ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-50000401-00
DATE: 20141212
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J.T.
Defendant
A. Del Rizzo, for the Crown
N. Singh and W. Wilson, for the Defendant
HEARD: November 5, 2014
DELIVERED: November 28, 2014
CROLL j.
DECISION FOR SENTENCING
[1] J.T. has been found guilty of 6 counts: possession of a prohibited firearm, to wit, a .45 calibre handgun together with readily accessible ammunition capable of being discharged when he was not the holder of an authorization or license to possess the firearm (count 1); possession of a firearm, knowing that he was not the holder of a license or registration certificate (count 2); possession of a firearm, without being the holder of a license or a registration certificate (count 3); careless storage of a firearm (count 4); possession of marijuana for the purpose of trafficking (count 7); possession of property, to wit $29,227.93, knowing that it was obtained by the commission of an offence (count 8).
Circumstances of the offence
[2] The charges arose following the execution of a search warrant at E[…] Avenue West in Toronto on February 6, 2012. In short, Mr. J.T. made certain utterances to the police at the time of the execution of the warrant, and those utterances revealed the location of a Firestar firearm, a glove with one round of ammunition in it and a magazine with one round in it, all found at the top of a doorframe in the apartment. While the admissibility of those utterances was challenged by the defence, I determined that they were made voluntarily and that there had been no violation of Mr. J.T.’ s. 10(b) right to counsel.
[3] In addition to the firearm and ammunition, over 60 grams of marijuana were found in the apartment, along with three digital scales, packaging that smelled of marijuana and almost $30,000 in cash. Numerous pieces of identification belonging to Mr. J.T. were found throughout the premises, and he was the only occupant found in the living quarters that early morning.
[4] Mr. J.T. is 33 years old. He has a record as a youth, consisting of fail to comply with recognizance, robbery x 2, fail to comply with probation, and unauthorized possession of a prohibited weapon ‑ a weapon that was not a firearm. Prior to this incident, Mr. J.T. had no further involvement with the criminal justice system since 2001.
[5] The Pre-sentence Report indicates that Mr. J.T. was raised by his mother, and had no involvement with his father. The family lived with his maternal grandmother until about 10 years ago, and before his arrest, Mr. J.T. was living in the Guelph area with an uncle. He has had a girlfriend for the last year, who currently is in school, and she has never been in trouble with the law. Mr. J.T., who has no children of his own, helps his girlfriend with her children. His mother is supportive, attended court during the trial, was in court for sentencing submissions and is here again today.
[6] In November 2008, Mr. J.T. was hit by a car as he was walking. He was unable to work for some 2 years after the accident. According to the Pre-sentence Report, Mr. J.T. smokes marijuana daily in order to manage the continuing chronic pain from his accident, and he apparently intends to obtain a prescription for medical marijuana.
[7] Mr. J.T. graduated from high school, and has worked in various positions over the years: doing renovations, in factories, and in the computer numerical control business. However, as stated, the pain from his 2008 accident impeded his ability to work for some period. Then, 2 years ago, he was hit by a weapon and almost lost his hand, and again, he required time to recover from a serious injury. That said, Mr. J.T. appears to adjust to these setbacks, and seek employment that he can manage. Mr. J.T. currently works Monday through Thursday for a waste management company.
Range
[8] The Crown seeks a global sentence of 6 years, broken down to 5 years on the firearms offences and one year consecutive on the trafficking offences. The defence submits that a sentence of 24-48 months is appropriate.
[9] Both counsel have provided case law to support their submissions, for which I am grateful. I have considered all the cases, though will refer to only some of them. As counsel acknowledge and as is always the case, sentencing is a very individualized and case specific exercise.
[10] In considering the case law, I must be guided by mitigating and aggravating circumstances that are personal to Mr. J.T..
Mitigating
[11] Mr. J.T. has not been in trouble with the law for some 14 years. He has very realistic and reasonable prospects for rehabilitation. He has been steadily employed, except for periods when his physical limitations prevented employment, and is currently working at a waste management company. He has recently acquired his truck driver’s license and hopes to attend school to pursue a truck driving career. He has the support of his family, has been attending church and by all accounts is a loving, attentive and helpful son and grandson. He is also in a steady relationship.
