SUPERIOR COURT OF JUSTICE

Information No. 9749/12

HER MAJESTY THE QUEEN

v.

NORMAN DUNKLEY

REASONS FOR SENTENCE

BEFORE THE HONOURABLE JUSTICE M. EDWARDS

on June 26, 2014, at NEWMARKET, Ontario

APPEARANCES:

C. Elmasry

Counsel for the Crown

J. Bogle

Counsel for Norman Dunkley

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

REASONS FOR SENTENCE...1

LEGEND

[sic] - Indicates preceding word has been reproduced verbatim and is not a transcription error.

(ph) - indicates preceding word has been spelled phonetically.

Transcript Ordered: .................... July 2, 2014

Transcript Completed: .................. September 9, 2014

Ordering Party Notified: ............... September 9, 2014

THURSDAY, JUNE 26, 2014

REASONS FOR SENTENCE

EDWARDS, J. (Orally):

These are my reasons for sentence. After a four-day trial, Mr. Dunkley was convicted of a number of firearms offences, specifically possession of a loaded, restricted firearm, a 9-millimetre Ruger P35 semi-automatic, contrary to Section 95(1) of the Criminal Code, possession of a firearm while knowingly not being the holder of a licence permitting such possession contrary to Section 92(1) of the Criminal Code, possession without lawful excuse of a prohibited weapon, a Taser M26, while knowingly not being the holder of a licence contrary to Section 92(1) of the Criminal Code, without lawful excuse being an occupant of a motor vehicle knowing that there was a firearm, specifically the 9-millimetre Ruger, contrary to Section 94(1) of the Criminal Code, without lawful excuse being an occupant of a motor vehicle knowing that there was a prohibited weapon, Taser, contrary to Section 94(1) of the Criminal Code, and two counts of being without lawful excuse in possession of a firearm while prohibited, contrary to Section 117.01(1) of the Criminal Code.

At the time of his arrest, with respect to the aforesaid charges, Mr. Dunkley was on parole in connection with an armed robbery conviction.

He was under a prohibition order in connection with earlier firearms related charges. These are my reasons for sentence. We deal first of all with the position of the Crown.

The Crown seeks a sentence of 12 years which is broken down as follows:

possession of the restricted 9-millimetre Ruger with ammunition, 10 years;

possession of the Ruger knowing possession was, was unauthorized, 5 years concurrent;

possession of the Taser knowing that the possession was unauthorized, 5 years concurrent; possession of the Ruger while an occupant of the motor vehicle, 5 years concurrent;

possession of the Taser while occupant of a motor vehicle, 5 years concurrent;

possession of the Ruger contrary to a prohibition order, one year consecutive, and possession of the Taser contrary to a prohibition order, one year consecutive, for a total of 12 years.

As well, the Crown seeks a DNA order, a Section 109 lifetime prohibition on weapons order, and an order pursuant to Section 491 of the Criminal Code forfeiting all weapons and items seized.

In her written submissions, Crown counsel referred to a number of aggravating factors which warranted what Crown counsel acknowledges would be a maximum sentence that should be reserved for someone like Mr. Dunkley in order to provide for specific deterrence, given that he was on parole at the time of his arrest and in contravention of earlier prohibition orders of this court. The fact that Mr. Dunkley was on parole was emphasized by Crown counsel as being the single-most aggravating factor warranting a total sentence of 12 years.

Let me deal with the position of the defence. While acknowledging that Mr. Dunkley has a criminal record for approximately 34 prior convictions, Mr. Bogle argues that to impose a 12 year sentence would be to impose a crushing sentence which would not be in the interests of justice. Mr. Bogle emphasizes the parity principle in relation to other decided cases, and argues that an appropriate sentence would be in the order of six years, minus pre-trial custody for which it is suggested the court should allow one and one-half days for each day of pre-trial custody.

Let me deal with the issue of credit for pre-trial custody. I am advised that Mr. Dunkley completed his sentence in relation to an armed robbery conviction on September 20th, 2013, and that his parole would be completed as of June 26th. With sentencing set for today, June 26th, by my calculation, Mr. Dunkley has been incarcerated for 278 days while awaiting trial and sentencing on these charges. When Mr. Dunkley was arrested on the charges before this court, as I have already indicated, he was on parole in connection with an armed robbery charge for which he had received a 12-year sentence. I heard no evidence called on Mr. Dunkley's behalf that would suggest that Mr. Dunkley might receive favourable consideration in connection with a parole application in connection with the charges that he is presently being sentenced for.

