ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 696/12

DATE: 20140312

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

MOHDEAN HATIMY

Jill Cameron, for the Crown

Adetayo Akinyemi, for the Accused

HEARD: January 27, 2014

K.L. Campbell J.:

Reasons for Sentence

A. Introduction

[1] The accused, Mohdean Hatimy, was charged with the crime of robbery while using a firearm, contrary to s. 344(1)(a.1) of the Criminal Code. The offence was alleged to have been committed against Rabioul Hassan, in Toronto, on September 23, 2011. He was tried by a jury and found guilty of the basic crime of robbery.

[2] Normally, the issue of whether such a robbery was committed while using a firearm would be a sentencing issue to be determined by the trial judge. See: R. v. D.(A.) (2003), 2003 BCCA 106, 173 C.C.C. (3d) 177, at paras. 29-31; R. v. Watson, 2008 ONCA 614, 240 O.A.C. 370, at paras. 65-72; R. v. Manley, 2011 ONCA 128, 269 C.C.C. (3d) 40, at paras. 12, 52-62; R. v. Moore, 2012 ONCA 770, [2012] O.J. No. 5249, at paras. 4-8. However, the Crown in the present case has fairly conceded that this alleged aggravating circumstance of the robbery offence, which would attract a mandatory minimum period of imprisonment, has not been established with the requisite degree of certainty. The evidence is simply not clear that there was a real firearm (as opposed to an imitation firearm) used during the commission of the robbery.

[3] The jury were instructed that there were two potential routes to a verdict rendering the accused guilty of robbery, namely: (1) that they could find the accused guilty of robbery under s. 343(a) of the Criminal Code if they were satisfied that the accused engaged in stealing, and for the purpose of extorting whatever was stolen or to prevent or overcome resistance to the stealing, used violence or threats of violence to a person or property; or (2) that they could find the accused guilty of robbery under s. 343(d) of the Criminal Code if they were satisfied that the accused was engaged in stealing from any person while armed with an offensive weapon or imitation thereof. The jury was also told that they could find the accused guilty of robbery, on either basis, as a principal or as a party. I am satisfied beyond a reasonable doubt that, whatever precise route the jury took to reach its verdict, the crime of robbery committed by the accused involved both the use of violence and an imitation firearm for the purpose of overcoming the resistance of the victim in the theft of property. I am also satisfied beyond a reasonable doubt that both the use of violence and the use of an imitation firearm in the robbery was with the prior knowledge of the accused.

[4] The parties have advanced disparate positions regarding the sentence that should now be imposed upon the accused. The Crown seeks the imposition of close to the maximum reformatory term of imprisonment. The accused seeks a suspended sentence.

B. The Facts of the Offence

[5] The named victim of the offence was Rabioul Hassan. He is now a 22-year-old, first year university student. At the time of the robbery, Mr. Hassan was working full-time at the FreshCo grocery store located at 2400 Eglinton Avenue West in Toronto.

[6] On the afternoon of September 23, 2011, Mr. Hassan made arrangements to sell some marihuana to the accused. These arrangements were made by way of text messages exchanged between the two men. Essentially, Mr. Hassan agreed to sell the accused two ounces of marihuana for $500. Mr. Hassan was working that night at the FreshCo, and he and the accused had agreed to meet shortly after the end of his shift at 10:00 that night to conduct the drug transaction.

[7] Mr. Hassan had also arranged to meet a friend of his, Michael Dovale, at the FreshCo at the end of his shift that night. They were going to walk back to Mr. Dovale’s residence, which was near the bus stop that Mr. Hassan used to get home. Mr. Hassan had not told Mr. Dovale about his arrangements to sell some drugs around the same time.

[8] Mr. Hassan met the accused in the plaza parking lot at the end of his shift. They then walked back to the accused’s nearby van. This was caught on one of the plaza security cameras, which showed Mr. Hassan and Mr. Hatimy walking together through the plaza, in the direction of the parked van, at approximately 10:19 p.m. on September 23, 2011.

[9] As the accused and Mr. Hassan walked toward the accused’s van they met up with Mr. Dovale, who had been walking in the opposite direction toward the plaza, looking to meet up with Mr. Hassan. The three men then walked together to the accused’s parked van.

[10] When they got to the van, the accused got into the driver’s seat, Mr. Hassan stood by the open driver’s side door, and Mr. Dovale stood nearby toward the back of the van. Mr. Dovale did not hear much of what the other two men were saying, apart from some small talk about cologne, and Mr. Dovale did not know the purpose of their meeting.

