CITATION: R. v. Mohamed, 2018 ONCJ 289
DATE: March 26, 2018
Information No.: 17-26866-62
ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
ZEKI MOHAMED
REASONS FOR SENTENCE
BEFORE THE HONOURABLE JUSTICE E. RONDINELLI
on March 26, 2018, at TORONTO, Ontario
APPEARANCES
P. Larmondin Counsel for the Federal Crown
P. Rochman Counsel for Zeki Mohamed
TABLE OF CONTENTS
LEGEND [sic] Indicates preceding word has been reproduced verbatim and is not a transcription error.
| Page | |
|---|---|
| Reasons for Sentence, Rondinelli J. | 1 |
| S. 109 Firearms Prohibition Order, Rondinelli J. | 6 |
| DNA Order, Rondinelli J. | 6 |
| Forfeiture Order, Rondinelli J. | 6 |
| Victim Surcharge, Rondinelli J. | 6 |
Transcript Ordered: April 9, 2018
Transcript Completed: May 2, 2018
Ordering Party Notified: May 2, 2018
MONDAY, MARCH 26, 2018
REASONS FOR SENTENCE
RONDINELLI J. (Orally):
Okay, so I've prepared some oral reasons for sentence which I'll deliver now. So -- okay, so, Zeki Mohamed pleaded guilty to the following firearm related offences: s. 191(1) unauthorized possession of firearm; s. 92(1) possession of a firearm knowing its possession is unauthorized; s. 95(1) possession of a loaded restriction [sic] -- restricted firearm; and s. 86(1) careless storage of ammunition.
The fundamental principle of sentencing is codified in s. 718.1 of the Criminal Code. That is, "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." As the Ontario Court of Appeal has consistently emphasized the principles of deterrence, denunciation, and the protection of the public must be paramount in fixing an appropriate sentence for the types of offences before the court. In Regina v. Smickle, 2014 ONCA 49, the court held at paragraph 19:
This court has clearly indicated that convictions under s. 95 of the Criminal Code demand denunciatory sentences: see Smickle, at para. 30; and R. v. Nur, 2013 ONCA 677 ... at para. 206. Most s. 95 offences will attract a penitentiary term even for first offenders.
While there may be emphasis on deterrence and denunciation with respect to these offences, the Court cannot lose sight of Mr. Mohamed's individual deterrence and prospects for rehabilitation. These remain important considerations in crafting a sentence that also promotes Mr. Mohamed's reintegration into the community.
I find myself in agreement with the Crown on many of the aggravating factors present in this case. The firearm may not have been seized in a public place, but the fact remains that the firearm was easily accessible in a residence; albeit not in plain view, it was loaded and ready to be fired. And while the firearm may have been found in a home there is evidence that Mr. Mohamed was actively trying to sell the firearm on his own initiative. If not for the fortuitous interception of private communications of Mr. Mohamed and the quick action by police to seize the firearm, who knows where the firearm would have ended up and what potential harm was averted. There may have been no clear evidence of a connection between the use of a firearm and elicit activity, like the drug trade, as evident in some of the case law, but it is not a difficult inference to draw in this case that the firearm was being sought to be purchased for some nefarious purpose.
Turning to the mitigating factors in this case, Mr. Mohamed is a 33-year-old first time offender, and the pre-sentence report speaks to Mr. Mohamed's positive prospects of rehabilitation in very favourable terms. Indeed, he has already demonstrated his willingness to give back to the community by volunteering at the Food Bank while he has been on bail for these charges. He has a supportive family, and he expressed remorse to the court by way of his own words, and by way of action in pleading guilty. The precise weight to be attributed to a guilty plea is incapable of exact calibration. As Justice Watt, then sitting as a Superior Court judge observed in Regina v. Rosenberg, 1993 O.J. 3260 (Ontario General Division) at paragraph 19:
It is a variable not a constant. In general terms the earlier the plea the greater the indication of remorse, the saving of expense and inconvenience; hence, the impact in mitigation.
Both counsel advised the court that Mr. Mohamed sought to accept accountability for his actions at a very early stage and it has been his intention to plead guilty almost from the get-go. As such, Mr. Mohamed's early guilty plea should land on the higher end of the sliding scale of mitigating effect that a guilty plea attracts.
