracts a cartridge from the magazine. Ejecting a fired cartridge and putting another one into the chamber requires a further manual operation of the bolt. Mr. Zhao described using this rifle extensively for shooting mice on the farm in Saskatchewan. [24] Although I rejected the evidence from the psychologist called by the defence on the effect of the "fight or flight response" on Mr. Zhao's perception and responses to these events, an uncontroversial part of that expert's evidence was that loading the rifle involved some cognitive thought, but that because of Mr. Zhao's experience with guns, his actual behaviour was more automatic. It would have involved the operation of what the psychologist described as "procedural memory". It is engaged, as he explained, in the case of highly‑practised acts that require only limited cognitive thought to carry out repeatedly. [25] The bloodstain pattern analyst found two impact patterns in the driveway with replenishing drip trails between them, leading to an area of a much larger deposit of blood, which one can infer was Mr. Yuan's final resting spot. [26] An ambiguity in the expert's evidence prevented me from finding that the force that caused the impact stains came from the direction of the house and down the driveway, and from finding definitively that these two impacts led sequentially to the larger stain (although I found that sequence likely). If I had accepted the evidence of the direction of the shots, it might potentially have contradicted Mr. Zhao's description of Mr. Yuan's movements and their relative positions when the shots were fired. [27] I rejected Mr. Zhao's testimony at trial that the shots had, in essence, been fired by accident, and that before they were fired, Mr. Yuan had taunted him very extensively about his meekness. The defence conceded that self‑defence was not made out, in view of Mr. Zhao's superior position in possession of the rifle, with Mr. Yuan on the ground, and the resulting lack of objective reasonableness for the force he inflicted with it. The remaining defences were that the Crown had not proven the necessary intent for second degree murder and that if it had been proven, that the defence of provocation applied, given the extensive chain of provocative statements and actions by Mr. Yuan, beginning with his highly offensive proposal to marry Mr. Zhao's daughter. [28] On the issue of intent, balanced against Mr. Zhao firing two shots, at least one at close range, requiring several manual operations of the rifle, were such factors as: · the overall context of Mr. Zhao's fear of Mr. Yuan, including his superior physical strength; · the rapidly escalating nature of the confrontation, which had involved Mr. Yuan gaining possession of the hammer; · the absence, according to Mr. Zhao's thinking at the time, of a viable escape route; · the difficulty of precisely aiming a rifle at that close proximity; · the uncertainty of whether he moved closer to fire the second shot in response to Mr. Yuan's movements; and · the small calibre and usual use of this type of rifle. [29] As a result, I was left with a reasonable doubt about whether, at the points that the hammer was thrown before the first shot, and Mr. Yuan started at Mr. Zhao and raised his arm before the second, Mr. Zhao contemplated, in that rapid sequence of events, the consequences of his acts and intended to bring them about, in the sense of intending to cause Mr. Yuan's death, or to cause bodily harm that he knew was likely to cause death and was reckless whether death ensued. [30] In particular, I concluded that despite the contradictions of some of its contents by the reliable forensic evidence and the unanswered questions raised by the two bloodstain patterns before the final larger one, I found myself without a principled basis on which to reject beyond a reasonable doubt his description in the statement, a significant portion of which the Crown had to rely on to prove its case, of the critical moments and the concerns about Mr. Zhao's intent arising from it. I concluded that a lack of intent for murder was at least another reasonable inference on the evidence. [31] If I had found the necessary intent for second degree murder, I would not have reduced it to manslaughter based on a reasonable doubt about provocation. Having rejected Mr. Zhao's testimony, the factual foundation for a loss of control by him was eliminated. His statements to the police spoke of extreme fear rather than anger, and there was no other basis in the evidence to infer the presence of the subjective elements of the defence. [32] Soon after the second shot was fired, Mr. Zhao's wife and elderly mother‑in‑law returned to the house up the driveway from taking a walk. Mr. Zhao told them to leave immediately and they did so. After a period of delay in which Mr. Zhao's wife reached out to a family friend to assist her, they contacted the police, who then began to investigate. [33] Meanwhile, Mr. Zhao dragged Mr. Yuan's body into the garage, then cleaned up the driveway. He began to dismember the body using power tools. The pathologist found that the body was separated into 108 discrete fragments, which were fairly uniformly divided. He put the body parts in plastic bags. [34] I rejected the defence evidence that Mr. Zhao had entered a trance‑like state during these actions, in which he was guided by a voice that told him to cut up the body as he would have a hunted bear. However even in his statement to the police, he offered such descriptions of his mental state at the time as that his "mind started going blank", that he "just lost the sense of time and stuff", and that he was "muddled, really muddled, and so dizzy, so stunned." [35] His original thought was to place the body in his vehicle and "discard" or "dispose of" it, but he later said he had not yet figured out what to do. He then went to bed, thinking that he would come back to it when he woke up and then "leave it to fate". [36] The family's nanny came into the garage while he was dismembering the body, but she could not see it from where she was standing. He agreed with her suggestion that he had been out hunting, saying that he had hunted a bear. [37] The major bloodstain in the driveway and those in the foyer and garage showed signs of having been wiped up with water, and the police officers who conducted surveillance around the house in the early morning hours before Mr. Zhao's arrest saw him carrying a rifle and washing various items in the sink. All of the relevant items had been returned to their original locations by the time of the police search. [38] Later that morning, he finally answered the house phone, which the investigators had repeatedly been calling him on. He said he did not answer the earlier calls because there was no number on the call display. At the direction of the police officers, he went outside to be arrested. He was cooperative with that process. [39] On May 7, he gave a follow‑up statement to the investigators from the pretrial centre, telling them where to locate one of Mr. Yuan's