Court File and Parties
Ontario Court of Justice
Date: May 5, 2017
Court File No.: 14-R2041
Between:
Her Majesty the Queen
— and —
Hussein Mohammad
Before: Justice Julie Bourgeois
Heard on: April 28, 2017
Reasons for Sentence released on: May 5, 2017
Counsel
Mr. P. Napier — counsel for the Crown
Mr. R. Addelman — counsel for the accused Hussein Mohammad
Reasons for Sentence
BOURGEOIS J.:
Introduction
[1] In considering the proper sentence in this case, my Ruling released on April 11, 2017, in relation to the constitutional challenge pursuant to s. 12 of the Charter needs to be read in conjunction with these Reasons, especially in relation to the sentencing principles, the circumstances of the offences, and the offender (the aggravating and mitigating factors). A summary of the factual basis can be found at para. 2 and 19 of the reasons for that Ruling.
Positions of the Parties
[2] The parties take the following positions in regards to sentencing:
[3] The Crown is of the view that the starting point ought to be 7 years incarceration as per the range established by the Court of Appeal for Ontario in R. v. Bellissimo, 2009 ONCA 49 of 7 to 11 years jail for serious firearm offences. The Crown argues that an additional year of jail should be reflected in relation to the convictions for breaching the firearm prohibition orders as done by Maranger, J. in R. v. Yaqoub Ali on September 7, 2016, for a total custodial sentence of 8 years. It is the Crown's position that the aggravating factor of having the two loaded handguns in the car driven by the accused while he was bound by a firearm prohibition in the context of being a party to the offence of discharging a handgun onto a moving car on Bank Street brings this matter to the low end of the range, at 7 years and a consecutive year in custody in relation to the firearm prohibition conviction to bring the total sentence to 8 years. The Crown did not dispute the position of Defence counsel in relation to the pre-trial custody and pre-trial bail conditions credit.
[4] Counsel for Mr. Mohammad takes the position that the minimum 5 year jail sentence attached to s. 244.2 of the Criminal Code is more than adequate in this particular case, given the specific circumstances of the offence and under which the accused found himself in and the positive circumstances of the offender himself. Having the benefit of a positive PSR and this matter being his first custodial sentence but necessarily involving a penitentiary term coupled with the circumstances under which he became involved in this particular set of circumstances ought to militate for the minimum jail sentence in this case. Specifically, Defence counsel argues that even though the actual shooter plead guilty at an opportune time and to different charges, the principle of parity found at s. 718.2(b) of the Criminal Code should still be given some consideration to avoid an element of harshness against the accused driver in this case. It is Defence position that in addition to the usual credit for the pre-trial custody, Mr. Mohammad also ought to be credited 10 months to reflect the stringent house arrest bail conditions imposed upon him for 25 months, while awaiting trial, as stated by Rosenberg, J. for the Court of Appeal for Ontario in R. v. Downes, [2006] O.R. (3d) 321.
Sentencing Principles
[5] In addition to the sentencing principles discussed in my Ruling released on April 11, 2017 in this matter, Armstrong, J. in R. v. Danvers, [2005] O.J. No. 3532 at para. 77 and 78, also reiterates the importance of the deterrence and denunciation principles and specifically at para. 78:
"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."
This statement applies equally to the City of Ottawa.
[6] Molloy, J. of the Ontario Superior Court of Justice in R. v. Ferrigon, a judgment released on March 19, 2007 also addressed the denunciation and deterrence principles in weapons related offences, drawing from R. v. Danvers, idem, at para. 25 to 29 and stated at para 29:
From these and many other similar cases, I conclude that the protection of society must be a paramount consideration when sentencing for offences involving loaded handguns. General and specific deterrence and denunciation of the conduct involved are of particular importance in reaching a fit sentence. That does not mean that other sentencing factors become irrelevant whenever a handgun is involved. However, those other factors may be less influential if the sentence that might otherwise be imposed would not constitute sufficient condemnation of the conduct or adequate protection of the public.
[7] When discussing the rehabilitation principle at para. 31 she stated:
"There can be no greater protection for society than to divert a criminal from unlawful conduct and give him an opportunity to be a productive member of our society, rather than a danger to us all."
