CITATION: R. v. Dawkins, 2013 ONSC 4949
COURT FILE NO.: CR13-70000371-00
DATE: 20131126
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DAQUAN DAWKINS
Accused
Derek Ishak, for the Crown
Gordon Cudjoe, for the Accused
HEARD: May 21, 22, 23, 24, July 25, 2013, October 21, November 25, 2013
J. WILSON J.
REASONS FOR SENTENCE
Overview
[1] On October 18, 2011, the victim Mr. Justin Ling-Leblanc was shot with a firearm that discharged a .22 calibre rimfire bullet. At that time, he was a 20-year-old university student working part-time as a bus boy and marijuana vendor. The shooting followed a drug robbery of marijuana and attempted robbery of the victim’s cell phone. The bullet entered the victim’s neck near his left jaw, traversed his neck, exited on the right side of his lower neck, and ultimately came to rest in his shoulder. After surgery, the victim miraculously had a complete recovery, with the exception of emotional and physical scars.
[2] Both Mr. Dawkins and H.L. were involved in the incident that took place on October 18, 2011. Mr. Dawkins was 18 years old at the time of the offence. He was charged and tried separately from H.L., who was 17 years old at the time of the offence and therefore a young person under the Youth Criminal Justice Act, S.C. 2002, c. 1.
[3] Mr. Dawkins was charged with eight offences flowing from the incident, including attempted murder (count 1), aggravated assault (count 2), discharging a firearm with intent to endanger life (count 3), armed robbery (count 4), pointing a firearm (count 5), knowingly possessing a firearm without a license (count 6), possession of a firearm while prohibited (count 7), and failing to comply with a condition of a probation order not to possess a firearm (count 8).
[4] He was convicted in a trial before me of aggravated assault (count 2), armed robbery (count 4), knowingly possessing a firearm without a license (count 6), possession of a firearm while prohibited (count 7), and failing to comply with a condition of a probation order not to possess a firearm (count 8). He was acquitted of the charges of attempted murder (count 1), discharging a firearm with intent to endanger life (count 3), and pointing a firearm (count 5). The Crown conceded part way into the trial that the evidence did not support a conviction for attempted murder, or discharging a firearm with intent to endanger life.
Issues that Arose in the Sentencing
[5] H.L. was convicted for mirror offences in a separate trial before K. Campbell J. He was 17 years old at the time of the offence, whereas Mr. Dawkins was 18 years of age. The Crown made an application that H.L. be sentenced as an adult. If sentenced as an adult, H.L.’s sentence is relevant to assess the appropriate sentence for Mr. Dawkins.
[6] After counsel’s initial submissions, an issue arose as to whether a five-year minimum sentence applies for robbery with a restricted or prohibited weapon as stipulated by s. 344(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, or whether a four-year minimum sentence applies for robbery with a firearm as stipulated by s. 344(1)(a.1) of the Criminal Code.
[7] This sentencing was adjourned to consider these two issues.
[8] On November 15, 2013, K. Campbell J. sentenced H.L. as an adult to a cumulative sentence of five years’ imprisonment for the substantive offences. With a 1 to 1.5 credit for time served, H.L. is to serve his remaining sentence of two years less a day, followed by three years of probation.
Background Facts
[9] As fully outlined in the reasons for judgment, I concluded that Mr. Dawkins was involved in the planning and execution of the drug robbery with H.L. They stole four ounces of marijuana valued at $800.00 from the victim. Mr. Dawkins was also involved in the attempted robbery of the victim’s cell phone.
[10] H.L. was the “front man” who directed the location of the drug robbery. H.L. initially robbed the victim of his drugs and threatened him by pointing a firearm at his face. The victim did not realize it was a real firearm and thought it was a toy gun. H.L. confirmed that this was no toy, and purported to rack the firearm while pointing it at the victim’s face. The victim still thought that the firearm was not real, and thought that maybe it was a b.b. gun.
