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A touch of mercy for dying convict

Cancer-ridden rapist given break by judge

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It may not have been the mercy he was looking for. But a convicted Winnipeg rapist who is dying of cancer has caught enough of a legal break that he will likely be able to spend his final days at home with his family.

Amuri Musaka, 40, begged a Manitoba judge for leniency last week, saying he should be immediately released from jail with no further punishment.

Queen's Bench Justice Lori Spivak ruled Friday Musaka's crime calls out for a longer penalty than the 22 months of time he's already spent in custody. She ordered him to spend another three months behind bars.

"In such a grave and repugnant offence, the principles of denunciation and deterrence are pressing. That said, while the sentence must reflect the enormity of the crime, it must also take into account the unique circumstances of this offender," Spivak said in her decision.

She gave Musaka enhanced time-and-a-half credit of 33 months for his time already served, saying he's clearly had it more difficult than other inmates. The three additional months bring it to a three-year sentence, at least on paper.

"The impact of prison on a person suffering from terminal cancer is more onerous than on a healthy person," said Spivak.

The Crown had requested a three-year sentence, saying it was the traditional "starting point" for major sexual assaults. But they asked Musaka only be given single-time credit for pre-trial custody, which would have required him to serve an additional 14 months.

"I'm asking you to have mercy on me. I'm scared to die in a place where I'm not with my kids or wife," Musaka said last week during his sentencing hearing.

Musaka was found guilty earlier this year of a July 2012 sexual assault that left his 32-year-old victim suffering from physical and emotional pain that continues to this day.

Since the attack, Musaka has been diagnosed with cancer of the liver that has spread to his lungs. He may have only six months to live, court was told. Several medical reports that confirm his terminal illness were filed with the court.

"This is an exceptional case and you can give a sentence which deviates from the norm," defence lawyer Mike Cook had argued last week. "These are extremely unique circumstances."

Cook said Friday he will be filing an appeal of the sentence, and apply to have Musaka released on bail pending appeal as early as next week.

Musaka came to Canada in 2006 from the Democratic Republic of the Congo and had no criminal record prior to the attack.

Prosecutor Tim Chudy read an emotional victim-impact statement in court from the woman Musaka attacked. She was dating Musaka's friend at the time, and the crime occurred during an evening of socializing. She continues to undergo counselling for post-traumatic stress disorder and also contracted a sexually transmitted disease from Musaka.

"I was in shock, total disbelief that it happened. I felt contaminated," she wrote in her statement.

Chudy called the crime an "outrageous" offence that requires stiff punishment, even considering Musaka's terminal illness.

Republished from the Winnipeg Free Press print edition April 12, 2014 A10

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