Sentencing Range for Firearm Offences
[8] When determining the appropriate range of sentence in this case, guidance is found in Nur, supra, where 40 months for a 19 year old first time offender in relation to a firearm possession offence was appropriate. As discussed by my brother Wadden, J. at para. 12 and 13 a firearm use offence merits a proportionately higher sentence:
If simple possession of a loaded prohibition firearm on the street merits a sentence in the range of three years, the use of a loaded prohibited firearm in the commission of a violent crime requires a proportionately higher sentence. It is clear that Mr Mohamed's five year sentence for armed robbery with a loaded gun in 2010, which was the mandatory minimum, would have been well within the appropriate range even in the absence of a mandatory minimum requirement.
The discharge of a firearm must also merit a proportionately higher sentence than three years for simple possession. Extrapolating from R. v. Nur, it would appear a five year sentence for a first offender would be within the appropriate range for being found guilty of firing a prohibited handgun on a city street. Five years is the mandatory minimum for a first offender under s. 244.2
[9] In this case, the discharging was not up in the air, towards the sky, as the situation was in R. v. Abdi Rashid Mohamed, released on August 11, 2016 by Wadden, J., but rather directly from one moving car onto another moving car with individuals inside each car, on one of the main arteries on Ottawa, Bank Street, with a steady flow of traffic. The case at bar is not dealing with a second related offence as R. v. Abdi Rashid Mohamed, idem, involving a seven year minimum sentence, but the court concluded in that case, at para. 15 that a sentence of no less than six years and up to eight or nine years could be reasonable in all the circumstances. In R. v. Stevens, 2010 NSSC 133, at para. 17 the court stated that the range of sentences in relation to s. 244 offences in general (including the pre-dating of the mandatory minimum sentence provision) was four to nine years.
[10] In R. v. Yaqoub Ali, Maranger, J. and the parties involved in that case agreed that the appropriate sentencing range was seven to 11 years as stated in R. v. Bellissimo, supra. In that case, the accused shot Mr. Adele Al Enzi in the foot, but luckily not seriously injuring him. This took place on Boxing Day at the Tanger Outlet Mall here in Ottawa. He received a global sentence of eight years; seven years in relation to the shooting and an additional year in relation to the breach of the firearm prohibition.
[11] The Court of Appeal for Ontario in R. v. Jefferson, 2014 ONCA 434, in confirming the range of seven to 11 years established in R. v. Bellissimo, supra, confirmed the global sentence of 10 years less 51 months for pre-trial custody imposed by the trial judge. In that case, the accused shot the complainant through the car window he was travelling in, hitting him on the shoulder.
[12] The Court of Appeal of Nunavut in R. v. Lyta, 2013 NUCA 10, in response to an argument made in that case stated at para. 16 and 17:
Although we find it unnecessary to rule on this "best" offender submission, we reject the sentencing judge's approach to statutory minimums in one respect. His reasons state that a sentence higher than the statutory minimum should be imposed only if a consideration of the sentencing principles suggests a higher sentence would be necessary. We take this to mean that an appropriate sentence can be derived from general sentencing principles, without considering that Parliament has mandated a minimum sentence. With respect, this approach seems to undervalue the existence of the statutory minimum and might be taken to mean that a higher than minimum sentence would be imposed only on an unusually bad offender committing an unusually bad offence. We do not consider that to have been Parliament's intention.
Rather, the existence of a statutory minimum is a factor that must be put into the mix when applying the general sentencing provisions of the Criminal Code to a particular offender. It clearly narrows the available range of sentences and, over time, will no doubt lead to inflating sentences for such offences: R. v. Guha, 2012 BCCA 423 at para 33, 328 BCAC 303. To say that, however, is not necessarily to accept the "best offender" approach urged by the Crown. Among other problems with the Crown's approach is the fact that in Morrisey, Arbour J. did not define what she meant by 'best offender': R. v. McAnuff, 2011 ONSC 4051 at para 22 (available on). "What she did make clear is that the minimum sentence should not serve as the standard sentence only to be exceeded in the very worst circumstances": ibid.
