Court File and Parties

COURT FILE NO.: CR13300002610000
DATE: 20140320

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

NIKKO BASSOO-NARINE

Defendant

Joseph Hanna, for the Crown

Luka Rados, for the Defendant

HEARD: February 25, 2014

HAINEY J.

REASONS FOR SENTENCE

Overview

[1] Following a trial I found Mr. Bassoo-Narine guilty of the following offences:

(a) Unlawful possession of a loaded firearm;

(b) Unlawful possession of a prohibited firearm;

(c) Being an occupant of a motor vehicle in which he knew there was a firearm; and

(d) Possession of a firearm while he was prohibited from doing so by an order under the Youth Criminal Justice Act.

[2] The charges of unlawful possession of a prohibited weapon and being an occupant of a motor vehicle in which he knew there was a firearm were conditionally stayed as a result of R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729.

Circumstances of the Offence

[3] Mr. Bassoo-Narine’s convictions arise from events that occurred at around 2:47 a.m. on August 5, 2012 in a parking lot located at 1320 Danforth Road in the City of Toronto.

[4] At that time Mr. Bassoo-Narine was a passenger in a car that had driven from a nearby bar to the parking lot. He had a loaded handgun in the waistband of his pants while he was seated in the car. He was subject to a mandatory prohibition order under section 51(1) of the Youth Criminal Justice Act at the time.

[5] Prior to arriving at the parking lot Mr. Bassoo-Narine had consumed alcohol and had smoked marijuana. At trial he admitted that as a result he had a “buzz” and was “a little under the influence”.

Circumstances of the Offender

[6] Mr. Bassoo-Narine is 24 years old. At the time of the offences he was 22 years old. He left school when he was 16 years old. He was in Grade 10 at the time. He has not returned to school since.

[7] At the time he was arrested for these offences he was working full-time for R Lam Installations installing office furniture. He had been working for the company periodically throughout the year before he was arrested on these charges. He was a well-regarded employee who would be welcomed back by the company once he is released from custody.

[8] He also completed a one year Co-Op program in an auto-body shop and worked part-time in a rustproofing business.

[9] Mr. Bassoo-Narine does not have an adult criminal record. He has a youth record which consists of convictions for:

a) Assault causing bodily harm;

b) Robbery; and

c) Failing to comply with a recognizance.

These convictions were entered on September 13, 2007 when he was 17 years old.

[10] He has strong support from his mother and his grandmother who have been in court throughout these proceedings. His mother, Shazelle Bassoo, testified at his sentencing hearing. I was impressed with her dedication to her son. I am confident that she can have a positive effect on his prospects for rehabilitation.

[11] Mr. Bassoo-Narine also has a good deal of support from other members of his family and members of the community who provided me with letters of support. These included the following individuals:

a) Tiffany Campbell, who is a close childhood friend of his had the following to say in her letter:

Nikko is an amazing young man with a lot of growth still to be done. Given the right support and guidance I believe Nikko will be able to work on where he wants to be. He has always dreamt of becoming a mechanic and has also excelled in this part of his studies. Nikko has a lot of potential. He is a hard worker and will do anything for his single mother and two sisters in order to keep their lives afloat. Given their hard times Nikko is the older brother and the only man in the house Nikko had a lot more responsibility than most young men will ever have. Nikko is compassionate and intelligent and given the chance to positively exhibit his abilities I believe he would be able to generate his intelligence in the right way to better himself and his family.

b) Ebony Mitchell, who is his aunt, and with whom he was living at the time of his arrest, wrote the following in her letter:

I believe that Nikko’s incarceration has given him valuable time to think about how his actions in the past has affected society, his family, and everyone who loves and cares about him. I also believe that Nikko will be a responsible adult as he has taken accountability for his past mistakes and wants to remedy the anguish and turmoil he has put his family through. When Nikko lived with me, he always paid his rent on time and woke up on time for work as needed. I believe that Nikko made some very bad choices leading up to his arrest. Speaking with Nikko since his arrest I have seen that he is regretful of not spending his time more wisely, pursuing his goals and hanging out with the wrong crowd. Nikko is young and still has time to change his life around and do well for himself.

c) Sandra Mitchell, who is his grandmother, wrote the following in her letter:

Since Nikko’s arrest and incarceration for being in possession of a fully loaded firearm, I have watched, prayed and stood by him because I know that he is capable of changing the course of his life. I have seen him blossom from a carefree young adult to a more matured individual who has come to terms with the negative choices he made in the past and how it has impacted his future. On my visits to see Nikko, I have seen a huge change in his demeanour, the way he expresses himself and the level of maturity in the conversations about life in general that we have engaged in. Nikko has indicated that he would like to finish high school and further his education.

