ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 20120531
DOCKET: 11-50000245-0000

BETWEEN:

HER MAJESTY THE QUEEN – and – MOHAMED MUHYADIN MOHAMED Defendant

Scott C. Arnold, for the Crown

John F. Scandiffio , for the Defendant

HEARD: May 7 and 29, 2012

L. A. PATTILLO J. (Orally)

REASONS FOR SENTENCE

Introduction

[ 1 ] On March 14, 2012, following a six day trial without a jury, I convicted Mohamed Mohamed of the offence of robbery. On May 7, 2012, I heard evidence and submissions concerning sentence and the matter was put over to today for sentencing.

[ 2 ] The Crown submits, in addition to certain ancillary orders, that Mr. Mohamed should receive a penitentiary term of between three and four years before credit for pre-sentence custody. The Defence, on the other hand, submits that Mr. Mohamed should receive a conditional sentence of between 12 and 18 months (after pre-sentence custody) to be served at his parents’ home with the ability to continue his education in the fall.

[ 3 ] The issues to be resolved in determining Mr. Mohamed’s sentence are length of the sentence that should be imposed; whether a conditional sentence is available in the circumstances of this case; and if so, whether such a sentence should be imposed.

Background

[ 4 ] The facts can be summarized briefly. In the early afternoon of Thursday October 1, 2009, Mr. Mohammed and his friend drove to the Bank of Montreal branch at 141 Saturn Road in Etobicoke. While the friend waited in the car, Mr. Mohamed entered the bank and handed a note to the teller which said: “Give me all your money. $20,000. I have a gun.” The teller proceeded to hand him around $400 which he then placed in a backpack and left the bank. He returned to the waiting car and they sped away. He was arrested on October 8, 2009.

[ 5 ] No weapon was seen by anyone at the Bank during the robbery and none was ever found despite a search warrant being executed at Mr. Mohamed’s home.

Mr. Mohamed

[ 6 ] Mr. Mohamed is 23 years of age. He was 20 at the time of the offence. He had no prior criminal record at the time of the offence.

[ 7 ] Mr. Mohamed was born in Mogadishu, Somalia and is one of 9 children. He immigrated to Canada in 1994 and became a Canadian citizen in 1999. He graduated from Kipling Collegiate Institute and was attending his first year at York University in Health Management and Political Science at the time of his arrest.

[ 8 ] He was living with his parents and his eight siblings when arrested. He has a positive relationship with his family. He assisted his siblings with their homework and his mother with her household duties. They are very supportive of him and want him to come home. For the last two years he has also had a relationship with a girlfriend and she has been very supportive of him too.

[ 9 ] Mr. Mohamed has been active in various volunteer activities with young people beginning in high school. Letters of support on his behalf were filed by the Islamic Education Guidance Centre and the Somali Immigrant Aid Organization speaking of his volunteer work with youths.

[ 10 ] Abdifatah Warsame, one of the founders of the Centre for Youth Development and Mentoring Services, a volunteer organization working with youth to help them avoid a life of drugs and gangs by keeping them busy, testified on behalf of Mr. Mohamed. The Centre works very hard to keep young people busy and in school rather than in the streets. Mr. Mohamed participated in the Centre’s programs as a youth and became a volunteer when he reached 20. Mr. Warsame described Mr. Mohamed as a young man of good character. He was proud of Mr. Mohamed graduating from high school and going on to university and viewed him as a role model for the other youths. He was surprised and very hurt by what Mr. Mohamed did and had no hesitation in saying it was wrong, despicable and disrespectful to the community. He said he was prepared to mentor Mr. Mohamed and spend time with him to help guide him to the right path.

[ 11 ] Mr. Mohamed’s pre-sentence report was generally favourable. In addition to Mr. Mohamed’s mother, the author spoke with a few of his friends who grew up with him or knew him from his involvement in the Somalian community. They spoke of him being a good person and of his volunteer work with youth in the community. They noted that the offence was out of character.

[ 12 ] Although he apologised for what he did during his pre-sentence interview, the pre-sentence author noted the concern that although Mr. Mohamed expressed insight into his behaviour, he did not appear to understand the seriousness of his actions and instead said that he was helping a friend.

[ 13 ] I too have a concern arising out of Mr. Mohamed’s statement to the pre-sentence author that he robbed the bank to help a friend. In his testimony at trial he said that he was forced to rob the bank by an unidentified person in the back seat of the car with a gun who threatened to kill his friend if he didn’t do it. I didn’t accept Mr. Mohamed’s evidence then and I am not prepared to accept what he said to the pre-sentence author either.

[ 14 ] I consider Mr. Mohamed to be somewhat of an enigma. He comes from a rough neighbourhood and he is to be congratulated for doing well in school and going to university. He is also to be congratulated for the volunteer work he has done with youth in his community. On the other hand, he robbed a bank for reasons that still remain, in my view, a mystery.

