ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
COURT FILE NO.: 3-622/13
DATE: 20140425
B E T W E E N:
HER MAJESTY THE QUEEN
E. Pancer, for the prosecution
- and -
ANDREW WINCHESTER
E. Lam, for the defence
HEARD: April 15, 2014
Nordheimer J. (orally):
[1] On April 15, 2014, Mr. Winchester pleaded guilty to one count of possessing a firearm with readily accessible ammunition, two counts of conspiracy to transfer a firearm, eleven counts of transferring a firearm and twenty counts of possessing a firearm for the purpose of transferring it.
[2] An agreed statement of facts was read in at the time of the plea. It is not necessary to repeat all of the detail contained in those facts. For the purposes of these reasons, a summary of those facts will suffice.
[3] The events underlying the offences occurred between June and November 2012. At the time, Mr. Winchester was employed by Garda Security. As part of his job, Mr. Winchester had obtained, and was the holder of, a valid firearms licence. Late in May 2012, Mr. Winchester was contacted by a high school friend, Nour Marakah. During their conversation, Mr. Marakah learned of the fact that Mr. Winchester had a firearms licence and could therefore legally purchase firearms. Mr. Marakah asked Mr. Winchester to purchase two guns for him. Mr. Winchester agreed to do so believing that it would be a one-time occurrence. As matters unfolded, that was not to be the case.
[4] Beginning on June 8, 2012, Mr. Winchester purchased handguns that he provided to Mr. Marakah. Over the next five months, Mr. Winchester purchased forty-seven firearms, forty-three of which he provided to Mr. Marakah. The other four firearms were ones that Mr. Winchester kept for himself. Mr. Winchester also purchased two shotguns but those do not factor into the offences.
[5] The arrangements between Mr. Winchester and Mr. Marakah may have begun innocently but they quickly turned into ones whereby Mr. Marakah would give Mr. Winchester instructions to buy certain specified guns and specified ammunition and would provide Mr. Winchester with the funds to do so. A number of text messages were placed into evidence that demonstrate these arrangements.
[6] Mr. Marakah agreed to pay Mr. Winchester $900 for each occasion when Mr. Winchester made such purchases regardless of how many handguns were actually purchased. The purchases generally involved between one and three handguns. Usually purchases of ammunition accompanied the purchases of the handguns but not always. Mr. Winchester did purchase forty-eight boxes of ammunition over this time period.
[7] Each handgun purchased by Mr. Winchester was purchased legally given that Mr. Winchester had a firearms licence. Each handgun purchased was registered with the Canadian Firearms Registry Office which issued registration certificates for each handgun. Indeed, Mr. Winchester had to wait for the registration certificates before he could actually take physical possession of the handguns. The handguns purchased by Mr. Winchester included Berettas, Walthers and Glocks.
[8] Remarkably, notwithstanding that all of the handgun purchases made by Mr. Winchester were made from only two stores; notwithstanding that forty-seven handguns were purchased over just a five month period; and notwithstanding that these purchases were all made by one person, namely Mr. Winchester, these purchases do not appear to have raised any concerns at either of these stores. Even more remarkably, notwithstanding the number of handguns purchased over this fairly short time period by a single person, these purchases also do not appear to have raised any concerns with the Canadian Firearms Registry Office.
[9] Of the forty-three handguns transferred to Mr. Marakah, seven were recovered at various crime scenes. These crimes included the use of these handguns in home invasions and in a domestic incident. Other of these handguns were seized from vehicles where drugs were also found. In each case, attempts had been made to remove the serial numbers of these handguns but the police were able to restore the serial numbers. Of greater concern is the fact that thirty of the handguns purchased by Mr. Winchester, and delivered to Mr. Markah, have not yet been recovered.
[10] It is not suggested that Mr. Winchester had any involvement in any of these crimes. It is also not suggested that Mr. Winchester has any knowledge of who ultimately got their hands on these handguns. Simply put, Mr. Winchester’s involvement in this matter starts and finishes with Mr. Marakah. In addition, Mr. Winchester did not make any attempt to hide his actions. The handguns were all purchased in his name and they were all registered in his name.
[11] The restoration of the serial numbers allowed the police to trace the guns back to Mr. Winchester, who was ultimately arrested on November 6, 2012 as he was returning from what would be his last trip to purchase handguns.
[12] As a final note on the facts, the costs of Mr. Winchester’s purchases of these handguns and ammunition was in excess of $30,000. Mr. Winchester himself received more than $14,000 as a result of these activities.