[11] Mr. Dawkins served as the “backup man,” available to assist if necessary. The victim attempted to detain H.L. after the drug robbery. Mr. Dawkins appeared immediately, probably from his hiding place behind the large boulders near the robbery scene. The boulders are clearly visible in the photographs of the scene filed as exhibits.
[12] Mr. Dawkins became the aggressor once he appeared on the scene. Mr. Dawkins stood close to H.L. and directed the victim back to his car. The victim returned to his car as directed. He was prepared to simply leave and absorb his loss of the drugs.
[13] In the trial, I found as a fact that in all probability H.L. passed his firearm to Mr. Dawkins when the victim was walking back to his car. This fact was not established beyond a reasonable doubt. Alternatively, Mr. Dawkins perhaps had another firearm, which he used to assault the victim and accidentally discharged in the subsequent altercation.
[14] While the victim was seated in his car attempting to leave, Mr. Dawkins assaulted the victim and tried to steal his cell phone. The victim theorized that the cell phone theft was an added bonus to the drug theft. The Crown’s theory was that Mr. Dawkins was intent on securing the cell phone to ensure the victim could not report the drug robbery.
[15] When the victim resisted giving up his cell phone, Mr. Dawkins hit him in the head with a metal object. The victim described the object as a brown blur that he believed to be a gun. The victim continued to resist. Mr. Dawkins then opened the car door and dragged or forced the victim out of the car, continuing to assault him in a fistfight between two parked cars.
[16] The firearm in Mr. Dawkins’ possession discharged accidentally approximately 30 seconds into the fistfight. The victim did not see a gun in Mr. Dawkins’ hands during the fistfight. The victim never saw the gun that discharged. An issue in this trial was whether H.L or Mr. Dawkins was in possession of the gun that discharged.
[17] After the shot was fired, Mr. Dawkins and H.L. immediately ran away together into the housing complex with the stolen drugs. The victim first thought he had been hit forcefully in the head. He did not realize that he was shot by the bullet that had passed through his neck and was lodged in his shoulder. The bullet fell to the floor when the victim took off his shirt at the hospital. It was only at this time that the victim and the nurse realized he had been shot. He was rushed immediately into surgery.
The Position of the Crown
[18] It is the Crown’s position that Mr. Dawkins is subject to the mandatory minimum sentence of five years’ imprisonment pursuant to s. 344(1)(a) of the Criminal Code as Mr. Dawkins was convicted of robbery while in possession of a firearm that was a prohibited or restricted weapon.
[19] The Crown submits that the appropriate sentence range is eight to ten years’ imprisonment for the substantive offences, less credit for time served, and a consecutive sentence of one year’s imprisonment for the breach of the prohibition order and the breach of probation.
The Position of the Defence
[20] The Defence initially conceded that s. 344(1)(a) applies. However, it is the Defence’s position upon reflection that the minimum sentence is four years’ imprisonment pursuant to s. 344(1)(a.1) of the Criminal Code. The Crown has proved robbery with a firearm, but has not proved beyond a reasonable doubt that any firearm used during this incident by either H.L. or Mr. Dawkins met the definition of a restricted or prohibited weapon.
[21] The Defence submits that the appropriate sentence for the substantive offences is four years’ imprisonment concurrent, less credit for time served, and a consecutive sentence of six months’ imprisonment for the breach of the prohibition order and the breach of probation.
The Applicable Mandatory Minimum Sentence
[22] s. 344(1) of the Criminal Code provides as follows:
Every person who commits robbery is guilty of an indictable offence and liable
(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years;
(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life. [Emphasis added.]
