ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO: CR-13-50000518-0000
DATE: 20131018

B E T W E E N:

HER MAJESTY THE QUEEN

Ron Krueger for the Crown

• and -

LEVAR TYRELL

John Erickson for Levar Tyrell

HEARD: October 2 and October 18, 2013

Thorburn J.

REASONS FOR SENTENCE

I. THE CONVICTIONS

[1] Levar Tyrell was convicted by a jury of possession of a loaded prohibited firearm, ammunition and a magazine capable of holding more than ten rounds of ammunition without being a holder of an authorization or licence to possess it. (Count 2 on the indictment)

[2] At the commencement of trial, it was agreed that the following charges would be dealt with by judge alone. Although Tyrell pleads not guilty to these charges, I find him guilty of the following charges in accordance with the verdict rendered by the jury:

i. possession of a firearm without having a licence or registration certificate to possess it pursuant to section 91(1) of the Criminal Code (Count 4);

ii. possession of a firearm knowing he was not the owner of a licence or registration certificate contrary to section 92(1) of the Criminal Code (Count 5); and

iii. possession of a magazine capable of holding more than ten rounds of ammunition (Count 6).

[3] I do so in view of section 742(2) of the Criminal Code that provides as follows:

Where the court is composed of a judge and jury, the court,

(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and

(b) may find any other relevant fact that was disclosed by the evidence at trial to be proven, or hear evidence presented by either party with respect to that fact.

II. THE FACTS SURROUNDING THESE OFFENCES

[4] On May 4, 2010, police executed a search warrant. When police entered the premises, Tyrell had been sleeping in the master bedroom with his former girlfriend. Their two small children were in their bedroom and Tyrell’s cousin, Omar Grizzle was asleep on the living room couch. One child was two months old and the other was approximately eighteen months old.

[5] Police were searching for firearms, cell phones and other items. Police broke open the front door and used a distraction device that made noise and flashed light. They announced that they were police, entered and secured all adults found in the premises.

[6] Officer Mullen searched the hall linen closet and Officer Young searched the master bedroom and children’s room. Officer Mullen testified that he notified the team that he had found a 9 mm Sig Sauer semi-automatic handgun on the third shelf in the closet just outside the bathroom. He shouted that he had found a firearm so that everyone on the team would know.

[7] Officers Palermo and Mullen testified that they saw a loaded firearm with the barrel pointed backward on the third shelf of the cupboard just above eye level. It had a magazine attached to the firearm capable of holding more than ten bullets. Officer Stinson, the exhibits officer, was asked to come and photograph the cupboard and gun which he did.

[8] After discovering this firearm, MacPhee and Tyrell were placed under arrest for possession of the firearm. They remained in the living room while police continued their search.

[9] When Sergeant Young searched the master bedroom, he said that he found Tyrell’s black Telus cellphone on the window ledge and MacPhee’s red Blackberry in the pocket of her dressing-gown. Sergeant Young testified that both male and female clothing was found in the master bedroom. MacPhee said that she sometimes wore men’s boxers.

[10] The firearm was a prohibited firearm. The serial number on the handgun had been removed. The magazine was capable of holding thirteen bullets.

[11] According to Michael Press, an expert in firearms, the firearm was operational and would discharge if the trigger were pulled. It has a street value of approximately $2500. No fingerprints were found on the firearm.

[12] Levar Tyrell did not have an authorization, licence or registration certificate to possess a firearm. There is no registration certificate for this Sig Sauer, semi-automatic handgun, model P228, calibre 9mm.

[13] A jury found that Tyrell was in possession of the loaded firearm, magazine and bullet.

[14] Tyrell was arrested on May 4, 2010 and spent 2 years and 257 days in pre-sentence custody. Thereafter he was on bail awaiting trial.

III. TYRELL’S PAST

[15] Tyrell is now thirty years old.

[16] He has a minor and dated criminal record as follows:

i. 2000: assault and possession of a Schedule II substance;

ii. 2004: carrying a concealed weapon; and

iii. 2007: breach of the terms of his recognizance.

