Court Information

Ontario Court of Justice

Date: 2019-06-03

Court File No.: Newmarket 18 10373

Parties

Between:

Her Majesty the Queen

— And —

Mathusan Palachanthran

Judicial Officer and Counsel

Before: Justice David S. Rose

Heard on: April 9, May 1, 2019

Reasons for Judgment released on: June 3, 2019

Counsel:

• Ms. M. Rumble — counsel for the Crown
• Mr. S. Goldstein — counsel for the accused Mathusan Palachanthran

Reasons for Judgment

Rose J.:

Guilty Pleas and Charges

[1] Mr. Palachanthran pleaded guilty to the following charges:

i. Possession of a Loaded Firearm contrary to s. 95(2); ii. Discharge of a Firearm contrary to s. 244.2(3); iii. Possess Prohibited Firearm while prohibited contrary to s. 117.01(3); iv. Fail to Comply Probation x2 contrary to s. 733.1(1).

Agreed Statement of Facts

[2] The facts admitted to were filed in an Agreed Statement of Facts. I would summarize them this way. Mr. Palachanthran is 19 years old. He was born on May 12, 2000. In May of 2017 he was charged with Aggravated Assault and released on a Recognizance.

[3] In June of 2017 he was sentenced for Assault etc and placed on probation which had a 2 year weapons prohibition under the YCJA.

[4] In July of 2017 he was sentenced for Assault Causing Bodily Harm and again placed on a 2 year weapons prohibition under the YCJA.

[5] In May of 2018 Mr. Palachanthran, then just 18 years old, was arrested in a car outside a residential address in Markham. He was with 4 other young men at the time. He was charged with weapons offences and held in custody. He pleaded guilty to those charges on September 6, 2018. He received a Suspended Sentence (taking into account 162 days of pre-sentence custody), and placed on probation for 2 years including a no weapons term, as well as a 10 year Criminal Code weapons prohibition under s. 109.

[6] On October 25, 2018 at 9:10pm Mr. Palachanthran, armed with a sawed off shotgun, approached the very same address he was arrested at in May of 2018 and fired a single shot through the garage door of that house. He fled. The homeowner was in the house with his 13 year old daughter. Both heard a loud bang, checked for the source of it but found nothing. Later that morning one of the occupants of the house noticed a hole in the garage door. Security footage showed a man in a black hoodie walk up to the house from the east and fire a shot at the house. He then ran back down the driveway fleeing east bound.

[7] Shotgun pellets were located inside the garage, both on the floor and in the wall and ceiling. The blast left a 3 – 4 cm hole in the garage door.

[8] The police received information about who the culprit was. They observed Mr. Palachanthran's mother to operate a black 1996 Toyota Camry just like the car seen in the home security footage taken at the time of the shooting.

[9] The police executed a search warrant on Mr. Palachanthran's residence in Toronto on December 14, 2018. Inside his bedroom closet they found a loaded shotgun inside a hockey bag, a black hoodie, a firearms case, and other items. The gun turned out to be a 12 gauge double barrelled shotgun with both barrels sawed off. It had in it a live shotgun shell.

[10] It was admitted by Mr. Palachanthran that he discharged that very shotgun at the house on October 25, 2018.

Criminal Record

[11] Mr. Palachanthran has a criminal record:

Youth Entries

• July 10, 2017 — Assault CBH — 2 years Probation (3 days PTC)
• Oct. 26, 2017 — Robbery — 4 months custody, 2 months supervision
• Feb. 23, 2018 — FTC Recog — Conditional Discharge
• April 13, 2017 — FTC Recog — $10 fine
• June 22, 2017 — Assault, Theft — FTC Recog — 2 years probation
• Oct. 26, 2017 — Aggravated Assault — FTC Recog — 4 months custody, 2 months supervision (8 months PTC)

Adult Entry

• Sept. 6, 2018 — Weapons Dangerous Possession Prohibited Weapon FTC Youth Sentence x2 — Suspended Sentence, probation for 2 years, 162 days Pre-sentence custody, 10 year weapons prohibition

Pre-Sentence Report

[12] The pre-sentence report indicates that Mr. Palachanthran has a grade 11 education, and is 9 or 10 credits short of a High School Diploma. He has worked sporadically in 2018 at a family pizza outlet, a packaging plant and a temporary worker agency. Mr. Palachanthran was born in Sri Lanka. He came to Canada with his family in 2003. His father died in a car accident in 2006 and his mother has mental health challenges. The pre-sentence report outlines the various attempts at counselling made for Mr. Palachanthran. As recently as November 2018 he told his probation officers that he was not interested in attending a group therapy session but preferred individual counselling.

[13] There is no evidence in the pre-sentence report of any health problems or substance abuse problems on the part of Mr. Palachanthran. The pre-sentence report was fairly sparse, and of minimal help to explain why Mr. Palachanthran is before the Court. In submissions Mr. Goldstein was candid that Mr. Palachanthran is in a circle which has banded together and see a threat or challenge to one as being a threat to all collectively. When pressed to explain the difference between that and a common street gang Mr. Goldstein was quite candid. Mr. Palachanthran and his friends don't have gang names or do criminal activities common to being in a gang. Mr. Palachanthran simply arms himself in case he or his friends are threatened. He had the gun to defend himself if that happened.

Sentencing Submissions

[14] The Crown seeks a 9 year sentence broken down this way: 6 years for the Intentional Discharge of a firearm count; 3 years consecutive for the possession of a loaded prohibited firearm (Count 3); 3 years concurrent for Possession of a Sawed off Shotgun in violation of a s. 109 Order (Count 5); and 3 years concurrent for the breach of probation counts.

