Court Information
Ontario Court of Justice
Date: 2019-11-14
Court File No.: Toronto 4817 998 18-75006218
Parties
Between:
Her Majesty the Queen
— and —
Abdisatar Jamal Aden
Before the Court
Justice: Howard Borenstein
Plea of Guilty: July 8, 2019
Submissions on Sentence: October 28, 2019
Reasons for Sentence Released: November 14, 2019
Counsel
Ms. Sarah Gray — counsel for the Crown
Mr. A. Neil Singh — counsel for the accused Abdisatar Jamal Aden
Decision
BORENSTEIN, J.:
The Charges and Guilty Plea
[1] Mr. Aden pled guilty at the outset of a preliminary hearing to possessing a loaded prohibited firearm without being licensed to do so, contrary to s. 95 of the Criminal Code; did possess that firearm in a careless manner without regard for the safety of others, contrary to s. 86(1) of the Code and, finally, did possess that firearm while bound by a s.109(2) weapons prohibition, contrary to section 117.01(1) of the Code.
Personal Background
[2] He is 27 years old.
[3] In mid-November 2018, police were approached by residents of a downtown shelter telling them a male was in possession of a gun. For reasons not explained, the officers believed that male to be the accused Abdi Aden. Two weeks later, on November 25, officers saw Aden near Dundas and Sherbourne. When they approached, he ran and threw a .45 caliber handgun over a fence. The accused was arrested. The gun was retrieved. There were seven rounds of ammunition in that gun.
Prior Criminal Record
[4] Aden has one prior conviction. Just seven months earlier, Mr. Aden was sentenced for a robbery. Aden and two others had gone into a downtown restaurant at 2:30 in the morning and robbed two customers. Aden dragged one of the victims out of the restaurant and tried to take his backpack. When the victim tried to run back into the restaurant, he was tackled and assaulted by all three perpetrators. Aden punched and kneed the victim and, when the victim tried again to run, Aden punched him in the face and throat, breaking his tooth and cutting his lip. Aden was bound by a curfew at the time. He was arrested and detained in custody for that offence. In April 2018, after serving the equivalent of five months pre-sentence custody, he was given a suspended sentence and was placed on probation for 15 months. Terms of probation included keeping the peace and possessing no weapons. He was also placed on a 10-year weapons prohibition pursuant to s. 109. A pre-sentence report "PSR" was prepared for that case, which was updated by the same writer for the present case.
[5] Seven months after being released from jail in April 2018, Aden committed this offence.
Personal Circumstances
[6] He is 27 years old and the eldest of six siblings. He came from Kenya at the age of one with his mother who fled the civil war. He has little contact with his father who lives in Minnesota. He finished grade 11 and worked to support his family. He is in a long-term relationship. He has completed courses at TradeLinx and can work in the construction industry and join a union should he choose to. He says he is committed to making better decisions going forward.
Pre-Sentence Report Assessment
[7] As indicated, the same author wrote the original PSR for the earlier robbery case and updated it for the present case. In the earlier PSR, the author wrote that Aden "demonstrated decent insight about the consequences of his behaviour and expressed remorse for the present offence. Accordingly, this individual has displayed a willingness to make amends for his wrongdoing".
[8] As is now obvious, Aden committed this offence less than seven months later. Notwithstanding that, the writer in the updated PSR writes:
"Mr. Abdisatar Aden, 27, stands before the Court with a single prior criminal disposition. It is informative that this individual has managed to refrain from any conviction prior to his twenty-fifth year. Accordingly, he presents with limited criminal history which is indicative of a relatively lower chance he may return to the justice system. Noteworthy considerations are that Mr. Aden has presented as sincere and authentic in his ostensive displays of remorse with this writer; and has acknowledged his desire to make amends for wrongdoing".
[9] I reject the writer's opinion that there is a low chance Aden may return to the justice system. Just seven months after being released from custody having pled guilty to a violent robbery, and while on probation with a condition not to possess any weapons, and in his first year of a 10-year weapons prohibition, he was in public possessing a loaded firearm. The writer seems to base his opinion on his impression of Aden's sincerity rather than his conduct.
Positions of Counsel
[10] Crown seeks a global sentence of three and a half years in jail less pre-sentence custody. Defence seeks a two-year sentence. Both counsel agree on the amount of enhanced pre-sentence custody due to approximately 111 days of partial or completely lockdown (as of October 28th) due to staff shortage.
Case Law
[11] While sentencing is a very individualized process, the jurisprudence makes clear that denunciation and deterrence are the main sentencing considerations when individuals are found carrying loaded illegal firearms in public. Rehabilitation, always a factor, plays a lesser role especially where, as here, the accused was already subject to a weapons prohibition and a probation Order requiring him to not possess any weapons.
[12] Numerous cases were presented and have all been reviewed. I refer now to several.
[13] In Reid, that accused was approached by the police on a public street. Reid ran and threw a loaded handgun as he ran. He was arrested and the gun was retrieved. He was on a weapons prohibition at the time and had several bags of marijuana. He was sentenced to eleven and a half years in jail which was upheld on appeal. Reid's prior record included several entries for firearms offences. While Reid's record is more extensive and different than Aden's, the Court of Appeal said the following at (para 72):
"[T]his was a very serious offence; carrying a deadly weapon in a public place frequented by people of all ages including the elderly and children who live in the community"
[14] Those comments apply equally in this case.