arm bones, which it turned out he had placed in one of the freezers in the garage. At that point, he described having wanted to bag Mr. Yuan's remains and put them in the freezer so that they would not go rotten, then figure out what to do. [40] Because it was equally consistent with evading responsibility for an unintentional or an intentional killing (as he expressed it to the police interviewer, "Even if you've tons of reasons for it [that is, the shooting], you get into trouble"), I found that this dismemberment did not assist on the question of his intent for second degree murder. Victim Impact [41] The Crown provided statements from Mr. Yuan's mother and the mothers of two of his children. [42] His mother spoke of the tremendous emotional pain she has suffered as a result of her son's death, which has caused her health to deteriorate and affected her ability to carry on her own businesses. In addition, she has had to pay significant legal expenses in relation to the protracted dispute over Mr. Yuan's estate, as well as to provide support for his children. [43] In their statements, the mothers of his children described similar levels of emotional pain, their financial insecurity, and the negative psychological effects on the children. [44] Mr. Zhao's counsel pointed out that some of the factual statements by the mothers may be contradicted by the evidence in the estate litigation, but what I mainly take from their statements is their emotional pain arising from his death. [45] I should note that I have not taken into account some remarks in these statements that were critical of Mr. Zhao and his actions towards Mr. Yuan, since they do not relate to the impact of the offences. Circumstances of the Offender [46] Because Mr. Zhao's background provided the foundation for his psychological defence, we have the benefit of substantial information about his personal circumstances from his trial testimony. Unlike the testimony about his actions leading up to Mr. Yuan's death, there is no reason not to accept this background. [47] He is now 60 years old. He was born and grew up in Harbin, China. Although his parents were both physicians, when he was a child his father ran afoul of the Great Cultural Revolution and was imprisoned and then declared politically dead. As a result, the family became poverty‑stricken and Mr. Zhao and his siblings had to scavenge for food and were targets of ongoing abuse from other children. [48] His mother died when he was 10, in an accident that he attributes partially to the strain of the family situation on her. [49] When he was 16, he voluntarily enrolled in what was essentially a labour camp, in order to be able to provide money for his family. He worked there for five years, until a change in political circumstances allowed him to return home. [50] As an adult, he took post‑secondary training in manufacturing and became a wealthy and successful businessman, joining some of his siblings in a photo‑processing business and also making a highly profitable investment in a company before it went public. In addition to these endeavours, he told the author of the presentence report and the psychological assessment that he had owned restaurants in China. He also told the author of the presentence report that he became one of the wealthiest people in China and retired before the age of 40, although this assertion may have a degree of puffery to it. [51] He met and married his wife in China and they had their daughter while they were still living there. [52] After immigrating to Canada in 2001 in pursuit of a healthier lifestyle, they lived in Montreal, where he purchased several investment properties before Mr. Yuan, whom Mr. Zhao had not previously met, invited them out to Vancouver for a visit. They liked it here and decided to move out, eventually doing so in 2010. [53] In Canada, his wife became a prominent member of the Chinese-Canadian social and political communities, and they have engaged in various philanthropic activities together, both in China and Canada. [54] Their daughter received post‑secondary training in fashion in Italy and has gone on to operate her own clothing business with her current husband. [55] His counsel advises that this case has negatively affected the Zhaos' reputation in the community, which was very important to them, and the parallel civil litigation relating to Mr. Yuan's estate has cost them their house. However, Mr. Zhao also told the author of the presentence report that he is financially secure, has "multiple assets in the form of real estate, boats, and vehicle", and will not have to work when he is eventually released. [56] Despite the negative effects of the case, Mr. Zhao was still able to provide 16 reference letters attesting to his usual good character. In addition to letters from his wife, daughter, sister‑in‑law, and mother‑in‑law offering insights about his nature, there are letters from two friends in Vancouver (one of whom he engaged in hunting and other outdoor activities with, and the other, Mr. Wang, who testified in the trial about helping Mr. Zhao's wife contact the police, and as to Mr. Zhao's good character), as well as numerous letters from people that he met and became friends with in Montreal, including a lawyer and a clergyman. All of these supporters have been informed of Mr. Zhao's convictions, yet all maintain that the actions leading to them are fundamentally inconsistent with the warm, kind, non‑violent, and generous person they have come to know. [57] Mr. Zhao has no previous criminal record and indeed his counsel advises that before the struggle with Mr. Yuan, he had never been in a physical fight before. A recurring theme in his statements to the police was his very positive view of the police in Canada and his trust in them. [58] His counsel also advises that Mr. Zhao has been a model inmate during the extensive period that he has spent on remand. He has a job within the pretrial centre and has donated the relatively meagre wages he is paid for performing it to various charities. [59] That time on remand has been complicated in the last six months by the effect of COVID-19 on the institution. The resulting lockdown conditions have prevented him from meeting with his counsel or seeing his family in person. Even prior to the effects of COVID, his incarceration had negative effects on his life, such as his inability to be present to support his wife after her diagnosis of breast cancer in 2018. [60] His ability to speak English remains extremely limited and I am prepared to infer that this would add to the isolating effect of incarceration, effectively limiting him to communication with any other Mandarin speakers who may be in custody, or in the limited situations where interpreters are available. [61] Mr. Zhao's mental health is an issue that hovers around the periphery of this case. [62] In his trial testimony, he was adamant that he had chosen not to pursue an NCRMD verdict because it would not have been an accurate reflection of his situation. In keeping with this position, the