ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-90000401-0000
DATE: 2012/06/20

BETWEEN:

HER MAJESTY THE QUEEN – and – ABDI FATAH MAHAMAD Accused

Mr. E. Gilman for the Crown
Mr. D. Rechtshaffer for the Accused

HEARD: June 6, 2012

A.J. O’MARRA J.: (delivered orally in court)

[ 1 ] Mr. Abdi Fatah Mahamad was found guilty after trial with three counts of trafficking crack cocaine and one count of possession of the proceeds of crime. He sold crack cocaine on three occasions, May 29, May 31 and June 11, 2008 to an undercover police officer of the Toronto Police Service Drug Squad. The total amount of the crack cocaine sold to the undercover officer was 6.6 grams. On the last date, when he was arrested he had $200 of police buy money in his possession, the basis for the proceeds of crime charged.

[ 2 ] He is here today to be sentenced for these offences.

[ 3 ] On May 29, 2008, Detective Constable Paul Korac of the Toronto Police Service Drug Squad East was assigned to work in an undercover capacity in an area where the police had received numerous complaints for illicit drug activity, Danforth Avenue and Dawes Road to make opportunity drug purchases.

[ 4 ] He encountered a person he suspected was a drug user and asked him if he would contact his dealer for him in order to purchase crack cocaine. The person he approached agreed and used the officer’s cell phone to make a telephone call.

[ 5 ] A short time later, Mr. Mahamad arrived in the area with two other males in a van. On being introduced to Mr. Mahamad as the person who could sell him drugs, the undercover police officer purchased 1.2 grams of crack cocaine from him for $160 marked police buy money. Mr. Mahamad, who identified himself as “Milk” told Korac to call him any time he wanted to make a purchase. He gave him a cell phone number to use to contact him directly.

[ 6 ] On May 31, 2008, Constable Korac contacted Mr. Mahamad using the cell phone number provided and arranged to meet again, this time to purchase a larger amount, an eight ball of crack cocaine. Mr. Mahamad and another male arrived in the designated location on Danforth Avenue in a van and met the undercover officer. On this occasion, Mr. Mahamad sold him two grams of crack cocaine.

[ 7 ] On Wednesday, June 11, 2008, the police officer contacted Mr. Mahamad again in order to buy another eight ball of crack cocaine. On this occasion when they met, Mr. Mahamad sold the officer 3.4 grams of crack cocaine.

[ 8 ] Mr. Mahamad was arrested after the officer left the van and gave a signal to the other drug squad officers who had been conducting surveillance. He had the marked police buy money in his possession when he was arrested.

The Offender

[ 9 ] Mr. Mahamad is 25 years old. He has no criminal record. He is a Somalian citizen and he has a refugee status designation in Canada.

[ 10 ] He was born in Mogadishu, Somalia in 1992 during the civil war. His parents had not married and he has never met his father. His mother took him and his three siblings, two sisters and a younger brother out of Somalia to Kenya because of the civil strife. In 1994, at the age of eight he arrived in Canada with his mother and siblings. His single mother struggled to maintain and provide for her family sometimes working at several jobs. A Pre-Sentence Report ordered in this matter, Exhibit No. 1 reported the following:

The subject reported that he grew up in Toronto community housing. His family was the only racialized people in the community, so fitting in there was a challenge for the subject. As a young boy, the subject recalled that he did not always get material possessions the other children in the neighbourhood had, due to the families’ financial stress. The subject maintained that he had to make do with whatever material possessions he had and developed the habit of acquiring what he wanted by any means necessary, such as theft and bullying. He emphasized that this became a continuing battle that challenged him into his teenage years.

Prior to enrolling in high school, the subject indicated that he was already facing identity issues. He reported that in grade 10, he was already mingling with a negative peer group. The subject stated that he got acquainted with a group of friends that lived in a low-income neighbourhood and shared similar interests as them. He was later introduced to an underground world where he was taught that if he wanted something, you could steal it rather than pay for it. He recalled he spent a lot of time hanging out in his peers’ neighbourhood rather than his.