With the recent amendment made to the Criminal Code by the Truth In Sentencing Act, it is no longer the case that an accused will automatically receive enhanced credit for co-called dead time served in pre-trial custody. Section 719(3.1) of the Criminal Code now provides, and I quote,

Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated [on] the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).

I emphasize the words, "if the circumstances justify it" as these words have recently been interpreted by the Supreme Court of Canada in Summers to include the possible loss of early parole. In determining if enhanced credit or pre-trial sentence is appropriate, The Supreme Court of Canada in Summers at paragraph 71 stated, and I quote,

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. Of course, a lower rate may be appropriate when detention was a result of the offender's bad conduct, or the offender is likely to obtain neither early release nor parole. When the statutory exceptions within Section 719(3.1) are engaged, credit may only be given at a rate of 1 to 1. Moreover, Section 719 is engaged only where the pre-sentence detention is a result of the offence for which the offender is being sentenced.

The Supreme Court has also made it clear that while the onus is on the offender seeking enhanced credit, it is generally not the case that it will be necessary for the offender to lead "extensive evidence" to meet that onus. See paragraph 79 and 80 of Summers.

In this, in this case, I heard no evidence that Mr. Dunkley will be a likely candidate for early parole, or for that matter parole of any kind. While I cannot predict with any degree of certainty the likely outcome of any application that Mr. Dunkley may make for parole, I find that it is highly unlikely, given his lengthy criminal record and the fact that he was on parole when arrested for the charges presently before this court, that Mr. Dunkley will have much, if any, success in any application for early parole.

As such, I am not satisfied that Mr. Dunkley has met even the limited onus imposed on him by Summers to establish that he may suffer any loss of early parole, and as such I decline to award anything other than the one-for-one credit for time served. Subject to any mathematical recalculation with respect to the number of days in pre-trial custody, Mr. Dunkley will receive a credit for 278 days against the ultimate sentence imposed by this court.

Let me deal with Mr. Dunkley's background. Mr. Dunkley is 34 years of age, married with children of his own as well as stepchildren. It is clear to me that his wife, Sheila, stands behind Mr. Dunkley despite his lengthy criminal record and the charges for which he has now been convicted. Only time will tell if this relationship survives the sentence that Mr. Dunkley will now ultimately have to serve. I am advised by counsel that Mr. Dunkley has worked in construction, and that he has developed some job skills through attendance at the Academy of Learning.

What stands out, however, from Mr. Dunkley's background is what can only be described by reference to his lengthy criminal record as a relentless ongoing encounter with the criminal justice system. For this reason alone, specific deterrence is an important factor in the sentencing of Mr. Dunkley. Mr. Dunkley's criminal record was entered as Exhibit 16 at the trial. A review of that criminal record which spans a period nearly 20 years demonstrates that Mr. Dunkley has no regard for orders of this court, nor any regard for orders in connection with the administration of justice as demonstrated by the fail to comply convictions, his conviction for escaping custody, and his conviction as a previous violator of a statutory release order. He is now convicted in connection with an earlier prohibition order in connection with possession of firearms.

His criminal record also demonstrates prior offences in connection with weapons, at least one of which is noted as a firearm. There are a number of convictions for robbery, the most recent of which related to an armed robbery charge, for which, as I've already mentioned, he received a 12 year penitentiary sentence.

Mr. Dunkley's criminal record demonstrates that despite lengthy jail terms and the fact that he was the subject of a prior firearms prohibition order, that none of the prior convictions, and none of the sentences have had any deterrent effect on him at all.

The fact that Mr. Dunkley has a criminal record that demonstrates an ongoing and persistent criminal past that involves possession of firearms, and the fact that he was found in possession of the firearms for which he is now convicted, demonstrates that he has no compunction about using firearms in the commission of a crime. It is not an unreasonable conclusion for this court to come to that Mr. Dunkley had the firearms in his possession for a criminal purpose, and that he was not simply holding on to them temporarily as a favour to somebody else. There simply is no evidence before this court that would lead this court to any other conclusion that the possession of the firearms was for a criminal purpose.

