Daryl Slade, Calgary Herald, June 30, 2010
A judge told court Tuesday he’s struggling with the notion of sending a mother to prison for strangling her teenage daughter.
When told by Crown prosecutor Mac Vomberg that Aset Magomadova should receive a 12-year sentence, Court of Queen’s Bench Justice Sal LoVecchio countered: “You’re suggesting every time a deterrent is needed, jail is necessary?”
Earlier, LoVecchio asked Vomberg to justify a lengthy prison sentence for the mother, who fled war-torn Chechnya after her husband was killed by the Russians on his way to work in 1994 and she had most of her foot shot off in 1998.
“Tell me what protection the public needs?” the judge asked.
“Are you saying she’s a risk to go out and kill somebody else?”
Vomberg argued this is a case of domestic violence, which requires a strong jail sentence.
“That’s because we’re not just dealing with fatal consequences, we’re dealing with direct consequential damage,” said Vomberg, referring to the accused’s wheelchair-bound son and his cousin.
Magomadova, a Muslim, admitted at trial to having a deadly confrontation with her troubled 14-year-old daughter Aminat at their home on Feb. 26, 2007.
At least some of it was over her daughter’s reluctance to abide by her cultural values and to attend court that day for assaulting a teacher the previous October.
The mother faced a second-degree murder charge in connection with the fatal confrontation, but was convicted last October by LoVecchio of manslaughter.
Manslaughter carries with it anywhere from a suspended sentence to life imprisonment.
Vomberg pointed out that he and defence lawyer Alain Hepner, who will argue today for his client not to be incarcerated, are at “polar opposites” in their sentencing submissions.
Vomberg argued that Aset Magomadova, 39, who came to Canada as a refugee in 2003, abused her trust and authority when she killed Aminat.
All the legal wrangling pales in comparison to what this family has endured, and the continued suffering of its surviving members
He also stressed the victim was seeking help, trying to get out of the house, before she was killed, and that the mother continues to portray herself as the victim.
“This is not how parents resolve their disputes with their teenage children,” the prosecutor told LoVecchio.
Forensic psychologist Patrick Baillie testified that the mother is a very low risk to reoffend in any violent manner and could benefit from appropriate counselling. He said Magomadova, who has only a Grade 3 education, has significant deficit in verbal reasoning and comprehension. However, he said, she has taken responsibility for her death and expressed remorse.
“It’s a constant pain to her, she described it as like losing a part of her body . . . she is not pointing a finger at anyone, she is responsible,” Baillie said.
Vomberg said although the woman comes from a background with an extraordinary level of violence and turmoil, there still is no justification for her actions that day.
Despite her many adjustments to a new country, Vomberg added, Magomadova had an obligation to assist her daughter and younger son cope with their new life.
Hepner previously said he would argue for a conditional jail sentence to be served in the community. But, on Tuesday, he only said he would ask for no jail and agreed that he and the Crown were at opposite ends of the spectrum. He will make his sentencing argument today.
LoVecchio said in his verdict that Magomadova wasn’t defending herself when she strangled Aminat, but added she didn’t intend to kill the girl.
He said he convicted her of manslaughter, because she went too far in trying to end an altercation.
“I find that Ms. Magomadova, by choosing to apply a ligature–in this case, a scarf–for at least 2 1/2 minutes, was the application of excessive force,” LoVecchio ruled.