Ontario Court of Justice

Between:

Her Majesty the Queen

T. Edwards, for the Crown

— And —

Tevyn Rodney & Justin Mohammed

U. Cara for the accused Tevyn Rodney; J. Louch for the accused Justin Mohammed

Heard: January 20, 2017

FELDMAN J.:

Conviction and Sentencing

[1] I found Tevyn Rodney and Justin Mohammed guilty of Discharge Firearm and Mischief under $5000. These are my reasons for sentence.

[2] I found as a fact that in the early morning hours of October 7, 2014, Mr. Mohammed fired at least 4 bullets into a home at 43 Cataraqui Cres. in Toronto. Three bullets went through the front door, a fourth above it. One of those bullets was found in a lamp shade beside a couch where a young person was sleeping. A fifth bullet fragment was located outside the house. Mr. Rodney drove the shooter to and from the scene.

[3] The motive is unclear. A jailhouse informant testified that Mr. Mohammed said the shooting was intended to send a message to a drug dealer, a relative of the victims, who disrespected him. If that was the reason, the act was chilling and egregious. The potential for harm, even death, to innocent people was patent. There are compelling reasons in these circumstances to emphasize denunciation and deterrence in sentencing these young men.

The Victim Impact Statement

[4] Cherrice Green lives with her children at 43 Cataraqui Cres. It was her young son who was almost hit by one of the bullets. She was a reluctant witness out of fear of retaliation for testifying.

[5] The trauma of the shooting has caused Ms. Green irreparable harm to her emotional health and sense of security. She is highly anxious and has trouble sleeping. She requires medication for her blood pressure. She fears for the safety of her children when they are out of the house. She panics easily over noises or knocks on the door. She says she cannot live without worry and implies her quality of life has been diminished.

Individual Circumstances of the Offenders

Tevyn Rodney

[6] The writer of the presentence report was only provided contact information for Tevyn's mother, Karyn Rodney. Tevyn is 22 years of age. He was raised in a stable family. He has good relationships with his mother and siblings, all of whom are supportive. He does not know his father.

[7] Tevyn left school in grade 11. He has held several jobs, the last in 2013 as a youth mentor in a community agency. He hopes to complete high school and become a child and youth worker. Ms. Rodney says Tevyn works well with children.

[8] Tevyn's mother was surprised by the charges and believes it is not like her son to be involved in this kind of behaviour. She believes he can do well if he works hard and does not spend time with the "wrong crowd of people". Mr. Rodney was last supervised in 2012 by a youth probation officer.

[9] Tevyn was cooperative and forthcoming in speaking with probation. He says he has many pro-social friends and enjoys playing sports. Tevyn maintains his innocence on these charges.

Justin Mohammed

[10] Justin is also 22 years old. He pled guilty on Nov. 22, 2016 in Hamilton on charges of Robbery and Possession of a Controlled Substance for the Purpose of Trafficking. These arose after he was charged with the offences before this court. He was sentenced to 59 days, in addition to 204 days of presentence custody, plus 2 years probation.

[11] Justin told probation that although police found drugs on him, he did not know where they came from. He said that he entered guilty pleas only so that he could be released from custody. He says he is also innocent of the present charges.

[12] Justin spent his infancy in Trinidad, but returned to Canada at age 2, when his parents separated. He has only talked to his father twice since. He lived with his stepfather between the ages of 14-17, after his mother moved to the United States to live with her boyfriend. When his mother returned to Canada, he moved in with her. Justin has the benefit of support from his mother, stepfather, with whom he has maintained a good relationship, and his siblings, a sister and two brothers.

[13] Justin describes growing up in a "bad area" where there is "a lot of stuff going on", such as shootings and police chases. He says he has been stopped frequently as a result of racial profiling. His mother, Barbara Mohammed, has no concerns about her son and believes he is a follower whose friends influence his poor decision-making.

[14] Justin has grade 10 education. He was expelled from a number of schools he attended, including alternative schools. He was often late, skipped classes and exhibited anger. He has worked at odd jobs since he was 15. By the age of 18, he was receiving social assistance. He holds the criminal justice system responsible for his inability to find reputable jobs. He hopes to finish high school and find employment.

The Criminal Code Provisions

[15] I found both accused guilty under s. 244.2(1) of intentionally discharging a firearm into a place, knowing or being reckless as to whether another person is present in the place. The minimum punishment under s. 244.2(3)(b) is 4 years.

[16] Arising out of the same facts, the accused were also found guilty of Mischief under $5000 for the damage caused to the home by the firing of bullets. No damage estimate was provided.

Positions of the Parties

[17] Mr. Edwards, for the prosecution, submits that these offences were a planned and deliberate attack on a residential home in the middle of the night with a lethal weapon. He says this was a reckless act permitting the inference that the accused were indifferent to the lives and safety of the family members that were terrified by the shooting and for whom the effects of the trauma are ongoing. He submits that appellate authority sets a range of 7-11 years for such serious firearms offences.

