ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-50000298
DATE: 20140523
B E T W E E N:
HER MAJESTY THE QUEEN
Jennifer Strasberg, for the Crown
- and -
MUZAMIL ADDOW
Sid Freeman, for the Defendant
HEARD: April 17, 2014,
at Toronto, Ontario
Michael G. Quigley J.
Reasons For Sentence
Introduction
[1] On January 10, 2014, I found Muzamil Addow guilty of three interrelated sets of offences: first, (i) discharging a firearm against Akiel Brown with the intent to wound him, committing an aggravated assault against him, and pointing a handgun at him; second, (ii) three prohibited firearms possession offences; and finally, (iii) two offences of possession of a firearm while prohibited, and two other breach offences, breach of his probation order and breach of his recognizance. He was acquitted of the charge of uttering a death threat against Mr. Brown.
[2] The issue on this sentencing is what is the fit sentence for this offender for these offences having regard to his criminal antecedents and the circumstances of the offences, aggravating and mitigating factors, and the governing jurisprudence.
Circumstances of the offences
[3] These charges all arose out of an incident that occurred on the evening of August 29, 2011, in proximity to the townhouses located at 36 Orpington Crescent in northwest Toronto, and specifically outside Unit 6. That was where a group of twenty or so youths were gathered, drinking and smoking. Mr. Addow was there. There was a confrontation between Mr. Addow and the victim, Akiel Brown, that appears to have arisen from an incident that had occurred earlier that day. As a result, Akiel Brown was shot in the back of his leg. After he was shot, he hobbled his way to 46 Orpington Crescent, where the homeowner there called police for him. When the police arrived mere minutes after the shooting, Brown gave a description to Officer Purdon of the man who had just shot him. He told the officer at that time that he could identify the shooter. He told the police within minutes of the shooting that he recognized the shooter as a person who went to the same high school that he attended. He was then taken to hospital and treated.
[4] Several neighbouring homeowners also called 911, including Julie McCormick who lived in Unit 6 itself, the townhouse unit that was located right beside the area where the shooting occurred. She heard gunshots, went and opened her front door to see what was transpiring seconds after she heard that gunshot, and saw the immediate aftermath of the shooting. She saw the shooter. She saw his face. She saw that he was holding the gun by his side and she heard words exchanged between the shooter and Mr. Brown.
[5] Ms. McCormick was one of those who called 911. She remained on the phone with the 911 operator for almost ten minutes. Within a very short time thereafter she identified this accused as the shooter and as the person who she recognized and who lived just a few doors away from her in the same complex. He was arrested and charged with these offences. Several hours later in a photo line-up Ms. McCormick also identified the defendant as the shooter.
[6] The issue in the case was identification. The question was whether Muzamil Addow was the shooter who discharged that bullet into Akiel Brown’s leg. However, I found that this was not a case of first time identification of a stranger by persons who did not know or were not previously acquainted with each other – it was instead a case of the independent recognition of the same person by two witnesses, both of whom knew and were able to recognize the accused from entirely separate and independent circumstances.
[7] After considering the identification evidence provided by the two principal witnesses in the context of the whole of the evidence presented at trial, I found on that evidence that I was satisfied beyond any reasonable doubt that it was the accused, Muzamil Addow, who was the shooter in this case. As the other elements of the offences were met in respect of all counts, except the threatening count on which I entered an acquittal given the absence of cogent evidence of a death threat, I convicted the offender on all charges except count 4.
Circumstances of the offender
[8] Mr. Addow is 23 years old. He celebrated his 23rd birthday on the date of the sentencing hearing last month. He was 20 years old at the time these offences occurred. He is a Canadian citizen. Mr. Addow achieved a Grade 10 education at North Albion Collegiate Institute but he dropped out of school at that time to go to Alberta to work. He wants to become an electrician. He was enrolled in the trades program at Burnhamthorpe Collegiate in order to qualify as an electrician. He was awaiting the commencement of that program when he was arrested and charged in connection with these offences. He has also previously worked through temporary agencies. I was also advised that he is capable of operating a forklift truck. Plainly, he is capable of being gainfully employed and with enhancement to his training, may yet achieve the goal of qualifying as an electrician.