[ 11 ] With respect to his education he was expelled for bad behavior in grade 11 and thereafter had held “menial jobs intermittently” prior to his arrest. Since his arrest however, Mr. Mahamad has endeavoured to improve his situation by undertaking a number of activities. In 2008 he returned to an adult learning centre and received his Ontario Secondary School diploma (see Exhibit 2D). Further, as noted in the Pre-Sentence Report:

From 2009 to 2010, the subject volunteered at a hospital in Toronto once a week working with patients in need of physical assistance… The subject reported that while he volunteered, he developed skills that made a huge difference in the lives of patients, families and the hospital. He also provided written confirmation dated in 2009, from a non-profit organization where he volunteered. There he worked with staff in the community development programme to organize workshops and AIDS awareness campaigns… From 2009 to 2011, he worked at a servicing company as a building maintenance representative. He reported that in 2011, he advanced his education, which led to his employment at a local healthcare centre… The subject is currently employed full time as a cleaner since 2012. He is interested in enrolling in college in September 2012 for health sciences (nursing programme).

[ 12 ] Counsel for Mr. Mahamad tendered letters from the Ethiopian Association of Greater Toronto that acknowledged he volunteered community service hours to help organize workshops and AIDS awareness promotions, and from the Toronto Western Hospital that stated he volunteered 150 hours of service in their inpatient visit programme, (see Exhibit 2A and 2C). Further, there is a letter from the YMCA of Greater Toronto, dated February 27, 2012 welcoming him to their employ, subject to obtaining a vulnerable/local police records check as a condition of employment.

[ 13 ] The author of the pre-sentence report states:

The subject accepts full responsibility for the offences and recognizes the consequences of his actions.

[ 14 ] It is an assessment I consider questionable.

[ 15 ] During the sentencing hearing, counsel called Mr. Mahamad to give evidence, wherein he acknowledged his criminal behavior, however, asserted that when he sold drugs to the undercover officer it was the first time he engaged in such activity. At the age of 22-23 years, he was told he could sell the substance and make some money. He offered that he was immature and was persuaded by older acquaintances who were involved in drugs. I do not believe that it was his first foray into the world of drug dealing, or that his criminal behavior was as a result of immaturity and falling under the sway of bad company. He acted in the manner of a drug dealer, affecting a street name, using the street terminology for the quantities he sold and by having other dealer paraphernalia, such as a digital scale. He was in it for the money. He had possession of a quantity of crack cocaine that he sold to the undercover officer over three occasions and he was interested in expanding his customer base. In my view, he was engaged in the sale of crack cocaine willingly and he would have continued in the trade had he not been arrested. Notwithstanding, he is being sentences for the three offences for which he was found guilty.

Further, I found his attempt to distance himself from the known harmful and addictive consequence of crack cocaine use by claiming he only appreciated that it was harmful on an “unconscious level” at the time rang false. It was vain attempt to avoid the appearance of being a non-user purveyor of an insidious and dangerous product for profit. The evils and misery spread by the sale of a highly addictive drug such as crack cocaine are well known.

Position of the Parties:

[ 16 ] It is the position of the Crown that Mr. Mahamad should be sentenced to a period of incarceration in the range of 18 to 24 months. Defence counsel submitted that Mr. Mahamad should receive a conditional sentence of approximately 12 months with credit for 3 months pre-trial custody pending his release on bail, on a two for one basis.

Sentencing Principles and Considerations

[ 17 ] In imposing sentence I consider the objectives as set out in s.718 of the Criminal Code : “denunciation, general and specific deterrence, separation of an offender from society when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility in offenders and acknowledgement of the harm criminal activity brings to the community.” Further, I consider the principle of proportionality and that an offender should not be deprived of his liberty if a less restrictive sanction would suffice in all of the circumstances.

[ 18 ] In R. v. Woolcock (2002), O.J. No. 4927 at para. 8 Rosenberg J.A. of the Ontario Court of Appeal stated:

There is no disputing that crack cocaine is an extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society. Likewise, possession of crack cocaine for the purpose of trafficking is a serious offence warranting emphasis on the principles of deterrence and denunciation. However, when sentencing an offender convicted of such an offence, it is incumbent on the trial judge to consider all the principles of sentencing – including the accused’s prospect for rehabilitation. Section 718 of the Criminal Code directs a sentencing judge to consider the full panoply of sentencing objectives, including, but not limited to, assisting in the rehabilitation of offenders.

