Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Khaled Wehbe
Before: Justice Heather Perkins-McVey
Reasons for Judgment released on: September 7, 2012
Counsel:
- Ms. Julie Scott, for the Crown
- Mr. Richard Addelman, for the accused Khaled Wehbe
PERKINS-MCVEY J.:
Introduction
1Mr. Khaled Wehbe entered a plea of guilt to one count of Attempt to Obstruct Justice contrary to s. 139(2). An agreed statement of facts was filed as Ex 1 and forms the factual basis for the plea. Given the nature of the offence, and as the accused is a 20 year old young man with no prior criminal record, Pre-Sentence Report was ordered and the matter adjourned for submissions.
Facts
2Mr. Wehbe's involvement in the charge before the Court arises following a homicide which took place on December 6, 2010 at 10:15. Neither Mr. Wehbe nor his co-accused Mr. Dourhnou is said to have been involved in the homicide. Witnesses to the homicide however provided suspect and vehicle descriptions including the licence plate of the blue Nissan Maxima involved in the murder.
3On December 6, 2010 at 20:18 the vehicle in question was located in a visitor's parking lot located between 1140 and 1170 Fisher Avenue. The licence plates had been removed but documents inside the vehicle linked it to a vehicle that had been operated by a possible suspect. Police who had the vehicle under surveillance also reported that the sun-roof was smashed out and there was a "Good-Life" bag on the back seat and gloves on the front seat. Officers maintained surveillance on the vehicle. At 2:25am two males were observed approaching the vehicle. Mr. Dourhnou arrived on foot walking a dog. The accused Khaled Wehbe arrived in a 1998 Mazda. Both men went directly to the suspect vehicle. Mr. Dourhnou entered the front of the vehicle and immediately began cleaning. Mr. Wehbe entered the back passenger area and began doing the same. Mr. Wehbe was observed twice returning to his vehicle and on one occasion returned to the crime scene vehicle with a bag of rags and a bag. The men were observed cleaning the interior of the vehicle with paper towels, rags, CLR, and Scrub-Free.
4At 2:40am, after observing the accused and Mr. Dourhnou for 15 minutes both men were arrested. The keys to the vehicle were found in Mr. Dourhnou's pant pocket. An examination of the vehicle by police showed that there was blood in the back seat, there appeared to be transfer staining on the back of the driver's seat head rest and that a bullet had travelled through the sun roof from the interior at an angle and had pierced the shade of the sun roof. The glass portion of the sun roof had also been shattered.
5Although the victim's DNA was able to be retrieved from the vehicle, the accused's cleaning efforts compromised evidence of blood splatter, gunshot residue, and other DNA which could have otherwise been collected.
6At the time of his arrest, Mr. Wehbe had no record and no outstanding charges. He remained in custody for 35 days of Pre-Sentence Custody prior to his release on strict conditions. The Truth in Sentencing Act which came into effect February 23, 2010 guides the Court regarding the consideration of PSC as this offence occurred in December 2010. A copy of his recognizance of bail was filed as Ex 4.
Position of the Parties
7The Crown argues that a sentence of 12 months jail, commencing today, plus 3 years probation and ancillary DNA and a discretionary weapons prohibition under s. 110 of the Criminal Code. The Crown also submits that the nature and seriousness of this offence, an offence which by its nature is meant to subvert the course of justice requires a sentence of incarceration. The Crown also submits that the co-accused received a jail sentence of 12 months in addition to serving 135 days of Pre-Sentence Custody and that although Mr. Wehbe's Pre-Sentence Report was more positive and he had no prior record, unlike Mr. Dourhnou who had a youth entry and was on probation at the time, that both men are in essentially the same position and ought to be treated in a similar manner.
8On behalf of the accused, defence counsel argues that for a youthful first offender such as Mr. Wehbe that the principles of sentence, particularly s. 718.2, direct that the Court consider all other types of disposition prior to imposing a jail sentence. Mr. Addelman argues that the principle of restraint should be applied. Defence seeks a suspended sentence followed by a period of probation or in the alternative if the court feels the matter warrants a jail sentence that it should be served in the community pursuant to s. 742.1 of the Criminal Code.
