Court File and Parties

COURT FILE NO.: CR-19-10000559-0000 DATE: 2020-02-14 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ANTONIO SAMPOGNA

Counsel: Jay Spare, for the Crown Amedeo Dicarlo, for Mr. Sampogna

HEARD: January 3, 2019

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT ON SENTENCING

1. Overview

[1] Mr. Sampogna was charged with multiple counts involving the possession and trafficking of firearms. A judge-alone trial commenced before me. At the end of the Crown’s case the defence elected not to call evidence. Crown and defence counsel jointly invited me to convict Mr. Sampogna of the following offences:

• Count 1: Transfer of a non-restricted firearm: a TNW ASR 9mm Luger semi-automatic rifle, contrary to s. 99(2) of the Criminal Code.
• Count 3: Possession of a restricted weapon together with readily accessible ammunition: a Browning 9mm pistol, contrary to s. 95(1) of the Criminal Code.
• Count 5: Possession of a restricted firearm without a certificate: a Smith & Wesson 44-40 revolver, contrary to s. 92(1) of the Criminal Code.
• Count 6: Possession of a restricted weapon together with readily accessible ammunition: a Ruger .22 pistol, contrary to s. 95(1) of the Criminal Code.
• Count 8: Possession of a prohibited weapon together with readily accessible ammunition: a sawed-off Cooey .22 rifle, contrary to s. 95(1) of the Criminal Code.
• Count 10: Possession of a prohibited firearm without a certificate: a Beretta 6.35mm pistol, contrary to s. 92(1) of the Criminal Code.

2. The Facts

(a) Circumstances of the offence

[2] In 2017 the police were investigating Daniel Lazaraus-Munnick. The police were investigating Lazarus-Munnick for drug trafficking. An undercover police officer had purchased cocaine from Lazarus-Munnick several times. Lazarus-Munnick worked at an HVAC parts supply distributor. Mr. Sampogna was in the HVAC business. That was apparently their connection. On September 1, 2017 Mr. Sampogna sold a firearm to Mr. Lazarus-Munnick. The firearm was a TNW ASR 9mm Luger semi-automatic rifle. Mr. Sampogna also transferred 50 rounds of 9mm ammunition. The firearm was a non-restricted firearm. Mr. Sampogna wore gloves when he handled the box with the firearm. Lazarus-Munnick immediately sold the firearm and ammunition to an undercover police officer.

[3] Several months later, the police executed a search warrant at 10 Fleetwood Avenue. That was Mr. Sampogna’s residence. Mr. Sampogna had firearms registration certificates for three firearms. The police seized several firearms for which he did not have a valid registration certificate. Those firearms included the firearms I have already mentioned that are the subject matter of Counts 3, 5, 6, 8, and 10.

(b) Circumstances of the offender

[4] Mr. Sampogna is 57 years old. He does not have a criminal record. He was raised in a loving home with supportive parents. He enjoys hunting and holds a valid registration certificate for three weapons. He left school at the end of Grade 10 and has worked steadily ever since. He runs his own HVAC business.

(c) Impact on the victim and the community

[5] So much has been said about the prevalence of firearms in our community that it almost seems redundant to say it again. Nonetheless, I will say it again. People must be reminded that illegal firearms are a plague. They kill people. They facilitate crime, such as robbery, drug trafficking, and human trafficking. They are a danger in and of themselves. The possession of these illegal weapons and their trafficking must be denounced in the strongest terms. In this community the havoc wrought by illegal firearms is well known. One needs to only pay the briefest attention to the news to see the impact on our city.

3. Positions of the Crown and Defense and Case Law

[6] Crown counsel, Mr. Spare, suggested that a sentence in the range of 6-7 years is appropriate. In support of his position he relies on several cases. I will mention just a few of them.

[7] In R. v. Smickle, 2014 ONCA 49, the Court of Appeal noted that a penitentiary sentence is the norm even for a first offender for an offence contrary to s. 95(1). The offender had posed with a handgun and posted it to social media. Although the Court did not reincarcerate the offender, it found that a five month conditional sentence was manifestly unfit.

