R. v. Brumble
Court File No.: Toronto
Date: 2013-06-04
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— AND —
Devon Brumble
Court Information
Before: Justice Fergus O'Donnell
Heard on: 4 April and 15 May, 2013
Reasons for sentence delivered on: 4 June, 2013
Counsel
For the Crown: M. Sokolski
For the defendant, Devon Brumble: J. Rabinovitch
O'Donnell, J.:
Overview
[1] It has long been said that beauty lies in the eye of the beholder. Thus, one person's "pretty girl" may be an object of scorn to another person. Devon Brumble wanted a pretty girl and, as is sometimes the case, he got most of what he wanted, however briefly, and a whole pile of trouble besides. The "pretty girl" he got is an object of scorn because she has been responsible for immeasurable and pointless suffering for many, many years.
[2] In early August, 2012 a friend of Mr. Brumble's offered, in a series of text messages, to hook Mr. Brumble up with a pretty girl with a long nose and six teeth for $1,800. She was a bit old for him, 38, but his friend said she rotated around men. It was the beginning of Mr. Brumble's misfortune that his private communications were the object of police interception and it didn't improve things that his code, like most codes used by gun and drug dealers, was rather transparent. The long-nosed girl with dental challenges was easily recognizable to the police as a deal for Mr. Brumble's friend, Abadir Jimale to sell Mr. Brumble a .38 calibre revolver with six rounds of ammunition. Thus, it was not by sheer coincidence that Mr. Brumble found himself admiring his new girlfriend in the front seat of a van minutes after meeting her only to have the police crash the date and instantaneously place him in custody, where he has remained ever since.
[3] While Mr. Brumble's luck was not optimal that week in August, he did get somewhat lucky, ironically because his friend, Mr. Jimale, shorted him on the deal. There is apparently no honour among gun dealers: the supposedly pretty, toothy girl that Mr. Brumble paid $1,800 for was entirely toothless, meaning that Mr. Brumble did not get the bullets he thought would come with the revolver. I suspect Mr. Brumble might have been a bit peeved upon discovering that fact that evening, but under the sentencing provisions of the Criminal Code the absence of those bullets works significantly to Mr. Brumble's benefit. If Mr. Brumble had been found in possession of the gun, either loaded or with ammunition for it nearby, the minimum sentence would be a penitentiary sentence of three years. And Mr. Brumble's record is not such that he would be the best candidate for a minimum sentence.
[4] By that stroke of fate, Mr. Brumble is thus not subject to a mandatory minimum sentence for this charge. The Crown and defence disagree on two principal issues with respect to the appropriate sentence for Mr. Brumble's offence: First, Mr. Sokolski for the Crown suggests that the appropriate sentence is two years while the defence says that 12-18 months is more suitable. Second, the Crown says that Mr. Brumble should get only 1:1 credit for his pre-sentence custody under the "Truth in Sentencing Act"; Mr. Rabinovitch argues on Mr. Brumble's behalf that he should get enhanced credit at 1 ½: 1. The difference between the parties is significant because Mr. Brumble has just under ten months of pre-sentence custody. By Mr. Rabinovitch's most generous interpretation, Mr. Brumble has already served the custodial portion of his sentence. In Mr. Sokolski's view he still has about fourteen months to serve.
[5] Each of the parties provided me with sentencing authorities in support of their positions. I do not propose to review all of those cases in detail. I do not mean to be uncharitable to counsel when I say that the authorities provided were not particularly helpful. Obviously, every case relied upon in argument will differ to some extent from the case before the court. However, the challenges here are not of the usual nature, such as whether a case was a trial or a guilty plea and whether the defendant had a better or worse record than the defendant before the court. There was a more fundamental problem insofar as both counsel said that there is a remarkable paucity of sentencing authority for possession of restricted firearms without ammunition. Some of the authorities presented by the Crown, therefore, related to offences for which there is a mandatory minimum sentence and Mr. Brumble's offence is not one of those. One of the defence cases, for example, related to the unplanned misuse of a long-gun by a defendant of sterling character who was described as the kind of son any parent would kill to have.