The Accused
9Mr. Wehbe is a 20 year old youthful offender. The Pre-Sentence Report that was prepared by an experienced probation officer advises that Mr. Wehbe is one of 6 children in the family that is described as a tight loving unit. Mr. Wehbe clearly has positive family support with no member of his immediate family having been involved in the criminal justice system. The most negative comment in the PSR comes from his mother who says:
"there was a period of time when the accused as associating with negative peer influences (some of whom were relatives)."
We later learned that it is the accused's cousin who is charged with the murder referred to in that Statement of Facts.
10At the time of this offence the accused had been in the Police Foundations Program at Algonquin College but was forced to withdraw from that program due to these charges. The accused has however returned to full-time studies at Algonquin College as of January 2012 taking Business and Accounting. He is also engaged in part-time employment at Your Independent Grocer—previously he had been employed at Metro grocery store and at McDonald's. Letters from his past employers attest to his positive work ethic. He is described by his employer Derrech Dean from Your Independent Grocer as being a punctual and reliable employee who is polite and well spoken. This description of the accused is supported by letters from his past manager from McDonald's Tuyen Ly. John Stanyar, a 25 year veteran of the OPS, now retired, also sent a letter for consideration by the Court. Mr. Stanyar re-iterated Mr. Wehbe's positive family environment and the progress Mr. Wehbe has made in returning to school and work. Mr. Stanyar states he has followed Mr. Wehbe closely since his release and that he has not regretted his decision to act as surety for Mr. Wehbe.
11The PSR can be characterized as a positive one. The preparer of the report finds there are no indications of mental health or addiction issues. The accused also impressed the probation officer as being polite, with pro-social values. She stated that the accused indicated his remorse and recognized the seriousness of the offence. The probation officer, in assessing his risk to re-offend, stated "if the accused moves forward with his academics and does not associate with pro-criminal individuals, his risk of re-offending is limited."
12In his statement to the court during the sentencing hearing, Mr. Wehbe was appropriately apologetic for his actions and appeared to show sincere remorse as well as insight into the seriousness of the offences.
Law
13As acknowledged by the Crown in her opening remarks, this is not an easy sentencing. It is never easy when you are balancing a serious offence with a youthful first offender. Without doubt, regardless of the case, sentencing is an individualized process. In each case, the Court seeks to find a delicate balance to ensure that the sentence imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.
14As stated by the Ontario Court of Appeal in R v. Priest (1996), 110 C.C.C. (3d) 289 at paragraph 25:
"The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good."
15The defence has provided the Court with the decision of R v. Priest (1996), 110 C.C.C. (3d) 289 which generally analyses the principles of sentence as now codified in sections 718 and 718.2 of the Criminal Code.
16Further at paragraph 17 in addressing the sentencing of youthful first offenders the Court states:
"The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences involving violence, this Court has held that these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation."
17In essence, the Court in the Priest decision re-iterates that in the case of a first offender the court should explore all other dispositions before imposing a custodial sentence.
18In addition to the Priest decisions, I have been provided by the Crown with a number of decisions involving offences of both obstruct justice offence as well as cases involving Accessory After the Fact. It is important to note that the Crown has chosen not to pursue a conviction for the charge of Accessory After the Fact and has accepted a plea to the lesser charge of Attempt Obstruct Justice contrary to s. 139 of the Criminal Code. There is an important distinction between these two types of charges.
19A charge of Accessory After the Fact requires prior knowledge by the offender of the nature of the act committed and that the person he or she is assisting has been a party to that offence and that the acts were done to assist in the escape. This offence carries a possible life sentence.
20The act committed which in this case would be murder, would require prior knowledge of that act and hence would attract a higher degree of moral blameworthiness. By accepting a plea to Attempt Obstruct Justice there is an acknowledgement by the Crown that there is no evidence that Mr. Wehbe was involved or even aware of the murder. In submissions Crown counsel acknowledged there was no evidence that Mr. Wehbe was aware or had prior knowledge of the murder. The gravamen offence of Attempt Obstruct Justice is the wilful attempt to obstruct justice. Counsel acknowledge that in this case all that can be said is that given the state of the car, the accused must have known or ought to have known that a serious assault or a serious event occurred with that vehicle.
21This distinction between the offences of Attempt Obstruct Justice and Accessory After the Fact is a significant distinction and an important fact to be taken into account in determining the appropriate disposition as indicated the offence of Accessory carries a possible life sentence whereas a conviction under s. 139(2) carries a possible maximum sentence of 10 years.