[23] Section 84(1) of the Criminal Code provides the following relevant definitions to determine whether the mandatory five year or four year period of incarceration referred to in s. 344(1) of the Criminal Code applies:
“handgun” means a firearm that is designed, altered or intended to be aimed and fired by the action of one hand, whether or not it has been redesigned or subsequently altered to be aimed and fired by the action of both hands;
“prohibited firearm” means
(a) a handgun that
(i) has a barrel equal to or less than 105 mm in length, or
(ii) is designed or adapted to discharge a 25 or 32 calibre cartridge,
but does not include any such handgun that is prescribed, where the handgun is for use in international sporting competitions governed by the rules of the International Shooting Union,
(b) a firearm that is adapted from a rifle or shotgun, whether by sawing, cutting or any other alteration, and that, as so adapted,
(i) is less than 660 mm in length, or
(ii) is 660 mm or greater in length and has a barrel less than 457 mm in length,
(c) an automatic firearm, whether or not it has been altered to discharge only one projectile with one pressure of the trigger, or
(d) any firearm that is prescribed to be a prohibited firearm;
“restricted firearm” means
(a) a handgun that is not a prohibited firearm,
(b) a firearm that
(i) is not a prohibited firearm,
(ii) has a barrel less than 470 mm in length, and
(iii) is capable of discharging centre-fire ammunition in a semi-automatic manner,
(c) a firearm that is designed or adapted to be fired when reduced to a length of less than 660 mm by folding, telescoping or otherwise, or
(d) a firearm of any other kind that is prescribed to be a restricted firearm.
[Emphasis added.]
[24] In the trial, counsel submitted no evidence to address whether the firearm that was used in the robbery met the definition of a prohibited or restricted weapon.
[25] The Crown concedes that it must prove in this sentencing that “the weapon used in the offence was a restricted or prohibited firearm or a firearm within the definitions of same in the Criminal Code” to the standard of proof beyond a reasonable doubt: R. v. Stonechild, 2009 SKPC 122, [2009] S.J. No. 630, and R. v. Grant, [2006] O.J. No. 851 (S.C.), at paras. 5-10.
[26] The Crown concedes that, in order for s. 344(1)(a) to apply in this case, the “handgun” definition is the only definition that could possibly apply to the firearm used by H.L. or Mr. Dawkins: see e.g. R. v. Stephens, 2013 ONSC 4492, 2013 CarswellOnt 9053, at para. 23. By definition under Section 84(1) of the Criminal Code, any “handgun is either a restricted or a prohibited firearm”: R. v. Williams, 2009 ONCA 342, 95 O.R. (3d) 660 or 670, at para. 17.
[27] The police never recovered the gun in this case.
[28] The ballistics report confirms that the weapon used to fire the bullet met the definition of a firearm, but never considered whether the firearm was a prohibited or restricted firearm. The ballistics report confirms that the recovered bullet is a “.22 rimfire calibre class round nose lead bullet.” The markings on the bullet did not match any weapon found in the police data bank. The report was unable to identify a “meaningful list of the possible make of firearms used to fire” the bullet. The ballistics report confirms that the weapon was a firearm, but no more.
[29] The victim drew a picture of the firearm used by H.L. that gave no detail and could have been drawn by a young child. The victim testified that the gun used by H.L. was “metal,” “brownish,” and appeared as follows:
Q. And was it long? Was it handheld? Was it a rifle?
A. Yeah, it was a pistol. A small, a small caliber pistol. Brown. About the size of, you know, your hand or anybody’s hand. It was a, yeah, it was a small caliber pistol. It wasn’t a, it wasn’t a revolver, so it had a … Yeah, like the hammer, like, like, like the kind of guns that police use. It’s like a cock back.…
Q. So a handgun?
A. Yes, a pistol.
[30] No evidence was called as to whether the firearm was designed, altered or intended to be aimed and fired by the action of one hand. Based on the victim’s evidence, the firearm used by H.L. was probably some sort of a handgun. However, probability does not meet the required standard of proof. The victim’s limited knowledge of firearms was based on video games and televisions shows. He first thought the gun was a toy, and then perhaps a b.b. gun.
[31] The victim gave no evidence to help determine whether the firearm used by Mr. Dawkins met any of the Criminal Code definitions. The victim described the gun used by Mr. Dawkins as follows:
A. I mean … I’m not a hundred percent … like, I, I remember seeing something metallic. I must have seen -- like, he must have had something metallic in his hand because when I got hit it didn’t -- like, when I got punched or whatever, it didn’t feel like a fist.
