R. v. Abdelkarim

Ontario Court of Justice

Date: 2017-11-24

Court File No.: Toronto 4817 998 16-15001340

Parties

Between:

Her Majesty the Queen

— and —

Mohamad Abdelkarim

Before the Court

Justice: H. Borenstein

Heard on: March 7, May 4, September 26, and October 4, 2016

Reasons for Sentence released: November 24, 2017

Counsel

Ms. Tarek-Kaminker — counsel for the Crown

Mr. A. Stastny — counsel for the defendant Mohamad Abdelkarim

BORENSTEIN, J.:

Facts

[1] In March of this year, Mohamad Abdelkarim pled guilty to one count of trafficking $60.00 of crack cocaine to an undercover police officer. This is his sentencing.

[2] Mohamad Abdelkarim has no record.

[3] In February 2016, he sold .24 grams of crack cocaine to a police officer on Queen and Sherbourne. He was 18 at the time. He was arrested and spent two nights in jail before he was released on bail. He was subject to an 11 pm to 6 am curfew as a term of his bail. He has been on that curfew for almost the last two years. He breached it once by being out past his curfew. He pled guilty to that offence and was given a fine. That occurred in February 2017.

[4] In March 2017, he pled guilty before me to that trafficking. He committed the offence in question for the money.

[5] Other than that breach of a curfew, he has not been in trouble since that day. As a young man of between 18 and 20, he has lived under a curfew for almost two years. The sentencing has been adjourned from time to time to see how the accused does – is he staying out of trouble? Is he being productive?

Background

[6] He is now 20. His family moved to Canada from Sudan. His mother works two jobs; cleaning at a restaurant and at the Brick. His father works as well but Mohamad does not know where. He grew up in Regent Park. He was exposed to considerable violence and drug trafficking growing up in Regent Park. His cousin was murdered. To his credit, he did not get into trouble with the law other than this serious offence.

[7] He has performed 42 hours of community service volunteering at the First Nations School of Toronto.

[8] He has also been volunteering for seven years at the Young Ge organization where he has performed more than one hundred hours of community service.

[9] Mohamad finished grade 10. He then took courses at the City Adult Learning Centre trying to complete his high school. He left the Adult Learning Centre to work. He eventually wants to be a plumber.

[10] He had been working four days-a-week at the same restaurant his mother does. According to a letter from the employer, he has been working there since January 2017. He says he was working there longer but it was "under the table". He re-enrolled at the City Adult Learning Centre and was to start classes in September.

[11] Since his appearance in September, to today, November 24th, he broke his arm and had surgery for a urological issue. He has not worked and has not gone to school. His counsel is disappointed that he has not done more since the last appearance despite his medical issues.

Sentencing Principles and Case Law

[12] And so he is to be sentenced. Sentences for trafficking cocaine usually emphasize the principles of deterrence and denunciation due to the serious effects of cocaine trafficking and addiction in society.

[13] The Crown seeks a sentence of 90 days intermittent followed by probation. The Crown submits that its position is low but it takes into account the mitigating factors in this case.

[14] The defence seeks a non-custodial sentence.

[15] The well-known and oft cited Ontario Court of Appeal decision in Woolcock, [2002] OJ No 4927 (Ont. CA), is a good starting point. The Court of Appeal was there dealing with a case of possession of approximately five grams of crack cocaine for the purpose of trafficking. The Court held that the usual range of sentences for that type of offence is between six months and two years less a day, with sentences at the higher end of the range imposed with respect to larger quantities or offences committed while still on probation for similar offences.

[16] In R. v. Teren Johnson, 2015 ONSC 80, Johnson pled guilty to two counts of trafficking cocaine but, on agreement, was sentenced in relation to four trafficking offences. All four transactions were to an undercover police officer. On Sept 27, 2012, Johnson trafficked .85 grams of cocaine for $100.00. On October 9th, he trafficked another .9 grams for $100.00. On October 16th, he trafficked 1.35 grams for $100.00 and discussions were had about possibly purchasing a half an ounce of cocaine. On October 24, he sold 12.45 grams of cocaine for $700.00. Johnson was 26 years old at the time of the offence and 28 at the time of sentencing. He had no record. He had graduated from high school and had a diploma. He had an 8 year-old daughter and he had done volunteer work. The Crown sought a sentence of 15 months in jail. The defence sought a conditional sentence which was then available.

[17] Justice Hill canvassed the case law and sentencing principles. He referred to the harm caused by trafficking cocaine which is highly addictive. Justice Hill noted the following aggravating factors present in his case: the nature of the drug trafficked; the commercial nature of the transaction which was not linked to an addiction; the pattern of activity; and the fact that it was not a "one-off" instance; and the accused's willingness to traffic greater quantities. He noted in mitigation that the accused was a first offender, who had pled guilty thus evidencing genuine contrition; that he lost his job which caused financial hardship and he was not reaping a lavish lifestyle from his crime; that he was gainfully employed and had a supportive family; that he supported his two children and his two years of bail and his volunteer activity. Justice Hill sentenced Johnson to 90 days intermittent for one offence and an 18-month conditional sentence of imprisonment for the other. Conditional sentences are no longer available after amendment to the CDSA.

[18] I note that two of the significant aggravating factors present in Johnson are absent here; namely, in this case, there is no pattern of trafficking or apparent willingness to traffic greater amounts of cocaine. Johnson trafficked four times. He trafficked about half an ounce of cocaine in total for a thousand dollars. In the case at bar, it was one transaction of .24 of one gram for $60.00.

[19] Finally, I wish to refer briefly to Justice Melvyn Green's decision in R. v. McGill, 2016 ONCJ 138. Justice Green undertook a thoughtful and comprehensive review of the principles of sentencing with which I agree. Of course, the facts of each case are different. McGill was an indigenous offender. He was also older. He had a dated criminal record. He also possessed 300 grams of cocaine for the purpose of trafficking. He received a suspended sentence.

[20] At bottom, it is always an individual who is being sentenced. The principles expressed by appellate courts must be considered on sentencing. But they are guidelines, not mandatory minimums. Parity is an important consideration but the individual offender must be sentenced based upon his own circumstances, his age, moral culpability, background and his or her prospects for the future in view of the principles of sentencing.

Aggravating and Mitigating Factors

[21] The aggravating factors in this case are the nature of the drug that was trafficked and it was trafficked for financial gain.

[22] By way of mitigation, the accused was very young when he committed this offence. He is still youthful. Two years have passed since the offence and, but for the one breach, he has remained out of trouble. He grew up in an area prone to crime and violence and has largely remained out of that world. This was a single instance of trafficking a very small amount of crack cocaine. His background is mitigating. So is his guilty plea and his prospects for the future. He has remained out of trouble. He has been trying to work and to go to school.

Decision

[23] In my view, bearing in mind the two days of pre-sentence custody, the almost two years of curfew which I consider significant given that he had no record and lived under that curfew from ages 18 to 20, his current age, his volunteer work, and the case law referred to, the accused's continued rehabilitation should be given considerable weight in this sentencing.

[24] An appropriate sentence in this case is to suspend the accused's sentence and place him on 18-months' probation. He will be subject to the mandatory terms of probation as well as the following terms: report immediately and as required, perform 100 hours of community service to the satisfaction of your probation officer, not possess any weapons and make sustained, reasonable efforts to secure lawful employment and/or attend school and provide proof to your probation officer as requested.

Released: November 24, 2017

Signed: Justice Borenstein