22The range of sentencing cases for the offence of Obstruct Justice is very broad likely due to the many ways the offence can be committed. In all cases however, the nature of the underlying offence sought to be obstructed is a relevant consideration in determining the sentence. The Crown has provided me with a number of sentencing cases dealing with both the offences of Accessory After the Fact and Obstruct Justice. In many ways of the decisions provided, the accused have lengthy criminal records, are directly involved as principals in the offences sought to be obstructed or have been convicted of an alternate form of committing the offence—as such many of the decisions can be distinguished.
23In the decision of R. v. Tapaquon (2009) S.J. No. 212 relied on by the Crown the accused was sentenced for the offences of Obstruction of Justice and Trafficking in cocaine. The nature of the obstruct was that the accused rented a room and harboured two persons who were wanted for attempted murder. The accused, age 41, had a lengthy record with 18 prior convictions. The PSR indicated the accused was at a high risk to re-offend. The accused received 18 months consecutive on each charge—Obstruct and Trafficking.
24At paragraph 33 of the Tapaquon decision the Court cites the factors contributing to a sentence falling at the higher range include the use of violence, a violation of a position of trust and the gravity of the proceedings which were being obstructed.
25In the case before me involving Mr. Wehbe there was no violence used, there is no violation of a position of trust—but the offence sought to be obstructed is a serious one. Although there is no evidence the accused knew a murder had taken place—he would have had to know something serious had occurred from the from the blood in the car and the smashed sun roof.
26The decision of R. v. Nordman [2004] B.C.J. No. 2057 was also provided to me. It is a case that bears some similarities to the case before me. In that case the accused was convicted under s. 139(2) of the Criminal Code as the accused took and disposed of a knife that had been used by a friend to stab another man to death. The accused was aware of the stabbing but did not know that the man had died. The accused was 25, had no criminal record, a positive PSR, and was employed on a full-time basis. It was of significance to the Court that the accused did not participate in the principal crime prior to his involvement in taking the knife. In those respects the facts are similar to those before me.
27In the Nordman decision at paragraph 11, the Court found the obstruction was very serious as it amounted to an attempt to help someone get away with a serious crime which he should have been aware could possibly be murder, and certainly a serious assault. Later at paragraph 12, Justice Rice says "you made the wrong decision to cover up for a friend. You deliberately got rid of evidence for the purpose of denying justice. It is a serious offence and a young man like you needs to understand your duty not to obstruct justice." The same words could be spoken to Mr. Wehbe in the context of this case.
28In the Nordman decision, Justice Rice imposed a conditional sentence of incarceration of 18 months with the first 12 months being under house arrest. As indicated when setting out the facts of this case Mr. Wehbe was originally charged as a co-accused with Mr. Dourhnou. Mr. Dourhnou also pled guilty to Obstruct Justice contrary to s. 139(2) as well as Breach of Probation. He was sentenced on April 21, 2011 by Justice Dorval of this Court. Justice Dorval sentenced Mr. Dourhnou to a further sentence of 12 months jail followed by 3 years probation. I have been provided with a copy if Justice Dorval's decision as well as copies of Mr. Dourhnou's Pre-Sentence Report and criminal record in order to better understand the context and background to the sentence imposed.
29It is noted that the Agreed Statement of Facts provided in each case is virtually the same. Factually the involvement of each accused is the same in that both males were observed cleaning the interior of the vehicle. The vehicle was however found in the visitor's parking lot between 1140 & 1170 Fisher Avenue. The accused, Mr. Dourhnou, was residing at 1140 Fisher Avenue. Also, the key to the suspect vehicle was found in the accused Dourhnou's pants pocket on his arrest. As noted by Justice Dorval, Mr. Dourhnou had a prior youth record for Assault x2 and Breach of Undertaking for which he received a 9 month probation order.
30The PSR indicates that Mr. Dourhnou was living on his own as a result of a disagreement with his stepfather and he had failed to notify his probation officer. Mr. Dourhnou's Pre-Sentence Report highlights the difficulties he had at school and that he obtained no credits from September to December 2010. He had poor marginal school grades and his behaviour at school was described as substandard as he had been suspended 8 times for reasons that included persistent opposition to authority, physical altercations and general behavioural issues (noted as swearing and bullying). Mr. Dourhnou was also caught under the influence of drugs on two occasions while at school, the last time just prior to this offence in November 2010.