A. Yeah, I think I was inside when I felt, when I felt something hard. Like, when I felt like I got punched with something hard, something narrow and hard, which made a clicking sound. I’m pretty sure it was inside the car.
Q. What kind of brown are you talking about?…
A. I mean, it was like a brown blur, so it’s hard. Brown like, light brown-beige.
[32] It is probable that the firearm that Mr. Dawkins discharged accidentally was the same firearm H.L. used to threaten the victim. This fact has not however been proved beyond a reasonable doubt. It may have been a different firearm.
[33] The Crown in argument suggested I infer that Mr. Dawkins was holding the handgun in his hand during the altercation when the victim was shot, and that the shot that was fired occurred when Mr. Dawkins was holding the firearm in his one hand. This suggestion is not supported in any way by the evidence. Mr. Dawkins and the victim were exchanging blows during the altercation and could not have been holding a firearm and punching at the same time. The victim confirmed that he did not see the gun that discharged. The only reasonable inference on the evidence is that no firearm was in sight during the altercation.
[34] Upon review of the Criminal Code definitions of “restricted firearm” and “prohibited firearm,” I cannot find beyond a reasonable doubt that the firearm used by either accused meets the definition of a “handgun” under the Criminal Code. The Crown concedes that no other definition could possibly apply.
[35] Therefore, I find that the weapon used by Mr. Dawkins and by H.L. was a firearm, not a handgun. The Crown has not proved beyond a reasonable doubt that the firearm was a restricted or prohibited weapon. It was probably a handgun, but probability does not meet the required standard of proof.
[36] Flowing from this conclusion, I find that the applicable minimum sentence for robbery with a firearm is four years in accordance with s. 344(1)(a.1), not five years under s. 344(1)(a) for robbery with a restricted or prohibited firearm.
[37] I have read K. Campbell J.’s reasons in the sentencing of H.L. and I am aware that he made a finding of fact that the firearm used by H.L. was a handgun. It is suffice to say that the evidence before him may well have been different than the evidence before me. Mr. Dawkins testified at that trial. I must make a determination based upon the evidence called at this trial.
Calculation of the Credit for Time Served
[38] The Defence seeks credit for the time that Mr. Dawkins has already served based on a ratio of 1 to 1.5. The Crown made no submissions opposing the Defence’s request.
[39] The Defence counsel subpoenaed records from the institutions where Mr. Dawkins has been held. The records confirm limited privileges and extensive periods of lock down in known deplorable living conditions with no programs and few freedoms. Mr. Dawkins has no institutional infractions. In my view, it is appropriate to exercise my discretion under s. 719(3.1) of the Criminal Code and apply an enhanced credit of 1.5 days for each day served. As well, I take into account the accused’s loss of remission and parole eligibility while in remand custody: R. v. Summers, 2013 ONCA 147, 114 O.R. (3d) 641, leave to appeal to SCC granted, [2013] S.C.C.A. No. 191.
[40] As of November 25, 2013, Mr. Dawkins has served a total of 763 days. This would translate to a credit of 1,145 days, or three years, one month and twenty days days using the 1 to 1.5 ratio.
Circumstances of the Offender
[41] The pre-sentence report outlines Mr. Dawkins’ background. He was 18 years old at the time of committing this offence. He came to Canada via Jamaica and the United States of America when he was 12 years old. He has support from his mother who resides in Canada, and contact with his father who resides in the United States. Mr. Dawkins was enrolled in high school at the time of his arrest with four credits left to complete his high school diploma. His school record contains attendance and lateness issues, but Mr. Dawkins was generally cooperative and respectful to the teaching staff.
[42] Mr. Dawkins has one prior criminal conviction. He was convicted as a youthful offender on July 15, 2011 for possession of ecstasy for the purpose of trafficking. Pursuant to a search warrant executed on his home, police found a relatively small amount of ecstasy (53 tablets) and $3,170 cash. Mr. Dawkins was sentenced to a probation order of nine months and a prohibition order with respect to weapons. There is no information about his employment history. He was arrested on these charges before he could begin employment counselling.