Aggravating
[12] The Crown submits that as Mr. J.T. is now 33 years-old, he should not be given the consideration that is often afforded to a first time youthful offender. However, in my view, any negative inference to be drawn from Mr. J.T.’ age and prior record is counterbalanced, if not trumped, by the 14 year trouble free hiatus between the date of Mr. J.T.’ criminal activity as a youth and the current offences.
[13] Where I do agree with the Crown, however, is that the possession of a loaded firearm together with over 60 grams of marijuana, significant cash, and drug trafficking paraphernalia is a highly dangerous combination, leading to the inference that the possession of the firearm is in furtherance of Mr. J.T.’ criminal drug activity. As Campbell J. noted in R. v. Peterkin, 2013 ONSC 2116, [2013] O.J. No. 1614 at para 23, when considering the combination of firearm possession with trafficking cocaine, “In my view, this changes the complexion of the case and renders the criminal conduct of the accused significantly more serious.”
Case law
[14] In considering the appropriate sentence, I note that many of the authorities upon which the Crown relies to support a sentence of 5 years on the prohibited firearm possession charge involved accused persons for whom the firearm possession was not a first offence, or who had recent related records, or where the circumstances generally were more aggravating than those of this case.
[15] In R v Whyte, [2014] O.J. No 4701, Mr. Whyte was found guilty of unlawful possession of a handgun and a high capacity magazine, related firearm offences, together with possession of marijuana for the purpose of trafficking and proceeds of crime. He was 21 years-old at the time of the offences, had a youth record for a firearm offence and was under two firearm prohibition orders at the time of the offence. He had taken the gun to a local high school, fled when he heard the police officers and disposed of the gun in a garbage chute. The court sentenced Mr. Whyte to four years on the possession of the firearm charge.
[16] In R v Le, 2014 ONSC 4288, [2014] O.J. No 3395, Mr. Le was found guilty of possession of a fully loaded restricted firearm, related firearm offences and possession of cocaine for the purpose of trafficking. At the time of the offences, Mr. Le, who was 23 years old, was on probation and subject to two court orders prohibiting him from possessing a firearm. He fled from the police and once apprehended, there was “a short but frantic struggle”. He was sentenced to 3 years on the firearms offences.
[17] In R v Costain, 2014 ONSC 3059, [2014] O.J. No. 2400, Mr. Costain was found guilty of three counts of possession of a loaded restricted firearm, and pled guilty to possession of cocaine and breach of a prohibition order. He was sentenced to a global sentence of 5 years and 9 months, with the 5 years being attached to the possession of a loaded restricted firearm charge. Mr. Costain had a record both as a youth and as an adult, and the adult record included armed robbery and possession of a loaded prohibited or restricted firearm.
[18] In R. v Tully, [2014] O.J. No. 350, Mr. Tully was found guilty of possession of a loaded prohibited firearm and other firearm offences, and possession of marijuana for the purpose of trafficking. He was also found in breach of two prohibition orders. He was sentenced to 6 ½ years on the possession of firearm offence. However, significantly, this was the third time in six years that Mr. Tully had been convicted of possession a loaded prohibited or restricted firearm, the third time in six years that Mr. Tully had been convicted of possession for the purpose of trafficking, and the third time in six years that Mr. Tully had been convicted of breach of a prohibition order. A review of the reasons indicates that on his first firearm charge some 6 years earlier in 2006, for which Mr. Tully pled guilty, he was sentenced to 3 years imprisonment.
[19] In R. v Fletcher, [2008] O.J. No. 697, Mr. Fletcher was found guilty of two sets of possession of a loaded restricted firearm, two sets of related firearm and prohibition breach charges. Mr. Fletcher was 26 years old with a prior criminal record. He was sentenced to 5 years on each set of the firearm charges, concurrent to each other.