[18] He suggests, however, that while denunciation and deterrence are the paramount principles, the lack of death or injury and the rehabilitative prospects of these relatively young men permit a sentence at the lower end of that range.

[19] Mr. Edwards also requests the imposition of Weapons Prohibition Orders under s. 109 for 10 years, asks that samples of each of the accused's DNA be taken and that there be an order under s. 743.2 that they have no contact with the Crown witnesses while in custody.

[20] Counsel for Mr. Rodney submits that the range suggested by the Crown is high and disproportionate given that a sentence for a second such offence is 7 years. He says his client was only 20 years old at the time of the offences and that a minimum sentence is warranted.

[21] Counsel for Mr. Mohammed distinguishes the cases relied on by the prosecution on the facts. He points out that they involve the more aggravating feature of an intention to harm a specific person. He says that such aggravating factors, missing in the case at bar, are required to go above an already significant minimum sentence.

The Authorities

[22] In R. v. Bellissimo, 2009 ONCA 49, the accused was found guilty of a number of weapons offences endangering life. He had fired several shots into a restaurant, seriously injuring one person, causing minor injury to a second and narrowly missing a third.

[23] There is no information available in this brief endorsement about the shooter's personal circumstances. The court set a range of sentence "for these kinds of serious gun related offences" at 7-11 years. A global sentence of 10 years, less presentence custody, was imposed.

[24] This range was used in a subsequent endorsement by the same court in R. v. Jefferson, 2014 ONCA 434, where the accused shot a fellow drug dealer following an altercation. There was very little information provided about the individual circumstances of that offender.

[25] In R. v. Nadon, 2016 ONSC 2809, the accused was convicted of several firearms offences, including Attempt Murder with a Firearm. He had targeted a specific victim at close range, firing at him 14 times with a loaded prohibited weapon. The mandatory minimum sentence was 5 years.

[26] The shooter was a young man with a substantial criminal record for offences that involved violence or use of a weapon. He was sentenced to 10 years, less presentence custody. This was likely his first penitentiary term. In imposing sentence, Kurke J. relied on the range set out in Bellissimo.

[27] In all of these cases, the shooters targeted specific individuals, a particularly aggravating factor in sentence. In the two appellate endorsements, neither the ages nor background circumstances of the offenders are made clear.

[28] I infer that the two appellants were not youthful, as the court did not appear to incorporate the principle set down by Rosenberg J.A. in R. v. Borde, where, at para. 36, he held that the length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and deterrence.

[29] Justice Rosenberg made clear in Borde that where the offender had not previously been to penitentiary, nor served a long adult sentence, the court "ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives".

[30] Quigley J. was mindful of Borde in R. v. Addow, 2014 ONSC 3225, where he found the 23 year old accused guilty of discharging a firearm with intent to wound, three prohibited firearms possession offences and two of possession of a firearm while prohibited. Mr. Addow had shot someone in the leg with a prohibited weapon. The minimum sentence was 5 years.

[31] Justice Quigley was concerned that possession of illegal handguns had become an "affliction" to the community that was plagued by gun crime. He accepted that principles of denunciation and deterrence in gun-related crimes need be addressed in the "strongest possible terms". He acknowledged the Bellissimo sentencing range. But he relied on the considered judgment in Borde that on his or her first trip to the penitentiary, a youthful offender should be given the shortest possible sentence that will meet the goals of sentencing in the particular circumstances (para. 38). Aggravating or mitigating factors will serve to increase or decrease the appropriate sentence. In this case, Justice Quigley found no evidence of planning or deliberation. He sentenced the accused to the mandatory minimum.

Conclusion

[32] I am sentencing two youthful offenders. Mr. Rodney has a relatively minor criminal record. Mr. Mohammed is to be treated as a first offender. They have family support. They were friends and partners in this criminal endeavour. They share culpability and moral stigma.

[33] This was not a random act. The home was targeted. Shooting into this family home in the early morning hours endangered the lives of people known to them. It was a depraved and chilling act that spoke to their own dangerousness, one that must be denounced and deterred by a severe sanction.

[34] I am mindful that I cannot exclude the prospects of these two young men for rehabilitation. As well, I follow the direction of the court in Borde to impose the shortest possible sentence for their first penitentiary term that meets the objectives of sentencing in the particular circumstances.

[35] It is aggravating that the shooting was planned and deliberate. While the minimum sentence is a significant one, the gravity of the offence and the aggravating feature require enhanced time. Both accused will be sentenced to 5 years.

[36] Mr. Rodney has served the equivalent of 6 ½ months of presentence custody. He will serve 53 ½ months. Mr. Mohammed has been in pretrial custody for the equivalent of 16 months. He will serve 44 months. They will each be sentenced, as well, to 10 days concurrent on the Mischief charge.

[37] In addition, I will impose an s. 109 Weapons Prohibition Order for 10 years for both accused and require them to provide a sample of their DNA. Finally, there will be a s. 743.2 Order that they have no contact with any Crown witness while in custody.

Released: February 2, 2017

Signed: "Justice L. Feldman"