psychologist called by the defence did not suggest that Mr. Zhao had been delusional during the shooting or the events leading up to it. [63] He was briefly hospitalized for an unspecified psychiatric issue when he was living at the labour camp in China, after he made the unwise decision to attempt to walk home, a distance of approximately 1500 miles, and suffered frostbite. He was discharged with medication, which he stopped taking after a few months because it made him feel drowsy. No further information about the nature of that incident is available. [64] Some of his comments in his statements to the police could be described as eccentric, including his reflections on the large number of ideas for new inventions he was having, and the somewhat incongruous transition he made from describing the shooting in tragic terms to then reflecting on the positive aspects of his life. [65] Early on in his time on remand, he was referred for assessment at the Forensic Psychiatric Hospital, but was returned shortly afterwards with no indications of a major mental illness having been found, although there was a reference to the possibility of dementia. [66] As I have mentioned, I rejected his trial evidence that he had gone into a trance‑like state and heard a voice talking to him about cutting up a bear during the dismemberment, as well as the defence psychologist's "speculation or clinical hunch" that Mr. Zhao had entered a psychotic and delusional state during this process, which I found was not a properly-considered component of the psychologist's assessment, although there is no basis to reject his more general comments in the police statement about his thought processes at that time. [67] As a background to that experience, Mr. Zhao also testified about hearing voices at various times over the last 40 years. These voices were of people he knew, instructing him on how to do things when there was no one else around. [68] Of course, even without the lack of a clear psychological or psychiatric explanation for them, the circumstances surrounding the dismemberment of Mr. Yuan's body are unquestionably bizarre. [69] Most recently, Mr. Zhao was referred for a psychological evaluation for sentencing, which once again found no indication of a major mental illness or personality disorder, and no need for ongoing psychological or psychiatric interventions. Nor did Mr. Zhao believe that he requires any. [70] In sum, there is no reliable evidence that identifies a concrete manifestation of a mental illness or its impact on Mr. Zhao's actions, either in relation to these offences or generally. [71] Mr. Zhao expressed remorse for his actions during the statements to the police, in particular the rueful reflection that he could have avoided the situation escalating if he had reacted differently to Mr. Yuan's initial comments and to Mr. Yuan initially striking him. He expressed similar remorse in his trial testimony, even though the core of his evidence was that the shots had been fired by accident and he had amplified Mr. Yuan's verbal provocation before those occurred. [72] The most current indication of that level of remorse, other than what was strongly conveyed through his counsel's submissions in the sentencing hearing, were in his interactions with the author of the presentence report, who noted that he: . . . appeared genuinely remorseful for his actions and took full responsibility for his offences. He continues to reflect on the fact that his argument with Mr. Yuan escalated out of control and still struggles to understand the source of his behaviour. [73] Mr. Zhao has never sought his release on these charges. As of today, he has spent 1,981 days in presentence custody. At the usual credit of 1.5 days for every actual day served, he is entitled to credit for 2,972 days served, or eight years and 51 days. Positions Crown [74] The Crown seeks a sentence of eight to 10 years for the manslaughter and a four‑year consecutive sentence for the interference with human remains, as well as the usual ancillary orders which are not opposed. With her usual welcome candour, Crown counsel acknowledged that a sentence at the high end of that range, that is an aggregate of 14 years, might need to be moderated to accord with the principle of totality. [75] Of the principles of sentencing that need to be balanced here, Crown counsel submits that denunciation is the one that requires the greatest emphasis. [76] The aggravating circumstances referred to by the Crown in relation to the manslaughter are: · Mr. Yuan's physically compromised and vulnerable state when he was shot, including the skull fracture he had received from Mr. Zhao's hammer blows; · the fact that the manslaughter involved use of a firearm; · the relatively low risk that Mr. Yuan posed at that point, despite possessing the hammer; · the amount of forethought and the deliberate, even if highly‑practised, steps of manual manipulation needed to load and fire at Mr. Yuan, eject the cartridge, reload, and fire it again; · the vulnerable areas of Mr. Yuan's body at which the shots were fired - his neck and the area of his shirt collar; and · Mr. Zhao's extensive efforts to clean up the various areas of bloodletting and return all of the items that had been used to their original locations. [77] As to the interference with Mr. Yuan's remains, the Crown points out the significant extent to which Mr. Zhao dismembered the body, down to removing fingers and toes and separating skin from tissue. It went far beyond what would have been necessary to simply dispose of the body, it is argued, and leads to the inference that it was done to destroy any evidence that might link him to Mr. Yuan's death. [78] To situate this case within the wide range of sentences that are available for manslaughter, which has been described as being from a suspended sentence to life imprisonment, the Crown refers to the decision in R. v. Plowman, 2015 BCCA 423, which pointed out that the key is to identify the individual's level of moral blameworthiness, and ensure that the sentence imposed reflects it. In Plowman, Justice Neilson pointed out some helpful factors for assessing moral blameworthiness that have been identified by the Supreme Court of Canada: [40] In R. v. C.A.M., [1996] 1 S.C.R. 500 at para. 80, the Supreme Court suggested that an assessment of the moral culpability of an offender requires an examination of his intentional risk-taking, the consequential harm he has caused, and the normative character of his conduct. In R. v. Stone, [1999] 2 S.C.R. 290 at para. 247, that Court affirmed this more extensive list of factors for consideration from R. v. Laberge, 1995 ABCA 196: [23] . . . Therefore, the court must look not only at the physical characterization of the act itself, but must assess a range of other considerations. These include the choice of weapon used to effect the unlawful act, the degree of force the offender used in perpetrating the act, the extent of the victim's injuries, the degree of violence or brutality, the existence of any