[8] In R. v. Hussain, 2015 ONSC 7115 the offender committed weapons trafficking and possession offences while on bail for other robbery and firearms offences. He was young but had a significant criminal record. My colleague Edwards J. found that the mandatory minimum was unconstitutional but nonetheless noted that a significant penitentiary sentence is still the norm. He imposed a three year sentence for the firearms trafficking offence.

[9] At the high end of criminal behaviour is R. v. Farah, 2016 ONSC 5000. In that case the offender was convicted of weapons trafficking for the benefit of a criminal organization, and possession offences. He had a lengthy record and was on firearms prohibitions. My colleague Campbell J. sentenced him to 12 years incarceration, less credit for pre-trial custody. In doing so, Campbell J. said this:

If the unlawful possession of firearms is a serious offence that calls for the imposition of a penitentiary sentence that stresses denunciation and deterrence in order to properly protect the public, the same can only be said of the offence of conspiracy to traffick in firearms. Offenders who traffick in firearms or conspire to traffic in firearms are individuals who are engaged in the business of obtaining and selling illegal firearms to potential buyers who wish to unlawfully possess them. Individuals would not be able to so conveniently possess such inherently dangerous illegal firearms, if they were not provided by those who traffick in them. Indeed, it is arguable that the offence of conspiracy to traffick in firearms (even without the commission of the substantive offence) is an offence of greater seriousness than the offence of unlawfully possessing such a firearm.

[10] Mr. DiCarlo, for Mr. Sampogna, argues that a conditional sentence in the range of 3-6 months is appropriate, perhaps with probation for 3 years for all offences. He argues that jail will do nothing for Mr. Sampogna and will teach no lessons. Given that the mandatory minimums have been struck down for both possession and trafficking in firearms, there is no reason not to impose a conditional sentence.

[11] The mandatory minimum is no longer applicable in firearms possession cases contrary to s. 95(1) of the Criminal Code: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773. Judges of this Court have found that the mandatory minimum in firearms trafficking cases is not constitutional: see, for example, R. v. Bruce, 2019 ONSC 5865. In my view, those cases are not obviously wrong. I see no reason to depart from them: R. v. Scarlett, 2013 ONSC 562.

[12] I agree that I am not bound to impose the mandatory minimum. I find, however, that a conditional sentence is simply inappropriate in this case. The previous ranges have not been changed. Indeed, I quote extensively from my colleague Molloy J. in R. v. Hanse, 2019 ONSC 1640. I adopt her comments at paras. 26-28:

I note as well that the principle of giving paramount importance to denunciation and deterrence in sentencing for firearms offences has been reaffirmed in many cases since the Supreme Court's decision in Nur. Indeed, while finding the mandatory minimum sentence to be unconstitutional, the Supreme Court in Nur did not minimize the seriousness of firearms offences and the need for exemplary sentences in appropriate cases. In the very first sentence of her judgment, McLachlin C.J. stated, "Gun-related crime poses grave danger to Canadians." After providing an overview of the basis for finding the mandatory minimum to be unconstitutional, the Chief Justice added:

This does not prevent judges from imposing exemplary sentences that emphasize deterrence and denunciation in appropriate circumstances. Nur and Charles fall into this category. Like the Court of Appeal, I would uphold the sentences imposed by the trial judges in their cases.

Finally, I note that the importance of denunciation and deterrence can flow from particular problems being experienced in a particular community. For well over a decade, Toronto judges have emphasized the plague represented by firearms in our city and the profound consequences these weapons have on the safety of our community. Here are some examples:

Moldaver J. (in dissent in Nur): Gun crime is a matter of grave and growing public concern. Successive Parliaments have responded by enacting laws designed to denounce and deter such crime. The mandatory minimums in s. 95(2) were part of a suite of legislative changes put forward as "a direct response to the scourge of handgun crime that plagues our country": House of Commons, Standing Committee on Justice and Human Rights, Evidence, No. 30, 1st Sess., 39th Parl., November 7, 2006, at p. 1. The parliamentary committee studying those changes heard compelling testimony from law enforcement about the devastating impact of gun violence across Canada. Toronto Police Chief William Blair noted a "significant increase in the number of shooting[s]" in Toronto and a rise in gun-related homicides in excess of 85 percent from 2004 to 2005: ibid., No. 34, November 23, 2006, at p. 1. Due to the surge in shootings and gun deaths, 2005 was dubbed by local media as "the year of the gun" (ibid.).

