Court of Appeal for Ontario

Date: 2017-09-06 Docket: C62860

Judges: Watt, Huscroft and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Abdulkadir Mohammed Appellant

Counsel

Kristin Bailey, for the appellant Andrew Cappell, for the respondent

Heard and released orally: August 30, 2017

Appeal Information

On appeal from the sentence imposed on June 30, 2016 by Justice Robert J. Nightingale of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant pleaded guilty to counts of possession of a prohibited firearm together with readily accessible ammunition, dangerous operation of a motor vehicle, flight from police and possession of marijuana under three kilograms for the purpose of trafficking.

[2] The trial judge imposed a global sentence of 5.5 years (66 months) less credit of 25 months for time spent in predisposition custody, leaving a net sentence of 41 months in a federal penitentiary.

[3] In this court, the appellant contends that the trial judge made two errors in principle. He says that the trial judge:

i. failed to apply the principle of restraint when imposing a first sentence of imprisonment upon him; and

ii. imposed a sentence that was outside the range of sentence imposed on similar offenders for similar offences committed in similar circumstances.

[4] We do not give effect to either ground of appeal advanced on the appellant's behalf.

[5] We begin from a stance of deference. Absent an error in principle; a failure to consider a relevant factor; consideration of an irrelevant factor; or an over or underemphasis on relevant factors, we are disentitled to interfere unless the sentence is demonstrably unfit.

[6] These were very serious offences. Denunciation and deterrence assume places of prominence in determining a fit sentence for crimes involving firearms, especially loaded semi-automatic firearms in the possession of drug traffickers. It is all the more so when the gun is tossed onto the street near a McDonald's restaurant, where young persons might reasonably be expected to attend. The appellant's driving over an extended distance, engaging police in a high-speed pursuit through municipal streets and controlled-access highways, put individual and public safety at substantial risk.

[7] The trial judge did not lose sight of several mitigating factors. The relative youth of the appellant. His guilty plea, albeit after a preliminary inquiry. His efforts at self-improvement. His family's support and reasonable rehabilitative prospects. And the fact that this would be his first jail sentence.

[8] In our view, the trial judge imposed a fit sentence, mindful of the governing sentencing objectives and principles including proportionality and totality. We would not interfere. Leave to appeal sentence is granted, but the appeal from sentence is dismissed.

"David Watt J.A."

"Grant Huscroft J.A."

"G.T. Trotter J.A."