Accomplice's sentence a `re-victimization': family
The family of a Barrhaven man shot dead in a botched robbery attempt is outraged at the five-year sentence handed the man who betrayed him to his killers.
Michael Swan, 19, was shot by a masked gunman — one of three armed intruders who broke into his Barrhaven home — on Feb. 22, 2010. They were looking to steal cash and marijuana.
One of Swan's high school acquaintances, Sam Tsega, had told the men that Swan was a drug dealer and had showed them where he lived. The three men who broke into the home were from Toronto, where Tsega had previously lived.
Earlier this year, in convicting Tsega of manslaughter, Ontario Superior Court Justice Sally Gomery found that he did not take part in planning the robbery and did not know that two of the men involved had handguns.
Those facts, she said in her recent sentencing decision, supported a lighter penalty in his case.
“His (Tsega's) choices on Feb. 21, 2010, showed a casual and shocking disregard for the consequences of his actions,” Gomery said in her written decision. “Although Mr. Tsega was not in the Moodie Drive house during the home invasion, it could not have occurred without his active participation.”
She sentenced Tsega to five years in prison for manslaughter. With credit for time served in custody and under house arrest, Tsega faces a further two years and five months behind bars.
The Crown had sought an eightyear sentence in the case, while defence lawyers Solomon Friedman had argued that Tsega should be sentenced to time served.
The five-year sentence, delivered more than 11 years after the crime, has left the victim's father devastated.
“This case is an outright re-victimization for the family,” Dale Swan, 67, said in an interview Saturday. “It has dragged on way too long.”
Swan said the judge in the case systematically ruled against every argument for a tougher sentence for Tsega, who was standing trial for the second time.
In 2016, he was tried for second-degree murder, convicted of manslaughter, and sentenced to nine years in prison.
The Court of Appeal set aside that conviction — it said the trial judge relied on inadmissible hearsay — and ordered a new trial.
Swan said that court process has been long, painful and, ultimately, unjust. He was particularly upset that the judge found Tsega played no role in planning the home invasion.
“Somehow they conduct this robbery without the local guy's participation? It's ludicrous,” Swan said.
Crown attorneys Dallas Mack and David Rodgers had argued that Tsega bore the same moral culpability as the three men who broke into Swan's home since he was the one who directed them to it.
The judge rejected that argument.
“He (Tsega) did not put on a mask, break into the house and storm into Mr. Swan's room armed with a gun,” Gomery said. “He did not kill Mr. Swan or forcibly confine the other occupants of the house, or rob them of their belongings.”
Mandatory sentences can apply in manslaughter cases where firearms are used, but the judge concluded the stipulation did not apply in the Tsega case because there was no evidence that he knew about the guns.
Tsega was a Carleton University business student at the time he was charged in September 2010.
Since then, he has spent 13 months in custody and lived under house arrest.
While out on bail, he has worked as a floor installer and volunteered at a downtown coffeehouse that serves homeless people.
Gomery noted that Tsega was only 18 at the time of the offence and did not have a criminal record.
“Based on all of the evidence,” the judge concluded, “I find that Mr. Tsega's involvement in the home invasion and Mr. Swan's death was totally out of character. There is little or no likelihood that he will reoffend.”
The three men who broke into Swan's home have received more substantial sentences.
Kristopher McLellan, the man who shot Swan as he lay on the floor, was convicted of first-degree murder and sentenced to life in prison.
Dylon Barnett was found guilty of second-degree murder and sentenced to a minimum of 12 years in prison, while Kyle Mullen pleaded guilty to manslaughter and received a sentence of almost 12 years.