additional gratuitous violence, the degree of deliberation involved in the act, the extent to which the act reflected forethought of action or planning, the complexity of the act, what, if anything, provoked the act, the time taken to perpetrate the act and the element of chance involved in the resulting death. [79] Crown counsel noted that in the more recent decision of R. v. Badhesa, 2019 BCCA 70, which also reviewed the assessment of moral culpability for manslaughter, the mental illness of the offender before the court was a factor that reduced his overall moral culpability, because it had contributed to the state of self‑induced intoxication in which he had committed his offence. She emphasizes the contrasting absence of mental illness as a moderating factor in the present case. [80] In order to support the range being sought, Crown counsel also referred to manslaughter sentencing decisions that contain comparable features. [81] In R. v. Nguyen, 2017 BCSC 1401, the offender had shot his estranged wife's new partner five times, at least one of the shots at close range, in the relatively confined space of the hallway of the former family home. He had had two previous altercations with the deceased, who was taller and heavier, in which the deceased had been the aggressor. The offender's two children were present and witnessed the shooting. He used a semiautomatic handgun, which required him only to pull the trigger to fire each round. He had been charged with second degree murder but was convicted of manslaughter. One of the sentencing judge's interpretations of the jury's finding with respect to intent, was that the offender had been affected by the overall circumstances, including fear of the deceased, their previous interactions, the loss of his family, and alcohol consumption when he fired the shots. (The other possible inference was that his wife had pulled on his arm while he was using the firearm carelessly, causing the shots to discharge by accident.) [82] The offender was 57 years old, had immigrated to Canada from Vietnam after leaving as a refugee, spoke no English, and had struggled to gain productive employment. The relationship with his former spouse had been tumultuous. He had no previous criminal record and the sentencing judge accepted that he was genuinely remorseful. A sentence of nine years' imprisonment was imposed. [83] The Crown refers to the similar range at which the shots were fired and the doubt that arose about the intent underlying where they were aimed in that case, as well as the relatively confined space in which the altercation had arisen. These are all similar to the present case, she argues, with the additional aggravating factor in this case of the further steps and deliberation that were needed for Mr. Zhao to fire the rifle. The consumption of alcohol was also not a factor affecting Mr. Zhao's intent, nor can it be said that Mr. Yuan had any previous history of aggression specifically towards him. The Crown acknowledges, of course, that the presence of children during the shooting in Nguyen is more aggravated, to which I would add the additional number of shots that were fired at the deceased. [84] R. v. Gunning, 2007 BCSC 505, varied at 2008 BCCA 22, involved a guilty plea to manslaughter, after a retrial on second degree murder had begun. The offender, who was significantly under the influence of alcohol, had shot the deceased in the neck with a shotgun, in the living room of the offender's home. The deceased had engaged in a series of provocative acts before that, including refusing to leave the offender's bedroom, where it appeared he was attempting to steal something, and taunting him. The offender had obtained the shotgun from elsewhere in the house in order to intimidate the victim into leaving. Just before the offender had fired the shotgun, the deceased had sworn and spat at him. The doubt about the intent to kill arose from the offender's level of intoxication. [85] He was 35 years old with dated previous convictions related to possession of firearms, a good work record, but what was identified as a serious alcohol problem. [86] Taking into account presentence custody, an effective sentence of eight years was imposed. The Court of Appeal varied the credit for presentence custody, but because the appropriate credit would have led only to a short remaining sentence in the provincial range, without the benefit of parole supervision, the Court reduced the sentence only to three years. While this resulted in a higher effective sentence (10 and a half years) than the eight that the sentencing judge had considered fit, it was determined to be necessary in the interests of society and the accused's rehabilitation. [87] The crucial similarity for our purposes, in the Crown's submission, is that the sentencing judge found that the offender's act of unlocking the gun cabinet and retrieving and loading the shotgun took the case well away from the "low or near‑accident end of the scale" for manslaughter. [88] In addition to these main comparator cases on manslaughter, they also cited the decision of R. v. Mulligan‑Brum, 2013 BCCA 231, in which an effective sentence of seven years was upheld. He had chased and fired two shots at a group of youths who had slashed the tires on his car, mistakenly believing them to be part of a group that had previously threatened him. Despite being 20 to 30 metres away from this group when he fired, one of the shots struck and killed the deceased, who was part of the group. The offender was 20 years old, had a previous drug-related record for which he had been imprisoned, and was on probation when he committed the manslaughter. An aggravating feature was what was found to be the perfunctory nature of the offender's remorse, which of course is not the situation here. [89] Finally on the range of sentence for manslaughter, the Crown referred to R. v. Smith, 2018 BCSC 2344. The 58‑year‑old offender had struck the deceased twice in the head with a blunt object, causing fatal skull fractures, then partially dismembered the body and hid it in a well, where it was not discovered for 19 months. The context of the attack was significant alcohol consumption by both offender and deceased, and possibly a grudge on the part of the offender about the outcome of a mining claim. He was convicted after a trial of manslaughter and interfering with human remains. [90] The offender's criminal record was mainly dated, but included a weapons conviction, as well as a conviction for assault causing bodily harm that was committed after the current offences. Classifying the offender's moral blameworthiness as being relatively high, the judge sentenced him to effective consecutive sentences of seven and a half years for the manslaughter and three and a half years for interfering with human remains, less credit for presentence custody. [91] Finally, relied on mainly for its relevance to sentences for interfering with human remains, the Crown provided the decision of R. v. Armstrong, 2018 BCSC 2260. After killing the deceased, a