31In describing the offence, the accused Mr. Dourhnou accepted partial responsibility, admitting his intent was to wipe the car clean but that he did not know what had occurred previously. He said he was helping out a friend and that he did not think his friend would implicate him in such a serious situation. He did express remorse for his behaviour.
32Mr. Dourhnou's probation officer in the PSR states "one is left to question the efficacy of this disposition (referring to probation) as both a rehabilitation tool and a general deterrent to criminal offending as it relates to the subject."
33It is in the context of this background that Justice Dorval sentenced Mr. Dourhnou. In the Dourhnou decision, the Court primarily relies on the decisions of R v. Beam (1994) O.J. No. 1359 and R v. Al-Enzi (2011) ONSC 1029 as being the cases the most closely resembling the case before her.
34In R v. Beam, the accused entered a plea to being an accessory after the fact to murder. He assisted the accused who killed the victim to clean up the apartment and he assisted him in moving the body. Mr. Beam had a substantial criminal record for offences of assault, robbery, property offences, and his disobedience of judicial interim release. He received a jail sentence of 15 months.
35In R v. Al-Enzi, this accused pled guilty to possessing a handgun without being a licensed holder under s. 51(3) and the offence of destroying that handgun without reporting its destruction, contrary to s. 106(2) of the Code. Mr. Al-Enzi dismantled and discarded the handgun that had been used in a murder with which his brother was charged.
36In addition, there were a number of aggravating facts which were accepted by the Court following a Gardiner hearing—that he planned to obtain a forged passport for his brother, that he destroyed the gun at his brother's request and that he continued to engage in criminal acts to assist his brother after destroying the gun. He showed no remorse and said he pled guilty to protect his family from more police scrutiny which the Court found attached an anti-social purpose to the plea. The gun in question was never located. The Court found that because of the aggravating factors a conditional sentence would not be suitable. Justice Ratushny found that real jail was required for the sentence to have adequate denunciatory effect. Mr. Al-Enzi received a 12 month sentence less credit for Pre-Sentence Custody and credit for being under strict bail conditions.
37I find that both the Beam and Al-Enzi decisions are distinguishable from the case before me—involving offences of a more serious nature and involving offenders with a significant number of aggravating factors. Similarly, given the less than positive issues highlighted in Mr. Dourhnou's Pre-Sentence Report, his circumstances and prospects for rehabilitation can be distinguished from Mr. Wehbe's.
38As evident from the submissions of Crown and defence counsel, the parties have widely diverging views of what is the appropriate sentence in this case. The Crown seeks 12 months jail, followed by 3 years probation. The defence proposes a suspended sentence followed by probation. Defence indicated that in the event that the Court finds that a suspended sentence does not adequately address the principles of sentence and the seriousness of the offence—that a conditional sentence could be imposed.
39Given these submissions, at issue for the Court are 1) whether a custodial sentence should be imposed, and 2) if a custodial sentence is required. Can a conditional sentence be imposed which adequately addresses the need for deterrence and denunciation.
40As prescribed by s. 742.1 of the Criminal Code, a conditional sentence of incarceration is available if a person is convicted of an offence, other than a personal injury offence, provided there is no minimum term of imprisonment, provided that the appropriate sentence is less than 2 years and that the Court is satisfied that service of the sentence is the community would not endanger the safety of the community and that the sentence is consistent with the principles of sentence as set out in s. 718 to s. 718.2 of the Criminal Code. In this case, there is no minimum sentence, this is not a personal injury offence and the Crown agrees that a sentence of less than 2 years is appropriate. The real question is whether the seriousness of the offence and the need to impose a sentence that addresses the principles of deterrence and denunciation precludes the imposition of a conditional sentence.
41The Supreme Court of Canada decision of R v. Proulx commencing at paragraph 65 sets out that the requirement that the safety of the community would not be endangered by the offender serving the sentence in the community is a condition precedent to the imposition of a conditional sentence and not the primary condition in determining whether a conditional sentence is appropriate. The Court indicated a Judge must consider the risk posed by the specific offender, not the broader risk of whether the imposition of a conditional sentence would endanger the safety of the community by providing insufficient deterrence or undermining general respect for the law. At paragraph 68 the Court directs that danger to the community is measured by an assessment of the risk of re-offence and the extent of the harm that might result from re-offence. The decision in Proulx also stands for the proposition that a conditional sentence can incorporate the principles of denunciation and deterrence provided that punitive conditions such as house arrest are imposed. The Court also stated that denunciation of the conduct can be reflected in a conditional sentence particularly when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the length of a jail sentence that ordinarily would have been imposed.
