ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 481/10
DATE: 20120105
BETWEEN:
HER MAJESTY THE QUEEN – and – DAVID HARUTYUNYAN Accused
K. Lockhart , for the Crown
A. Herscovitch , for the Accused
HEARD: December 22, 2011
REASONS FOR SENTENCE
bENOTTO J.
[ 1 ] Mr. Harutyunyan was convicted of 8 offences arising out of the events of February 24, 2009. Seven of the offences relate to his possession of a loaded 380 semi-automatic prohibited handgun and the eighth is obstruction of justice. Some of the convictions carry a mandatory minimum sentence of 3 years in custody.
[ 2 ] Mr. Harutyunyan spent 82 days in pre-trial custody. The parties agree that he should receive a credit of 164 days which is 5½ months.
[ 3 ] The Crown argues that the range of sentence is 3½ to 4 years or 42-48 months. Mr. Harutyunyan’s counsel submits that the range is 40-42 months with a credit for pre-trial custody and for the bail conditions, the combined effect of which would result in 2½ years remaining to be served.
The Offence
[ 4 ] Mr. Harutyunyan was stopped by a police officer while driving in a car which was suspected to have been stolen. The officer called for assistance and two additional officers arrived very quickly. Contrary to the direction of the officers, Mr. Harutyunyan attempted to leave with the vehicle. He was arrested and the firearm fell from his pants. All of this occurred at the side of a busy, public roadway. There were convictions on the following counts:
- Obstruction of justice;
- Possession of a prohibited firearm;
- Possession of a firearm knowing its possession is unauthorized;
- Unauthorized possession of a firearm;
- Occupying a motor vehicle in which he knew there was a firearm;
- Carelessly carrying a firearm;
- Possession of a weapon for a dangerous purpose; and
- Carrying a concealed weapon.
[ 5 ] The Crown submits that a stay should be granted on counts 4 and 7 pursuant to the principles of R. v. Kienapple. Defence counsel submits that a stay should also be granted on count 3 which has a sufficient legal nexus to count 2 to warrant application of the principle.
[ 6 ] Justice Doherty addressed this issue in R. v. R.K . 2005 (ON CA) , [2005] O.J. No. 2434 where he said:
First, where the offences are designed to protect different societal interests, convictions for both offences will not offend the Kienapple rule…Third where the offences [prescribe] different consequences, the Kienapple rule will not bar multiple convictions.
[ 7 ] The consequences are different for counts 2 and 3, primarily with respect to subsequent convictions. Subsequent convictions for count 2 are subject to mandatory minimum of one year, count 3 is subject to 5 years. As stated by Justice Clark in R. v. Stephens [2009] O.J. No 6102 , where Parliament’s intent to create different punishments for different offences is clear, “that intent can be a proper basis for imposing multiple convictions” for similar offences. In addition, the specific intent required in count 3 as opposed to count 2 further indicate Parliament’s intention to create separate offences.
[ 8 ] Therefore there will be a conviction entered on counts 1, 2, 3, 5, 6, and 8. There will be a stay on counts 4 and 7.
The Offender
[ 9 ] Mr. Harutyunyan is 25 years old. He does not have a criminal record.
[ 10 ] When he was granted bail, he made very good use of his time. He went to school, became employed, started his own company, and made contributions to the community.
[ 11 ] He has filed a certificate from Trios College with a transcript of his grades. While at school, he participated in “Showcase Ontario 2009” which is an exhibition for the Government of Ontario. The Senior Planning Coordinator wrote to thank him for his participation.
[ 12 ] His employer at A+A Graphics wrote to commend him as an employee and a community volunteer. The CEO of Courtvision Basketball, an organization that offers youth mentorship through sports, wrote to commend him for his hours of volunteer service. His pastor at the Holy Trinity Armenian Church wrote to advise of his assistance with the restructuring of the computer system. His friend wrote to speak to his personal integrity and compassion. He has the support of his family.
Range of Sentence
[ 13 ] The parties are not far apart in their assessment of the appropriate range. The Crown says it is 42 to 48 months, the defence says it is 40-42.
[ 14 ] While each case turns on its own facts, I have considered the sentences imposed in the following cases:
- R. v. D.A. J. 2011 ONSC 5330, [2011] O.J. No. 4026 4.5 years (prior record)
- R. v. VelezLau 2011 ONSC 4805, [2011] O.J. No. 3710 4 years
- R. v. Nur 2011 ONSC 4874, [2011] O.J. No 3878 40 months plus 2 years probation (guilty plea)
- R. v. Z.L.M. 2011 ONSC 4051, [2011] O.J. No. 3124 3 years (guilty plea after charter motion)
- R.v. B.S. [2011] O.J. No. 4894 34 months
[ 15 ] The mitigating factors (other than bail conditions which will be discussed below) are his youth, his clean record, his family support and the good work he has performed while subject to the bail conditions. All of this speaks to an excellent prospect of rehabilitation.