[6] The Crown submits that its position of two years less pre-sentence custody is a very generous position and that if it were not for factors relating to the underlying investigation that brought the gun purchase to light a sentence of over four years would likely be appropriate. In support of this position, the Crown relies heavily on a decision of Justice Bellamy in R. v. Mohamed, [2008] O.J. No. 5492. Mr. Mohamed and Mr. Ngo were convicted by a jury after trial of unauthorized possession of three unloaded firearms, which they possessed in a motor vehicle. I shall focus exclusively on the sentence imposed on Mr. Ngo because Mr. Mohamed's record puts him in an entirely different category of offender than either Mr. Ngo or Mr. Brumble. Justice Bellamy specifically found that Mr. Ngo and Mr. Mohamed were working in some capacity with a Mr. Hau, who was found in their company in possession of three grams of marihuana, $5,500 in cash and a loaded pistol with nine rounds including one in the chamber ready to fire. Mr. Hau's possession of these items got all of them arrested and a search of their car uncovered the three unloaded hand-guns (a .45 calibre revolver and two 9 mm pistols) for which Mr. Ngo and Mr. Mohamed were arrested. At trial, Mr. Ngo testified and denied any knowledge of the guns in the car, which was his mother's. He was clearly not believed.
[7] The Crown in that case sought a five-year sentence for Mr. Ngo, a 22 year-old first offender, who was employed and had two children. He had been 20 years old at the time of the offences. Justice Bellamy noted that the aggravating factors included the fact that there were three hand-guns and the fact that he was smoking a joint while in possession of the three guns.[1] She commented that an appropriate sentence for Mr. Ngo would be between three and four years, but decided to "take a chance" on him and sentenced him to two years, declining to order any probationary period in addition to the jail sentence.
[8] The decisions in R. v. Lawson, 2012 ONSC 1305, [2012] O.J. No. 2211 and R. v. Harutynyan, 2012 ONSC 58, [2012] O.J. No. 177, to which the Crown also referred are not of tremendous assistance to me other than for the self-evident proposition that gun offences should be taken seriously. In characterizing them as unhelpful, I mean no disrespect; their unhelpfulness stems from the fact that they are cases in which a mandatory minimum three year sentence was triggered, which is not a trivial distinction from the present case, for which Parliament has chosen not to impose a mandatory minimum sentence.
[9] I have referred to those decisions as not particularly helpful, but the Lawson decision does serve as an interesting counterpoint to the present case. In argument, the Crown said that but for factors relating to the underlying investigation, Mr. Brumble's offence would merit a sentence of four years or more. When I pointed out to him that a sentence of four years or more on a guilty plea would mean that Mr. Brumble's conduct would have merited a six or seven year sentence after trial, for a nineteen year-old convicted of possession of an unloaded hand-gun, Mr. Sokolski stood by his position. I do not think that that contention is supportable on its own merits, but when I juxtapose it with the fact that Mr. Lawson, convicted of a three-year minimum offence and with two previous upper-reformatory convictions on his record, was sentenced to 44 months on a plea after a failed Charter argument, I do think that the Lawson decision tends to undermine rather than reinforce the supposed generosity of the Crown's sentencing position.
[10] I have already commented on the limited relevance of the decision in R. v. McKinnon, [2011] O.J. No. 2433, relied upon by the defence. The facts of that case and the antecedents of that offender are as different from the present case as chalk is from cheese. Likewise, the decision in R. v. Vasic, [2009] O.J. No. 1968 gives short shrift to the issue of appropriate sentence for the weapons offence and focuses almost entirely on the child pornography sentence range and thus is also of no real assistance.
[11] Although its facts, like the cases referred to me by the Crown and defence, diverge significantly from the present case, I have found another decision, the decision of Justice MacDonnell in R. v. Sousa, 2011 ONSC 6463, to be of assistance in putting the present case in its proper sentencing context. Sousa was convicted after trial of seven offences including pointing a firearm and assault with a firearm (used as a cudgel rather than for its designed purpose). He confronted two men on a city street, unprovoked, struck one of them with the pistol and pointed it at them as he fled the scene. The gun was not loaded and he did not have ammunition for it.