[17] Tyrell’s counsel explained that the assault was a schoolyard fight that took place when Tyrell was 17 years old and the concealed weapon was a knife that was on his keychain. His counsel explained that the conviction for breach of the terms of his recognizance was because he was out after his curfew.

[18] During the 2 years and 257 days he was in presentence custody he was found with a paper match strike, he was found smoking marijuana in his cell, he was found to have made a “gross insult” and was involved in two assaults. According to his counsel, on both of those occasions he was not the perpetrator of the assault. Crown counsel suggests Tyrell instigated one of the assaults. Neither counsel brought forth evidence on this point.

[19] Tyrell has been living with his girlfriend and one child. His girlfriend continues to support him and wrote a letter to attest to his being a good father to their child. He also has two children with his former girlfriend but by virtue of court order he has had no contact with the former girlfriend. He has not maintained contact with those children although he says he would like to. He enjoys the support of his mother and sister.

[20] He has had some sporadic employment largely in the construction industry.

IV. THE PRINCIPLES OF SENTENCING

[21] Section 718 of the Criminal Code, R.S.C., 1985, c. C-46 provides that, in sentencing a person convicted of offences, the following objectives must be considered:

1. denunciation of unlawful conduct;

2. deterring the offender and others from committing offences;

3. separation of offenders from society where necessary;

4. rehabilitation of offenders;

5. reparation for harm done to victims or to the community; and

6. promotion of a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[22] The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[23] A sentence should be increased or reduced to account for aggravating or mitigating circumstances relating to the offence or the offender. Similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances.

[24] A person cannot be convicted of two offences where both arise out of the same facts and in substance only one “crime” has been committed. Where such offences are committed, a conditional stay on the lesser charge will be entered.[^1] Consecutive sentences may however be imposed where the offences are temporally linked but constitute invasions of different legally protected interests.[^2]

[25] Where there is a sentence for multiple offences, the principle of totality requires the court to craft a global sentence that is not excessive.[^3] If the total sentence is excessive the court must adjust the sentence so that the total sentence is proper.[^4] This can be done either by adding the individual sentences and then adjusting accordingly[^5] or by making a global sentence and calculating individual sentences from that number.[^6]

[26] Sentencing ranges are useful in ensuring that the parity principle is met because they provide guidelines to trial judges who must impose similar penalties for similar offences of a similar nature involving similar offenders.[^7] However, they are guidelines only.

V. TYRELL’S POSITION

[27] Tyrell’s counsel submits that a global sentence of 24 to 30 months is appropriate as he claims the mandatory minimum sentence was stayed by virtue of the decision in Smickle (where the court declared that the mandatory minimum sentence in that case was unconstitutional.)

[28] Tyrell has spent 2 years and 8 ½ months in custody.

[29] He was incarcerated at the Toronto East Detention Centre. He spent 77 days triple bunked. Moreover, there were 16 full day lockdowns and 108 partial day lockdowns. During lockdowns many of the privileges ordinarily accorded to those at the facility are not permitted. This may include visits with counsel, telephone calls, and access to fresh air.

[30] Tyrell’s counsel also stated that were Tyrell to have begun serving his sentence on the first day of his pre-sentence custody he would now be eligible for parole on the basis that he would have served two thirds of his sentence even if the sentence were a five year sentence. As such, he states that Tyrell should be granted 1.5:1 credit for all of the time he spent in presentence custody.

VI. THE CROWN POSITION

[31] Given that denunciation, deterrence and separation from society are primary concerns in cases involving firearms, and in view of the mandatory minimum sentence of three years for possession of a loaded prohibited firearm without authorization, the Crown suggests that Tyrell should be sentenced to four years for possession of the loaded firearm without authorization, a consecutive sentence of one year for possession of the magazine and a concurrent sentence of one year for possession of a loaded firearm.

[32] The Crown takes the position that Tyrell should be accorded credit for time spent in pre-sentence custody at the rate of 1:1 except for the time he was triple bunked and the time spent on full lockdown which should be accorded at the rate of 1.5:1.