[15] The defence argues for a total sentence of 5 years. Mr. Palachanthran has been in custody since December 14, 2018 and has now, 169 days of pre-sentence custody. That is the equivalent of 252 days of credited pre-sentence custody, or 8.5 months.

Analysis of Firearm Discharge Offence

[16] The discharge firearm count under s. 244.2(3) carries a 5 year mandatory minimum sentence. In R. v. Abdullahi 2014 ONSC 272, McWatt J. dismissed an argument that such a sentence violated s. 12 of the Charter. Many judges have noted the seriousness of discharging a firearm in the air near persons, see R. v. Abdullahi (supra), R. v. Weir 2018 ONSC 783, R. v. Mohamed 2016 ONCJ 492 are but three. I add my voice to that chorus. Mr. Palachanthran fired a shotgun at a residence which was occupied. The barrel was sawed off, which makes it much easier to conceal, but much more difficult to aim. The shortage of the barrel makes the pellet mass more dispersed as it leaves the barrel, making the target area much larger. This makes for an increased danger to those in or near its path.

[17] The callous disregard for safety of innocents in the house calls out for a sentence which will denounce such conduct and deter Mr. Palachanthran from thinking about doing this again. It is also aggravating that the shooting was targeted. For reasons which were never explained Mr. Palachanthran targeted the residence from about 6 months before. The first time he and his friends waited outside hoping to accost someone, presumably the occupants. This time he chose a different method, namely walking up and blasting the house with a shotgun. This is worse than a cavalier discharge of a gun into the air. Mr. Palachanthran was aiming his gun at a specific person's house.

Offender's Criminal History and Violence

[18] One of the challenges in sentencing Mr. Palachanthran is that he is only 19, which is normally a mitigating factor when fixing a custodial sentence. The challenge lies in the fact that, for a 19 year old, Mr. Palachanthran has managed to compile a lengthy criminal record stocked with serious offences of violence. To repeat, in 2016 he was convicted of an Assault Causing Bodily Harm as a result of a 3 on 1 assault leaving another youth with injuries requiring staples to his head, abdomen and arm. Only months later he robbed another youth of an iPhone after ambushing the victim with 4 others. The victim required 5 stitches to the head. Several months later he stole personal effects from someone breaking the victim's nose in the process. One month after that Mr. Palachanthran and a few others forced their way into the victim's home and assaulted him with a baseball bat and knife leaving the victim with a punctured lung and lacerated kidney. One year later he was found outside this victim's house in the company of 4 other men with machetes, baseball bats and switchblades.

[19] The extraordinary record for so much violence by Mr. Palachanthran leads me to accept the Crown's argument that he no longer enjoys the benefit of being a youthful offender. Rather, he is a quite violent young man who has little hesitation to cause great personal harm to others. Because of this the public needs to be protected from Mr. Palachanthran.

Rehabilitation and Sentencing Principles

[20] To be clear, there is some rehabilitative prospect for Mr. Palachanthran, simply because of his age. He has many years ahead of him in which to completely change the course of his life, and this must play a factor in fixing the appropriate sentence. With that said, I hold very little hope that Mr. Palachanthran possesses the insight that his current life course is completely contrary to societal expectations. On reflection, I find that Mr. Palachanthran, at 19 years old, is a hardened, violent criminal.

[21] One of the reasons for this is Mr. Palachanthran armed himself with the shotgun seized from him to protect himself. This is not the first time such an offender has made that submission. In R. v. Elie 2015 ONSC 300 Goldstein J. commented that, when an offender says they need a gun for protection, they have it:

… completely backwards. He doesn't need protection. The rest of us need protection from him, and from others who are like-minded. It is not the gun alone that is dangerous, it is the attitude. That is why general deterrence must play such an important role in sentencing an offender.

[22] For these reasons the principal sentencing concerns are denunciation and deterrence and separation of the offender from society. Prospects for rehabilitation play a much lesser part.

[23] The Crown position has some appeal, and were Mr. Palachanthran not 19 years old, I might well have acceded to it, but there must be some consideration of the possibility, faint as it is, for Mr. Palachanthran to pursue a different life than his first 19 years have shown. I must also give some effect to the mitigating effect of the guilty plea, which has saved the victims from having to come to court and relive this experience.

Sentencing Decision

[24] For this reason I will impose the following:

• For the charge of Discharge of a Firearm contrary to s. 244.2(3) the sentence will be 5 years.
• Possession of a Loaded Firearm contrary to s. 95(2) (Count 3) the sentence will be 2 years consecutive to Count 10.
• Possess Prohibited Firearm while prohibited contrary to s. 117.01(3) 2 years concurrent to Count 3.
• Fail to Comply Probation x2 contrary to ss. 733.1(1) 2 years concurrent to Count 3.

[25] The total sentence will therefore be 7 years, from which Mr. Palachanthran's pre-sentence custody of 8.5 months will be deducted. The remaining sentence will be 6 years, 3.5 months.

Additional Orders

[26] There will be a s. 109 Order for life, as well as a DNA Order for the primary designated (compulsory) offence Count 10. I also order Mr. Palachanthran not have any contact under s. 743.21 with the witnesses in the residence which was shot at.

[27] I am grateful for the assistance from Counsel with this case.

Released: June 3, 2019

Signed: Justice D. Rose