[9] Mr. Addow has seven brothers and sisters, but he is the only one of those eight children brought up by his mother and father over the years that they have lived in Canada who has run afoul of our law. However, the fact that his parents have done well in raising his seven brothers and sisters to evidently be respectful, law-abiding Canadian citizens, and which is plainly to their credit, is not itself a factor which mitigates in determining the sentence to impose upon him for these offences. That follows because it is his own particular circumstances that come into play and that must be considered in determining an appropriate sentence for him, given his criminal antecedents and all of the circumstances of this case.
[10] Nevertheless, I do acknowledge that his family has provided strong support to him throughout these proceedings and I expect that he can count upon them to be supportive of him to assist in rehabilitation efforts once he is released back into society after serving the sentence that I am required to impose upon him today under our law. The question that continues to trouble me, however, is whether they can rely upon him to the same extent that he clearly seems able to rely upon them. Will they be able to rely upon him to turn the corner on his past life once he is released? That will remain to be seen, but nevertheless, their presence before this court, and particularly that of his mother and father and his aunt and uncle who regularly attended during the trial itself, and the presence of many of his siblings at the sentencing hearing, did attest to that support that they are willing to provide to him, seemingly unconditionally.
[11] A number of letters were submitted and entered as Exhibit 2 on the sentencing hearing from individuals attesting to the volunteer work that Mr. Addow has carried out for others. These letters, together with the very hopeful correspondence written to the court by the members of his family, and which were entered as Exhibit 3, do suggest to my mind that there is potential for rehabilitation for this offender. When that is combined with the fact that he was only 20 years of age when these offences occurred and is now 23, it seems plain that even after serving the sentence that I must impose upon him today, he will still be youthful upon his release and capable of making a good life for himself as a law-abiding citizen of Canada. That will depend, however, on whether he has the strength and courage to leave behind the path of lawlessness that he has adhered to in the past and become a law-abiding and productive Canadian citizen, like his parents, his aunt and uncle, and his brothers and sisters who have been here to support him through this process.
[12] Mr. Addow does have a criminal record. It is a record that principally reflects assaults and repeated breaches of orders over some years going back to start in 2008 when he was a youth offender. However, despite the two assault convictions on his record, Mr. Addow has never previously been convicted of an aggravated assault like this one, or the possession or discharge of a firearm with intent to wound, offences that are on an entirely different scale of gravamen than the offences that he has committed before, and that calls out for a lengthier and more serious sentence than he has ever received before.
Positions of the Crown and Counsel for the Defence
[13] The Crown seeks a very lengthy sentence in this case. She seeks an aggregate sentence of 11 years for the ten offences on which Mr. Addow has been convicted, reduced to 10 years on account of the principle of totality, less credit for pre-sentence custody.
[14] Relative to the individual components of the sentence she seeks, it must be accepted that count 1 calls for the imposition of a minimum sentence of five years, but the Crown seeks an enhanced seven-year sentence for that offence because of alleged aggravated circumstances. She then seeks nine years for count 2, the charge of discharging a firearm with intent to wound, having regard to the injuries caused to Akiel Brown. In circumstances such as these, she says the case law supports the imposition of a sentence in the range of nine years for that offence. The Crown proposed that the count 3 charge of pointing a firearm be stayed under R. v. Kienapple.
[15] Counts 5, 6 and 7 are the firearm possession offences. On count 5, possession under ss. 95(2)(a), the Crown seeks a sentence of three years concurrent to count 1. She accepts that count 7 under ss. 91(3)(a) will be conditionally stayed under the principle in R. v. Kienapple, but in her submission, based upon the decision in R. v. Stevens, the offence under subsection 92 should not be conditionally stayed and she seeks a sentence of two years concurrent with respect to the s. 92(3) offences. I agree with Clarke J.’s analysis in that case that it would be inappropriate to stay the s. 92(3) charge having regard to the legislative intent that appears to be evident in that statutory language, and to permit a floor mandatory minimum sentence to be activated should the accused again violate the gun possession provisions in the future, but that sentence for the s. 92(3) offence will be served concurrently with the principal gun possession offence.