[11] As Mr. Hassan was talking to the accused, two other young males approached them. Mr. Dovale saw them coming from the plaza, around the corner, where he had first met up with Mr. Hassan and the accused that night. The same plaza security camera captured these two other young males walking together through the plaza, headed in the same direction toward the accused’s parked van at approximately 10:20 p.m. on September 23, 2011. The taller of these two individuals was Aman Ali, a friend of the accused. The identity of the other individual still remains unknown.

[12] When Mr. Hassan saw these two other young men coming their way, he told the accused to “hold on,” indicating that he wanted to “wait” until the men had passed before they conducted their drug transaction. To Mr. Hassan, they looked “suspicious” and this was a “rough area.” But the two men did not walk past them. Rather, they walked around the van and approached them.

[13] When they arrived at the area of the van, Mr. Ali inquired of Mr. Hassan and Mr. Dovale “where you from?” Mr. Dovale replied that he was he was from there, and Mr. Hassan said that he was from “around.” Mr. Ali had a cigarette in his mouth and he asked Mr. Hassan and Mr. Dovale if they had a lighter? Mr. Hassan said “no,” but Mr. Dovale said he had a lighter. Notwithstanding Mr. Dovale’s positive response, Mr. Ali and the unknown male seemed more interested in Mr. Hassan and approached him more directly. Mr. Hassan was starting to feel physically “boxed in.” Mr. Ali got “right in his face” and said “what do you mean around?” At that point, Mr. Hassan grabbed Mr. Ali by his collar and pushed him away.

[14] After some further pushing, a fight started between Mr. Ali, Mr. Hassan and the unknown male. The unknown male and Mr. Ali started to punch Mr. Hassan, striking him in the head. Mr. Hassan fought back with some punches of his own.

[15] At one point in the fight, Mr. Hassan pushed the unknown male away and engaged more with Mr. Ali. At that point, the unknown male stepped back and pulled out what appeared to be a gun from his waist area. To Mr. Dovale, it looked like a black 9 mm handgun (not a revolver), with a clip at the bottom. Mr. Hassan could see that the unknown male was “shaky” with the gun as he tried to hit him with it, and Mr. Hassan “smacked” the gun out of his hand and onto the ground. When it landed on the ground, the loaded “clip” of the gun came out. Mr. Dovale saw the gold coloured bullets inside the clip on the ground. He thought it had been a “fully loaded gun.”

[16] At some point during the fight, the unknown male, who had pulled the gun, said words to the effect of “Yo Mohdean,” a remark apparently directed at the accused.

[17] When the gun first appeared, Mr. Hassan called out to Mr. Dovale for help, but as Mr. Dovale went to move toward Mr. Hassan to help him, the accused, who was much larger physically, grabbed him from behind by his pockets, asked what was in his pockets, and told him to empty his pockets. The accused appeared to be holding onto Mr. Dovale so that he could not interfere in the fight to help his friend, Mr. Hassan. Eventually, Mr. Dovale managed to escape the accused’s grip and ran away for help. His escape was captured on the same plaza security surveillance videotape at approximately 10:22 p.m.

[18] As Mr. Hassan continued struggling with the other two men, his backpack was ripped off his shoulder. The backpack contained books, school supplies, the $500 worth of marihuana that he was planning to sell to the accused, and about $40-$50 in cash. Once his backpack was off, the robbers ran away. The unknown male ran away towards another vehicle located at the far end of the parking lot, while Mr. Ali got into the accused’s van, whereupon they both left in the van together, with the accused driving.

C. Victim Impact

[19] Mr. Hassan prepared a written victim-impact statement in anticipation of the sentencing hearing in this matter. In this statement he described his physical injuries from the robbery as some minor bruising and swelling to his face, some minor swelling at the back of his head and bruised knees.

[20] In this statement, Mr. Hassan described that, for approximately a year after the robbery, he was not able to sleep properly, and this led to him being tired and sleepy at school in the daytime, and caused him to score lower grades.

[21] According to this statement, Mr. Hassan remains fearful of the accused and his friends, is slightly paranoid about encountering them on public transit or at recreational facilities, and is worried about the accused and his friends seeking revenge against him. This has caused him to relocate his workplace.

D. The Personal Circumstances of the Accused

[22] The accused was born on December 3, 1992, and is now 21 years old. At the time of the offence he was 19 years of age. He was born and raised in Toronto, with his three siblings. His parents immigrated to Canada from Kenya just before the accused was born.

[23] While the accused describes his childhood as uneventful, there was a period of some instability in his home life when he was a child. His mother suffered from a bi-polar disorder that created some additional stress within the family unit, and led to the intervention of the Children’s Aid Society, and the temporary placement of the accused and his siblings in foster care.