[ 15 ] After his arrest on October 8, 2009, Mr. Mohamed was released on bail with two sureties. He was confined to his home except for school. On February 3, 2012, he was arrested for failure to comply with his recognizance in respect of the curfew. He was also charged with additional charges including obstruction of justice for lying to the police. He has remained in custody on both the robbery charge and the other charges since February 3, 2012, a period of almost 4 months. All the February charges remain outstanding.

The Victim

[ 16 ] Although there was no victim impact statement filed, Ms. Linda Na, the teller at the bank testified at trial and she also spoke the author of the pre-sentence report. She said that following the event she constantly feels nervous and scared. She has had counselling and has had health issues including tension in her back and chest. There is no question in my mind that a bank robbery is a very stressful event for those who are involved particularly as in this case where the note says that the robber has a gun.

Principles of Sentencing

[ 17 ] Section 718 of the Criminal Code sets out the fundamental purpose of sentencing which is to contribute to respect for the law and to maintain a just, peaceful and safe society. A court is required to impose a just sanction that has one or more of the following six objectives:

1. To denounce unlawful conduct;

2. To deter the offender and others from committing offences;

3. To separate offenders from society where necessary;

4. To assist in the rehabilitation of offenders;

5. To provide reparations for harm done to victims or to the community; and,

6. To promote a sense of responsibility in offenders, and acknowledge the harm done to victims and to the community.

[ 18 ] Section 718.01 of the Criminal Code further provides that any sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[ 19 ] Robbery and particularly a bank robbery is a very serious offence. It is a far too often occurrence in our community and causes significant potential for violence. It is particularly difficult for the employees of the bank who are exposed to potential serious personal harm. There is no question that the principles of denunciation and deterrence are of paramount importance in addressing sentence for the offence of a bank robbery. At the same time, however, regard must also be had in this case to the important principle of rehabilitation.

Range of Sentence

[ 20 ] The cases I have been provided with by the Crown and Defence indicate that there is a wide range of sentence that courts have imposed for bank robbery without a weapon depending on the seriousness of the offence. The sentences vary from a conditional sentence on the one end to a penitentiary term on the other.

[ 21 ] In R. v. Kaddoura , [2003] O.J. No. 224 (C.A.) , the Court of Appeal upheld a sentence of 30 months imprisonment after credit of 1.5 years for pre-sentence custody on a plea of guilty to robbery of a bank. The defendant went into the bank with a hood over his head and pantyhose on his hands, told the teller he had a bomb and demanded money. He had a prior conviction for assault and various medical and drug addiction issues.

[ 22 ] In R. v. Bogdanski , [2011] O.J. No. 5827 (S.C.J.) , the accused pleaded guilty to the robbery of a bank. Similar to this case, the accused handed the teller a note that said: “I have a gun – give me money”. He obtained a small amount of money. There was no evidence he had a gun. He had no criminal record at the time of the offence. The court declined to impose a conditional sentence in the circumstances noting that there must be strong grounds for granting a conditional sentence for robbery. The accused was sentenced to one year custody followed by two years probation.

[ 23 ] In R. v. Arsenault , [2006] O.J. No. 4098 (C.A.) , the accused who was fully disguised, robbed a bank by handing a note to the teller. He refused to say anything and responded to the teller’s questions by simply nodding or shaking his head. The accused had no criminal record at the time of the offence. The trial judge sentenced him to 15 months. The Court of Appeal held on the facts of the case that the trial judge erred in failing to consider a conditional sentence, allowed the sentence appeal and in the circumstances granted a conditional sentence. The Court’s endorsement is quite short and, unfortunately, is not particularly helpful in indicating why a conditional sentence is appropriate for robbing a bank.

[ 24 ] In R. v. Brennan , [2003] A.J. No. 1366 (C.A.) , the accused pleaded guilty to three counts of robbery involving three separate robberies of the same bank. The latter two were committed while the accused was on interim release for the first one. In each case the accused handed the teller a note which contained veiled threats. The accused had a severe addiction problem. He pleaded guilty and the trial judge sentenced him to four years before credit for per-sentence custody. In dismissing the appeal from sentence, the Court noted that four years is the appropriate starting point for robberies by note. In my view, the Court’s statement in Brennan is difficult to interpret. On the one hand, the Court states that four years is the appropriate starting point for robberies by note. On the other, it upholds a global sentence of four years for three separate robberies, the latter two of which were committed while on recognizance for the first.

[ 25 ] From the above cases, therefore, it appears that the range of sentence for robbing a bank without a weapon varies from one year at the low end to 4 ½ years at the high. Further, a conditional sentence may be available, but only as Gray J. said in Bogdanski , where there are strong grounds for granting it.