[ 19 ] I am mindful of the direction provided in R. v. Priest (1996), 1996 1381 (ON CA) , 110 C.C.C. (3 rd ) 289 wherein the Ontario Court of Appeal observed that in sentencing a first offender the primary objectives of the court are to affect individual deterrence and rehabilitation. The sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances. Community based dispositions must be considered and more serious forms of punishment should be imposed only when necessary.

[ 20 ] The offences committed by Mr. Mahamad require the imposition of a custodial sentence to give effect to the principles of general deterrence, to dissuade others from participating in the purveyance of a dangerous and insidious substance, and denunciation, society's condemnation of the offender's conduct .

[ 21 ] Society considers the offence of trafficking cocaine a serious offence. Indeed, Parliament has made the offence subject to a maximum sentence of life imprisonment. Parliament has recently passed legislation, Bill C-10, referred to as the Safe Streets and Communities Act that has imposed restrictions on the availability of conditional sentences, one of which applies to offences that are subject to life imprisonment. That restriction is not applicable to the offences Mr. Mahamad committed in 2008.

[ 22 ] Accordingly, in this instance, in assessing that the offences committed require a period of incarceration the issue is whether or not the period of incarceration to be imposed is one that can be served in the community as a conditional sentence considering the criteria set out in s.472.1 of the Criminal Code .

[ 23 ] Under s.742.1 of the Criminal Code :

A court may order a conditional sentence where:

1. The offence does not call for a minimum term of imprisonment;

2. The court imposes a sentence of imprisonment of less than 2 years; and

3. The court is satisfied that “serving the sentence in the community will not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in section 718 and 718.2”.

[ 24 ] The Supreme Court of Canada in R. v. Proulx , 2000 SCC 5 () , [2000] 1 S.C.R. 61 directed that a conditional sentence is available for all offences in which the statutory prerequisites are satisfied. There is no presumption that a conditional sentence is inappropriate for any specific offence.

[ 25 ] Is it appropriate in this case? In Proulx the Supreme Court noted at pp.114-15:

The conditional sentence facilitates the achievement of both the Parliament’s objectives. It affords the sentencing judge the opportunity to craft a sentence with appropriate conditions that can lead to the rehabilitation of the offender, reparations to the community and the promotion of a sense of responsibility in ways that jail cannot. However, it is also a punitive sanction. Indeed, it is the punitive aspect of a conditional sentence that distinguishes it from probation. As discussed above, it was not Parliament’s intention that offenders who would otherwise have gone to jail for up to 2 years less a day now be given probation or some equivalent thereof.

Thus, a conditional sentence can achieve both punitive and restorative objectives. To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration.

[ 26 ] In considering the first criteria of s.742.1, the offences committed by Mr. Mahamad do not require a minimum sentence. In addition, with respect to the second consideration, I am satisfied that the period of incarceration appropriate in the circumstances of these offences is one that would be less than 2 years. In R. v. Woolcock , supra, at para. 15, it was noted with respect to a person who was sentenced for possession of cocaine for the purpose of trafficking and proceeds of crime that “the range of sentence for this type of offence appears to be 6 months to 2 years less a day”. (See also R. v. Kerr 2001 21142 (ON CA) , [2001], O.J. No. 5085 (OCA), R. v. Hayes , [2001] O.J. No. 684 (OCA) , R. v. Veljkovic, [2006] O.J. No. 1327 (OCA) ).

[ 27 ] In terms of the third criteria, the Supreme Court in Proulx held that the danger to the community consideration requires a broad interpretation. The court stated at para. 69:

In my opinion, to assess the danger to the community posed by the offender while serving his or her sentence in the community, two factors must be taken into account:

1. The risk of the offender for re-offending; and

2. The gravity of the danger that could ensue in the event of re-offence.

If the judge finds that there is a real risk of re-offence, incarceration should be imposed. Of course, there is always some risk that an offender may re-offend. If the judge thinks this risk is minimal, the gravity of the damage that could follow were the offender to re-offend should also be taken into consideration. In certain cases, the minimal risk of re-offending will be offset by the possibility of a greater prejudice thereby precluding a conditional sentence.