I believe that Nikko will be a respectful and productive member of society. I am aware of his charges and his past mistakes and I do believe that since his arrest he has realized the consequences of his actions and will take his negative experiences and turn them into positive ones to better himself and build a bright future.

d) Anthony Stewart, who supervised Mr. Bassoo-Narine at the Touchstone Youth Centre, wrote as follows:

He appears to have some goals for the future with hopes of completing them by adulthood. He struggles with finding opportunities of growth but continues to connect with his mother and other family members for support. With some mentorship, it is clear that Nikko will be able to work to his full potential.

e) Ryan Lam, who is the owner of R Lam Installations, wrote as follows:

Nikko worked for me periodically over the past year before his incarceration. I found him to be punctual, reliable and hard working. He was a quick learner and followed instructions easily. He showed initiative in getting work done in a timely manner. He was a team player, worked well with others and was well liked. He was personable and always came prepared to work. I would not hesitate to offer Nikko employment.

f) His mother, who also testified, wrote as follows:

Nikko is a loving and protective son, a caring brother always interested in what’s going on in his sisters’ lives.

This is an experience for Nikko to learn from no doubt and as a young man to understand that he is accountable for his actions and what he does, has a significant impact on the people around him as well as family.

The last eighteen months I have seen that Nikko has matured into a young man who is working towards change, and definitely wants to make a better future for himself by finishing school, and continuing on a path to success in his career in the auto body industry.

[12] Mr. Bassoo-Narine’s Pre-Sentence Report concludes with the following assessment:

The subject is a physically healthy individual without obvious mental deficiencies. He grew up in a dysfunctional family, and was exposed to domestic violence, and the influence of two alcoholic fathers. He also experienced instability from repeated changes of residence, including different countries. As well, he suffered some negligence, which caused him to miss school for a significant period at a young age.

The subject’s development during his teens was impacted by the lack of a male role model in his life. Also, supervision from his mother was insufficient, as she worked long hours to support her family.

The subject has only basic education and limited work skills. Although he was gainfully employed for some time prior to his arrest, his spending habit was a concern. His lifestyle was also problematic, as it consisted of mainly work and going to clubs. Also, for the longest time, the subject had no aspiration for his future, and upgrading education or acquiring work skills have been absent from his agenda for a long time.

The subject consumed alcohol often and used illicit drugs, namely marijuana, regularly. He denied any dependency on them, but his pattern of abuse of both substances belies his denial.

The subject is known to his family to associate with negative peers. However, he does not see this as being a concern, as he maintains his innocence of the current offences before the Court.

Positions of the Parties

[13] Crown counsel, Mr. Hanna, submits that a total sentence in the range of four years less credit for Mr. Bassoo-Narine’s pre-sentence custody is the appropriate sentence to impose. He takes no position as to whether Mr. Bassoo-Narine should receive enhanced credit for his pre-sentence custody.

[14] Defence counsel, Mr. Rados, submits that Mr. Bassoo-Narine should receive enhanced credit of 1.5 days for every day he has spent in pre-sentence custody. Since he has spent roughly 19½ months in custody, this would result in credit of 29 months. Mr. Rados submits that 29 months is a fit and appropriate global sentence for both offences. He therefore submits that Mr. Bassoo-Narine should receive a sentence of this length so that he would be eligible for immediate release.

Applicable Principles of Sentencing

[15] Sentencing is never an easy task for a trial judge. My discretion in determining a fit sentence is guided by the sentencing principles set out in the Criminal Code.

[16] The fundamental purpose of sentencing, as set out in section 718 of the Criminal Code, is to “contribute to respect for the law and the maintenance of a just, peaceful and safe society” by imposing sentences that have one of six objectives. The objectives include denouncing unlawful conduct, deterring the offender and others from committing crimes, separating offenders from society, where necessary, assisting in the rehabilitation of the offender, providing reparations for harm done to the victim or to the community and promoting a sense of responsibility in the offender. According to section 718.1 of the Criminal Code any sentence imposed must be proportionate to the gravity of the offence and the responsibility of the offender.

[17] Keeping in mind the fundamental purpose of sentencing, I am also required by section 718.2 of the Criminal Code to impose a sentence taking into account the following:

• Any relevant aggravating or mitigating circumstances relating to the offence or the offender;

• The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

• An offender should not be deprived of liberty if less restrictive sanctions are appropriate; and

• All available sanctions other than imprisonment that are reasonable in the circumstances must be considered.

[18] Crown counsel submits that the primary goals of the sentence imposed must be denunciation and deterrence. Our Court of Appeal has made this clear. In R. v. Danvers, 2005 30044 (ON CA), [2005] O.J. No. 3532, Justice Armstrong stated at paragraph 78 as follows:

There is no question that our Courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest of terms. The possession and use of illegal handguns in the Greater Toronto Area is a cause for major concern in the community and must be addressed.

Aggravating and Mitigating Factors

[19] The aggravating factors in this case include:

a) Although Mr. Bassoo-Narine does not have an adult criminal record he does have a youth record and is therefore not a first offender;

b) He was in possession of a loaded handgun when he was prohibited from doing so;

c) He possessed a loaded handgun in public after he had consumed alcohol and drugs and was admittedly partially impaired.