Conditional Sentence

[ 26 ] Section 742.1 of the Criminal Code sets out the criteria for imposing a conditional sentence. It provides:

If a person is convicted of an offence, other than a serious personal injury offence as defined in section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's compliance with the conditions imposed under section 742.3.

[ 27 ] The Crown submits that a conditional sentence is not available in this case because the offence of robbery is “a serious personal injury offence”. Section 752 defines “serious personal injury offence, in part, as an indictable offence, other than high treason, treason, first or second degree murder involving the use or attempted use of violence against another person, or conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person, and for which the offender may be sentenced to imprisonment for 10 years or more.

[ 28 ] In support of its position, the Crown relies on the Court of Appeal decision in R. v. Lebar , 2010 ONCA 220 , 252 C.C.C. (3d) 411 (Ont. C.A.). In Lebar , the Court held that having regard to s. 742.1 of the Criminal Code , a conditional sentence is not an available sentence for robbery where the underlying conduct involved the use or attempted use of violence. Lebar involved the robbery of an LCBO where the accused approached the cashier from behind, touched her shoulder and produced a knife with a five inch blade which he held close to her. The sentencing judge found that the accused used violence.

[ 29 ] In R. v. Bogdanski , supra, Gray J. considered the issue of whether the presentation of a note threatening the use of a gun, where no gun was actually in the possession of the accused constitutes the use or attempted use of violence such that it is a serious personal injury offence within the meaning of s. 752 of the Criminal Code .

[ 30 ] Justice Gray noted that Lebar did not deal with the issue and there were no appellate decisions on point. The learned judge considered a number of trial court decisions on the issue and concluded that while the note constituted a threat, in the absence of the weapon there is no means to carry out the threat and accordingly no attempt to use violence. In order to be an attempt, an overt act directed towards the actual use of violence was necessary.

[ 31 ] I agree with the reasoning of Gray J. in Bogdanski . In my view, the mere handing of the note to the teller without the means to carry out the threat does not constitute an attempted use of violence as provided for in s. 752 (a) of the Criminal Code .

[ 32 ] Accordingly, having regard to the facts of this case, the offence of robbery which Mr. Mohamed was convicted of is not a “serious personal injury offence” and therefore, subject to consideration of the other criteria in s. 742.1 , a conditional sentence is legally available.

[ 33 ] Notwithstanding that Mr. Mohamed has been in custody for breach of his recognizance, in the absence of any resolution of the pending charges, there is no evidence before me that the safety of the community would be endangered if he were to serve his sentence conditionally. The real issue in my view comes down to a determination of what is the appropriate sentence in this case, having regard to the fundamental purpose and principles of sentencing as set forth in s. 718 to 718.2 of the Criminal Code .

[ 34 ] Mr. Mohamed is young and this is his first criminal offence. He has the support of his friends and his community. At the same time, however, he robbed a bank. And in doing so he handed the teller a note that said he had a gun. He created a potentially dangerous situation in a public area where innocent people were put in danger. The teller has suffered significantly from the incident. Mr. Mohamed also acted on his own in carrying out the robbery. Why he did so, as I’ve noted, remains a mystery.

[ 35 ] Bank robberies are a very real and prevalent problem in our society. Despite Mr. Mohamed’s youth and this is his first offence, in my view denunciation and deterrence are of primary importance in this case. While I also recognize that a conditional sentence can be a very significant punishment, particularly with strong conditions, in my view, it is simply not appropriate in the circumstances of this case. A period of incarceration is required. In my view, Mr. Mohamed can easily resume his education when he is released from custody.

[ 36 ] What then is the appropriate term of custody in this case? Given Mr. Mohamed’s background, and particularly his age and the fact that this was a first offence, I do not think a penitentiary term is warranted. In my view, the penalty should fall closer to the lower end of the range identified in the cases cited. Mr. Mohamed, would you please stand.

[ 37 ] You have been convicted of robbery which is a very serious offence. I sentence you to a global sentence of 18 months in custody. From that and because the offence took place before the Criminal Code was amended, you will receive a credit for pre-sentence custody on a two for one basis which for simplicity I will round out to eight months. As a result, you will be required to serve a further 10 months in custody.

[ 38 ] Upon your release, there will be a term of probation of two years.

[ 39 ] There will also be an order under s. 109(1) of the Criminal Code prohibiting possession for 10 years of any firearm except a prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition which will be for life. As well, there will be an order for the taking of a DNA sample pursuant to s. 487.051 of the Criminal Code.

[ 40 ] Counsel may make submissions as to the terms of the probation.

L. A. PATTILLO J.

Released: May 31, 2012

DATE: 20120531
DOCKET: 11-50000245-0000

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – MOHAMED MUHYADIN MOHAMED REASONS FOR JUDGMENT L. A. PATTILLO J.

Released: May 31, 2012