Case Law
[43] Crown counsel referred to a series of cases confirming that a sentence for breach of probation or prohibition orders should be consecutive to the substantive sentence if compliance with terms of probation is to be meaningful. Defence counsel did not dispute the governing jurisprudence on this issue.
[44] I adopt the principles in R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at paras. 75 and 76 that mandatory minimum sentences for firearm-related offences must not become the standard sentence imposed on all but the worst offenders. Rather, they reflect the minimum punishments applicable for the best offenders caught by the statutory minimum sentences. To interpret mandatory minimum sentences otherwise would defeat the purpose of the legislation.
[45] Further, I adopt the sentiments in R. v. Brown, 2010 ONCA 745, [2010] O.J. No. 4707 and R. v. Gobire, 2013 ONSC 3073, [2013] O.J. No. 2431 that the prevalence and impact of gun crime is an aggravating factor in sentencing. In Brown at para. 14, the Court of Appeal confirms that guns “are an all too prevalent menace in the Greater Toronto Area. First and foremost, the sentences imposed for firearms offences must further the sentencing goals of denunciation, deterrence and protection of the public.”
[46] I am also mindful that Mr. Dawkins was 18 years of age at the time of committing this offence. He has only one prior criminal conviction that was relatively minor and did not result in incarceration. The jump principle provides that “sentences for successive similar offences should be progressively more severe, proceeding incrementally rather than by jumping from a relatively light sentence to one that is dramatically more punitive”: R. v. Ferrigon, 2007 CanLII 16828 (S.C.), at para. 8. A sentence should not be harsher than is required to accomplish the purposes of sentencing: Clayton C. Ruby, Sentencing, 8th ed. (Markham: LexisNexis, 2012) at 400.
[47] There is authority that the jump principle is most applicable in cases where rehabilitation is a significant factor in sentencing (especially for young persons): Ferrigon, at para. 10. Where rehabilitation is not a significant factor, the jump principle will be less relevant: Ferrigon, at para. 11; R. v. Fletcher, [2008] O.J. No. 697 (S.C.), at para. 34; and R. v. J.G., [2005] O.J. No. 4599 (S.C.), at paras. 44-45.
[48] In R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417, at para. 39, the Ontario Court of Appeal provides that the jump principle is less applicable “where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness.” In R. v. I.S., 2011 ONSC 3303, [2011] O.J. No. 3052, at para. 16, Quigley J. provides that the principle is less applicable when denunciation and deterrence are the governing principles and a mandatory minimum applies.
[49] The Crown argues that the primary guiding principles in this case must be deterrence and denunciation; rehabilitation should not receive serious weight. For example, deterrence and denunciation were the governing principles in J.G. Nordheimer J. decided that the jump principle did not apply because the convictions were more serious than J.G.’s earlier conduct and there was no likelihood of rehabilitation. J.G. came close to qualifying as the worst offender.
[50] J.G. is clearly distinguishable from this case. Mr. Dawkins is not close to qualifying as the worst offender. If Mr. Dawkins had intentionally pointed the firearm before it discharged, I would tend to agree with the Crown’s characterization of the case. However, this was a planned robbery of a small amount of drugs that got way out of hand because a loaded firearm accidentally discharged in a stupid physical altercation over a cell phone. Thankfully the victim is left with no physical disability. Clearly rehabilitation is not an overriding, governing principle, but it is a principle of sentencing applicable in this case.
[51] In R. v. Robitaille, 1993 CanLII 2561 (BC CA), [1993] B.C.J. No. 1404 (C.A.), at para. 8, the British Columbia Court of Appeal stated the following:
[I]n any particular case, that the increase in sentence should not be too large rests on a consideration of the circumstances of the particular offender and a desire not to discourage any effort he may be making to rehabilitate himself by the imposition of a sentence that may be seen by him to be a dead weight on his future life.