Having reviewed Mr. Dunkley's criminal record, I am satisfied that all reasonable efforts in the past to control or modify his behaviour have failed, and that he is a significant danger to other members of the public. I am satisfied that from my review of Mr. Dunkley's criminal record, that his moral blameworthiness is at the very high end of the spectrum, and that denunciation and specific deterrence are a primary consideration in my sentencing of Mr. Dunkley.

Let me deal briefly with the principles of sentencing. Recent case law from our Court of Appeal has made it abundantly clear that convictions for firearm-related offences are to be strongly denounced, and that those intending to possess and/or to use prohibitive weapons need to understand that such possession will not be tolerated. As such, the paramount consideration and the paramount sentencing objective when dealing with firearms related offences must be denunciation and must be deterrence.

In its recent decisions dealing with the constitutionality of the mandatory minimum sentence prescribed by Section 95 of the Criminal Code, the Court of Appeal has made it clear that its decision finding a three-year minimum penalty set forth in Section 95 unconstitutional did not diminish the need for appropriately severe sentences for offenders who were clearly engaged in criminal conduct and who pose a clear and immediate danger to the public.

In that regard, it is worth emphasizing what the Court of Appeal said in Nur at paragraph 206, and I quote,

Nor do my reasons have any significant impact on the determination of the appropriate sentence for those Section 95 offences at what I have described as the true crime end of... Section 95 spectrum. 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. Thus, as outlined earlier, and regardless of the three-year minimum penalty, this appellant, despite the mitigating factors, could well, have received a sentence of three years.

While the Court of Appeal has made clear by its recent decisions relating to firearm offences that deterrence and denunciation are of paramount consideration, the principles of sentencing set forth in Section 715 of the Criminal Code still require the sentencing court to impose a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender.

In that regard, without minimizing the fact that Mr. Dunkley has been convicted of very serious firearm-related offences, he was not convicted of an offence for which he was actually using the weapons that he had in his vehicle. Some may say that this was purely fortuitous; that is, while he was not actually carrying the firearms, nor was he actually using them. Nonetheless, it is, it is not unreasonable for this court to infer that the only reason that Mr. Dunkley would have a firearm in his possession would be to actually use it at some time in the future. I am mindful of the fact, however, that Mr. Dunkley does not stand convicted of an offence for which he actually used the firearms.

In addition to the principles set forth in Section 718.1 of the Criminal Code, this court must be guided by the principles set forth in Section 718.2, particularly, (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating factors relating to the offence or the offender;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; and

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.

Let me deal with the aggravating and the mitigating factors in this case. There are very few mitigating factors that favour a lenient sentence for Mr. Dunkley. He clearly has a loving wife who has stood behind him throughout these proceedings. He has a young family from whom he will be separated for a significant period of time. As well, it was suggested by Mr. Bogle that when he was arrested, he was not involved in any criminal activity. This argument, in my view, is somewhat devoid of merit as he clearly was involved in criminal activity, specifically the simple possession of the fully-loaded firearm by itself was criminal, as was his breach of the earlier court orders not to possess a prohibited weapon.

Rehabilitation was not advanced in argument as a significant factor on behalf of Mr. Dunkley, but I do take into account that while Mr. Dunkley is not a youthful offender, he is still of a relatively young age and, despite his criminal record, I do not discount that with a young family, Mr. Dunkley may still have some prospects for rehabilitation in the future. That said, my earlier review of Mr. Dunkley's criminal record does not suggest that the prospects for rehabilitation are very great.

The aggravating factors pointed to by Crown counsel, in my view, far outweigh the aforementioned mitigating factors. Specifically I take into account the following aggravating factors. Mr. Dunkley was found in possession of a potentially deadly weapon which was fully loaded and was readily accessible to him in the back seat of his vehicle. Mr. Dunkley was found in possession of the weapons in a neighbourhood where on all accounts members of the public would be welcomed and encouraged to visit, that is, a Petro Canada station and an Esso station.

In having these weapons in his possession in an unlocked vehicle, Mr. Dunkley was potentially putting members of the public at serious risk.