In considering the sentencing principles at play in this case, as well as the aggravating and mitigating factors present, arriving at an appropriate sentence has not been an easy task for me. In the end, I cannot agree with defence counsel that an upper reformatory sentence would be an appropriate disposition in this case. Toronto continues to be plagued with gun violence. This courthouse, itself, sits in close proximity where innocent bystanders have lost their lives or have been seriously injured in a number of notorious cases in recent memory. As the Ontario Court of Appeal noted in Regina v. Marshall, 2015 ONCA 692 at paragraph 47:
...offenders who engage in s. 95 offences at the "true crime end of the s. 95 spectrum of offences" should continue to receive exemplary sentences that emphasize deterrence and denunciation.
As such, a penitentiary sentence is necessary in this case.
On the other hand, the Crown's position of a three-and-a-half-year sentence, in my view, does not adequately take into account Mr. Mohamed's early guilty plea, his excellent prospects of rehabilitation, and that there was no evidence that Mr. Mohamed intended to use the firearm for his own purposes.
In my view an appropriate sentence for this offence for the s. 95 possession of a loaded firearm is 30 months.
Pursuant to Regina v. Downes, I am prepared to give Mr. Mohamed two months' credit for restrictive bail conditions that included ten months of house arrest due to the significant restriction upon his liberty, as described by defence counsel.
Thus, the sentence for the s. 95(1) offence will be reduced to 28 months.
In my view, the charge under s. 92(1) is indistinguishable from the possession underlying the s. 95(1) charge, and that while the added mens rea requirement justifies a separate conviction, it does not justify a consecutive sentence. See Regina v. Abdullahi, 2015 ONCA 549 at paragraph 15.
As such, Mr. Mohamed will be sentenced to one-year on the s. 92(1) count, to be served concurrent to the sentence imposed on the s. 95(1) count.
For similar reasons Mr. Mohamed is sentenced to two years' imprisonment for the s. 91(1) charge, to be served concurrent to the s. 95(1) charge, and six months' imprisonment on the s. 86(1) offence, also to be served concurrent to the s. 95(1) offence.
Ancillary Orders
Firearms Prohibition Order
As for the ancillary orders, a weapons prohibition pursuant to s. 109(2) of the Criminal Code will issue for ten years.
DNA Order
Regarding the DNA order, although we're dealing with a secondary offence, and I don't see anything in this case that would make the impact of a DNA order disproportionate to Mr. Mohamed's privacy or security interests. Therefore, a DNA order will issue.
Forfeiture Order
Forfeiture order in respect of s. 490.1, I take it this is -- these are the ones, so....
MS. LARMONDIN: I provided drafts, Your Honour. There's three: one for the defence, one for the court file, and one for the Crown.
THE COURT: Ms. Rochman, any issues with the s. 490?
MS. ROCHMAN: I'm sorry?
THE COURT: Any issues with the...
MS. ROCHMAN: No.
THE COURT: ...s. 490. So, I'll sign that shortly.
Victim Fine Surcharge
And then, finally, the standard victim fine surcharge will issue with a one-year to pay.
MS. ROCHMAN: Can we, maybe, get one-year to pay from the time of his release?
THE COURT: Yes, one-year, that's what I meant, if that's not done automatically, it's one-year from the time of his release to pay the victim fine surcharge.
Remaining Counts
And that remaining count?
MS. LARMONDIN: Yes, there's two remaining counts actually, Your Honour. So, on information 17-5-5-0-0-1-4-3-3, count 5, which would be s. 96(1), should be marked withdrawn. And then on information 17-2-6-8-6-6 count 149, it was a weapons trafficking -- conspiracy to commit weapons trafficking count, should be marked withdrawn, please.
THE COURT: Okay, so those counts will be withdrawn at the request of the Crown. Those are the informations that they're probably on.
CLERK REGISTRAR: Thank you.
THE COURT: All right. Is there anything else with -- with this matter?
MS. LARMONDIN: That's everything for the Crown on this matter.
THE COURT: And I've signed the...
CLERK REGISTRAR: DNA.
THE COURT: ...forfeiture orders, as well as the DNA order. All right, Mr. Mohamed, good luck to you. Okay, continue going down that path that you were going. Take care of yourself.