Despite a record for brutal violence, killer gets a break

Judge rejects dangerous offender designation

Ajust- completed dangerous offender hearing in Victoria encapsulates what the public finds frustrating about the legal system — a glacial pace and befuddling outcome.

Nearly four years to process a man who pleaded guilty after he was caught at the scene and on camera stomping a man to death over a bag of potato chips?

There was an agreed statement of facts — chronic offender Matthew Scott Pelkey, now 29, savagely beat 42- year- old Sanjay Ablak to death in the middle of a downtown street at about 2: 20 a. m. on Dec. 8, 2008.

A passing police car stopped and Pelkey was arrested for drunkenness as he staggered away.

Everyone agreed, too, that normally the appropriate range for manslaughter under such circumstances is eight to 10 years.

For a violent alcoholic with a record as long as your arm, however — including a 2004 aggravated assault, a 2007 aggravated assault and an assault causing bodily harm that occurred only days before Ablak’s fatal stomping — more was required.

As well, Pelkey had been convicted of numerous offences arising from breaching bail or conditional sentence orders — usually by repeatedly ignoring bans on consuming alcohol.

With his history, the Crown rightly moved to have him declared a dangerous offender.

And no one argued, not even his lawyer, that Pelkey did not meet the statutory criteria.

Hearing no argument on that issue from Pelkey’s lawyer, B. C. Supreme Court Justice Malcolm Macaulay made the declaration.

“There is no evidence here,” he noted, “of Pelkey as an adult ever functioning in society without having consumed alcohol to the point of intoxication and disinhibited violent conduct. To the extent that alcohol treatment has been available to Pelkey in the past when he was not in custody, he has never carried through with it.”

From 2003, when he was 20, until this incident when he was 25, Pelkey spent most of his time in prison — roughly four and a half years, by the justice’s reckoning.

He was as violent behind bars as on the street.

Yet when the dangerous offender hearing wrapped up last week, Macaulay did not throw the book at Pelkey.

Based on his time in pre- trial custody, the 10- year sentence he was given amounts to seven years and four months. He is eligible for release after serving one- third, statutory release after two- thirds.

The judge also placed him on a 10- year supervision order.

I think most ordinary people would be puzzled why such a break went to a man described by a psychiatrist as being at a high risk to reoffend.

An indeterminate sentence, by comparison, which was the option, is like a life sentence.

The parole board has full discretion on the eligibility for release — commencing after four years in custody, calculated from the date of arrest for day parole and after seven years for full parole.

If released, the offender remains on parole for life to protect the public.

The board reviews any refusal of parole every two years to determine if the risk has changed.

That would appear to have been called for here.

But Macaulay explained that Supreme Court of Canada directions on sentencing aboriginal offenders compelled him to consider “systemic factors” that may have come into play.

Reared on the Tsawout First Nation reserve near Victoria, Pelkey was of first nations descent and “the output of the history of colonialism, displacement and residential schools …”

The judge said that those who believe this approach gives first nations “a race- based discount” on sentencing are wrong and should read the high court’s reasoning in two rulings, R. v. Gladue ( 1999) and R. v. Ipeelee ( 2010).

In his opinion, Macaulay added, Pelkey was ready to turn his life around and deserved another chance.

Too bad the evidence to support that optimism seems threadbare.