[12] Mr. Sousa was in some ways similar to Mr. Brumble. He was nineteen years old at the time of the offences; twenty-one at the time of sentence. He had "an unfortunate and difficult upbringing". While Mr. Brumble moved from area to area and school to school as his mother moved from one partner to another, Mr. Sousa spent most of his formative years "in foster homes, group homes or secure custody facilities". Mr. Sousa had a significant record.
[13] The sentence imposed on Mr. Sousa after a thorough review of the relevant authorities was the equivalent of thirty-four months before applying credit for pre-sentence custody. It is worth noting that Sousa was a sentencing after a three-day trial, compared to a guilty plea in Mr. Brumble's case. If one were to apply the generally-applicable range of sentence reduction of about one-third for a guilty plea, the sentence in Mr. Sousa's case would come in around the two year mark. It also bears noting that Mr. Brumble did not point his newly acquired handgun at anyone and that he did not use it to strike anyone in the face, knocking him to the ground.
[14] I have spent some considerable time talking about people other than Mr. Brumble. He turned twenty a few months ago. He was nineteen at the time of this offence. By my count he has about nineteen convictions, the most recent in October, 2011, about ten months before this offence. Most of his convictions are as a young offender. About half of his convictions are for failure to comply. His crimes of violence consist of an assault in 2008, when he would have been around fifteen years old and an assault police in 2011. He was also convicted of trafficking under the Controlled Drugs and Substances Act in 2008. He has two convictions for possession of a controlled substance. His longest custodial periods, either serving sentence or in pre-sentence custody, appear to be two periods of about two months each in 2010 and 2011.
[15] The pre-sentence report reflects an unfortunate upbringing. Mr. Brumble was his mother's first child and she proceeded, through a series of partners, to provide him with a series of half-siblings and almost annual moves of residence for the first thirteen years of his life. These moves often related to his mother following a new partner and involved a change of school. His own father's involvement in his life has been sporadic. He has completed grade eight and four grade nine credits, two of those in custody. School and employment have been interrupted by disinterest and or/ incarceration.
[16] Mr. Brumble's probation officer describes him as courteous and respectful towards her, but says he has problems with self-management and anger management, the former being reflected in his failure to complete community service hours on a previous probation order among other things. She suggests that he may have greater insight into his behaviour as a result of the present charges, which have resulted in by far the longest time he has spent in custody.
[17] Mr. Rabinovitch tells me that Mr. Brumble was unable to make bail because his father has no interest in him and his mother has her own criminal charges to deal with.
Sentencing Principles and Analysis
[18] The Criminal Code sets out the objectives and principles of sentencing. I do not propose to repeat them here. Those objectives and principles are not always consistent with one another. Indeed, they often conflict and the challenge lies in identifying which principles must be given the most emphasis without neutering the other principles. It goes without saying that the unlawful possession of a handgun, loaded or not, is a serious matter. General deterrence is a very real priority in such offences. In light of Mr. Brumble's previous record for less serious offences, specific deterrence is also a concern. However, every sentence, especially one relating to a person of Mr. Brumble's age, must give serious consideration to the needs of rehabilitation.
Aggravating Factors
[19] There is a number of factors that demonstrate the seriousness of Mr. Brumble's offence:
(a) This was a handgun; handguns are easily concealed and easily lethal. Canadian society has made conscious choices about the acceptability of public ownership of such weapons.
(b) While there were no bullets in or with the gun, it is clear that Mr. Brumble wanted to acquire bullets with the gun. That unfulfilled desire releases Mr. Brumble from the grips of the mandatory minimum sentence but Mr. Jimale's serendipitous failure to provide what he promised does not erase Mr. Brumble's attempt to put himself in possession of a loaded .38 calibre revolver.
(c) While he did not plead to this count, Mr. Brumble possessed the .38 revolver in violation of a prohibition order, which is an aggravating factor on sentence. Mr. Rabinovitch puts that prohibition in some context by pointing out that the weapon involved in the conviction that led to the prohibition was a hairbrush, but a prohibition is a prohibition.
(d) The offence was part of a pattern of criminal behaviour from 2008 to 2011.