[24] Fortunately, the accused continues to reap the benefits of a supportive family, and has good relationships with all members of his family. His siblings collectively describe the accused as kind and honest, a straight-forward thinker with a good personality and a lot of potential, and as someone who aspires to improve his life. They have not previously witnessed any violent or aggressive tendencies on the part of the accused.

[25] The accused is single and has no dependents. He has a grade 12 education.

[26] The accused is gainfully employed in a reputable restaurant in the Woodbridge area, and has maintained this employment since 2008. He started as a dishwasher, but progressed to become a part-time line-cook and Chef’s assistant. The accused’s employer describes him as a loyal and hardworking employee, with a good work ethic. He is well-liked by his fellow employees as he seems kind and gentle, and has an engaging personality with a good sense of humour. The accused is taking on increased responsibilities in the restaurant and is becoming a valued and intricate part of the restaurant. His employer anticipates that within the next eight to twelve months, the accused will become a full-time chef in the restaurant. The accused has plans to attend a college culinary arts program, and hopes one day to have his own restaurant.

[27] The accused is a Muslim, and has attended the same Mosque with his family for many years. The members of his Mosque believe the accused to be a person of good character, respectable, hard-working, honest and reliable. The accused has apparently performed 120 hours of community service at the Mosque while on judicial interim release pending the conclusion of this case. The accused is believed to be “contrite and repentant” with respect to his criminal conduct.

[28] While the accused reports no substance abuse issues, he admits to the recreational use of marihuana, although he has indicated that he has now abandoned this pass-time.

[29] During his interview with the author of the Pre-Sentence Report, the accused “admitted full responsibility for his actions and his behavior” associated with the commission of this robbery, but indicated that he “never meant to hurt” the victim. He has acknowledged that his family is “very disappointed” in him for his involvement in this offence, and has expressed his gratitude for their ongoing support. The accused apparently wants to get “his life back on track.” The accused personally reiterated this remorseful perspective in court at the conclusion of the sentencing hearing.

[30] The accused has been on probation since May of 2013 when he was found guilty of failing to comply with his recognizance and was granted a conditional discharge and placed on probation for a period of 12 months. He has reported consistently to his probation officer.

[31] The author of the Pre-Sentence Report concluded that the accused did not appear to present as any “imminent threat to the community,” and noted that he has “accepted responsibility for his actions,” and appears to be “a good candidate for community supervision.”

E. The Positions of the Parties

[32] The Crown argued, essentially, that the accused should be sentenced to close to the maximum reformatory term of imprisonment of two years less a day, and to a two year term of probation. The Crown contended that only the seven days that the accused has already served in pre-trial custody should be reduced from that proposed sentence.

[33] The Crown fairly conceded that the mandatory minimum sentence of four years imprisonment, prescribed by s. 344(1)(a.1) of the Criminal Code, was not applicable in this case, as the Crown was unable to establish with the requisite degree of certainty that a real firearm had been used in the robbery of the complainant. The Crown noted, however, that if the accused had been charged with using an imitation firearm in the commission of an indictable offence, the accused would have been liable to a mandatory minimum term of imprisonment of one year pursuant to s. 85(3)(a) of the Criminal Code.

[34] In advancing this position, the Crown contended that this case included the following aggravating factors: (1) the robbery was planned and deliberate and committed by a group of three individuals; (2) the accused was the ringleader of the group, in that he was the one who orchestrated the meeting, and lured Mr. Hassan to the location, setting him up for the robbery; (3) the robbery involved the use of an imitation firearm; (4) the accused must have been aware that an imitation firearm would be used in the robbery as, when it was brandished during the offence, the accused grabbed Mr. Dovale to prevent him from helping Mr. Hassan; (5) the two victims of the robbery were terrified by the offence and clearly thought that the gun being used against them in the robbery was both real and loaded; and (6) the accused and his friends stole $500 worth of marihuana from Mr. Hassan, which was not a quantity for personal use, suggesting that the accused planned to financially profit from the robbery.

[35] Counsel for the accused, on the other hand, argued that the accused should be given a suspended sentence and probation for a period of one year.