woman with whom he had been in a relationship, by striking her one or more times with a hammer (in what the Crown acknowledged was a drug‑induced psychosis), the offender engaged in extensive efforts to burn her body. He also attempted to divert suspicion from himself by sending messages from her phone, as though they were from her, and taking photos of himself with it. An aggravating factor was that he took some photos of himself in front of the fire in which her body was being burned, in which he made gestures which one could infer were intended to be insulting to the deceased. [92] The offender was 29 at the time of the offence, had no criminal record, but a serious drug problem that had caused the development of mental health issues. [93] He received an effective sentence, following a guilty plea, of six years for the manslaughter and four years consecutive for interfering with human remains. The number of steps that the offender took to deal with the body after the manslaughter, as well as the insulting photos in relation to the body required, in the view of the sentencing judge, a sentence towards the upper end of the range for interfering with human remains. Defence [94] In overview, Mr. Zhao's counsel emphasizes that along with the principles of denunciation and deterrence, which are obviously applicable here, the principles of restraint (which requires the imposition of the least‑intrusive sentence that is capable of meeting the applicable objectives) and totality (which requires that the aggregate sentence imposed not exceed the offender's overall moral blameworthiness) are also very important. [95] Keeping those additional principles in mind, and looking at the range of sentences that have been imposed for similar or more aggravated offences, he submits that "a sound starting point jurisprudentially" in this case would be five years for manslaughter, with three years consecutive for interfering with human remains. [96] The present case can be described, in the defence submission, as a peculiar event. Mr. Zhao and Mr. Yuan had been friends, business partners, and in a sense family members. There was no alcohol involved in their dispute, and mental illness was not a factor. Mr. Zhao was 55 at the time, had extremely positive antecedents and, as I mentioned earlier, had never been involved in so much as a fist fight. He was an essentially non‑violent person who possessed his guns legally for the valid pursuit of hunting. On the spectrum of what occurred, what occurred was the farthest thing from any sort of a criminal enterprise. [97] While the circumstances do not fall into the near‑accident category of manslaughters, counsel emphasizes that neither can they be considered along with so‑called near‑murders. The first item Mr. Zhao resorted to as a weapon was a hammer rather than a firearm, and there was provocation in this case in the colloquial sense, despite the legal requirements for it to apply not having been met. [98] In the defence submission, Mr. Zhao's efforts to dispose of the body can be characterized as half‑baked and ill-thought out. His wife and mother‑in‑law had already seen him with the body in the driveway and it was inevitable, whatever he did from there, that what had happened between him and Mr. Yuan would come to light. Once the police got involved, he was determined to tell them what he had done, and he cooperated completely in the investigation - to the extent of later identifying the location of an additional body part. [99] Counsel also stresses that even though I did not accept Mr. Zhao's evidence at trial, it should not be seen as an attempt to mislead the court. It was merely a reconstruction of the events that helps Mr. Zhao to rationalize what he has done. [100] His expressions of remorse were immediate and genuine, including, as I have mentioned previously, asking himself during the interview why he had scolded Mr. Yuan about the approach to his daughter, which ended up provoking the physical fight. [101] The extensive references offer reliable support for the manner in which Mr. Zhao has presented himself, and show his normal highly positive and pro-social character and behaviour. [102] Despite this, counsel explains that Mr. Zhao's impeccable reputation in the community has essentially been "vaporized" by his actions in relation to this offence. His wife's reputation has been similarly harmed. This has included the effects of the parallel civil litigation. [103] In addition to being unable to support his wife in person during her serious illness, he was also unable to attend his daughter's wedding - another important life event - because of being in custody. The increased restrictions caused by COVID in his institution are a further circumstance that I can validly consider when arriving at a fit sentence, as well as the fact that the approximately five and a half years from offence to conviction are simply too long by any reasonable standard, and include a number of contributing factors that were not of his making. [104] This would be a useful point to insert Crown counsel's reply on the impact of the length of the trial. She pointed out that the Crown concluded its case in July of 2017 (actually, as I have determined from the DARS recording, on June 22) and that Mr. Zhao was unable to give his evidence that November because of illness (my review of the DARS recording indicated that his counsel actually advised that matters relating to the defence had recently arisen that could not be addressed in time for him to begin presenting it on that date). In reality, the Crown says, there has been delay "on all fronts", and while the time the case has taken to complete is certainly a factor, it should not be given excessive weight. [105] Returning to the defence position, Mr. Zhao's counsel reviewed the defence manslaughter and interfering with human remain cases at a high level in his oral submissions, although they were fully summarized in the written submissions, and drew from them their collectively greater degree of seriousness than the present ones, which is informative in light of the fact that they yielded sentences lower than the ones being sought by the Crown here. [106] In particular, the cases counsel referred to that involved fatal discharges of firearms or being party to an offence in which a firearm was discharged ‑ in order, R. v. Aubin, 2009 BCCA 418; R. v. Quinlan, 2009 BCSC 1327; R. v. Fabas, 2017 BCSC 1693; and R. v. Stuiver, 2020 BCSC 334 ‑ resulted respectively in sentences of seven, six, six, and seven years for the offenders involved. [107] Once again interpolating the Crown's reply, Crown counsel noted that each of these decisions featured a meaningful mitigating factor that also contributed to the sentence imposed: an element of chance or bad luck in what occurred; foolishness or stupidity on the part of the offender in their actions; a very aggressive victim and the unlikelihood that the shots that were fired would strike anyone; and the fact that the offender was not the one who actually used the firearm. [108] Along