[13] At the sentencing hearing, the Crown sought a term of imprisonment of between thirteen and fifteen years before any credit for pre-sentence custody. The defence submitted that a sentence of between seven and eight years was the more appropriate penalty, again before any credit for pre-trial custody.
[14] Mr. Winchester is 25 years old. He was 23 years old at the time of the offences. Mr. Winchester has no prior criminal record. Indeed, it is agreed that he had no involvement of any type with the police before these offences. At the time of these events, Mr. Winchester was living with his fiancée. Mr. Winchester has two young sons, aged five and six, from two previous relationships. He has custody of those boys every weekend. It is apparent from the material placed before me that Mr. Winchester is devoted to his two sons. Mr. Winchester was also employed by Garda Security at the time and had received a promotion at his work just prior to these events. Indeed, it was his job at Garda that lead Mr. Winchester to have the firearms licence.
[15] Mr. Winchester was arrested on November 6, 2012. He has been held in custody since that time. It is agreed that Mr. Winchester should receive a credit for his pre-sentence custody at the rate of 1.5:1. I calculate that credit to amount to 2 years and 3 months.
Principles
[16] The fundamental purpose of sentencing as set out in s. 718 of the Criminal Code is to ensure respect for the law and to promote a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section that include denunciation; deterrence; rehabilitation; the separation of offenders from society, where necessary, and the acknowledgment of the harm that criminal activity brings to our community.
[17] There are a number of aggravating circumstances in this case, most of which are self-evident. First, Mr. Winchester used his firearms licence to purchase and then transfer forty-three handguns to another person, his presumed friend, Nour Marakah. Second, Mr. Winchester transferred these handguns knowing that Mr. Marakah would, in turn, be providing them to another person. It must have at least crossed Mr. Winchester’s mind that these were not guns that were being acquired for lawful or innocent purposes. If that thought did not cross Mr. Winchester’s mind, it ought to have. Third, Mr. Winchester undertook these purchases with an assurance from Mr. Marakah that the firearms would not be traceable back to him. This was yet a further reason that should have caused Mr. Winchester to question what was, in reality, going on. It also should have caused him to rethink his participation in this venture.
[18] In addition to these aggravating factors, the Crown submits that there are others. One is the Crown’s assertion that Mr. Winchester was motivated by greed. I accept that part of Mr. Winchester’s motivation may have been to gain some extra cash but I do not believe it was the dominant motivation. Rather, I accept Mr. Winchester’s position that he was largely motivated by a feeling that he owed a debt of sorts to Mr. Marakah for assistance that Mr. Marakah had given to Mr. Winchester, while they were in high school together. It appears that Mr. Marakah had protected Mr. Winchester back then from bullying. I believe that Mr. Winchester felt a sense of loyalty or obligation to Mr. Marakah, a very much misplaced sense as it turns out, arising from those times and I accept that he wanted to try and repay that debt.
[19] The Crown also submits, as an additional aggravating factor, that Mr. Winchester put his young children at risk by having guns and ammunition in his home. I accept that there is a measure of risk when anyone has guns in a home where there are also children present. Frankly, I do not know why any parent would want to run that risk. Still, there are degrees of risk. In this case, the evidence is that the guns were kept in a locked room when the children were at Mr. Winchester’s home and the evidence also suggests that Mr. Winchester was always with his children when they visited on the weekends. I do not believe for a moment that Mr. Winchester would have allowed any situation to develop where his two boys would be put at actual risk although that intent is not a guarantee against accidents. Accepting that the occasional presence of children in the home where guns were kept is an aggravating factor, it is, in this particular case, a mild aggravating factor.
[20] Finally on this point, the Crown submits that another aggravating circumstance is Mr. Winchester’s lack of a criminal record. The Crown’s reasoning is that it was the lack of a criminal record that allowed Mr. Winchester to obtain a firearms licence that in turn allowed him to purchase these handguns. I do not accept that reasoning. It is well-established that the lack of a criminal record is a mitigating factor not an aggravating one. There are some offences, such as fraud, where the lack of a criminal record can be an aggravating factor where it allows someone to get into a position of trust and then violate that trust. But this is not that type of case. I do not know of any authority, and none was cited to me, that has ever held that in a situation, such as the one here, the lack of a criminal record can be transformed from a positive factor into a negative one.