[36] In advancing this position, defence counsel focused upon the importance of deterring and preventing the illicit drug trade, and suggested that Mr. Hassan, because he was involved in trafficking in marihuana, was an unsympathetic victim who knowingly placed himself in harm’s way by becoming a drug dealer. Defence counsel also noted that Mr. Hassan perjured himself during the his evidence as, initially, he testified that he was trying to buy marihuana from the accused, and he only admitted his true role as a drug seller when he was confronted, in cross-examination, with indisputable text messages establishing that reality. Defence counsel also relied upon the mitigating personal circumstances of the accused and his status as a “youthful first offender.” Defence counsel argued that, in all of the circumstances of the present case, it would be shocking to the community, and offensive to the principle of parity, if the accused was given a lengthy reformatory term of imprisonment while the other participants in the offence (including Mr. Hassan) were not subjected to any criminal sanctions.

F. The Governing Sentencing Principles

[37] Pursuant to s. 718 of the Criminal Code, the “fundamental purpose” of sentencing is to contribute to “respect for the law and the maintenance of a just, peaceful and safe society” by imposing “just sanctions” that have one or more of the following objectives, namely: (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 rehabilitating offenders; (5) to provide reparations for harm done to victims or the community; and (6) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.

[38] Further, according to s. 718.1 of the Code, the “fundamental principle” of sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[39] As required by s. 718.2 of the Code, in imposing sentence, the court must also take into account a number of principles including: (1) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (2) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (3) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (4) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (5) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

G. The Aggravating and Mitigating Circumstances of this Case

[40] As outlined by the Crown in her submissions, the aggravating circumstances of this case include all of the following considerations:

• Planned Robbery: The robbery of Mr. Hassan was planned by the accused and his two friends, Mr. Ali and the unknown male.

• Leading Role of the Accused: The accused played a significant, if not leading role, in the commission of the robbery, in that he arranged the night time meeting with Mr. Hassan, and walked him to the location of his parked van, which set him up for the planned arrival of Mr. Ali and the unknown male.

• Use of Physical Violence: The robbery of Mr. Hassan involved the use of physical violence by both of the accomplices of the accused. Both Mr. Ali and the unknown male engaged in a physical fight with Mr. Hassan in order to secure the marihuana (and other valuables) in his backpack. The accused must have known that this level of violence would be used in the robbery, as it was inherent in the nature of the theft and began almost immediately upon the arrival of Mr. Ali and the unknown male.

• Use of Imitation Firearm: The robbery of Mr. Hassan involved the use of at least an imitation firearm. Further, the accused must have been aware, in advance, that this weapon would be used in the robbery. As soon as the imitation firearm was brandished during the execution of the robbery, the accused grabbed Mr. Dovale to prevent him from helping Mr. Hassan.

• The Accused and Mr. Dovale: The accused appeared to be trying to rob Mr. Dovale as he was holding him from behind, or trying to ensure that he had no weapon with which to defend himself or Mr. Hasan. The accused grabbed Mr. Dovale by his pockets and asked him what was in his pockets. The accused also prevented Mr. Dovale from intervening in the ongoing fight to assist Mr. Hassan.

• Two Victims: There were, in effect, two victims in this case, Mr. Hassan and Mr. Dovale, and both were understandably terrified by the commission of the offence, reasonably believing that they were facing an attacker with a loaded firearm. Mr. Hassan not only suffered some minor physical injuries during the fight that ensued during the course of the robbery, he also suffered some lingering emotional trauma from the offence.

• Quantity of Marihuana Stolen: The accused and his friends robbed Mr. Hassan of some $500 worth of marihuana. It appears that this significant quantity of marihuana was the motivation underlying the commission of the robbery.

[41] As outlined by defence counsel in his submissions, the mitigating circumstances of this case include all of the following considerations:

• Youthful First Offender: The accused was just 19 years of age at the time of the commission of the robbery, and had no prior criminal record. Accordingly, he is properly characterized as a youthful, first offender.

• Out-of-Character: The offence is entirely out of character for the accused. By all accounts, apart from his involvement in this robbery, the accused appears to be a kind, honest and reliable person of good character, with no apparent violent or aggressive tendencies.

• Promising Future: The accused has a promising future in the restaurant business. He has a grade 12 education, a good work record, and a solid work ethic. He has been employed in the same restaurant for the past five years, and has progressed to increasingly responsible positions. In the relatively near future he has a good chance of becoming a full-time chef in the restaurant, and he has ambition to attend a college level culinary arts program.

• Mosque/Community Service: The accused appears to be a respected member of his Mosque, and has contributed 120 hours of community service to the overall benefit of his Mosque.

• Remorse: Recently, after the jury’s verdict, which rejected the accused’s exculpatory explanation for his presence at the scene of the robbery, the accused acknowledged his participation in the offence, and expressed his remorse and contrition for the crime. He also maintains that he never intended to hurt Mr. Hassan.