Role of the Accused
[13] In all the cases referred to specifically at the sentencing hearing (Danvers; Jefferson; Ferrigon; Ali), the accused was the actual shooter and not a party to the offence as in this case. The blameworthiness and the role of the accused in this case was already discussed in the analysis in relation to the constitutionality of the mandatory minimum sentence attached to the conviction in relation to s. 244.2 (see the Ruling released on April 11, 2017). The argument of the parity principle ought to be dealt with in similar terms as dealt with in the constitutional challenge Ruling at para. 12 to 16.
[14] But Defence counsel's argument that some consideration has to be given to each perpetrator's role, action and motivation is persuasive and distinction can be drawn between the actual shooter and the party to the shooting as the driver when considering the impact these elements may have on the sentence. His role as the driver does not constitute a mitigating factor but might be best qualified as an absence of an aggravating factor or at least a distinguishing factor as those cases cited above.
[15] The Crown's submission that the breach of the firearm prohibition order ought to reflect consecutive jail time, as indicated by Maranger, J. in R. v. Ali, supra is also persuasive. This point was also reviewed by Molloy, J. in R. v. Ferrigon, supra, at para. 62 to 65 and the court concluded:
[65] It may be the case that as a practical matter it does not matter whether one treats the breach of the prohibition order as an aggravating circumstance lengthening the sentence on the main offence, or makes the sentence for the breach of prohibition order a separate and consecutive sentence. One might well come to the same overall result by either route, particularly when the totality principle is taken into account. However, making the prohibition order sentence concurrent to other sentences gives the appearance that it has had no effect on the total sentence imposed. In my opinion, that is an inappropriate impression to create, given the underlying societal problems that prompted the enactment of this provision and the importance of ensuring that orders of the court are respected and obeyed.
Aggravating and Mitigating Factors
[16] Mr. Mohammad was a relatively young man at the time of the offence, on his 28th birthday, and presently is 30 years old. His PSR is rather positive indeed and rehabilitation seems much more realistic than the case was for Mr. Ferrigon, supra, for example. But indeed he does have a related criminal record with one conviction in 2009 for being in a motor vehicle with an unauthorized possession of a firearm, contrary to s. 94(2). The passing of sentence was suspended and he was placed on probation for 12 months.
[17] The very serious nature and circumstances of this offence was already addressed at paras. 25 to 27 of the Ruling released on April 11, 2017 and the instrumental role Mr. Mohammad played in the commission of this drive-by shooting as the driver at para 28 of that Ruling.
Pre-Trial Custody and Bail Conditions Credit
[18] Mr. Mohammad has two periods of pre-trial custody. He has 44 days from his arrest on July 23, 2014 until his release on bail on September 5, 2014. He also has a period of custody from September 27, 2016 upon conviction until today, May 5, 2017 which is 221 days. Therefore, he has a total period of 265 days of pre-trial custody, credited at 1.5 days is the equivalent of 397.5 days (or approximately 13 months).
[19] Mr. Mohammad also has 25 months of pre-trial release on bail conditions. All agree, some consideration is required as a matter of law as stated by Rosenberg, J. in R. v. Downes, supra. He was released on stringent house arrest conditions where he could not leave his parents' home in Morewood, ON, without his father accompanying him, without exception. As indicated in the PSR, this left him with no ability to seek or pursue employment or education. I agree with Defence counsel that Mr. Mohammad ought to be credited 10 months under these circumstances.
Kienapple Principle
[20] Now turning to the Kienapple principle. The Crown sought judicial conditional stays in relation to counts 3 and 4 (careless use of firearms); counts 6 and 7 (pointing a firearm); and counts 10 and 11 (possession of firearms without a licence). The Court of Appeal for Ontario in R. v. Meszaros, 2013 ONCA 682 reviewed, at para. 30 to 34, this "fundamental principle of criminal law that no person may be convicted twice for the same criminal wrong (nemo debet bis buniri pro uno delicto)." There must be a factual and a legal nexus between the offences for the principle to be triggered. After reviewing the evolution of the legal nexus analysis, Blair, J., at para. 42 indicated:
After examining the evolution of Kienapple and its progeny, including the Prince considerations – and after agreeing with the former Chief Justice's characterization of the legal nexus problem as one to which there can be "no precise answer" – Doherty J.A. concluded, at para. 36 of R.K., that "[t]he sufficiency of the legal nexus between offences will depend on an interpretation of the statutory provisions that create the offences and the application of those statutory definitions to the circumstances of the case." At para. 39, he condensed the essence of the legal nexus inquiry into the following succinct proposition:
The crucial distinction for the purposes of the application of [the] Kienapple rule is between different wrongs and the same wrong committed in different ways".