[52] This is quite a unique case. None of the cases cited by counsel directly apply to guide in crafting an appropriate sentence. Mr. Dawkins is a young offender with a relatively minor criminal record facing a very substantial mandatory minimum sentence for his first incarceration. He has already served a significant period of time in custody equivalent to three years, one month and twenty days. Often, cases involving mandatory minimum sentences involve much older accused persons with much more serious criminal records. The sentence imposed by Justice K. Campbell in the decision involving the co-accused H.L. is very helpful in assessing the appropriate sentence in this case.
[53] There are mitigating and aggravating factors. The mitigating factors are as follows:
• Mr. Dawkins was young (18 years old) when he committed the offence.
• Mr. Dawkins has a relatively minor prior criminal record. His only other conviction resulted in probation with no period of incarceration. The jump principle applies to moderate and temper the incremental nature of sentences. Mr. Dawkins is subject to a statutory minimum sentence of four years’ imprisonment, which is a very significant sentence in light of his prior history.
• Mr. Dawkins was in school at the time of this incident, and is four credits away from completing his high school diploma. He plans to complete his diploma and perhaps pursue some training in the trades while incarcerated and upon release.
• Mr. Dawkins did not plead guilty to any of the offences, but his Defence counsel took a very reasonable and fair position once the Crown conceded that the facts of this case could not support a conviction for attempted murder or deliberately firing and pointing a firearm. Defence counsel’s reasonable approach and concessions are mitigating factors.
• I made a finding that the discharge of the firearm was accidental and there was no deliberate pointing of the gun. However, the discharge of a loaded gun in a fistfight with potential serious injuries to a victim was foreseeable in the circumstances.
• The victim played some role in the unfortunate events. The victim was a drug dealer. He knew that H.L. had pointed a firearm at his face, although he believed it was a toy gun or a b.b. gun. He knew that Mr. Dawkins had hit him on the head with a metal object that he believed to be a gun. Yet, he still resisted Mr. Dawkins’ attempt to take his cell phone.
• The victim was incredibly lucky that the permanent injuries were relatively minor.
• Mr. Dawkins expressed moderate remorse for his actions, acknowledging to the author of the pre-sentence report that the incident happened and that he “messed up.”
[54] The aggravating factors are as follows:
• Mr. Dawkins was initially the passive observer in the drug rip-off, and was available as back-up if necessary. However, when the victim tried to stop H.L. from walking away with the stolen drugs, Mr. Dawkins became the primary aggressor in possession of a loaded gun that accidentally discharged and shot the victim.
• The victim impact statements of both the victim and his mother make it clear that this was an incredibly frightening and forever life-altering event.
• The loaded firearm was used to hit the victim over the head during the robbery before it accidentally discharged.
• Mr. Dawkins was on probation when this offence occurred.
• Mr. Dawkins expressed little insight into his actions. He blamed his association with the wrong friends for the events, rather than assuming responsibility for his role in the events.
Principles of Sentencing
[55] I must considered the purposes and principles of sentencing under s. 718 of the Criminal Code, including denunciation, deterrence, separation from society, rehabilitation, reparation, and promotion of responsibility and acknowledgement of harm. Further, I must considered the fundamental principle that punishment must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The primary applicable principles in this case are deterrence and separation from society, but rehabilitation is also relevant given Mr. Dawkins’ age and relatively minor criminal record.
[56] It is important that similar sentences be imposed in similar circumstances. Also, consecutive sentences ought not to be unduly harsh or long.
Sentence
[57] I have considered the aggravating and mitigating circumstances.
[58] I am guided by K. Campbell J.’s reasons for sentencing H.L. They provide the parameters of a just sentence in all of the circumstances. There are some differences in the facts. On the one hand, Mr. Dawkins was 18 years old at the time of these offences, not 17. H.L has thrived while incarcerated in the McMurtry Correctional Institute. He worked hard on his schooling and appears to have greater insight and remorse than Mr. Dawkins. On the other hand, Mr. Dawkins has not had the support and opportunities that H.L had in the last two plus years. It is difficult to shine while incarcerated at the Don Jail or the Toronto West Detention Centre. It is more about survival. Also Mr. Dawkins’ prior criminal record is not as serious as H.L., who had a prior history of robbery.