O 'Connor A.C.J.O., Simmons and Blair JJ.A.: Handguns are an all too prevalent menace in the Greater Toronto Area. First and foremost, the sentences imposed for firearms offences must further the sentencing goals of denunciation, deterrence and protection of the public.

R. P. Armstrong J.A.: There is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms. The possession and use of illegal handguns in the Greater Toronto Area is a cause for major concern in the community and must be addressed.

D. E. Harris J.: The proliferation of handguns in the Greater Toronto Area has been decried by the courts and the public for many years. It is a pressing and urgent matter of public safety. Ten years ago, the serious concern of growing gun violence was said by the Court of Appeal to be a necessary consideration upon sentencing . . . .It is even more so now what with the record murder numbers in Toronto and the continuing increase of gun crimes and violence . . .

K. L. Campbell J.: Courts have repeatedly observed that the criminal possession of loaded handguns remains an all too prevalent threat to the people of Toronto, and to others living in the Greater Toronto Area. Such firearms are frequently employed in connection with other kinds of serious criminal activity, such as drug-trafficking, and their possession and use, on occasion, tragically results in serious bodily harm or death. The unlawful possession of firearms remains a menace to society. To combat this serious social problem, these offences must be met with exemplary custodial sentences that proportionally reflect the sheer gravity of the crime, and which appropriately stress the need to denounce and deter such crimes. In the absence of such sentences, these offences and their disastrous consequences will only continue unabated. The public must be adequately protected. This can only be accomplished by sentences that ensure that potential offenders know that their illegal possession of loaded handguns will almost invariably be accompanied by serious penal consequences . . .

S. A. Q. Akhtar J.: Gun crime has become a cancer in Toronto. Despite several years of case law condemning the offence, the possession of firearms remains a blight on the city and its residents. Guns are made and used to maim, threaten and kill. Their impact goes well beyond the victims of such crime: spouses, romantic partners, parents and children suffer the trauma of a loved one lost to the mindless violence wrought by the use of firearms. Witnesses to gun violence may suffer traumatic effects that linger for their lifetime. Courts have sought to send an unambiguous message to those involved in gun crime that convictions will inevitably bear severe consequences . . .

J. McMahon J.: Sadly, concealed illegal firearms remains a plague in this city. It is not an exaggeration to say that this Court sees on a weekly basis illegal firearms, often leading to intimidation, robbery, serious injury and death. The message of this Court must be clear: if you are going to carry an illegal firearm on the streets of this city, in all likelihood you are going to jail.

I adopt, in particular, the observations of Trafford J. in R. v. Villella as to the exceptionally serious nature of trafficking in firearms, as follows:

. . . [T]he importation, distribution and possession of firearms are exceptionally serious crimes. There is no social utility in crimes of this nature. Seldom, if ever, is there any reasonable suggestion of good faith or justification to any such crimes. They lead to the use of firearms, causing death or grievous bodily harm, often to innocent people. The possession of firearms by some people is in furtherance of an intention to use them. Others possess them in contemplation of engaging in conduct, such as trafficking in narcotics, where the use of the firearm is possible, or likely. Still others may carry a handgun, loaded and operable, as a badge of power, or achievement, amongst peers, misguided though they are by the conventional norms of our society. The possession of a handgun may lead to a random, or intentional, act of violence, including the death of innocent bystanders in the area of any confrontation. Unforeseen, and provocative, circumstances can lead to a senseless act of violence, and consequential grievous bodily harm or death, and all of the emotional devastation that goes with it. The importation, distribution and possession of firearms lie at the foundation of all crimes involving the use of firearms. As such, they are properly characterized as exceptionally serious crimes.