Crown counsel referred in her written submissions to the fact that the gym bag in which the Taser was located also contained items that were described as a "home invasion kit". Specifically the gym bag contained zip ties, a blow torch and gloves. Mr. Dunkley has not been charged, nor is there any evidence that he was in fact in the process of becoming involved in a home invasion. I do not take into account in my sentencing of Mr. Dunkley the fact that he was in possession of items that Crown counsel has described as a home invasion kit.

The most significant aggravating factors that warrant a denunciatory sentence and a sentence specifically designed to deter Mr. Dunkley are the fact that when he was arrested, he was on parole for his last conviction for robbery which had attracted a 12-year penitentiary sentence. Mr. Dunkley was violating his parole by being in York Region when he was not authorized to do so. He was also in possession of the Ruger and the, and the Taser at a point in time when he was subject to a firearms and weapons prohibition.

A court order and parole conditions may be seen by some as a piece of paper. Mr. Dunkley, at the time of his arrest, did have in his possession his parole papers. He clearly saw those papers as nothing more than a piece of paper. Court orders and parole conditions are intended to be obeyed. Failure to do so is an aggravating factor. It must be brought home to someone like Mr. Dunkley that court orders and parole conditions are intended to be obeyed, and that if they are not, the court will, view such disobedience as a significant aggravating factor warranting a sentence that specifically is designed to deter Mr. Dunkley in the future from any further conduct that would amount to disobedience.

Let me deal briefly with the case law. Mr. Bogle on behalf of Mr. Dunkley referred the court to a number of sentencing decisions in support of the proposition that the appropriate sentence for Mr. Dunkley would be six years' incarceration less credit for pre-trial custody. In support of this position, I was referred to a decision of the Court of Appeal in Brown where the Court of Appeal imposed a sentence of seven and a half years for possession of a loaded restricted firearm and a one-year consecutive sentence for breach of firearm's prohibition. The total sentence in Brown was eight and a half years. It is worth noting that the sentence imposed by the trial judge after a plea of guilty was five and a half years imprisonment on the possession of the restricted firearm charge and one year concurrent on the charge of possession of a firearm contrary to a prohibition order.

On appeal by the Crown, the Court of Appeal in Brown granted leave to appeal the sentence, and set aside the trial judge's sentencing disposition and increased the sentence from five and a half years to eight and a half years. In doing so, at paragraph 13, the Court of Appeal stated, and I quote;

The circumstances of this offence and this offender [carried out] called out for an exemplary sentence to achieve the sentencing goals of denunciation and deterrence. Particularly in the light of Parliament's decision to establish a mandatory minimum sentence of five years' imprisonment for a second or subsequent conviction for possessing a loaded restricted firearm, the global sentence imposed of five years and six months imprisonment in addition to pre-sentence custody was not adequate to meet those objectives.

I fail to see how the Court of Appeal decision in Brown supports the argument advanced by Mr. Bogle that an appropriate sentence in Mr. Dunkley's case would be a sentence of six years. I was also referred to a decision of Justice Morocco as he then was in Johnson where the accused, having been convicted of a number of firearms-related offences, received a seven and a half year sentence for possession of a loaded prohibited restricted firearm, and three six-month consecutive sentences with respect to possession of a firearm while under a prohibition order. The total sentence therefore was nine years, less credit for 44 months' pre-trial custody.

I was also referred to a recent decision of Justice Ken Campbell in Ellis where the accused received a total sentence of seven years' imprisonment in connection with various firearms-related offences similar to those for which Mr. Dunkley has been convicted. In reviewing various mitigating factors, I note that Justice Campbell was of a view that the accused had excellent prospects for rehabilitation. While I have accepted that Mr. Dunkley is not devoid of any prospect for rehabilitation, the evidence before me would hardly support the conclusion that rehabilitation is of any paramount consideration in Mr. Dunkley's case.

Crown counsel acknowledges that in her review of the case law, she could find no previous cases in which an accused was found in possession of a prohibited weapon at a point in time when he was on parole. There are regrettably many cases where an accused is found in possession of a weapon contrary to a prohibition order. I fully agree with Crown counsel that a sentencing court can and should take into account as a significant aggravating factor the circumstance in which an accused is found in possession of a prohibited weapon while on parole. This is particularly so when the offender is out on parole in connection with a conviction for armed robbery.