the same lines, the defence provided cases involving very aggravated indignities to deceased's remains that still yielded relatively moderate consecutive sentences of, respectively, 18 months, two years, and three and a half years (along with a life sentence for murder in that case, so mandatorily concurrent) two years and two years. These decisions were: R. v. Valliere, 2005 BCSC 124; R. v. Commanda, 2007 ABPC 51; R. v. Panghali, 2011 BCSC 421; R. v. Houle, 2013 ABQB 70; and R. v. Hubley, 2017 NSSC 124. [109] Cases in which there was no additional charge of interfering with human remains, but it was treated as an aggravating factor with respect to the manslaughter, are also helpful, Mr. Zhao's counsel submits, because they reflect the offender's overall moral blameworthiness in the same way that consecutive sentences that had been moderated for totality would. For example, in R. v. Campsall, 2020 ONSC 4681, the partial dismemberment of the victim after she had been strangled to death resulted in a nine‑year sentence which, counsel suggests, significantly exceeds what the manslaughter sentence would have been standing alone. [110] The flip side of that principle, Mr. Zhao's counsel reminds me, is that I must be cautious not to "double count" the dismemberment as an aggravating factor in this case, because it has been charged separately and will inevitably result in a consecutive sentence. [111] In the defence submission, a sentence of eight years in totality will properly take into account the circumstances of the offence and give all of the applicable sentencing principles their proper weight. Any possible need for specific deterrence has been addressed by the very serious consequences to Mr. Zhao from this involvement. Further, counsel submits that it is questionable whether the circumstances under which manslaughter is typically committed give rise to the sort of reflection by a potential offender that would cause general deterrence to have any meaningful effect. [112] The critical principle at work here is denunciation, the defence argues, and that is fully satisfied by the sentence that is being proposed. [113] If I were to conclude, however, that a sentence of time served in light of credit for pretrial custody that I have referred to would not properly reflect the necessary level of denunciation, then it would be open to me, it is suggested, to impose a sentence up to the maximum range of provincial time - two years less a day - followed by a probation term with any conditions that I consider would be suitable. [114] At the end of the day, the defence emphasizes, the aggregate sentence in the range the Crown is seeking would not actually result in any greater degree of denunciation. Discussion [115] I will begin with the ancillary orders. [116] Manslaughter is a primary designated offence and so, pursuant to s. 487.051(1) of the Criminal Code, Mr. Zhao will provide the number of samples of his bodily substances as are reasonably required for the purposes of forensic DNA analysis. [117] Pursuant to s. 109(2) of the Code, Mr. Zhao is prohibited from possessing any of the items set out in subsection (a) for 10 years following his release from imprisonment in this matter, and any of the items in subsection (b) for life. [118] Finally, pursuant to s. 737(2)(b), he will pay victim surcharges of $200 per count, for a total of $400. [119] Turning to the substance of this matter, the governing principles are not in dispute. As counsel have already pointed out, the overarching principle is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, the latter of which means the offender's moral blameworthiness: R. v. Lacasse, 2015 SCC 64 at para. 12. [120] The principle of parity, which requires a consideration of sentences imposed on similar offenders in similar circumstances, informs the proportionality analysis, ensuring that the sentence is both individually proportionate and proportionate in relation to those other sentences. However, as the Supreme Court of Canada explained in Lacasse: [54] The determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be taken into account. Once again, however, it is up to the trial judge to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed. The principle of parity of sentences . . . is secondary to the fundamental principle of proportionality. This Court explained this as follows in C.A.M.: It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. . . . Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. [121] With respect to the applicability of sentencing ranges, the Court explained: [58] There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. . . . [122] The law relating to manslaughter is very much in accord with these principles, as explained in Plowman and Badhesa, because the task of navigating to a fit sentence within the wide range that is available depends fundamentally on assessing moral blameworthiness, although consideration of similar offences and offenders remains a meaningful consideration. [123] I agree with counsel that denunciation and general deterrence require the primary emphasis here although, given Mr. Zhao's exemplary background, rehabilitation is also an important consideration. I also agree that specific deterrence does not require much emphasis, given the consequences he has suffered. [124] I appreciate Mr. Zhao's counsel's thoughtful and principled opposition to the efficacy of general deterrence as a sentencing principle, but as Justice Ryan observed in R. v. Johnson (1996), 84 B.C.A.C. 261: [29] The principle of deterrence as a goal of sentencing is embedded in our law. The Supreme Court of Canada has said so in C.A.M., the amendments to the Criminal Code specifically refer to it as a sentencing objective (see s. 718(b)). We must assume that deterrent sentences have some effect. It is futile to ask whether a particular sentence will deter others. That question can never be answered. Deterrence operates in a general way. Those that would break the law must know, and law-abiding citizens must be assured, that law-breakers will receive sentences which reflect the seriousness of their crimes. This will deter some potential offenders, it will not deter others. [125] I agree with the aggravating factors that the Crown has identified. Despite his possession of the hammer, Mr. Yuan was not a meaningful threat to Mr. Zhao at the point that the shots were fired. He was on the ground, quite seriously injured already, and Mr. Zhao was holding a loaded rifle on him with his own back towards the house as a potential place of refuge. His decision to fire in response to the hammer being thrown and then Mr. Yuan's upraised arm must be seen as serious overreactions to the threat that he actually faced and any resulting need to respond with potentially lethal force. [126] It is also aggravating that he engaged in the mechanical steps necessary to load and fire two shots towards vulnerable areas of Mr. Yuan's body, at least one at close range. [127] It is important in this regard not to conflate the