[ 28 ] The risk that a particular offender poses to the community must be assessed in each case on its own facts. In examining the risk of re-offence, a court should consider a wide range of factors including whether: 1) the offender has previously complied with court orders, 2) whether the offender has a criminal record that suggests that the offender will not abide by the conditional sentence, and 3) circumstances surrounding the offence.

[ 29 ] In this instance, Mr. Mahamad has no criminal record. He is a first offender and he has been on a bail release since his release from detention in 2008. There is no evidence to suggest that Mr. Mahamad has not been compliant with the terms of the release order over that period of time. I am satisfied on that basis that Mr. Mahamad would abide by the terms of a court order. Even though I question whether Mr. Mahamad has fully accepted responsibility for the offences committed, or acknowledged the damaging consequences of his actions and as a result some risk of re-offending exists, I consider that the risk to be minimal because of his demonstrated efforts at rehabilitation since his arrest. Further, a community-based disposition will permit Mr. Mahamad to continue in those efforts and to make a positive contribution to the community through his community service.

[ 30 ] The court should help to foster by the sentence imposed the significant rehabilitative efforts undertaken by Mr. Mahamad. In all the circumstances, I consider the imposition of a conditional sentence to be appropriate to that end. Mr. Mahamad has experienced 3 months of incarceration. If he fails to comply with the conditions imposed, he knows what awaits him.

[ 31 ] In having engaged in the sale of crack cocaine, repeatedly with the intent of expanding his customer base, I consider the appropriate period of incarceration to be in the upper range. The period of incarceration shall be 22 months, reduced as a result of the 3-month pre-sentence custody, on the basis of 2 for 1 credit, thereby reducing the term to one of 16 months incarceration, to be served as a conditional sentence. In addition, there shall be a period of probation following the completion of conditional sentence for a period of 12 months.

[ 32 ] With respect to the conditional sentence, in addition to the mandatory conditions, the following conditions are imposed:

1. You shall seek and maintain employment or attend an accredited post secondary educational programme.

2. Reside at an address approved by the Probation Officer/Supervisor.

3. Not possess or consume any controlled substances within the meaning of the Controlled Drugs and Substances Act unless under the prescription of a physician.

4. Not to possess any drug paraphernalia.

5. Not to own, possess or carry any firearm, ammunition or weapon.

6. Remain continuously in his residence and not to be outside of his residence for any reason, except:

a) In connection with his employment and/or educational programme,

b) While doing community service work or going directly to and from his place of community service, as ordered as a term of the conditional sentence,

c) For the purposes of attending court that may be required or to report to his Probation Officer/Supervisor,

d) For the purposes of receiving medical and/or dental treatment, but only with prior written permission from his Probation Officer/Supervisor unless the treatment constitutes an emergency which requires him to go directly to the nearest hospital.

7. Perform 160 hours of community service work, at a rate not less than 10 hours per month.

8. Attend and actively participate in counseling as well as any other programme directed by his Probation Officer/Supervisor.

9. Carry a copy of the Order with conditions at all times while outside of his residence and produce it on demand to a police officer or Probation Officer/Supervisor.

[ 33 ] In terms of the probation order, in addition to the statutory terms, the following conditions apply:

1. Reside at an address approved by the Probation Officer.

2. Not possess or consume any controlled substances within the meaning of the Controlled Drugs and Substances Act unless under the prescription of a physician.

3. Not to possess any drug paraphernalia.

4. Not to own, possess or carry any firearm, ammunition or weapon.

[ 34 ] In addition, he is subject to an order pursuant to s.109 of the Criminal Code prohibiting you from possessing any firearm, ammunition or other item as described therein for a period of 10 years.

[ 35 ] The Crown suggested that the Court consider an order for the taking samples of bodily substances for the purpose of forensic DNA analysis pursuant to s.487.051 of the Criminal Code . This is not a situation in which I consider the order necessary or appropriate.

A.J. O’Marra J.

Released: June 20, 2012

COURT FILE NO.: CR-11-90000401-0000
DATE: 2012/06/20

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN - and - ABDI FATAH MAHAMAD

REASONS FOR SENTENCE (DELIVERED ORALLY IN COURT) A.J. O’Marra J.

Released: June 20, 2012