• No More Marihuana Use: The accused claims that he has ended his recreational use of marihuana.

• No Imminent Threat: The author of the Pre-Sentence Report concluded that the accused did not present as any “imminent threat to the community,” and appears to be “a good candidate for community supervision.”

[42] In my view, the fact that the main victim of this robbery, Rabioul Hassan, was an illegal drug-trafficker is a neutral factor in the sentencing of the accused, in that it is neither an aggravating factor nor a mitigating factor.

[43] It is not an aggravating factor as Mr. Hassan was not the kind of “vulnerable victim” who was engaged in a sometimes dangerous public service, and who must be accorded the increased legal protection provided by more deterrent sentences. Drug traffickers are simply not comparable to late-night convenience store employees, home delivery persons, or taxi drivers. By electing to engage in the business of illicit drug trafficking, Mr. Hassan willingly assumed the risks inherent in such obviously dangerous criminal conduct.

[44] At the same time, it is not a mitigating factor as s. 343 of the Criminal Code protects everyone against robbery, not only those individuals engaged in lawful activities. Moreover, to create some type of sentencing discount for crimes against drug-dealers, or others engaged in illegal activities, would only serve to encourage a greater degree of violence in the criminal sub-culture. It is also important to keep in mind that, as the present case illustrates, sometimes entirely innocent bystanders become victims entangled in such violence. Fortunately, Mr. Dovale was not physically hurt in the robbery of Mr. Hassan.

H. Analysis

1. Introduction

[45] Taking into account all of the circumstances of this case, in my view, the accused should be given an effective sentence of 12 months imprisonment. Such a sentence, in my opinion, appropriately balances: (1) the need to focus upon the promising rehabilitative prospects of the accused, given that he is a youthful, first offender; and (2) the need to reflect the sheer gravity of the violent offence committed by the accused, and to deter others from the commission of such inherently dangerous crimes.

2. Reconciling the Conflicting Sentencing Principles

[46] This is a case where there are conflicting sentencing principles to try to balance and ultimately reconcile.

[47] The accused is a youthful first offender with very promising prospects for rehabilitation. His involvement in the robbery seems out of character for him. As the author of the Pre-Sentence Report has concluded, the accused appears to pose no imminent or ongoing threat to the community. Hopefully, in years to come, the accused will be able to look back on his participation in this robbery as an aberrant embarrassment of his youth, with no lasting consequences on his productive participation in society. In these circumstances, rehabilitation and individual deterrence are generally considered to be the main sentencing considerations, and usually shorter terms of imprisonment are imposed, followed by probationary assistance. See: R. v. Stein (1974), 1974 1615 (ON CA), 15 C.C.C. (2d) 376 (Ont.C.A.); R. v. Vandale and Maciejewski (1974), 1974 1610 (ON CA), 21 C.C.C. (2d) 250 (Ont.C.A.); R. v. Demeter and Whitmore (1976), 1976 1413 (ON CA), 32 C.C.C. (2d) 379 (Ont.C.A.); R. v. Priest (1996), 1996 1381 (ON CA), 30 O.R. (3d) 538, 110 C.C.C. (3d) 289 (Ont.C.A.).

[48] At the same time, the accused has been found guilty of participating in a planned and deliberate robbery that involved violence and the use of an imitation firearm. This was a serious crime, with the inherent potential for significant personal injuries being suffered by all of the participants – victims and perpetrators alike. The sheer gravity of such crimes requires sentences that appropriately denounce this kind of criminal conduct, and which deters others from committing similar such offences. These kinds of crimes usually require the imposition of more lengthy custodial dispositions, even in the case of youthful first offenders. See: R. v. Gonidis, McCullough and Stevenson (1980), 1980 2879 (ON CA), 57 C.C.C. (2d) 90 (Ont.C.A.); R. v. Campbell (1981), 1981 486 (BC CA), 64 C.C.C. (2d) 336 (B.C.C.A.).

[49] In trying to reconcile these competing sentencing principles in the circumstances of the present case, I reject the positions advanced by both of the parties. The near maximum reformatory term of imprisonment sought by the Crown focuses too much emphasis upon the need for denunciation and deterrence, and does not sufficiently recognize the compelling mitigating circumstances present in this case, nor the youthful first offender status of the accused. On the other hand, the suspended sentence and probationary term sought by defence counsel places almost exclusive emphasis upon the rehabilitation of the accused and the mitigating circumstances in this case, and does not sufficiently acknowledge the gravity of the offence committed by the accused, and the corresponding need to deter and denounce violent crimes.

[50] In my view, the appropriate balancing of these c