[16] Counts 8 and 9 are the breach of firearm possession prohibition offences for which the Crown asks that I impose a sentence of one year consecutive to count 1 for the breach of those prohibition orders, with the second sentence for the breach of the second of those orders to be served concurrently to the first.
[17] Finally, with respect to counts 10 and 11, the breach by the offender of the recognizance and probation terms, the Crown asks for (i) a further sentence of six months for each of the breach of probation offences, given the existence of five prior breaches of probation, and (ii) the breach of recognizance, to be served consecutive to the sentences on counts 1 and 8, but concurrent to each other.
[18] If accepted, these sentences for these individual charges would give rise to a sentence totaling 11 years, but the Crown asks that the global sentence be reduced to 10 years based on the principle of totality, with the net sentence imposed being 10 years less credit for the 963 days of pretrial custody that Mr. Addow served to the date of the sentencing hearing. That pre-sentence custody has increased to 999 days to May 23, the date of this sentence, that is, four years, one month and nine days.
[19] The defence submissions are in total contrast to the Crown’s position. It is her submission that the appropriate sentence for this offender in the circumstances of this case is a total term of incarceration of five years global for all offences, before taking account of pretrial custody. In the submission of defence counsel, by any measure the sentence sought by the Crown for this first-time gun offender is excessive and would amount to a crushing burden for him to bear.
[20] Plainly, there is a wide chasm between the positions of counsel for the Crown and counsel for the defence in this case. Assuming that Mr. Addow were to be granted 1.5 to 1 credit for pre-sentence custody, that is, about four years and one month as detailed further below, an aggregate sentence of the magnitude sought by the Crown would require that he serve a balance of almost six years in the penitentiary. In contrast, if the defence position were to be accepted, the net sentence that would remain to be served by this offender after credit for that pre-sentence custody would be 8 months and 21 days.
Principles of sentencing applicable in this case
[21] Section 718 of the Criminal Code states the purposes and lists the objectives of sentencing. The fundamental purpose of any sentence is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by the imposition of just and appropriate sanctions. There are specific objectives listed in section 718 of the Criminal Code. Several are particularly relevant here. They are to denounce unlawful conduct, to deter the offender and others from committing offences and to separate offenders from society where necessary. In a case such as this, general deterrence to others, specific deterrence of this offender, and the protection of the safety of the public are paramount considerations in deciding what sentence to impose.
[22] Nevertheless, the appropriate sentence for any given offender will always depend on a number of factors, including the age of the offender, his prior record, whether it would be his first penitentiary sentence, the possibility of rehabilitation, and account being taken for any relevant aggravating or mitigating circumstances. As one of the principles of sentencing, rehabilitation must be considered where the potential exists.
[23] With respect to other factors that are engaged here, when looking at the sentence of an accused person, the court must also strive to respect the principles of proportionality and consistency of sentences for similar offences in the sentence imposed in the particular case. Proportionality requires that a sentence speak out against the offence, but not exceed what is just and appropriate given the moral blameworthiness of the offender and the gravity of the offence.
[24] Subject to specific statutory rules, like the imposition by Parliament of mandatory minimum sentences for particular crimes, the determination of a fit sentence is an individualized process. It requires that I weigh the sentencing objectives in the manner that best reflects the circumstances of the case, but it also acknowledges that aggravating or mitigating factors, respectively, will increase or decrease the appropriate sentence for otherwise similar offences.[^1] A sentencing judge must impose a sentence that is specific to the nature of the offence and the circumstances of the offender, following limits and ranges imposed as guidelines by the case law in order to try to encourage consistency in sentencing.
[25] Finally, there is the principle of totality. Under s. 718.2 of the Code, I must ensure that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. The totality principle is simply a particular application of the general principle of proportionality.[^2] Where consecutive sentences are imposed, a sentencing judge must ensure that the cumulative sentence does not exceed the overall culpability of the offender. It requires that I consider the total impact of the sentence that is proposed relative to the gravity of the conduct of the specific offender.