[21] In terms of mitigating circumstances, Mr. Winchester is a young man. As I have just said, he has no criminal record. Mr. Winchester pleaded guilty to these offences at an early stage. He waived his preliminary hearing in this matter. Further, Mr. Winchester has expressed remorse for his actions and he has done so in heartfelt and sincere terms. He has acknowledged the impact that his actions have had, not just on himself, but on a great many other people including his parents, his fiancée and, of course, his sons.
[22] I have a psychiatric report from Dr. Pallandi who reports that Mr. Winchester does not suffer from any major mental illness or personality disorder. Dr. Pallindi refers to the offences are being “anomalous” for Mr. Winchester. Further, it is Dr. Pallandi’s opinion that Mr. Winchester is at a low risk of reoffending, an opinion that the Crown accepts.
[23] I also have eight letters of support from family, friends and other acquaintances of Mr. Winchester. They are all uniformly positive regarding Mr. Winchester’s character and fully supportive of him as a person.
Analysis
[24] In considering the appropriate sentence to impose, I have taken into account the particular circumstances of this case, that I have just reviewed. As is often the case in sentencing matters there are considerations that pull in opposite directions in terms of their impact on the appropriate sentence.
[25] On the one hand, we have the very serious and disturbing reality that because of Mr. Winchester’s actions, a large number of dangerous weapons are out in the public undoubtedly in the hands of individuals who may use them for criminal purposes and who may, in doing so, harm entirely innocent persons. Residents of this city are reminded, altogether too frequently, of the terrible tragedies that can be visited on people by the indiscriminate use of handguns.
[26] On the other hand, we have a young man with no criminal record who has, except for this incident, been a law abiding contributing member of our society. Mr. Winchester has two young children who have been deprived of their father for some months and who will, under any scenario, be deprived of their father for some time to come. Mr. Winchester has strong support from family and friends. They are all genuinely mystified by Mr. Winchester’s involvement in these events.
[27] The Crown submits that the objectives of denunciation and deterrence are paramount in this case. Indeed, the Crown says that those objectives “trump” all other considerations. While I agree that the objectives of denunciation and deterrence are important in a case such as this, they cannot be allowed to exclude other recognized objectives of sentencing from consideration in fashioning an appropriate sentence.
[28] Included in those other objectives is the issue of rehabilitation. Ordinarily for youthful offenders, as for first offenders, the objectives of individual deterrence and rehabilitation are paramount: R. v. Priest (1996), 1996 1381 (ON CA), 30 O.R. (3d) 538 (C.A.). The evidence clearly demonstrates that the potential for Mr. Winchester’s rehabilitation is high. Indeed, I would say that rehabilitation has already taken hold in Mr. Winchester’s case. Any sentence imposed should not detract from, or impede, the continuation of the rehabilitative process.
[29] Another principle that must be considered is that this is Mr. Winchester’s first term of imprisonment. It is recognized that a first sentence of imprisonment should be as short as possible. That is a principle that is not to be overridden by the objective of deterrence. As Rosenberg J.A. said in R. v. Hayman (1999) 1999 3710 (ON CA), 135 C.C.C. (3d) 338 (Ont. C.A.) at p. 346:
A first sentence of imprisonment especially for a first offender should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence: [citation omitted]
[30] I would add that lengthening a sentence for the sole purpose of achieving deterrence is a questionable process for at least two other reasons. First, it is far from clear that incarceration is effective as a deterrent. As noted by Lamer C.J.C. in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 at p. 117:
The empirical evidence suggests that the deterrent effect of incarceration is uncertain [citation omitted]
[31] Second, insofar as there may be a deterrent effect to incarceration, it is much more likely that it is the fact of incarceration, as opposed to the length of incarceration, that achieves that effect. As Lawton L.J. observed some years ago in R. v. Sergeant (1975), 60 Cr. App. R. 74 (C.A.):
We take the view that for men of good character the very fact that prison gates have closed is the main punishment. It does not necessarily follow that they should remain closed for a long time.
[32] In terms of existing authorities, counsel advised that they were unable to locate very many cases dealing with this type of offence. Counsel did provide me with the few cases that they were able to find. I will mention them briefly for comparative purposes:
• In R. v. Bijelic, [2001] O.J. No. 3853 (C.A.), the Court of Appeal upheld a four year sentence as being fit for the accused who purchased firearms in Florida, transported them to Canada and then delivered them to a third party who sold them.
• In R. v. Baron-Vartian, (unreported, Ontario Court of Justice, October 18, 2002), Morten J. sentenced the accused to three years for selling a number of handguns in the United States that he had obtained in Canada. I should note that this sentence was a joint submission.