[15] In R. v. Mansingh, 2017 ONCA 68, that accused ran from the police holding a fully loaded handgun. He was involved in the commercial trafficking of a small amount of marijuana. He had no record. He was sentenced to three years and seven months in jail which was upheld on appeal.
[16] In Graham, Justice Code was dealing with someone who had a satchel in the trunk of a car which contained a firearm and ammunition, three ounces of cocaine and $14,880, which were proceeds of crime. Graham was convicted of possessing a prohibited firearm with accessible ammunition, breach of probation, breach of two firearms prohibitions, possession of cocaine for the purpose of trafficking, possession of proceeds of crime. Graham was 31 at the time of these offences. Ten years earlier, he was convicted of attempted murder and possession of a sawed-off shotgun. His record also included drug and failure to comply charges. In sentencing Graham on the firearms offences, Justice Code reviewed the case law since Nur and Smickle and identified a range of two years less a day to three years in jail for well-situated first offenders possessing loaded firearms. He noted that Smickle was just posing with the firearm for photos inside a residence. Code, J. went on to note that firearms recidivists who breach s.109 Orders were receiving sentences in the 6-9-year range. He also noted a range of 3-5 years for first offender possessing loaded prohibited firearms connected to other criminal activity. Ranges are not binding but provide considerable guidance. In sentencing Graham to eight years for the firearms offence and six months consecutive for the breach of s. 109, Justice Code specifically did not consider the accompanying drug offences as aggravating factors as he was sentencing Graham separately for those offences. He noted as aggravating the following factors:
Graham had a prior forearms offence 10 years earlier and was not deterred by that sentence;
Graham was carrying a loaded revolver in a crowded public place which makes the offence more serious than those who possess firearms hidden in a residence;
Graham had a prior record for crimes of violence;
Graham was on a recent probation order that prohibited him from possessing weapons;
Graham was possessing the firearm for an unlawful purpose.
[17] Numerous other cases speak to these same aggravating factors, which are present in this case, subject to the last one not being proved.
[18] The defence relies on two cases; most heavily, a decision of Justice D. Moore's in Roy, [2018] OJ No. 3427.
[19] Roy pled guilty to possessing a loaded prohibited firearm and possessing that firearm contrary to prohibition Order. The police stopped a vehicle in which Roy was a passenger. Roy resisted exiting and a struggle ensued. Roy had a prohibited firearm in his waistband – a Hi point .38 caliber semi-automatic handgun with its serial number defaced. There was a bullet in the chamber and a second bullet in his pocket. Roy was bound by probation not to possess any weapons. Roy was abused by his father and was placed in foster homes where he suffered abuse both physically and psychologically. He suffered ADHD. The trial judge found Roy's childhood was horrific. The judge determined the range as being between 18 months and three years. Balancing the seriousness of the offence with Roy's tragic background, Roy was sentenced to 18 months for the firearm offence and six months consecutive for the breach of s. 109 Order. He was also placed on three years probation.
[20] The Crown submits Roy's sentence is outside the range and involves an accused with a particularly tragic background. Roy clearly involves an individual whom the trial judge viewed as having an utterly tragic childhood and who was sincere in his remorse. In that sense, Roy was exceptional.
Sentencing Analysis
[21] With that review of the principles of sentencing and some of the jurisprudence, it is clear that denunciation and deterrence are the primary factors in this sentencing. In fact, this case requires the Court to consider both general and specific deterrence as I, unlike the author of the PSR, am not at all persuaded that Aden has been deterred.
[22] People walking around in public carrying illegal loaded handguns represent a real danger. Guns increase the risk of harm to everyone, innocent bystanders as well as others. The risk of guns being used increases when people walk the streets carrying loaded firearms. The use of firearms kills and maims and leaves behind grieving families and increases everyone's sense of insecurity. People carrying loaded firearms appears to be on the increase just from its prevalence in the Courts. While sentences alone for those caught will not fully address the problem, it is part of a solution though any solution must be more comprehensive than just punishment. Nonetheless, those who possess illegal firearms, especially loaded and in public, must know they will pay a heavy price if caught. In particular, Aden himself was not at all deterred by his prior exposure to the criminal justice system for the serious offence of robbery. He needs to be deterred, as do others.
Aggravating Factors
[23] There are many aggravating factors in this case:
This was a loaded deadly weapon he illegally possessed;
He possessed it in public;
He was only recently convicted of robbery and placed on probation and given a weapons prohibition;
He has not been deterred and his crime needs to be denounced.
Mitigating Factors
[24] By way of mitigation, he has pled guilty. He has the ability to lead a productive life. He has a supportive family and network which he had before the robbery and before this offence. Nonetheless, he has those supports should he choose to lead a positive and productive life.
Sentence Imposed
[25] In my view, the proper sentencing in this case given the above including is a total sentence of three and a half years in jail, less pre-sentence custody (355 = 533/30 = 17¾ months that I round up to 18 months (so 42-18=24 months). That will be broken down by three years for the possession of a firearm, six months consecutive for the breach of s. 109 and 6 months concurrent for the third count. Lifetime 109 and DNA. This offence could have attracted a longer sentence but, as I told counsel during submissions, I was not going to exceed the Crown's sentencing position.
Released: November 14, 2019
Signed: "Justice H. Borenstein"