[26] Plainly, the jurisprudence developed over the past decade continues to emphasize and impose more stringent sentences for gun-related crimes, since the Court of Appeal showed its very low tolerance for gun offences in R. v. Danvers.[^3] That jurisprudence shows that principles of denunciation and deterrence for gun-related crimes must be addressed in the strongest possible terms. Subsequent decisions have followed and expanded upon that principle.[^4]
[27] This position of zero-tolerance plainly flows from the reality that guns are dangerous, that handguns are particularly dangerous, and that loaded concealed handguns like the one possessed by Mr. Addow are even more dangerous. The possession of illegal handguns has become an affliction to this community. We are plagued by gun crime. The presence of handguns in this city has led to innumerable instances of incomprehensible, senseless human carnage and loss of life. Inevitably, this reality informs the conclusion that general deterrence to others is absolutely paramount, although specific deterrence of this offender must also occupy a prominent place in deciding what sentence to impose on him.
[28] There are two other principle-based sentencing factors relative to the appropriate sentence to impose in this case: first, whether consecutive or concurrent sentences ought to be imposed for several of the offences here, and second, whether there is any basis for the application of the “jump” principle in these circumstances.
[29] As a sentencing matter, the decision whether to impose consecutive or concurrent sentences relates principally to whether the offender is being sentenced for different convictions related to separate events and committed at different times.[^5] This is subject only to the modifying effect of the principles of totality and proportionality: see Renaud, The Sentencing Code of Canada: Principles and Objectives[^6], where the author affirms that:
Separate events or transactions ought to result in consecutive sentences if the result is a total term that is not unduly long or harsh, and thus confirms to s. 718.2(c) and that does not offend the proportionality requirement of s. 718.1 of the Criminal Code[^7].
[30] Dealing first with consecutive vs. concurrent sentences, the underlying principle is that offences that arise out of the same behaviour or delict normally receive concurrent sentences. Consecutive sentences are appropriate when the offences do not arise out of the same behaviour or delict by the offender, or where even though they may, different societal and sentencing goals have been mandated by Parliament, by enacting more than one offence dealing with the same potential factual circumstances.
[31] In my view there are delicts arising here out of these circumstances in respect of which Parliament has seen fit to enact separate and distinct offences. The first is the action of discharging a firearm with intent to wound, combined with the commission of an aggravated assault against the victim and the pointing of a handgun at him. The second group of offences arises out of the delict of possession of a prohibited firearm. I accept the Crown’s position here, however, given the all-embracing gravamen of the principal two offences and the fact that those discharge of firearm offences can only arise where the offender possesses a firearm, that it is appropriate to cause the sentences for the illegal firearms possession offences to be served concurrently with the discharge of firearm offence and the aggravated assault offence.
[32] Finally, the third class of conduct for which the offender is to be sentenced here is for offences arising out of failing to adhere to orders imposed upon him by the court; two for possession of a firearm while prohibited, and two others for breach of his probation order and breach of his recognizance.
[33] So the question is whether the sentence for the third sets of offences, claimed to arise out of different delicts, ought to run consecutive or concurrent to the predicate offences. This point has been addressed extensively in the case law, and commented upon recently.
[34] Relative to the offences that arise out of the breach of orders, the recent decision of our Court of Appeal in R. v. McCue[^8] suggests that a sentencing judge has two options: either ignore the breach of prohibition in fixing the sentence for the firearm possession offence, and then impose an approriate consecutive sentence for the breach of prohibition offence, or the judge may use the facts of the prohibition breach as aggravating factors relative to the appropriate sentence for the firearms possession offence conviction, and then impose a concurrent sentence for the breach of prohibition order conviction itself.
[35] I consider the better approach based on the authorities to be for the breach of prohibition order sentence to be imposed consecutive to the firearms offence, rather than being a factor which might increase the sentence for the principal offences. That seems to be the preferable approach since different societal interests are protected and engaged, even if the offences do arise from the same transaction. As in the case of drug and gun offences, these charges deal with different delicts and if prohibition and probation orders are going to have any meaning and impact, they must be enforced. To impose a concurrent sentence makes the offence of violating the specific prohibition order superfluous, and that potentially undermines the repute of the judicial system in the eyes of ordinary citizens.