[13] Mr. DeCarlo relied on R. v. Harriott, 2017 ONSC 3393. In that case a jury convicted the accused of trafficking in a handgun and trafficking in cocaine. The convictions were based on offers to traffic. No handgun or drugs actually changed hands. The accused put forward a defence of duress. The jury rejected that defence. Nonetheless, Skarica J. found that:

… the accused made a hollow offer to sell a handgun without any intent to in fact sell one. The officer initiated the discussion and pressured the accused to make the offer to sell a handgun. No handgun was ever produced and I am satisfied on the evidence that the accused had no access to a handgun and no means to obtain one. The accused at the time was under the control of a dangerous and violent drug trafficker.

[14] Skarica J. ultimately sentenced the accused to a conditional sentence in light of pre-sentence custody and credit for house arrest. He fashioned the sentence so that Mr. Harriott would suffer no adverse immigration consequences.

[15] In my respectful view, that case is entirely distinguishable from this one.

[16] In R. v Sauve, 2018 ONSC 7375 the offender was a youthful first offender who played what appeared to be a minor role in the transfer of a firearm. Lacelle J. of this Court imposed a 9 month conditional sentence given the mitigating factors.

[17] In my view, Sauve must be seen as a case lying outside the range because of exceptional circumstances.

[18] I find that a conditional sentence is simply not appropriate for this offence. It is only where a sentence falls below two years that a court will consider whether the offender poses a danger to the public: R. v. Proulx, 2000 SCC 5; [2000] 1 S.C.R. 61.

[19] A sentence of less than two years would be completely inadequate for these offences.

[20] Moreover, there is no delicate way to put this so I will put it directly: if this court imposes a conditional sentence on Mr. Sampogna it will send a message – the wrong message. This court and the Court of Appeal have routinely pointed out that the most important principle in firearms cases is general deterrence. All to often, it is, unfortunately, young men of colour who face charges related to the illegal possession and use of firearms. These are frequently young men from marginalized backgrounds who have faced significant obstacles in their lives. That does not in any way describe Mr. Sampogna. Mr. Sampogna is a small business owner who was raised in an intact family. He owns his own home. He is not a young man of colour. It is true that sentencing is an individualized process. Imposing a conditional sentence in this case will send a message that there are harsher periods of incarceration for young men of colour than for people in Mr. Sampogna’s position. That is simply unacceptable.

4. Mitigating and Aggravating Factors

[21] The most important aggravating factor in this case is the trafficking of a firearm. The firearm was not a handgun, but it was a semi-automatic carbine-like weapon, highly suitable for use in robberies, drug trafficking, and other criminal activity. The firearm was sold to Lazarus-Munnick, who in turn sold it to an undercover officer. The possession of other illegal firearms, including handguns and a sawed-off rifle, is also highly aggravating.

[22] There is no evidence that Mr. Sampogna used any of these illegal firearms for a criminal purpose, or that he even had a criminal purpose (such as extortion or robbery, or the protection of illegal drugs) in keeping the unregistered firearms. There is no evidence that he regularly took these firearms into a public place. That is not a mitigating factor. It is simply a factor that is not nearly as aggravating as it could be.

[23] Mr. Sampogna cannot receive the mitigating benefit of a guilty plea. It is true that he did not prolong the trial. He did invite this Court to convict at the close of the Crown’s case. I do not criticise Mr. Sampogna: he had every right to a trial. Moreover, his counsel made a thoroughly proper concession. I do not doubt that Mr. Sampogna is remorseful. That said, the public at that point had already expended significant resources in the prosecution as the change of heart came at the close of the Crown’s case.

[24] I find it aggravating that Mr. Sampogna is the holder of permits for lawful weapons. He is a person who is plainly a gun enthusiast. He enjoys hunting and other lawful sports. It is aggravating because he plainly knows better. In order to obtain a firearms licence a firearms owner is required to take a gun safety course. Moreover, Mr. Sampogna wore gloves when he transferred the box containing the firearm to Lazarus-Munnick. That showed that he understood the significance of fingerprints. It also showed that he clearly understood the illegal nature of that act. In other words, Mr. Sampogna should have known better.

[25] There are important mitigating factors in this case. Mr. Sampogna is a first offender. He has never had any trouble with the law until now. He has led a pro-social life to this point. All of his relatives and family indicated that he is a person of good character. He cares for his family and has cared for others. These offences appear to be totally out of character.

