A man convicted of three counts of second degree murder and two counts of attempted murder that took place on the Penticton Indian Band land lost his appeal for a shorter sentence.
Dustin Paul was convicted in 2014 of the offences and said his 16-year period of parole ineligibility (as of 2007) should be reduced, contending the judge erred in focusing on the seriousness of the offences and failed to adequately consider his particular circumstances as an aboriginal person.
Paul had been partying for about 24 hours the evening of Oct. 30, 2004, drinking alcohol and using an assortment of drugs. He and a group of associates ended up at the Shingle Creek area on the Penticton Indian Band and about two hours later Paul walked to his vehicle and retrieved a 9 millimetre semi-automatic hand gun. He encountered one partier standing away from the group relieving himself and shot the man in the face, but he survived. Paul then turned to a group of men shooting one twice in the back and once in the jaw, another in the forehead and another in the right eye. All three were killed. Another man ran down a trail to escape and into a creek and Paul followed. As he moved closer the man pleaded with Paul to not shoot him but Paul pulled the trigger from a distance of 10 feet and hit the man twice in the arm. The victim pretended to be dead and survived.
After the shootings Paul told another man to leave in a vehicle while he went to the bushes and creek area. Police were dispatched to the area and found Paul face down in the creek with a knife wound to his neck. He unsuccessfully attempted to commit suicide by slashing his throat and drowning himself.
The Crown opposed Paul’s appeal saying the argument does not meet the criteria for admission of new or fresh evidence. The information would also be not credible, according to Crown, because it paints a “dismal picture of the appellant’s upbringing,” contrary to the report the defence psychiatrist gave at trial. The psychiatrist testified on Paul’s mental state at the time of the incident and related that Paul described his childhood in generally positive terms with very little alcohol or drugs in the home, despite his father being a drug dealer. It was also heard at trial that Paul had a strong relationship with both of his parents which was backed by letters from family members, friends and teachers.
Paul wanted to introduce information referring to a “dysfunctional environment” at home which contained “every form of abuse.”
Justice Mary Saunders allowed the report to be admitted with the question of whether there is an error of principle demonstrated in the judge’s approach to Paul’s aboriginal heritage.
“It does not seem to me that the judge in this case failed to consider all the circumstances of the offender, including his aboriginal status. Although the judge did not discuss this status at length, he recognized Mr. Paul’s aboriginal status,” said Saunders.
Original sentencing proceedings had been delayed twice by defence counsel to allow further time to carry out investigations and the judge did speak briefly to the considerations that must be weighed during sentencing of an aboriginal offender.
“I cannot say the judge erred in his brevity given the magnitude of the offences and the consequent far-reaching damage to the community. I cannot say a speech of greater length was required,” said Saunders.
The next question the justice posed was if the sentence is unfit.
“In my view the period of parole ineligibility imposed by the judge, 16 years, on three counts of murder using a semi-automatic weapon close up and deliberately, in the circumstances, appropriately reflects both Mr. Paul’s relatively young age and his aboriginal status, absent which a longer period may well have been imposed,” said Saunders.
In 2011 Paul had an appeal dismissed based on the argument that the justice did not satisfactorily explain to the jury the mental capacity required for criminal responsibility.