[36] Turning to the “jump” principle, plainly it cannot be a relevant consideration in a case like this one, because it should only arise as a factor where the offender has previously been convicted of a similar offence. Here, however, there is no significant similarity between the prior offences committed by Mr. Addow and these offences. This is the first time he has been convicted of possession of a firearm, and it is the first time he has been convicted of either discharging such a firearm or committing an aggravated assault.
[37] The point is made in R. v. Chambers[^9], upheld recently at the Court of Appeal. That case recognizes that the jump principle applies where the court is faced with the need to sentence an offender again for the commission of offences similar to offences he or she has previously committed. That was the situation in that case, unlike here.
[38] In that case, the offender had been convicted of prior gun offences on two occasions and had been sentenced to 7 months on each occasion. On the third occasion of being convicted, however, the Crown sought a massive jump in sentence to 13.5 years. That position was rejected by the trial judge. Instead, she focused on the principle which is of equal relevance here, based on the Court of Appeal’s decision in R. v. Borde, that on a first trip to the penitentiary, the offender should be given the shortest possible sentence that will meet the goals of sentencing in the particular circumstances. Kelly J. captures the essence of the point, a message of equal application here, at paras. 30-32:
30 There is no doubt that handguns in the city of Toronto are a scourge on our society. In sentencing Mr. Chambers, I am cognizant of the principles that I must consider. Most importantly: deterrence, denunciation and the protection of society.
31 In my view, the request for 13.5 years in custody for possession of one gun is simply too much taking into consideration the “jump” principle. Mr. Chambers has been incarcerated on two occasions for gun offences for a period of time served of 7 months on each occasion. To go from 7 months to 13.5 years in custody would be crushing to Mr. Chambers. Such a position also fails to take into account the principle that “a first penitentiary sentence should be as short as possible”4
32 I am also of the view that a sentence of 7 years is simply too low in the circumstances. Accordingly, I have calculated the sentence of 8 years on the following basis: …
[39] In my view these are the precise parameters that should govern on this sentencing as well.
Aggravating and mitigating circumstances
[40] There are both aggravating and mitigating factors present here, as there are in most sentencing circumstances. This is not the first time that Mr. Addow has come before our courts for sentencing for criminal offences. He has a criminal record. It is a record for assaults and offences against orders made by the court with which he was required to comply. The Crown’s position is that Mr. Addow has no respect for the justice system or for persons in authority. In addition, the fact that these offences took place in the centre of a housing complex in northwest Toronto, at about 9:00 or 9:30 in the evening when people were still coming and going from work or from other activities, necessarily meant that people were put at risk by Mr. Addow’s conduct, not only the victim Mr. Brown, but also the others who were present at that time.
[41] As an aside, apropos of the victim, Mr. Brown did not provide a victim impact statement on this sentencing, but the Crown did seek to introduce a statement from Ms. Julie McCormick as a victim. Defence counsel opposed the introduction of that statement. In the result, I agree with the defence on this point that Ms. McCormick is not a victim within the meaning of the Code. She is a witness. She stands in no different position than would any other member of the public who witnesses a crime or its aftermath.
[42] Returning to the Crown’s position, she is critical that the offender shows no remorse for the offences that he has committed, and she noted that all of the letters appeared to have the same date, namely the day before the sentencing hearing was conducted, suggesting some orchestration to their preparation and presentation to the court. However, I do not consider it to be an aggravating factor that there is an absence of remorse shown by Mr. Addow in the circumstances, since it is my understanding that he continues to claim that he was not the individual who shot Mr. Brown. It would be surprising if he were to show remorse for a crime that he claims he did not commit, in circumstances where it is my understanding he may plan to take this matter further for appellate review. As such, I do not consider the absence of express remorse to be aggravating in these circumstances. Neither, in my view, is the wounding caused to Mr. Brown an aggravating factor relative to the assault. I agree with counsel for the defence that by definition, an aggravated assault includes wounding, so it is hard for me to accept the proposition that merely meeting one of the elements of the definition of the offence as enacted by Parliament should in addition constitute an aggravating factor to the predicate offence itself.