[20] The mitigating factors include:

a) He is a youthful offender who does not have an adult criminal record;

b) He has strong family and community support;

c) He appears to have employment available upon his release from custody;

d) He appears to have good prospects for rehabilitation;

e) When Mr. Bassoo-Narine spoke to me during his sentencing hearing he told me he is now ready to become a law abiding citizen and he apologized for his actions.

Analysis

[21] Both counsel have provided me with a number of cases in support of their respective positions as to the appropriate range of sentence that should be imposed. A review of the cases demonstrates that sentencing is not an exact science. It is instead a profoundly individualized process driven by the unique facts of every case and the unique characteristics of every offender. As Doherty J.A. noted in R. v. Hamilton, 2004 5549 (ON CA), [2004] O.J. No. 3252:

…most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint by numbers landscape is to the real thing.

[22] The circumstances of any case, including this one, can be readily distinguished from any other case. It is always necessary to consider and apply all of the sentencing principles under the Criminal Code, having regard to the unique circumstances of the case.

[23] Crown counsel’s proposed total sentence of four years’ imprisonment is certainly within the range of sentences that have been approved by our Court of Appeal for similar offences. This is clear from the Court of Appeal’s decisions in R. v. Smith, [2008] O.J. No. 2472 and R. v. Harutyunyan, 2012 ONCA 637, [2012] O.J. No. 4417.

[24] Further, I accept that denunciation and deterrence are very important sentencing objectives in this case. However, as Justice Nordheimer observed in R. v. Canepa, 2011 ONSC 1406, [2011] O.J. No. 924 at para. 16:

… denunciation and deterrence are not the only objectives of sentencing. Another objective is rehabilitation. While people convicted of offences must be appropriately punished, the imposition of a punishment that inhibits or detracts from a person’s ability to recover from the mistakes that they have made does not promote the long term interests either of the person or of our society.

[25] In my view Mr. Bassoo-Narine does have good prospects for rehabilitation particularly because of his youth and his strong family and community support.

[26] I have carefully considered all of the aggravating and mitigating circumstances, counsels’ submissions, the applicable jurisprudence and the principles of sentencing. I have concluded that a total sentence of three and a half years’ imprisonment is a fit disposition. This sentence sufficiently reflects the principles of denunciation and deterrence as well as taking into account Mr. Bassoo-Narine’s prospects for rehabilitation.

[27] The jurisprudence makes it clear that the sentence imposed for a conviction for breach of a prohibition order should be consecutive to the sentence imposed for unlawful possession of a firearm. As a result, the sentence to be imposed in respect of the first count of unlawful possession of a firearm will be three years. The sentence imposed for breach of the prohibition order will be six months consecutive to the three year sentence. Under other circumstances I would have imposed a sentence of one year imprisonment for the breach of a prohibition order conviction. However, because of the totality principle and my view that a total sentence of three and a half years is fit and appropriate, I have reduced the sentence for this conviction to six months.

Enhanced Credit

[28] Mr. Bassoo-Narine has been in custody on these charges since August 5, 2012. This amounts to a total of 19 months and 15 days. I am satisfied that there is a basis for giving him enhanced credit under section 719 (3.1) of the Criminal Code. In accordance with the Ontario Court of Appeal’s decision in R. v. Summers, 2013 ONCA 147, I am satisfied that there is information before me that justifies awarding Mr. Bassoo-Narine enhanced credit on a 1.5 to 1 basis for the 19½ months he has been in pre-sentence custody. This includes:

a) He received no credit during his time in pre-sentence custody for either remission or parole;

b) There were often 2 or 3 inmates housed in his cell;

c) He was offered yard just over 50% of the time he was in custody;

d) There were numerous lockdowns during his time in custody.

[29] For these reasons Mr. Bassoo-Narine will be given credit for a total of 29 months of pre-sentence custody.

Disposition

[30] Mr. Bassoo-Narine I sentence you as follows:

Count # 1 – unlawful possession of a loaded prohibited firearm – three years’ imprisonment

Count # 4 – possession of a firearm while you were prohibited from doing so by reason of an order made pursuant to the Youth Criminal Justice Act – six months’ imprisonment consecutive to the three year sentence on Count # 1.

[31] Your total sentence is three and a half years’ imprisonment. After giving you credit for 29 months of pre-sentence custody I sentence you to serve a remaining term of imprisonment of 13 months.

[32] In addition, I make a DNA order pursuant to section 487.051(2) and a weapons prohibition order for life.

[33] That is my disposition. I wish to thank counsel for their helpful submissions.

HAINEY J.

Released: March 20, 2014

COURT FILE NO.: CR13300002610000
DATE: 20140320

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

NIKKO BASSOO-NARINE

Defendant

REASONS FOR SENTENCE

HAINEY J.

Released: March 20, 2014