VII. SENTENCING DECISION

[33] I have considered the principles of sentencing set out in the Criminal Code and have applied those considerations to the facts in this case. I have also considered the aggravating and mitigating circumstances, Tyrell’s prospects for rehabilitation, the duration and conditions of Tyrell’s pre-sentence custody, and the case law that addresses the appropriate range of sentences for offences of this nature committed in similar circumstances by similar offenders.

[34] General denunciation and deterrence are of primary importance when dealing with crimes of violence particularly those involving firearms. Protection of the public must be safeguarded.[^8]

[35] The aggravating factors in this case are as follows:

(a) the firearm was carelessly stored in a cupboard in the apartment;

(b) two sleeping children were in the room where the loaded firearm was stored in the suitcase;

(c) he has little work history; and

(d) he was involved in several minor incidents while in presentence custody.

[36] The mitigating factors are Tyrell’s family support, his stable relationship with his girlfriend and daughter and his good behaviour while on bail.

[37] Tyrell chose to make no statement during the sentencing proceeding nor did his counsel address the issue of remorse. Lack of remorse is not an aggravating factor.[^9] It is simply the absence of a factor which can sometimes mitigate the seriousness of an offence.

[38] His prospects for rehabilitation are good given his minor and dated record, his family stability since the commission of this offence, his good behaviour while on his lengthy term of bail awaiting trial, and his seeming willingness to change his life.

[39] Tyrell does not have the benefit of a guilty plea.

The firearms and ammunition charges

[40] Because he has no prior record of being found in possession of a prohibited firearm and ammunition in connection with the commission of a crime, section 95 of the Criminal Code stipulates that he is subject to a mandatory minimum penalty of three years’ imprisonment.

[41] Although Tyrell’s counsel suggested that the mandatory minimum sentence in this case is unconstitutional, I need not consider this issue as absent the mandatory minimum sentence, I believe the circumstances of this offence and this offender would warrant a sentence of at least three years. I need not therefore decide the issue of the constitutionality of section 95 of the Criminal Code and/or the effect of the R. v. Smickle, 2012 ONSC 602, [2012] 253 C.R.R. (2d) 35 decision declaring that provision to be unconstitutional.

[42] Moreover, the R. v. T.A.P., 2013 ONSC 797 decision referred to by Tyrell’s counsel is distinguishable from the facts in this case as in T.A.P., the trial judge accepted,

“that T.A.P. had the gun for her own protection. T.A.P. acknowledged that she never took any steps to arm herself when she was involved in the abusive relationship. However, she testified that in October 2009 when she acquired the gun from a drug dealer, she was living in a housing area where there had been murders, her neighbours had seen her talking to the police, and she did not feel safe. I accept T.A.P.’s evidence that she was afraid of both her former partner and the drug dealers in her neighbourhood; that she would allow drug dealers to leave things at her home and cook for them in return for drugs; and that she did not ask for the gun, but rather simply accepted possession of it when it was presented to her by one of the men in her neighbourhood.”

[43] The decision in R. v. Morant, 2013 ONSC 1969, [2013] O.J. No. 2177 is however instructive. In that case, Spies J. sentenced a 22 year old first offender to 40 months’ imprisonment on each of two counts of possession of a loaded prohibited firearm that was concealed in a bag found on Morant’s person when he was stopped by police.

[44] On the basis of the facts of this case and the cases involving similar offenders in similar circumstances as set out above, even if the mandatory minimum sentence had not existed, I would have concluded that a 38 month sentence for possession of one loaded prohibited firearm without authorization were fit. I would impose a concurrent sentence of one year for possession of the magazine (Count 6) and a further concurrent sentence of two years for possession of a loaded firearm knowing he was not the owner of a licence or registration certificate (Count 5). The sentence for possession of the firearm without being the holder of a license or registration certificate is conditionally stayed pursuant to the Kienapple principle. In the alternative if, as the Crown suggests the sentence for possession of the magazine (Count 6) should be consecutive, the principle of totality would nonetheless require the court to craft a global sentence that is not excessive. I need not therefore consider the constitutionality of section 95 of the Criminal Code.