42It should be noted that a person subject to a conditional sentence does not have the benefits of parole or statutory release. Further the accused living under a conditional sentence still carries the societal stigma of being a convicted offender who is under criminal sentence, living with prescribed conditions and supervision.
Analysis
43The aggravating fact in this case is that Mr. Wehbe attempted to obstruct justice by cleaning away blood that was potential evidence of a serious crime. There is no evidence Mr. Wehbe knew of the specific offence that had occurred but the amount of blood and circumstances were such he would have had to have known something serious had occurred. This "cleaning" occurred at 2:00 a.m. not the usual time to clean a car. Mr. Wehbe was seen bringing cleaning items from his car and to that extent there was planning and deliberation. This was not a sophisticated offence. The cleaning was done in a relatively public area of the visitors' parking area where the co-accused lived.
44Mr. Wehbe was attempting to wash away blood—the relevance of such and importance of DNA evidence would not have been unknown to Mr. Wehbe. Fortunately the DNA of the victim could still be extracted from the vehicle. I accept that as result of the cleaning, blood splatter, gunshot residue and other possible DNA evidence may have been compromised. The police however located this vehicle on December 6 at 20:18, the agreed facts state that police noted the contents of the car, the damaged sun roof and located documents inside the vehicle linking it to possible suspects. Police kept the vehicle under surveillance and at 2:25 watched the accused persons approach and start cleaning. Police watched the cleaning exercise for 15 minutes before arresting the accused. Given that police had the vehicle under surveillance, it is unclear why efforts were not made to preserve the forensic evidence prior to 2:25 and why they waited and watched attempts to clean the vehicle for 15 minutes prior to arresting the accused.
45There are a number of mitigating factors to consider:
The accused is a youthful first offender; now 20 years of age.
He served 36 days PSC prior to being released on strict bail conditions.
He entered a plea to one count of Attempted Obstruct Justice—there is no evidence he knew of what had occurred in the car he was cleaning.
In his attempted obstruction of justice there is no violence or threats of same, there is no breaches of a position of trust—the accused was not the one who committed the underlying crime. This is not an obstruct where the accused was trying to tamper with witnesses or the court process.
The accused had a very positive Pre-Sentence Report and is identified as having a low risk to re-offend provided he continues in school and stays away from negative peer influence.
He is currently enrolled in full-time attendance at Algonquin College in Business Administration.
The accused has positive family and community support as shown in the PSR and by the letters filed on his behalf.
The accused does not have addiction or mental health issues.
The accused expressed appropriate remorse and appears to appreciate the seriousness and wrongness of his actions.
The accused has a good work record. He continues to work part-time while in school.
The accused was released on strict conditions akin to house arrest albeit with numerous exceptions—there is no evidence the accused has ever breached those conditions. He continues to have the support of his sureties as indicated in the letters before the court.
46Having taken into count all of the aggravating as well as mitigating factors and bearing in mind the nature of the underlying offence sought to be obstructed, I acknowledge any sentence imposed must seek to denounce the conduct and deter others. But as indicated by the decision in R v. Priest (1996) 110 C.C.C. (3d) 275 for a youthful first offender rehabilitation must also be a considering.
47In this case I find that a jail sentence is required. However I find that society would not be endangered if this accused were allowed to serve his sentence in the community, given the background of this offender as already set out.
48As noted appellant courts have determined that a conditional sentence can be longer than that which would be served in custody and that a conditional sentence must contain strict conditions including house arrest to properly deter and denounce the prohibited conduct.
49As such I find an appropriate sentence is one of 18 months jail to be served in the community on strict terms and conditions. This is in addition to the 36 days PSC which I consider on a 1 to 1 basis. Given the exceptions to house arrest, I will not give specific credit for being under strict bail. But I have considered it in looking at the circumstances of this case and in considering your ability to abide by conditions. This conditional sentence will be followed by 2 years probation so in essence you will be under some form of community supervision by correctional authorities for the next 3 ½ years.
50I am also granting the Crown's request for a s. 110 weapons prohibition for 5 years and ordering that a sample of your blood be taken for the DNA databank given the facts of this case.
Released: September 7, 2012
The Honourable Justice Heather Perkins-McVey