(e) The offence was not spontaneous. We do not know what precise reason Mr. Brumble wanted the gun for, but no reason is acceptable. It was important enough for him to pay $1,800 for it, a sum of money he somehow had access to despite being unable to pay an outstanding traffic fine.
Mitigating Factors
[20] There is a number of factors that should be taken into account in mitigation of sentence:
(a) First of all, Mr. Brumble has pleaded guilty. The plea did not come early after his arrest, but the reality is that the Crown, for perfectly valid reasons, was not able to make proper disclosure for a long time after arrest. Once it was open to the Crown to disclose the existence of the wiretaps and their content, Mr. Brumble's plea was promptly entered. The entry of a plea is a significant factor on sentence. This was, in context, an early plea.
(b) Mr. Brumble's upbringing, while not as challenging as Mr. Sousa's, was far from ideal. It is fair to say, as the Crown does, that Mr. Brumble lacks focus and lacks the willingness to stay on task, and it is fair to say that as an adult he cannot blame his behaviour on the shortcomings of his upbringing, but that does not mean that his parents' absence and lack of guidance and failure to provide stability are irrelevant to his degree of culpability. To put a more sinister spin on the originally idyllic words of William Wordsworth, "the child is the father of the man".
(c) While not strictly speaking mitigation, I must keep in mind that Mr. Brumble has pleaded to an offence for which there is no mandatory minimum.
(d) Whatever Mr. Brumble's intention may have been in relation to the possible uses of the gun and allowing for the fact that he had no such opportunity, the reality is that, unlike, for example Mr. Sousa, he did not use or point the weapon. He is only to be sentenced for what he has done, not for what he might have done if he had not been arrested.
(e) Mr. Brumble is a youthful offender, even if far from a first offender. While I must give due effect to the principles of deterrence and denunciation for offences like this, I must not throw the baby out with the bathwater: a sentence that maximizes the potential for Mr. Brumble's long-term rehabilitation is the sentence that is most calculated to make society safe.
Sentence Imposed
[21] When I take all of those factors into consideration, I reach the conclusion that an appropriate sentence for Mr. Brumble is a sentence of eighteen months imprisonment, to be followed by the maximum possible period of probation. That sentence recognizes the objective seriousness of Mr. Brumble's conduct, is informed by his previous criminal behaviour and gives full credit to his plea of guilty. The maximum period of probation reflects the fact that Mr. Brumble's path to rehabilitation, unaided as it will be by any family support, will be a long and challenging one. It is in his interest and in society's interest that he have the assistance of supervision by probation in order to keep a guiding hand on him and to maximize his access to programmes and facilities that will keep him away from his default group of associates.
Credit for Pre-Sentence Custody
[22] That brings me to the issue of the amount of credit to be given for Mr. Brumble's time in custody. It has not been argued that there is any statutory bar to Mr. Brumble receiving enhanced credit beyond 1:1 for his roughly ten months of pre-sentence custody. The Crown, however, argues that when one looks at Mr. Brumble's long record, including the numerous failure to comply convictions to which I have referred earlier, and when I look at the Court of Appeal's decision in R. v. Summers, 2013 ONCA 147, [2013] O.J. No. 1068, Mr. Brumble does not qualify for any enhanced credit, or certainly not the maximum available 1 ½ :1.
[23] Summers must be clearly understood for what it does and does not say. It does not state that there is an automatic entitlement to 1 ½: 1 credit on the basis of lost remission or foregone programming. However, the Court of Appeal also clearly rejected the restrictive interpretation advanced by the Crown with respect to when enhanced credit can be given. In particular, "exceptional" circumstances are not required to qualify for enhanced credit. The Court of Appeal also refrained from imposing any rigid procedural or evidentiary requirements for when enhanced credit could be granted and made it clear that enhanced credit should not be seen as a rare or occasional entitlement. As Justice Cronk noted for the court (at paragraph 75): "ordinary or common circumstances may be sufficient to ground enhanced credit for pre-sentence custody in a proper case".