5. Principles of Sentencing

[26] As courts have consistently noted, the principles of general and specific deterrence must play the prominent roles in sentencing firearms offenders. The principle of rehabilitation, while not unimportant, must play a lesser role.

6. Ancillary Orders

[27] Mr. Sampogna will be subject to a s. 109 weapons prohibition order for ten years. This order is mandatory. He will forfeit all of the illegal firearms and ammunition seized by the police. I decline to order a DNA order. There is no reason to think that a law enforcement purpose would be served by a DNA order in this case. These are secondary designated offences. Something more than a conviction in this particular weapons case by a first offender would be required.

7. Sentence To Be Imposed

[28] Mr. Sampogna is something of a mystery, frankly. He is 57 years old and has never been in trouble. He sold a firearm when he owned business that clearly provided for his needs in life. It is difficult to conceive that he needed the money. He has led an entirely pro-social life, having never been in trouble with the law. He has worked consistently, operated his own lawful business, and been an integral part of his family. He clearly has an affinity for guns, which is not a crime. There is no evidence that he has used his guns for anything other than lawful, regulated pursuits, such as hunting and target shooting. I wish I could be reasonably certain that Mr. Sampogna’s possession of other illegal firearms would have not come to the attention of the authorities if it were not for the one act of trafficking. Unfortunately, his one act of trafficking does not give me confidence that is the case. I obviously cannot impose a sentence for something he might have done in the future, but neither can I ignore his possession of illegal firearms in his home. At the end of the day, I do not need to resolve the question of Mr. Sampogna’s reasons for committing this crime, but it is puzzling.

[29] I have read the pre-sentence report and examined the letters in support of Mr. Sampogna. I am satisfied that Mr. Sampogna is genuinely remorseful and takes responsibility for his actions. I am also satisfied that specific deterrence is not required to the same degree that it might be in others, and that Mr. Sampogna’s distance from incarceration to rehabilitation is a comparatively short one. That is all to the good, but firearms trafficking and possession of illegal firearms requires an exemplary sentence even for the most positive offender. A penitentiary sentence for a single offence involving the most sympathetic offender is usually required.

[30] In my view, the appropriate ranges of sentence for trafficking in a single firearm where it is not a mere regulatory infraction is three to five years, depending on the offender and the firearm. For an offence contrary to s. 95(1) (possession of a restricted or prohibited firearm with readily accessible ammunition) the range commences at two years in the penitentiary. Mr. Sampogna has been found guilty of three s. 95(1) offences. One of those weapons possessed in this case, a sawed-off rifle, is particularly dangerous and would normally attract a sentence at the higher end of the range. For an offence contrary to s. 92(1) (possession of a firearm without a licence) the range is lower. Mr. Sampogna has been convicted of two of those offences.

[31] In my respectful view, the global range of sentence of 6-7 years for all of the convictions as suggested by the Crown is certainly within the range.

[32] When I weigh the principles of general and specific deterrence, the principle of rehabilitation, examine cases of similar offenders for similar offences, and apply the totality principle I find that 5 years in the penitentiary is the appropriate sentence. I say this because I think a total of 6-7 years is too high for this particular offender: see Farah at para. 32. On the other hand, anything less than a global sentence in the range of 5 years will fail to address the principle of general deterrence.

[33] Mr. Sampogna spent 13 days in custody. At the enhanced rate of 1.5:1 that means he will receive credit for 20 days. I will also credit him with a further one month and ten days for the 7 months that he spent on house arrest. That will give him credit for two months.

[34] Mr. Sampogna will receive a global sentence of five years. The sentence will be imposed as follows:

• Count 1: Five years, with credit for two months, meaning Mr. Sampogna will serve a further four years and 10 months;
• Count 3: Two years, concurrent to count 1;
• Count 5: 18 months, concurrent to count 1;
• Count 6: Two years, concurrent to count 1;
• Count 8: Three years, concurrent to count 1; and,
• Count 10: 18 months, concurrent to count 1.

[35] In addition, Mr. Sampogna will be subject to a firearms prohibition for 10 years, pursuant to s. 109 of the Criminal Code.

R.F. Goldstein J. Released: February 14, 2020