[ 16 ] The aggravating factor here is the heightened danger to the public. The firearm was loaded, concealed on his person, in a vehicle on a public highway. The danger to the public cannot be overstated. Sadly our courts have seen too many situations where innocent bystanders are injured or killed. The very presence of a loaded semi-automatic firearm constitutes such a public danger that a significant denunciation and deterrent consideration is engaged.
[ 17 ] If possession of the firearm here invokes the minimum 3 years, the possession of it in public where innocent persons are at risk require stronger denunciation from the court.
[ 18 ] The defence argues that judicial proclamations of denunciation and deterrence, which reflect society’s abhorrence of firearms, are captured in Parliament’s imposition of mandatory minimum sentences. In other words, the societal protection considerations are inherent in the 3 year minimum sentence. I do not agree. The fact that the firearms were located in a public place engages considerations of denunciation and deterrence that are not captured in the mandatory minimum of 3 years. Justice Charron’s oft quoted words from R. v. Morrissey (2000) 148 CCC (3d) at para 75 confirm this:
…the mandatory minimum sentences for firearms-related offences must act as an inflationary floor, setting a new minimum punishment applicable to the so-called “best offender…”
[ 19 ] In VelezLau where a 4 year term was imposed, the firearms were in a storage locker.
[ 20 ] In the facts of this case, having regard to the mitigating and aggravating factors, I find the sentence of 4 years is appropriate. The parties agree that 5 ½ months is to be credited for pre-trial custody which would leave 42 ½ months to be served. Against this must be considered the credit requested for bail conditions.
Credit for Bail Conditions
[ 21 ] The defence recognizes that bail conditions cannot operate to bring the sentence below the mandatory minimum. He states, however, that there should be a credit of 7 months applied to the 40 month proposed to bring it to 33 months and against this should be applied the 5½ months credit for pre-trial custody. So, the issue here is how to treat the mitigating circumstance of the house arrest.
[ 22 ] Mr. Harutyunyan was arrested on February 24, 2009. He was released on May 5, 2009 on house arrest, and not to be out of the residence unless with either Susann or Samuel Harutyunyan. On November 9, 2009, the Crown consented to a variation in the terms to allow him to drive to and from school and employment, attend school, go to a job and conduct employment related errands and banking before 12 a.m.
[ 23 ] The relevance of bail conditions in determining sentence was discussed in R. v. Downes 2006 (ON CA) , [2006] O.J. No 555. There it was determined that time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. Stringent bail conditions, especially house arrest, represent an infringement on liberty and are inconsistent with the presumption of innocence.
[ 24 ] For the six months from May until November, Mr. Harutyunyan was on strict house arrest. Thereafter, the terms of his bail were so broad as to allow him to do all the good things that I have acknowledged are mitigating factors. He went to school, to work, to church, involved himself in community activities. With the exception of the fact that he could not go on holidays or be out past midnight, there was little to distinguish him from the norm. These were not strict conditions. To his credit, he used the time to improve himself and to contribute to society and this has already been taken into account. The conditions after November impinged very little on his liberty.
[ 25 ] There should be some recognition of the 6 months strict house arrest as a further mitigating factor and I have taken it into account. There is no fixed formula.
Disposition
[ 26 ] Having considered all of the sentencing principles described by the Criminal Code and set out, I sentence Mr. Harutyunyan to a global term of 4 years.
[ 27 ] That will be broken down as follows:
Count 1: four months concurrent
Count 2: four years concurrent
Count 3: four years concurrent
Count 5: four years concurrent
Count 5: one year concurrent
Count 8: four years concurrent.
[ 28 ] Against this term of four years, there shall be credit for time served of 5½ months and a further credit of 1½ months for the bail conditions all of which will leave remaining time of 41 months.
[ 29 ] There will also be a DNA order under section 487.051(2) and a section 109 order for ten years and a forfeiture order under section 491.
Benotto J.
Released: January 5, 2012
COURT FILE NO.: 481/10
DATE: 20120105
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – DAVID HARUTYUNYAN Accused
REASONS FOR SENTENCE Benotto J.
Released: January 5, 2012