[24] There is, to some extent, conflicting material before me with respect to Mr. Brumble's likely prospects for remission of sentence. On the one hand, his history of failures to comply suggests a risk that his behaviour in a custodial setting might not be among the best. On the other hand, there is nothing to suggest that he has, in fact, misconducted himself while awaiting sentence. He is a young man with a challenging background, for whom this period of pre-sentence custody is likely to have had an impact; it is 4 ½ times longer than any single period he has served in custody to date. He has achieved two high school credits at some point during his custodial history, so there is some track record on his part.
[25] The predominant theme in the Court of Appeal's decision in Summers is that the granting of enhanced credit, like sentencing itself, is a heavily discretionary function. When I consider all of the factors present in this case, I do not believe that Mr. Brumble is entitled to the maximum credit, but do feel that a credit of 1 ¼: 1 would be appropriate.
[26] A sentence of 18 months is the equivalent of 547 days. Mr. Brumble has, to date, served three-hundred days of real time in pre-sentence custody, which at a rate of 1 ¼: 1 amounts to 375 days, leaving a sentence yet to be served of 172 days.
Probation Conditions
[27] Upon completing that custodial sentence, Mr. Brumble shall be on probation for a period of three years on the following conditions:
(a) Report to probation forthwith upon release and thereafter as directed.
(b) Live at an address approved of by probation.
(c) Make reasonable efforts to seek and maintain employment or education or skills upgrading as directed by your probation officer.
(d) Attend for assessment and counselling as directed by your probation officer for life skills and other rehabilitative programmes and actively participate in and complete any programme directed by your probation officer. This includes the "Breaking The Cycle" programme as directed by your probation officer.
(e) Complete any community service hours that are outstanding from any previous probation order by the end of the three years.
(f) Perform 150 hours of community service under this sentence on a schedule directed by your probation officer, to be completed within the first eighteen months of probation. This component of the sentence is an important component for Mr. Brumble to make reparations to society and to assist in his rehabilitation.
(g) Do not possess any weapons.
(h) Do not have any contact directly or indirectly with Abadir Jimale or Tyson Shuffler except through legal counsel for the purpose of their defence.
(i) Sign all releases required by your probation officer to allow him/her to monitor your compliance.
Additional Orders
[28] You shall provide a sample of your DNA for the DNA data bank on the secondary designated offence of possession of an unregistered restricted weapon.
[29] There will be an order pursuant to s. 109(1)(d) and 109(3) of the Criminal Code prohibiting you from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for life.
[30] The victim surcharge will be waived as Mr. Brumble has no realistic means of paying it.
[31] Pursuant to section 491 of the Criminal Code, the handgun is forfeited to Her Majesty the Queen to be disposed of as directed by the Attorney General for Ontario.
[32] The $1,800 clearly fits the definition of "offence-related property" in section 2 of the Criminal Code, under the first and third branches of that definition. It is subject to forfeiture under s. 490.1 of the Code and I order it forfeited under that section. I am satisfied that the forfeiture of the buy money would not be disproportionate in these circumstances. I am satisfied that no notice of the application to Mr. Jimale or Mr. Shuffler is called for under s. 490.4 of the Code since, on the facts before me there is no air of reality to any claim of lawful entitlement on their part. The Crown shall notify Mr. Jimale and Mr. Shuffler of the forfeiture of the $1,800 within seven days in the event that they wish to bring an application for relief under s. 490.5 of the Code.
Released: 4 June, 2013
Footnote
[1] The fact that Mr. Ngo had three hand guns, the provable juxtaposition of that possession with Mr. Hau's activities and the fact that Mr. Brumble, unlike Mr. Ngo, pleaded guilty are highly relevant distinctions between that case and the present case. Standing alone, a guilty plea significantly changes the landscape. I do not propose to cite chapter and verse about why guilty pleas matter, but they do and courts must give meaningful weight to them, which is often recognized as meriting a mitigation of sentence of around one-third, although the value of a guilty plea will vary from case to case. Applying the one-third principle, the two-year sentence imposed on Mr. Ngo would have been a sixteen month sentence on a plea, for a first offender with three unloaded handguns, operating in some undefined relationship with a co-accused who had a loaded 9 mm handgun and $5,500 in cash. Obviously, Mr. Brumble's significant record is also a relevant distinction on the other side of the scales.