[43] On the other hand, from a mitigating perspective, Mr. Addow is 23 years old and thus a youthful, albeit not young offender, although he does have a consistent criminal record leading up to the time of this offence. In the numerous letters that were submitted to the court from members of his family and others, introduced in support of mitigation, his family calls for leniency. They attest to the strong role he plays within the family unit relative to his brothers and sisters.
[44] Nonetheless, I agree with the Crown that it is disconcerting that the letters submitted by his family do not in any way recognize the criminal side of his character. They do not acknowledge or mention anything about these offences, nor do they acknowledge that he has previously been convicted of other criminal offences, involving assaults on persons, and to me that is a disconcerting reality. Counsel for the defence argues in contrast, that these letters show that people are complex. Notwithstanding the face that he has presented to the criminal justice system, she asserts that these letters show a different, more caring, more involved and more civil and hopeful side to his personality, a perspective which serves as the foundation for her request for leniency based upon which she regards as strong prospects for rehabilitation.
[45] In addition, counsel for the defence suggests that Mr. Addow’s prior criminal record is at a lower level of seriousness and ought not to command the higher range of sentence sought by the Crown in the circumstances of this case. While she went so far as to characterize it as minor and unrelated, I would not go that far. Mr. Addow's prior criminal record is not minor or insignificant, but neither could it reasonably be suggested that a conviction in this case for aggravated assault and for assault with a weapon could not have been foretold at least in part by two prior convictions that Mr. Addow has received for simple assaults.
Analysis and disposition
[46] In support of the lengthy sentence that she seeks, counsel for the Crown suggested that I could refer to several earlier sentence decisions that I have released within the past year, particularly those in R. v. Reid[^10] and R. v. Iyeke[^11], which she confirmed address all of the issues that she says need to be taken into account on a sentencing such as this one.
[47] Here, however, she claims to rely on the decisions in R. v. Bellisimo[^12], where the Court of Appeal confirmed that the range of sentence for serious gun-related offences is between seven and eleven years; R. v. Chan[^13], even though there was a prior gun possession in that case, unlike this one, with the offender there having an extensive prior criminal record with firearms (see para 28); R. v. Ghebreigziabiher[^14], where the offender was sentenced to 10 years, with 9 years for an aggravated assault, but where again the circumstances are very different; R. v. French, where the offender was sentenced to 11 years; R. v. Swaby[^15], where the appropriate range was considered to be 8-9 years; and R. v. Walker-King[^16], even though that case involved planning and deliberation, which I agree with defence counsel was not the case here.
[48] Consequently, I find that much of the case law put forward by the Crown involves offences that are more aggravated then the circumstances that are present here, with the exception of the decision in R. v. Larmond[^17], in which a seven-year global sentence was imposed on the 22-year-old offender, and which to my mind represents a more appropriate and suitable framework for the sentencing of this offender than the parameters contained in that other case law.
[49] I do not disagree with the Crown that these are very serious offences and that a lengthy custodial sentence is required, but it is critically important to bear in mind here that this offender has never before served a penitentiary sentence. This will be his first trip to the penitentiary. That is a trip that he must necessarily take, since the mandatory minimum sentence for assault with the firearm is five years imprisonment, a penitentiary term of sentence. However, in my view, as explained further below, a global sentence here of 10 years before pre-sentence custody is excessive and unwarranted.
[50] On the other hand, neither in my view are the submissions of defence counsel correct in the circumstances of this case, that a global sentence of five years before pre-sentence custody credit will adequately meet the requirements of sentencing.
[51] It is true that these offences were not committed in the course of committing another offence, and it is also true that the assault perpetrated against Mr. Brown in this case was not life-threatening. Further, given that Mr. Addow had the opportunity to shoot Mr. Brown in a location other than his thigh had he wanted to, plainly he could have caused him much more serious bodily injury or death but chose not to do so.
[52] Similarly, there is no evidence here of any planning or deliberation for these events which seem to have arisen out of a different altercation with other people earlier the same day and then coalesced into the circumstances which gave rise to the shooting when Akiel Brown came to the location in the Orpington Crescent townhouse complex looking for his friend Shamar Tynes. Further, there is some merit to the submission of defence counsel that calls for a lower range of sentence, but it is not on the basis of the jump principle, because that principle is not engaged here, but rather the fact that it will be a first-time penitentiary sentence for this offender.