• In R. v. Balatroni, [2004] O.J. No. 5311 (S.C.J.), Dawson J. imposed a sentence of seven years on the accused who was employed by a gun manufacturer and used his position to produce handguns without serial numbers that he delivered to Mr. Baron-Vartian, who was the accused in the case to which I just referred. I should note, in that case, that Crown and defence counsel had agreed that the applicable range of sentence was between six and eight years.
• In R. v. Radjenovic, [2012] B.C.J. No. 854 (S.C.), Butler J. imposed a sentence of four years on the accused who operated a business that sold firearms. Through that business, the accused sold 127 handguns after removing all markings from them. I should say that I recognize the possibility that the sentence in that case may have been affected by the fact that it was being made consecutive to an eighteen year sentence that the accused had already received for counts of counselling to commit murder.
• In R. v. Santapaga, (unreported, Ontario Court of Justice, December 17, 2013) McArthur J. sentenced the accused to nine years for using his gun licence to purchase and then pass along fifteen firearms, of which thirteen had not been located. There were certain medical issues that prompted the activities of the accused in that case. At the same time, the accused in that case was also considerably older than is Mr. Winchester.
[33] As is most often the result when considering previous decisions on sentencing, there are factual differences that distinguish each of the above cases from this one. Nonetheless, I do note that these cases all resulted in the imposition of mid to high single digit penitentiary terms of imprisonment.
[34] Before concluding, I should address one other issue. The Crown sought consecutive sentences subject to the overall principle of totality. I do not agree that that is the correct approach. I consider Mr. Winchester’s actions in this matter to be one continuous course of conduct and thus should attract concurrent sentences. In any event, the totality principle would preclude the imposition of meaningful penalties on a consecutive basis even if one did what the Crown asked for here and that is combine the offences into different groups. Even then, the totality principle would require the sentences for each group to be reduced below what I consider to be the appropriate level if they were to be made consecutive. In the end result, I consider the appropriate sentence for most of these offences to be such that only concurrent sentences are available in the circumstances of this case given the number of counts to which Mr. Winchester has pleaded guilty.
[35] In the end result, I do not consider the sentence sought by the Crown to be a fair one given the mitigating factors that are present in this case. While I accept the need to express both denunciation and deterrence, in my view those objectives are accomplished by the imposition of a significant penitentiary term of imprisonment, especially on a first offender. A penitentiary term of imprisonment reflects the aggravating factors in this case. Acceding to the Crown’s position would, in my view, increase the length of the sentence without any attendant increase in either denunciation or deterrence. I would also observe that imposing the sentence sought by the Crown would make rather troublesome the determination of an appropriate sentence for a person in similar circumstances who did not plead guilty and/or who had a criminal record.
[36] All of that said, I am mindful that there are some who would want the court to “throw the book” at someone like Mr. Winchester for causing more handguns to be on the streets of this city or others. Given the very serious and legitimate ongoing concerns regarding gun violence, it is easy to espouse the imposition of very harsh penalties as the perceived solution to the problem. The fact is, however, that extreme penalties do not advance any of the recognized objectives of sentencing. What extreme penalties do lead to is the extinguishment of all hope for accused persons to return to law abiding conduct and instead drive them to the continuation of criminal activity as the only perceived option. That result only adds to public safety concerns. It does not lessen them. As Brooke J.A. observed in R. v. Simmons, Allen and Bezzo (1973), 1973 1522 (ON CA), 13 C.C.C. (2d) 65 (Ont. C.A.) at p. 72:
The purpose of the criminal law is to protect the public and to this end the sentence according to current authority must punish the accused and be a deterrent to others, but it is also an important principle that the rehabilitation of the offender receive full consideration because, of course, it is the best protection the public has for the future so far as the accused is concerned.
[37] I would add, on this point, that while we all have the habit during sentencing hearings of bandying about years of imprisonment, we should never lose sight of the fact that a year in prison is a very long time, especially for younger offenders.
[38] In the end result, given Mr. Winchester’s age, his lack of any prior criminal conduct, his pleas of guilt and his remorse, I am of the view that a sentence in the range submitted by the defence accomplishes the goals of denunciation and deterrence while at the same time allowing the objective of rehabilitation to play its proper role in the overall sentencing process. I therefore consider that a sentence of eight years is the appropriate one to impose in this case, prior to any reduction for the time spent in pre-sentence custody.
NORDHEIMER J.
Released: April 25, 2014
COURT FILE NO.: 3-622/13
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
ANDREW WINCHESTER
REASONS FOR DECISION
NORDHEIMER J.
RELEASED: