ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-50000376
DATE: 20140625
B E T W E E N:
HER MAJESTY THE QUEEN
Jill Cameron for the Crown
- and -
MOHAMUD DUALE
Michael Morse for Mohamud Duale
HEARD: May 28, 2014
REASONS FOR SENTENCE
CORRICK J. (orally)
Introduction
[1] Following a trial, I found Mr. Duale guilty of the following offences:
▪ possession of a loaded prohibited firearm, contrary to s. 95(2)(a),
▪ use of a firearm without reasonable precaution for the safety of other persons, contrary to s. 86(3)(a),
▪ possession of a firearm knowing that the serial number had been removed, contrary to s. 108(2)(a),
▪ possession of a prohibited device to wit: an over capacity magazine, contrary to s. 91(3)(a),
▪ possession of a firearm while prohibited by a court order, contrary to s. 117.01(3)(a), and
▪ three counts of failing to comply with the conditions of a probation order to abstain from acquiring or possessing any weapon, to abstain from associating, contacting or communicating with Abdiweli Abdullahi, and to keep the peace and be of good behaviour, all contrary to s. 733.1.
[2] All of the offences arose from events that occurred on February 9, 2012 in the middle of the afternoon during which Mr. Duale ran through a residential townhouse complex armed with a loaded prohibited firearm.
Circumstances of the Offences
[3] The details of the offences are contained in my Reasons for Judgment delivered on March 11, 2014. In brief, following the shooting of one of his friends, Mr. Duale and two other men ran through a townhouse complex on Tandridge Crescent at 1:50 in the afternoon with firearms drawn. Mr. Duale was in possession of a loaded .40 calibre handgun. The police ultimately pursued them, at which point Mr. Duale threw his firearm into the backyard of one of the townhouses, where it was discovered by the resident.
[4] Once located by the police, the gun was found to contain a magazine capable of holding thirteen rounds of ammunition. The slide of the gun was locked back, and a misfed bullet was stuck in the chamber. The serial numbers on the firearm had been obliterated.
[5] At the time of the offences, Mr. Duale was subject to a weapons prohibition order and was on probation requiring him to keep the peace and be of good behaviour, to abstain from communicating with Mr. Abdullahi and to abstain from possessing any weapons. Mr. Abdullahi was one of the men who ran through the complex with Mr. Duale.
Circumstances of the Offender
[6] Mr. Duale is 22 years of age. At the time of these offences, he was 20 years old. He came to Canada as a refugee from Somalia when he was five years old. Both of his parents were killed in Somalia, and members of the community and his extended family arranged to have Mr. Duale and his younger brother sent to Canada to live with their aunt. He faces the possibility of deportation, not only as a result of these convictions, but also as a result of previous convictions. Mr. Duale's aunt raised Mr. Duale and his brother, along with her own four children, as a single parent, in the 320 Dixon Road neighbourhood.
[7] Mr. Duale has the following criminal record.
2005-08-02
Fail to comply with a recognizance x2
time served (7 days) & 12 months probation
2006-06-16
Fail to attend court
18 months probation
2006-10-30
Theft under $5,000
Assault resist arrest
time served (46 days) & 1 year probation
2007-07-09
Assault
Obstruct peace officer
Fail to comply with disposition
time served (53 days) & 2 years probation
2008-08-15
Obstruct peace officer
Fail to comply with disposition
6 months deferred custody & supervision order & 6 months probation
2008-08-16
Uttering threats
Fail to comply with disposition
Fail to attend court
2 months & 1 month community supervision & 119 days pre-sentence custody & 12 months probation
2009-11-13
Aggravated assault
Robbery
Fail to comply with disposition
305 days & 153 days community supervision & 272 days pre-sentence custody & 1 year probation & mandatory prohibition order
2011-08-09
Assault with a weapon
110 days pre-sentence custody &18 months probation
[8] His record begins in 2005, when he was 14 years old, and continues essentially uninterrupted until 2011, when he was convicted as an adult for the first time. The current offences occurred in February of 2012.
[9] While out of custody, Mr. Duale frequently missed school and failed to earn any high school credits. While in custody, he has earned 26 of the required 30 credits for a high school diploma. He has had no significant employment experience.
[10] The pre-sentence report indicates that Mr. Duale admitted that his use of marijuana, MDMA and alcohol from the age of 14 has negatively affected every aspect of his life. Mr. Duale reported to the author of the pre-sentence report that he no longer has a substance abuse problem.
[11] It is reported in the pre-sentence report that Mr. Duale feels that he must leave the Dixon Road neighbourhood and his negative peer group if he is to live crime-free. He plans to go out west to find employment.
Legal Parameters
[12] Possession of a loaded prohibited or restricted firearm is punishable by a maximum of ten years in prison. Until November 12, 2013, it was also punishable by a minimum of three years in prison upon conviction for a first offence. On November 12, the Court of Appeal for Ontario in R. v. Nur[^1] struck down the mandatory minimum sentence of three years.
[13] Possession of a firearm contrary to a prohibition order is also punishable by a maximum of ten years in prison. It is noteworthy that this is the only offence in the Criminal Code related to the breach of a court order that is punishable by more than two years imprisonment on indictment. This demonstrates the seriousness with which Parliament regards the breach of weapons prohibition orders.
Positions of the Parties
[14] Mr. Morse submitted that a total sentence of 3½ years is the appropriate disposition, before giving Mr. Duale credit for the time he has spent in pre-trial detention. Mr. Morse’s position was that 2½ years was appropriate for the offences related to the possession and reckless use of the firearm, followed by one year consecutive for the breach of a weapons prohibition order.
[15] Mr. Morse further submitted that Mr. Duale ought to be credited with 1.5 days for each day he has served in pre-trial custody because that time does not count toward parole or statutory release.
[16] Ms. Cameron submitted that a total sentence of six years in prison is a fit disposition; 5 years for the firearm offences followed by one year for the breach of the weapons prohibition order.
[17] In Ms. Cameron’s submission, Mr. Duale is not entitled to enhanced credit for the time he has spent in pre-trial custody because he is unlikely to be eligible for parole given his history of breaching court orders.
Principles of Sentencing
[18] The principles of sentencing that I am bound to consider are set out in the Criminal Code. The first is the fundamental purpose of sentencing set out in s. 718, which is to “contribute to respect for the law and the maintenance of a just, peaceful and safe society” by imposing sentences that give effect to one or more of the following objectives: 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.
[19] The second principle I must consider is proportionality as set out in s. 718.1. Any sentence imposed must reflect the gravity of the offence and the offender’s degree of responsibility.
[20] Thirdly, I am required by section 718.2 to impose a sentence taking into account any relevant aggravating or mitigating circumstances relating to the offence or the offender.
[21] Fourthly, where sentences for multiple offences are imposed, the principle of totality requires the court to craft a global sentence that is not unduly harsh or long. If the total sentence is excessive, the court must adjust it so that the total sentence is proper.
[22] Finally, I must consider sentences imposed on similar offenders for similar offences committed in similar circumstances. It is those that I now consider.
[23] In R. v. Nur[^2], the Court of Appeal considered the sentence imposed on a first offender who pleaded guilty to possession of a loaded firearm. Mr. Nur was 19 years of age at the time of the offence. He was seen outside a community centre that had been placed on lockdown. When the police arrived, he fled and threw away a loaded handgun. Mr. Nur was doing well in high school and hoped to attend university. He had held various part-time jobs and had done volunteer work in the community. He too faced deportation to Somalia as a result of his conviction. The Court of Appeal upheld a sentence of one day in custody, which was imposed after 40 months of credit were given for 20 months of pre-trial detention.
[24] Mr. Abdullahi, Mr. Duale's co-accused, pleaded guilty to recklessly discharging a firearm, possession of a firearm while not authorized to do so and possession of a prohibited device, which was an over-capacity magazine. Mr. Abdullahi had fired three shots into the air before he and Mr. Duale ran through the townhouse complex. He had a relatively minor criminal record. He had been found guilty as a youth of obstructing a peace officer and failing to comply with a recognizance. As an adult, he had been convicted of obstructing a peace officer. Justice McWatt determined that five years in custody was appropriate, and imposed a sentence of two years after giving Mr. Abdullahi credit for pre-trial custody.[^3]
[25] Justice Spies, in R. v. Hamilton,[^4] sentenced a 31-year-old man who, while armed, ran through a housing complex upon seeing police and threw a gun over a fence. Mr. Hamilton was convicted after a trial on charges of possession of a loaded restricted firearm, possession of a firearm without a licence, two counts of possession of a firearm contrary to a weapons prohibition order, and breach of probation. He was subject to a five-year minimum prison sentence. Before receiving credit for pre-trial custody, Mr. Hamilton was sentenced to six years for possession of the firearm and a further 18 months consecutive for the breach of prohibition orders.
[26] Finally, the Court of Appeal considered the issue of a fit sentence for possession of a loaded firearm in the case of R. v. Smickle.[^5] Mr. Smickle was alone in his cousin’s apartment posing with a loaded handgun to take a photograph for his Facebook page. Police entered the apartment by force to execute a search warrant and found Mr. Smickle with the firearm in his hand. Mr. Smickle was a 27-year-old first offender who was employed. He had a positive pre-sentence report and had been living a law-abiding lifestyle since the commission of the offence.
[27] The primary issue in the Smickle case was whether the Court of Appeal should re-incarcerate Mr. Smickle following a lengthy delay due to the appellate process. Justice Doherty, speaking for the court, made it clear that denunciation is of paramount importance in fashioning a fit sentence for the possession of a loaded firearm and that a penitentiary term will be called for even for a first offender.
[28] Of course, sentencing is a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. The sentencing principles set out in the Criminal Code must be applied to the unique circumstances of the case. However, a review of the jurisprudence demonstrates that a conviction for possession of a loaded firearm will attract a substantial penitentiary term.
Analysis
Aggravating and Mitigating Circumstances
[29] I turn now to consider the aggravating and mitigating circumstances.
[30] First the aggravating factors.
The circumstances in which Mr. Duale was in possession of the firearm are extremely serious. He and his two companions ran through a residential complex in the middle of the day following a shooting. He was wielding a loaded firearm. The video surveillance tapes show citizens in their backyards, walking and riding bicycles on the roads and sidewalks of the complex, and driving their cars in the neighbourhood. These people were entitled to go about their daily lives without the risk of encountering gun-toting men running through their neighbourhood. Mr. Duale’s conduct put the safety of these people at risk.
Mr. Duale’s actions also endangered the lives of the police officers who pursued him. Although the evidence indicated that the firearm was inoperable because a bullet was jammed in the chamber, it is not known when it became inoperable.
Mr. Duale’s criminal behaviour, as evidenced by his criminal record, began when he was 14 years old and has continued as an adult. Although he has only one conviction as an adult, when he was 19 years old, he was arrested on these offences only six months later, and has been in custody since. He was on probation at the time of these offences.
The pre-sentence report paints a rather bleak outlook for Mr. Duale’s rehabilitation. He has little formal education, no employment experience, difficulties with alcohol and substance abuse, anger management issues and an anti-social lifestyle. He has no concrete plan for the future other than to go out west. It is unclear how he will take advantage of the support offered by the Somali Immigrant Aid Organization evidenced in a letter marked as Exhibit 1 if he plans to go out west.
Mr. Duale has demonstrated no remorse for his behaviour. He continues to maintain that he was entitled to run through a residential community wielding a loaded firearm because he feared for his life.
When chased by the police, Mr. Duale attempted to conceal his possession of the firearm by throwing it into someone’s backyard, where it could have been found by anyone, again placing the lives of citizens in danger.
Mr. Duale has demonstrated a repeated disregard for court orders. He has been convicted of eight offences involving the breach of a court order to comply with conditions of a judicial interim release order, conditions of a disposition or to attend in court.
[31] I also consider the following mitigating factors:
Mr. Duale is still youthful. He is now 22 years old and was 20 at the time of the offences.
He enjoys the support of a loving family. His aunt has obviously worked hard to raise her four children and Mr. Duale and his brother. His family still stands behind him.
Mr. Duale did not initiate the shooting, but rather responded to it.
Determination of a Fit Sentence
[32] In the circumstances of this case, the protection of the public, denunciation, and deterrence, both general and specific, are of paramount importance.
[33] As Justice Doherty indicated in R. v. Nur, “Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation.”[^6]
[34] Notwithstanding this, given Mr. Duale’s youth, rehabilitation cannot be abandoned altogether.
[35] Mr. Duale is a repeat offender. His conduct in carrying a loaded firearm in open view through a residential neighbourhood endangered the safety of members of the public and of the police officers who pursued him. He has not been deterred by previous community supervision orders, by probation orders or weapon prohibition orders. Accordingly, before crediting him for the time he has spent in pre-sentence custody, I am of the view that a sentence of four years for the possession of the firearm is required to adequately address the sentencing principles of deterrence and denunciation, and is in keeping with sentences imposed on similar offenders in similar circumstances.
[36] With respect to the conviction for possession of a firearm in breach of a prohibition order, a consecutive sentence must be imposed. The intentional violation of a court order that is made to protect the public must attract additional sanctions. Mr. Duale will be sentenced to 12 months on those counts related to his breach of court orders concurrent to each other and consecutive to the sentence imposed on the firearm offences.
[37] In summary, before giving Mr. Duale credit for the time he has spent in pre-sentence custody, I am of the view that a total sentence of five years is the fit and proper one in all of the circumstances. It adequately addresses the gravity of these offences and Mr. Duale’s persistent disregard for court orders.
[38] The sentences for the other offences will be concurrent. I have considered that four of the offences arise from the possession of a single firearm. The other offences arise from the breach of court orders. The totality principle is a significant factor in my decision to impose concurrent sentences.
Credit for Pre-Sentence Custody
[39] Mr. Duale has been in custody for 858 days, or slightly more than 28 months since his arrest on February 9, 2012. Mr. Morse argued that he should receive the maximum credit of 1.5 days for each of the 858 days, pursuant to s. 719(3.1) of the Criminal Code, based on the fact that this time does not count toward statutory release.
[40] Ms. Cameron submitted that given Mr. Duale’s history of breaching court orders, he would not likely be granted early parole, and should thus not receive enhanced credit for the time spent in pre-sentence custody.
[41] The Supreme Court of Canada in R. v. Summer has held that, “the loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions of detention are not particularly harsh, and parole is unlikely.”[^7] The court further indicated that, although the onus is on the offender to demonstrate his entitlement to enhanced credit, the fact that the offender has been detained in pre-sentence custody is enough to give rise to an inference that he has lost eligibility for early release.
[42] Mr. Duale has satisfied me that he is entitled to enhanced credit for the 858 days he has spent in pre-sentence custody at the rate of 1.5 to 1. Accordingly, he will be given credit for 1,287 days or 3½ years.
Summary
[43] In summary, my disposition is as follows:
Count #8
s. 95(2)(a)
Possession of a loaded prohibited firearm
4 years in custody
Count #11
s. 86(3)(a)
Use of a firearm without precaution for safety of other persons
4 years concurrent to count #8
Count #13
s. 108(2)(a)
Possession of a firearm knowing the serial number had been removed
4 years concurrent to count #8
Count #14
s. 91(3)(a)
Possession of a prohibited device without holding a licence
4 years concurrent to count #8
Count #15
s. 117.01(3)(a)
Possession of a firearm contrary to a prohibition order dated August 9, 2011
1 year consecutive
Count #16
s. 733.1(1)(a)
Failure to comply with a probation order
1 year concurrent to count #15
Count #17
s. 733.1(1)(a)
Failure to comply with a probation order
1 year concurrent to count #15
Count #18
s. 733.1(1)(a)
Failure to comply with a probation order
1 year concurrent to count #15
[44] In addition, Mr. Duale will be subject to a weapons prohibition for life pursuant to s. 109 of the Criminal Code, and the gun, magazine and ammunition are forfeited to the Crown pursuant to s. 164.02 of the Criminal Code.
Conclusion
[45] A sentence of five years in custody for Mr. Duale properly reflects the community’s abhorrence of the prevalence and use of firearms in our city. It serves as denunciation and deterrence to others who may be contemplating using firearms to protect themselves or to intimidate others. It also recognizes Mr. Duale’s youth, the support of his family and his potential for rehabilitation.
[46] In conclusion, Mr. Duale is sentenced to 5 years in custody, less 3½ years credit for the time he has served in pre-sentence custody, leaving a total of 18 months to be served.
Corrick J.
Released: June 25, 2014
[^1]: 2013 ONCA 677
[^2]: supra
[^3]: R. v. Abdullahi [2014] ONSC 272
[^4]: 2013 ONSC 3127
[^5]: 2014 ONCA 49
[^6]: 2013 ONCA 677 at para. 206
[^7]: 2014 SCC 26 at para. 71