[53] However, starting from the mandatory floor of 5 years, even if one takes the view as I do that a range of sentence of between 6-8 years will meet the requirements of sentencing for the first and second groups of offences, namely, discharging a firearm against Akiel Brown with the intent to wound him and committing an aggravated assault against him, and for the firearm possession offences, he must also be sentenced for the two offences of possession of a firearm while prohibited, and the breaches of his probation order and his recognizance.
[54] Looking at those additional offences, in my view the objectives of sentencing are not properly met where no separate meaningful sentence is levied for the breach of court orders. As noted, in the absence of doing so, their violation becomes meaningless. Here, Mr. Addow has not previously been convicted of a gun possession offence, even though he is being convicted of breach of a gun possession prohibition order, because that arose from another offence that did not actually involve gun possession. As such, it being his first conviction for breaching such an order, I would sentence Mr. Addow to a range of 8-10 months for the breach of the firearm possession prohibition orders, and 3-6 months for the breach of the probation and recognizance orders, consecutive to the sentences imposed for the first two sets of offences, but concurrent to each other.
[55] As such, in my view, taking account of the fact that the minimum sentence that must be imposed for the discharge of the firearm is five years imprisonment, I consider an appropriate range of sentence in these circumstances to be between about 7.5 and 8.5 years in aggregate for all of the offences. This global conclusion, and the fact that it is a considerably more lenient sentence than that sought by the Crown, is largely warranted in my opinion by the decision of our Court of Appeal in R. v. Borde that requires that a first-time penitentiary sentence should be set at the lowest number that will meet the objectives and requirements of sentencing in the particular circumstances, and by the fact that I find that Mr. Addow still has rehabilitation prospects.
[56] In its particular composition, I have determined that the fit sentence in this case requires that Mr. Addow serve a total global sentence before pre-sentence custody credit of eight years and three months composed as follows:
(i) Five years imprisonment for discharging a firearm against Akiel Brown with the intent to wound him and seven years and three months for committing an aggravated assault against him, both sentences to be served concurrently. The conviction for pointing a handgun at him is conditionally stayed under R. v. Kienapple;
(ii) Three years for the s. 95(2)(a) offence of possession of a prohibited firearm and two years concurrent for the s. 92(3) possession offence, both to be served concurrent to each other, and concurrent to the sentence for discharging a firearm with intent to wound and committing an aggravated assault; and finally,
(iii) Nine months for each of the two offences of possession of a firearm while prohibited, and three months for each of the breaches of probation order and recognizance, all to be served concurrent to each other, but consecutive to (i) and (ii).
[57] Having regard to the decision of our Court of Appeal in R. v. Summers[^18], now upheld by the Supreme Court, I find that the offender should be granted credit on the basis of one and a half days for each day of pre-sentence custody served. There was some suggestion made by the Crown that this offender ought to receive less than 1.5:1 credit for pre-sentence custody, perhaps in part based upon the delay in sentencing that resulted from efforts made by defence counsel to obtain legal aid funding in order to pursue a constitutional challenge of the mandatory minimum sentence of five years imposed with respect to count 1.
[58] In the result, that application for funding did not succeed and the sentencing proceeded without that line of argument, but in my view it was certainly open to the offender to pursue that line of argument if it was available to him. That seems to me necessarily meant that the sentencing itself would be delayed while Legal Aid was contacted and assessed whether or not they would provide funding for such a challenge. In my view, it would be inappropriate to reduce the amount of credit in these circumstances to less than 1.5 to 1 as a result of that conduct because in my view there was nothing improper about seeking that funding and incurring that delay, even if the proposition might reasonably have been suggested to be a long shot given other recent jurisprudence relative to mandatory minimum sentences in Canada. Consequently, Mr. Addow will receive credit of 1 1/2 to 1 for the 999 days of pre-sentence custody served up to and including today’s date, that is, credit of a total of 1,499 days (rounded up for the last half-day), that is, four years, one month and nine days.