[21] Garton, J., at para. 43 in R. v. Brown, [2013] ONSC 4230, adopted the reasoning followed by Clark, J. in R. v. Stephens, [2009] O.J. No. 6102 in concluding that the Kienapple principle did not apply in relation to convictions pursuant to s. 92 and 95 of the Criminal Code.
[22] I would therefore conditionally stay counts 3, 6, 7, 10 and 11.
Sentence Imposed
[23] After considering the paramount sentencing principles of deterrence, personal and general, denunciation and retribution but not losing sight of the principles of rehabilitation, totality and restraint; the aggravating circumstances of the offence and the offender (his related criminal record, including the firearm prohibition in effect at the time of the offence) and the mitigating circumstances, as discussed above, the appropriate sentence in this case, for Mr. Mohammad, is a global sentence of seven and a half years jail.
[24] I would distribute the global sentence of seven and a half years in these terms:
(1) Count 23 — the conviction pursuant to s. 244.2 of the Criminal Code (party to the offence of intentionally discharging a handgun while being reckless as to life or safety), punishable by a mandatory minimum 5 years jail:
6 and a half years, less the pre-trial custody of 265 days, credited at 1.5 days is the equivalent of 397.5 days (or approximately 13 months), leaving 5 years and 4 months to serve;
(2) Counts 24, 25 and 28 — the convictions pursuant to s. 117.01 of the Criminal Code (breaching firearm prohibition order), an offence punishable by a maximum 10 years jail:
One year jail concurrent to each of these three counts but consecutive to count 23, less the credit of 10 months attributed for the pre-trial release on bail conditions, leaving 2 months to serve on these three counts.
[25] This leaves a global sentence of five years and six months to be served.
[26] I am of the view that the remaining counts all attract concurrent jail sentence and I would attribute the sentence as follows:
(3) Counts 4 and 5 — careless storage of firearms, pursuant to s. 86(3) of the Criminal Code, the maximum punishment for a first offence is two years jail: one year jail concurrent;
(4) Counts 8 and 9 — possession of a weapon for a purpose dangerous to public peace, pursuant to s. 88(2), the maximum punishment is 10 years: two years jail, concurrent;
(5) Counts 13 and 14 — possession of a firearm while knowingly not holding a license, pursuant to s. 92(3), the maximum punishment for a first offence is 10 years: one year jail, concurrent;
(6) Counts 16 and 17 — occupying a motor vehicle knowingly with a firearm, pursuant to s. 94(2), the maximum punishment is 10 years: two years jail, concurrent;
(7) Counts 18 and 19 — possession of a loaded prohibited firearm without license or authorization, pursuant to s. 95(2), the maximum punishment is 10 years: four years jail, concurrent;
(8) Count 29 — possession of 26.1 gr of cocaine, pursuant to s. 4(3) of the Controlled Drugs and Substances Act ("CDSA"), the maximum punishment is seven years: two months jail, concurrent;
(9) Count 30 — possession of 4.1 gr of marijuana, pursuant to s. 4(4) of the CDSA, the maximum punishment is five years less one day: five days jail, concurrent.
Ancillary Orders
[27] The following ancillary orders are made and will be attached to the applicable counts: DNA on count 23 as a primary compulsory designated offence; and on counts 5, 8, 9, 13, 14, 16, 17, 18 and 19 as secondary designated offences and on all these counts, s. 109, prohibiting the possession of any firearm or enumerated item, for life. I will grant Mr. Mohammad 10 years to pay the victim surcharges in light of the total amount of $3,200 and the custodial sentence.
[28] There will also be a non-communication order pursuant to s. 743.21 of the Criminal Code, prohibiting Mr. Hussein Mohammad from communicating directly or indirectly with Ahmad Hamzeh and Fawaz Abdullah, while serving his sentence.
Released: May 5, 2017
Signed: Justice Julie I. Bourgeois