reasonable doubt that I had about whether, in that sequence of events, he had one of the intents necessary for murder with any doubt that he intended the steps that he did take. [128] Leaving aside the dismemberment, it is also aggravating that he took such thorough steps to return the rest of the surroundings to apparent normalcy. [129] With respect to the interference with human remains, one must keep in mind that the essence of the offence in all cases is failing to respect the dignity that should be accorded to a human body. All of the cases that have been cited feature very distasteful actions that show a fundamental contempt for the dignity of the deceased person involved. Nevertheless, the sheer scale and rather clinical nature of Mr. Zhao's actions in this case amounted effectively to an obliteration of Mr. Yuan's body as an intact entity, and therefore rise above the basic elements of the offence to be an aggravating factor. [130] Again, while virtually all of these cases resulted in the loss or impairment of potential forensic evidence, the extent of Mr. Zhao's actions towards Mr. Yuan's body took that impairment to a higher and more aggravating level. [131] The mitigating factors are largely as Mr. Zhao's counsel has described them. They are: Mr. Zhao's lack of any criminal history or negative involvement of any kind, despite having reached middle age; his previous highly‑positive social behaviour after overcoming a severely deprived upbringing; his apparently strong support in the community; his immediate cooperation with the police; and his apparently genuine remorse. These factors are all entitled to meaningful weight in the analysis. [132] Fundamentally, there is nothing in Mr. Zhao's previous 55 years of life that hinted at his capability to engage in such behaviour as this. [133] However, it is important to keep in mind, when considering an expression of remorse as a mitigating factor, the remarks of Justice Taylor in R. v. Anderson (1992), 74 C.C.C. (3d) 523 (British Columbia Court of Appeal) at pp. 535 and 36: [45] The factor of "remorse" is often important. In so far as it might be suggested that the court should regard those who come before it in a submissive or contrite manner as deserving of more lenient treatment than those who accept their predicament with whatever fortitude they are able to summon, there would be little in this factor which could assist the sentencing judge. But to the extent that an accused person is able to demonstrate that he or she has, since the commission of a crime, come to realize the gravity of the conduct, and as a result has achieved a change in attitude or imposed some self-discipline which significantly reduces the likelihood of further offending, the existence of remorse in this sense obviously has much importance. [Emphasis in original] [134] On the effects of COVID, Mr. Zhao's counsel cited the thoughtful reasons of Justice Pomerance, a well‑known criminal law authority, in R. v. Hearns, 2020 ONSC 2365. In that decision, Pomerance J. concluded that the current pandemic and the conditions that it will create in prisons, whether through the risk of infection or the kind of restrictive lockdown that Mr. Zhao has experienced, may justify a departure from the usual range of sentence in appropriate circumstances. In her analysis, Pomerance J. drew an analogy to the principles that can lead to the reduction of sentences for state misconduct, or for collateral consequences that would make a sentence harsher for the offender than it might otherwise have been. [135] In determining whether to apply that analysis here, I find the decision of Justice Crabtree in the recent decision of R. v. Greer, 2020 BCSC 1131, very helpful: [51] In my consideration of this matter, I have reflected upon the comments set out in Hearns. Here, I note that there was no evidence introduced to show the current impact of COVID-19 upon the federal or provincial institutions; and, more importantly, with respect to Mr. Greer himself, in terms of whether or not he suffers a suppressed or compromised immune system. Mr. Greer, in his comments to the court, did provide some insight into his personal situation and the restrictions in movement, programming, and visitation that he has experienced while at the Pretrial Centre; and I accept the fact that there are certainly some restrictions imposed, as a result of the current circumstances. [52] Any sentence imposed must be guided by the statutory and common law principles of sentencing. That said, it was suggested that COVID-19 may reduce the requirement of parity with previously established ranges, or may justify a departure from the usual range of sentence in certain circumstances; and here, I refer to R. v. Lacasse [citation omitted]. The defendant requests the court grant a reduction in what would otherwise be an appropriate sentence, based on the potential prospect of difficulties posed by the current pandemic that the defendant may be subject to. [53] While I have considered this, I am not inclined to do so in these circumstances for the following reasons. I do not know for how long such restrictive conditions may continue and in what form. Not enough is known at this point, as to whether conditions may improve, worsen, or remain the same. As a result, it appears to me to be speculative to assess the impact. Again, as I noted previously, there is no specific evidence concerning the particular health issues or risks, if any, that are faced by Mr. Greer; and finally, I would draw upon the comments in the Ontario Court of Appeal case of R. v. Morgan, 2020 ONCA 279, discussing the impact of COVID-19 at para. 12, where the Court states: [12] That result does not mean that there is no potential remedy for the appellant respecting the impacts arising from the COVID-19 pandemic. We expect that the Ontario Parole Board will take into account those impacts in deciding whether the appellant should be granted parole. If the Parole Board fails to do so, the appellant has other remedies available to him to redress that failure. [54] Based on the circumstances and information that I have before me at this juncture, it strikes me that any impact that COVID-19 may have upon Mr. Greer and the sentence received is best left in the hands of the parole authority in this province. [136] I adopt that approach here and would not give specific effect to the impact of COVID on Mr. Zhao's correctional experience, either thus far or prospectively. I note that in a subsequent decision - R. v. Costello, 2020 BCSC 1206, at para. 76 - Justice G.P. Weatherill appeared to endorse Hearns, but he did so only generally and in passing, and so if a conflict between these two authorities actually exists, I would adopt the more extensive reasoning in Greer. [137] As to the overall length of time that it took to complete this trial, while it is regrettable, I cannot find that it amounts to a consideration justifying a reduction in Mr. Zhao's sentence. I cannot speak to the events that preceded my involvement, but the Crown's case was in by June 2017, and the events that delayed its completion from there included unforeseen matters that prevented Mr. Zhao's counsel from being able to proceed with the defence, necessitating an adjournment from November 2017 to May 2018; the need to retest the rifle due to a concern about the Crown's expert, an effort to prevent a miscarriage of justice that the defence agreed was appropriate; what I took to be the somewhat unanticipated length of the defence evidence and cross-examination of Mr. Zhao and the psychologist by the Crown; an illness by the defence psychologist; and, as I infer from the significant gaps between continuation dates, counsel's calendars to some extent. [138] The length of time it took me to render my reasons was also far from ideal, but without being excessively self‑serving, I would say that it was not grossly inordinate, given the length of the trial, the complexity of the evidence, and the number of issues that were raised. [139] Thus, while delay in completing a trial can potentially mitigate the length of the sentence that is ultimately imposed (R. v. Nasogaluak, [2010] 1 S.C.R. 206, at paras. 53 to 55), I find that Mr. Zhao's own contribution to that delay in this case was substantial enough that it would be inappropriate to grant him additional credit based on it. [140] Turning to the question of moral blameworthiness, I would characterize Mr. Zhao's as reasonably high. Of course, he was not responsible for Mr. Yuan's violent reaction to their argument, but he escalated the level and seriousness of the situation by picking up the hammer, which in turn seems to have led Mr. Yuan to convey a more serious threat of harm and attempt to kick him. Striking Mr. Yuan to prevent him from obtaining the rifle seems a more reasonable response, but once Mr. Yuan was down on the driveway, obtaining the gun for any other reason than to immobilize it from Mr. Yuan's use and make good his escape served to increase the risk that it would have to be used or fired in some manner in their further interactions, given what had previously occurred. [141] I recognize that Mr. Zhao was very frightened and do not by any means seek to impose hindsight on what were rapidly-unfolding and stressful events, but the reality is that of the various options he had available, the one he chose raised the greatest risk that he would end up shooting Mr. Yuan in response to any further perceived threat from him. That is indeed what occurred. [142] As to the dismemberment, the numerous deliberate steps needed to render Mr. Yuan's body into the state in which it was found; the length of time over which they were taken; and the methodical manner in which Mr. Zhao proceeded, coupled with my rejection of any foundation of these actions in mental illness, tend to rule out panic as the explanation. Even keeping in mind the degree of distraction and confusion that he described in his police statement, his actions instead demonstrate a rather clinical dispassion and coldness - to "discard of" Mr. Yuan, as he put it to the police. That is very morally blameworthy. [143] To the extent that consideration of comparable cases can uphold the principle of parity here, the most helpful would be those in which the offender used a firearm in circumstances of actual or perceived threat that fell short of a legal justification for its use. Cases involving the element of intoxication are less helpful in comparison, since Mr. Zhao was affected only by his level of fear. [144] I agree with Mr. Zhao's counsel that one can potentially infer from lower sentences for more aggravated actions that the sentence should be lower than them in this case. What I would say about the comparable firearms cases cited for that purpose is that the actual utilization of the firearm in Aubin was claimed to be accidental, after having been brought out for the purposes of scaring the victim; was employed in Fabas in response to a victim who was breaking into the premises after previously threatening the occupants; and in Stuiver involved a party to a robbery who had no firearm himself and did not foresee its intentional use by his accomplice to shoot the victim. [145] I frankly do not know what to make of the sentence in Quinlan - five years for firing eight shots at a group with whom the offender had been in a conflict on the street - even taking into account the offender's youth and lack of a criminal record, other than to say that it seems to me to be inordinately low for that conduct and should be regarded as an outlier. [146] There is also the moderating effect of remorse in the decisions that followed a guilty plea, although I note that the conviction in Aubin followed a trial. [147] I think the most useful comparators overall are in Nguyen, Gunning, and Fabas. The number of shots fired, the lack of aggression by the victim on that particular day, and the presence of children are additional aggravating factors in Nguyen. The victim in Gunning, while obnoxious and threatening, had not actually acted violently yet before the shooting, and the offender had a previous criminal record, although once again intoxication impaired his judgment. The victim in Fabas, as I have said, was trying to break into the residence with apparent intent to cause harm, so while the offender was found blameworthy for not seeking police assistance and remaining there with a firearm close at hand, the situation was even more ominous than what Mr. Zhao faced at the point that Mr. Yuan was on the ground. [148] As I adverted to earlier, it seems invidious to draw moral distinctions among different methods of destroying and concealing human bodies, but that is what the process of considering like offenders and offences requires. Having considered the authorities provided, I am hard put to rank Mr. Zhao's actions as being any less morally blameworthy than those fact situations, although I appreciate that the manner in which the remains were discarded in those cases, after being dismembered, demonstrated additional callous regard for the deceased's dignity, and were additionally aggravating. [149] Balancing the aggravating and mitigating factors and giving due consideration to comparable offences and offenders, without losing sight of the need to individualize the sentence and, lastly, applying to the assessment of proportionality to the level of moral blameworthiness I have found, I would, in the absence of presentence custody, have imposed a sentence of seven years for manslaughter and three years and six months for interfering with human remains, consecutive to it, for an aggregate sentence of 10 years and six months. [150] Applying credit for presentence custody here, that results in a sentence of two years, four months, and eight days, which I will apportion as follows to maintain the rough correspondence between the two sentences: manslaughter, imprisonment for 19 months; interfering with human remains, imprisonment for nine months and eight days, consecutive to the manslaughter sentence. [151] Thank you very much. We will adjourn. "Schultes J."