Ancillary Orders
[59] The Crown seeks three ancillary orders: first, a firearms prohibition order for life under s. 109 of the Code and second, that the offender produce a DNA sample arising out of counts 1 and 2 as primary designated offences and under count 11 as a secondary designated offence. The Crown also seeks non-communication orders under s. 743.21 relative to Julie McCormick and Akiel Brown. None of these orders are resisted by the defence. All three ancillary orders are granted.
[60] Finally, in response to the request of counsel for the defence, while the enactment by Parliament of the Victim Impact Surcharge as mandatory is Canadian law with which I must also comply, I do accept that it would be onerous to require that it be paid by the offender’s family in the short term, and he will not be able to pay it insofar as he will be incarcerated in a federal corrections institution and thus not gainfully employed. To avoid that hardship, I order that the Victim Impact Surcharge is to be paid in full on or before July 14, 2018, that by my calculation is the last day that would otherwise be required to be served under this sentence by this offender, apart from parole and early release considerations.
Conclusion
Mr. Addow, please stand:
[61] Mr. Addow, for the foregoing reasons and after credit for pre-sentence custody, I hereby sentence you to serve a remaining sentence of four years, one month and twenty-one days, and to comply with the other ancillary orders I have made.
[62] I hope you will realize, sir, that you have been granted as lenient a sentence as I believe our law permits, based on your prospects of rehabilitation and the principles I have referred to that accept that on this, your first incarceration at a federal corrections facility, you be sentenced to the shortest term that is permitted under the law and that can meet the objectives of sentencing mandated under the Criminal Code.
[63] I hope you will use this time to redirect yourself to the pursuit of lawful activities and take steps to obtain training that will permit you to be gainfully employed as an electrician, or in another lawful trade upon your release. I hope you will have the good sense to turn your life around and head in the direction of a lawful life, as your parents and siblings have done, but that is entirely up to you. I also hope you will head your life into a productive and lawful direction because should you reappear before our courts on similar or other charges in the future, you will not likely again receive the leniency that you have received today. I wish you well.
Michael G. Quigley J.
Released: May 23, 2014
COURT FILE NO.: CR-12-50000298
DATE: 20140523
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
MUZAMIL ADDOW
Defendant
REASONS FOR SENTENCE
Michael G. Quigley J.
Released: May 23, 2014
[^1]: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206.
[^2]: Ruby, Clayton et al, Sentencing (Toronto: LexisNexis/Butterworths, 2004), at para 2.58.
[^3]: 2005 30044 (ON CA), [2005] O.J. No. 3532 (C.A.).
[^4]: See: R.v. Brown, [2006] O.J. No. 4681 (S.C.J.O.), at para. 9; R. v. Abubeker, [2001] O.J. No. 2927 (O.C.J.); R. v. Lambert, [2011] O.J. No. 3389 (S.C.J.O.) at paras. 46‑48.
[^5]: See R. v. Rockey [2011] O.J. No. 2524 (S.C.J.O.) and 2008 BCCA 47, [2008] B.C.J. No. 280 (B.C.C.A.) at para.15.
[^6]: LexisNexis Canada Inc., March 2009.
[^7]: See also: R v. Dene [2010] O.J. No. 5192, 2009 ONCA 312, 248 O.A.C. 1 and 2008 ONCA 287, [2008] O.J. No. 1412.
[^8]: [2012] O.J. No. 6381 (C.A.).
[^9]: 2012 ONSC 817, [2012] O.J. No. 462.
[^10]: 2013 ONSC 2342, [2013] O.J. No. 5929.
[^11]: 2014 ONSC 436.
[^12]: 2009 ONCA 49, [2009] O.J. No. 179 (C.A.).
[^13]: 2011 NSSC 471, [2011] N.S.J. No. 711 (S.C.J.).
[^14]: 2012 ONSC 5384, [2012] O.J. No. 4543 (S.C.J.).
[^15]: [2009] O.J. No. 1974 (S.C.J.).
[^16]: [2011] O.J. No. 3088 (S.C.J.).
[^17]: 2011 ONSC 7170, [2011] O.J. No. 5861 (S.C.J.).
[^18]: 2014 SCC 26, [2014] S.C.J. No. 26, aff’g 2013 ONCA 147.