By Canadian Press

‘A fit sentence:’ 7 years in jail upheld for Calgary man who killed neighbour

Mar 29, 2018 | 11:00 AM

CALGARY — The Alberta Court of Appeal has upheld the sentence of a man who argued he was fending off an attempted sexual assault when he stabbed his new neighbour 37 times.

Nicholas Rasberry was sentenced to seven years in prison after a judge convicted him of manslaughter in the death of school teacher Craig Kelloway in May 2013.

In a split decision, the three-member Appeal court panel ruled that the sentence imposed by the judge was within the appropriate range.

The defence had argued that the court erred by not fully accepting Rasberry’s self-defence claim.

“Absent palpable and overriding error, the trial judge’s appreciation of the facts and circumstances cannot be replicated, let alone improved upon, at the Court of Appeal,” wrote Justice Jack Watson in the decision released Thursday.

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“The numerous wounds to the victim were on his front, back and side. A number of those wounds would have made him unable to respond except by arm motions, leading to defensive wounds,” Watson wrote.

“There is no reviewable error in the trial judge’s description of the appellant’s actions or in his conclusion that this was not a case of ‘near self-defence.’”

Watson said the trial judge took into account Rasberry’s argument that he was provoked.

“The sentence of seven years imprisonment imposed by the trial judge falls within the appropriate range for manslaughter and was a fit sentence.”

Rasberry, 35, was originally charged with second-degree murder.

He had already lost an appeal of his conviction.

He admitted at his trial that he stabbed Kelloway after the two men and their wives had spent time drinking at a barbecue that began at Kelloway’s Calgary home and continued at Rasberry’s place just two doors down. But Rasberry also testified that he had acted in self-defence.

Rasberry said Kelloway, who was originally from Glace Bay, N.S., had threatened to sexually assault him and his wife.

Kelloway was stabbed 23 times and slashed 14 times with three different knives. The first two knives broke off and the third was bent.

In a dissenting opinion, Justice Ronald Berger noted that Rasberry was “panicked, distraught and traumatized” when he called 911 after the confrontation and believed he was acting in self-defence.

Berger said the sentencing judge should have given more weight to the consideration that Rasberry was provoked and believed he was in danger.

“This is a tragic case. The loss of a human life can never be measured by a judge imposing a term of imprisonment for wrongful criminal conduct that is mitigated, but only in part, by provocation,” Berger wrote.

“The totality of circumstances must be taken into account.”

Berger recommended a sentence of five years.

Rasberry has been free on bail. He is expected to turn himself in to begin serving his sentence.

— Follow @BillGraveland on Twitter

Bill Graveland, The Canadian Press