Parole is one of many first steps that, that an offender must deal with as part of his or her ultimate return to society. Many offenders successfully complete their parole and become law-abiding and contributing members of society after they have served their sentence. It is the expectation that an accused must abide by his parole conditions, and that failure to do so, particularly in a situation where someone like Mr. Dunkley is found in possession of a deadly prohibited weapon, will result in a sentence at the high end of the appropriate range.

Having reviewed the various cases to which I was referred by Crown counsel and defence counsel, I am satisfied that an appropriate range for the types of offences for which Mr. Dunkley has been convicted would be, at the low end, seven years, see Ellis, and at the high end, nine and a half years, see W.C.A. While none of the sentencing authorities to which I was taken by Crown counsel involved an accused convicted of a firearms-related offence while out on parole, I also note that none of the authorities support a sentence in the order of 12 years which was sought by Crown counsel. None of the authorities cited to me by Mr. Bogle, in my view, support a sentence in the range of six years.

As I have made clear on more than one occasion throughout these reasons, the single paramount consideration in dealing with the types of firearms-related offences for which Mr. Dunkley has been convicted is deterrence and denunciation. Society expects, and rightly so, that firearms-related offences will be dealt with severely. Even the simple possession of a prohibited weapon, even if it is not actually being used in the commission of a criminal offence, is a significant crime warranting a significant penalty. The proliferation of firearms-related offences within our society is something that we see in the newspapers and on our televisions almost every day. There are far too many examples of innocent individuals suffering deadly consequences from the proliferation of these firearms.

Mr. Dunkley clearly has not understood that the simple possession of these weapons is a significant criminal offence. Mr. Dunkley clearly has not understood that such a significant criminal offence will attract significant criminal penalties. The message needs to be understood by those convicted of firearms-related offences that they will face significant periods of incarceration as has been made clear by the various Court of Appeal authorities to which I was referred to throughout these reasons.

Mr. Dunkley, would you please stand. The sentence of this court is as follows.

On Count One, possession of a loaded restricted firearm, 9-millimetre Ruger semi-automatic with ammunition, eight years.

On Count Two, possession of the 9-millimetre Ruger, knowing possession was unauthorized, three years concurrent to Count One.

On Count Three, possession of the Taser, knowing possession was unauthorized, three years concurrent to Count One.

On Count Four, possession of the 9-millimetre Ruger while an occupant of a motor vehicle, five years concurrent to Count One.

On Count Five, possession of the Taser while the occupant of the motor vehicle, five years concurrent to Count One.

On Count Six, possession of the 9-millimetre Ruger contrary to a prohibition order, one year consecutive to Count One.

On Count Seven, possession of the Taser contrary to a prohibition order, one year consecutive to Count One and Count Six.

And the total sentence is therefore a sentence of 10 years. I credit Mr. Dunkley with the 278 days while awaiting trial on sentencing as referenced in paragraph six above. The remaining sentence to be served by Mr. Dunkley will therefore be 9 years and 87 days. There will also be a mandatory DNA order and a lifetime prohibition of weapons order pursuant to Section 109 of the Criminal Code and an order forfeiting all weapons and items seized pursuant to Section 491 of the Criminal Code.

Those are my reasons. My only question to both counsel is whether I have mathematically calculated the correct number of days?

MS ELMASRY: While you were speaking, I did the calculation, and that is exactly what I got as well, too, I agree.

THE COURT: Bogle?

MR. BOGLE: Agreed, Your Honour.

THE COURT: All right. Those are my reasons for sentence.

...END OF EXCERPT

FORM 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Deborah A. Stewart, certify that this document is a true and accurate transcription of the recording of R. v. Norman Dunkley in the Superior Court of Justice held at 150 Bond Street East, Oshawa, Ontario taken from Recording(s) No. Armstrong-1-2812-202-20140626-090914 which has been certified in Form 1, by Gail Armstrong.

September 9, 2014

(Date) Deborah A. Stewart CCR/CVR

Certified Verbatim Reporter

ACT# 4660365351

VPTranscription.com

This certification does not apply to Reasons for Sentence which, were judicially edited.