[59] To impose the range of sentence suggested by the Crown would in all probability result in a young person coming out of the penitentiary as a hardened criminal. In my view, for a person such as Mr. Dawkins, it is in society’s interest that any sentence that he serves be followed by a significant period of probation.
[60] Given Mr. Dawkins’ youth and relatively minor criminal record, I find that the appropriate sentence in all of the circumstances is the mandatory minimum sentence of four years one month and nineteen days imprisonment for the substantive offences of aggravated assault, robbery while armed with a firearm, and possession of a firearm without a license; such sentences to be concurrent. In my view, the Crown’s suggested sentence range fails to take into account Mr. Dawkins’ age, his relatively minor prior criminal record, and the accidental discharge of the firearm.
[61] There must also be a consecutive sentence for the possession of a firearm while prohibited and failure to comply with a probation order. Mr. Dawkins had just been sentenced and put on probation three months before the offence. A clear message must be given to Mr. Dawkins and others like him that terms of probation are meant to be followed. Therefore, there will be a consecutive sentence of one year of imprisonment for the breach of the prohibition order and the breach of the probation order.
[62] The total sentence is five years one month and nineteen days. Given Mr. Dawkins credit for time served, he has a further period of incarceration of two years less a day.
[63] If the five-year minimum sentence had applied, I would have approached matters in the same way as K. Campbell J. in his reasons for sentencing H.L. In my view, both young men are equally responsible for the incident. H.L was proactive in the armed robbery. Mr. Dawkins was the aggressor in attempting to steal the cell phone after hitting the victim over the head with a firearm. If the minimum sentence were five years, I would have sentenced Mr. Dawkins to a five year one month and nineteen days, making the breach of probation and the prohibition order largely concurrent in the unique facts of this case, to achieve a sentence of two years less a day followed by three years of probation.
Probation and Ancillary Orders
[64] When Mr. Dawkins is released from incarceration, he will become subject to a probation order that will last for three years. This probation order will contain the mandatory conditions under s. 732.1(2) of the Criminal Code. Mr. Dawkins must (a) keep the peace and be of good behavior, (b) appear before the court when required to do so by the court, and (c) notify the court or probation officer in advance of any change of name or address, and promptly notify the court or probation officer of any change of employment occupation.
[65] The probation order will also contain the following conditions:
• Upon release, and during the period of his probation, Mr. Dawkins shall reside with his mother, or a person approved by his probation officer
• Mr. Dawkins shall report to a probation officer within three working days of his release from custody, and thereafter as required and directed by the probation officer, but not less than once a month
• Mr. Dawkins shall remain within the territorial jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer
• Mr. Dawkins shall abstain absolutely from the consumption of any drugs except in accordance with a medical prescription
• Mr. Dawkins shall abstain absolutely from owning, possessing, or carrying any weapon
• Mr. Dawkins shall perform 240 hours of community service, as directed by his probation officer, over a period not exceeding 30 months
• Mr. Dawkins shall diligently pursue his continued education, or maintain full-time employment
• Mr. Dawkins shall not associate or communicate with anyone known by him to have a criminal record.
[66] The Crown and Defence counsel agree about the appropriate ancillary orders, including a s. 109 weapons prohibition order for life and a DNA order pursuant to s. 487.04 of the Criminal Code.
[67] I will be supervising Mr. Dawkins probation for as long as I believe it is in his interests and the public interest. Mr. Dawkins is required to attend before me on March 31, 2015, anticipating his release from incarceration in March 2015. His probation officer, his mother and other family members are requested to attend. It would be helpful for counsel to attend the first meeting after Mr. Dawkins release, but it will not be necessary thereafter.
[68] I thank counsel for their cooperation and professionalism.
J. Wilson J.
Released: November 26, 2013
CITATION: R. v. Dawkins, 2013 ONSC 4949
COURT FILE NO.: CR13-70000371-00
DATE: 20131126
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
DAQUAN DAWKINS
Accused
REASONS FOR SENTENCE
J. Wilson J.
Released: November 26, 2013