Deduction for Time Spent in Presentence Custody

[45] Tyrell has spent 2 years and 257 days in custody awaiting sentence. For 77 days he was triple bunked, for 16 days the facility was in full lockdown and for an additional 108 days the facility he was in was in partial lockdown.

[46] One of the effects of the enactment of the Truth in Sentencing Act, S.C. 2009, c. 29 which came into force in February 2010 was to limit credit for presentence time spent in custody to a maximum of one day for each day spent in custody. However, under the heading “Exception” Section 719(3.1) of the Criminal Code provides that enhanced credit up to and including 1.5:1 may be granted “if the circumstances justify it”. Enhanced credit is not the rule although the legislation does not stipulate that the circumstances must be “special” or “extraordinary”.

[47] As set out in R. v. Summers, [2013] 279 C.R.R. (2d) (O.C.A.) the factors to be considered in deciding what credit, if any, should be afforded to an individual who in presentence custody, the court held that “…credit for pre-sentence custody must now ordinarily be based on a ratio of 0:1 to 1:1….the purpose is to limit the amount of credit that can be assigned on sentencing to pre-sentencing custody.” Sentencing judges enjoy a wide discretion to consider “all those circumstances that may, in a particular case, warrant enhanced credit, subject to Parliament’s clear direction that such credit should not exceed that calculated at the maximum rate of 1.5:1.” Loss of remission and parole eligibility during remand custody are relevant and proper circumstances to be considered. So are the circumstances relevant to an individual accused such as his behaviour while on remand.

[48] Tyrell’s time spent triple bunked is beyond the reasonable expectation of a person awaiting trial and sentence. So is time in full and partial lockdowns. These exceptions to the reasonably expected norms justify an exception to the general rule of 1:1 credit for time spent in pre-sentence custody.

[49] It is agreed that the time spent triple bunked and in full lockdown be accorded credit at a rate of 1.5:1.

[50] Tyrell is entitled to credit for the approximately 2 years 8 1/2 months or 987 days spent in presentence custody. For 130 of those days he shall be credited at the rate of 1.5:1 in view of the 77 days triple bunked, the 16 days in full lockdown and the 108 days in partial lockdown as well as the loss of remission and parole eligibility and the fact that his record in the institution was not out of the ordinary but neither was it without blemish. This results in total presentence credit of 1052 days or 35 months 2 days. This shall be deducted from his 38 month sentence.

Ancillary orders

[51] There will be an order imposed to prohibit Tyrell from possessing weapons for life pursuant to section 109 of the Criminal Code, a DNA order, and a forfeiture order regarding the firearm, ammunition, and magazine seized during the execution of the search warrant.

Thorburn J.

Released: October 18, 2013

Footnotes

[^1]: Kienapple v. R., 1974 14 (SCC), [1975] 1 S.C.R. 729

[^2]: R. v. Houle, 2008 ONCA 287, 79 W.C.B. (2d) 64 at para. 4.

[^3]: R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500 at para. 42 and R. v. Gummer, 1983 5286 (ON CA), [1983] O.J. No. 181 (C.A.) at para 13.

[^4]: R. v. D.S.K., 2005 SKCA 18, [2005] S.J. No.97; R. v. Hicks, 2007 NLCA 41, [2007] N.J. No. 219.

[^5]: R. v. Newhook 2008 NLCA 28, [2008] N.J. No. 258 at para. 55.

[^6]: R. v. Lombardo, 2008 NSCA 96, [2008] N.S.J. No. 456 at para 25.

[^7]: R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290 at para 244.

[^8]: R. v. Sturge, [2001] O.J. No. 3923 (C.A.) at para. 6 and R. v. Popovics, [2005] O.J. No. 2456 (C.A.) at para. 7.

[^9]: R. v. Ambrose 2000 ABCA 264, 271 A.R. 164 at para. 92.