[20] In R v. Baker, [2014] O.J. No.1410, Mr. Baker pled guilty to possession of a loaded prohibited firearm, unauthorized possession of a firearm, possession of a firearm in a motor vehicle, possession for the purpose of trafficking in MDMA and four counts of breach of a prohibition order. At the time of the offence, Mr. Baker was on parole, but had failed to comply with his reporting condition. He was 38 years old. These offences were Mr. Baker’s fifth firearm conviction, and his fourth drug conviction. He was sentenced to 6 ½ years on the possession of a loaded prohibited firearm charge.
[21] In R. v Hector, 2014 O.J. No 1617, Mr. Hector was found guilty of possession of a loaded restricted firearm, three counts of possession of a firearm contrary to a prohibition order, possession of a firearm contrary to a probation order, possession of marijuana and MDMA and failure to comply with a probation order. He was sentenced to 5 years on the possession of a loaded firearm offence.
[22] Without in any way minimizing the highly serious and lethal nature of possession of a loaded prohibited firearm in tandem with drug trafficking, I note the following:
• Mr. J.T. did not have the firearm out in the public, or in the highly dangerous setting of a school or a car;
• There was no flight from the police or any scuffle, rather, he advised police where the firearm was secreted;
• The common enterprise between the firearm and the drugs invoked marijuana, arguably a less serious drug than cocaine or MDMA;
• Mr. J.T. has had no recent criminal convictions, and in particular, no firearm convictions at all; and
• Unlike the accused in Baker, for example, Mr. J.T.’ prospects for rehabilitation are good, given his employment and educational antecedents, and his desire to participate in programs while in custody.
Sentencing principles
[23] Pursuant to s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives, namely: (1) to denounce unlawful conduct; (2) to deter the offender and others from committing offences; (3) to separate offenders from society where necessary; (4) to assist in rehabilitating offenders; (5) to provide reparations for harm done to victims or the community; and (6) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.
[24] There is no issue that denunciation and deterrence are the paramount sentencing objectives in a case involving unlawful possession of a firearm, and these objectives are even more pressing where the possession is coupled with the sale of drugs. As stated by Doherty JA, in striking down the mandatory minimum sentence of 3 years in R. v. Nur 2013 ONCA 677 at para 206:
Nor do my reasons have any significant impact on the determination of the appropriate sentence for those s. 95 offences at what I have described as the true crime end of the s. 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.
[25] In considering the appropriate sentence, I am also guided by the decision of our Court of Appeal in R. v. Borde, 2003 4187 (ON CA), [2003] O.J. No. 354 (C.A.) 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. As well, rehabilitation remains a factor for consideration, especially given that this is Mr. J.T.’ first offence as an adult and he is only 33 years old. (see R. v. Batisse 2009 ONCA 114)
Sentence
[26] Taking all these factors into account, I find that the appropriate sentence for Mr. J.T. on the possession of the prohibited loaded firearm is 3 years.
[27] The possession for the purpose of trafficking marijuana and proceeds of crime offences are stand-alone offences, and the sentence imposed will be consecutive to the sentence on the firearm offences. These drug offences have already been treated as aggravating factors on the firearm possession. The sentence on the possession for the purpose of trafficking and on the proceeds of crime shall be 10 months, concurrent to each other, but consecutive to the sentence on the possession of firearm charge.
Credit for Pre-trial Custody
[28] I am advised that Mr. J.T. spent 38 days in pre-trial custody. His affidavit indicates that he was regularly triple bunked and not subject to any misconduct proceedings while in custody. The Crown takes no issue with the defence request for credit on a 1 to 1.5 basis for those 38 days. Accordingly, Mr. J.T. shall be given credit for 57 days, which I have rounded up to two months. This credit shall be attributed to the possession for the purpose of trafficking marijuana.
Conclusion
[29] Mr. J.T. is sentenced to a global sentence of 44 months in custody, broken down as follows:
Count 1: possession of a prohibited firearm, to wit, a .45 calibre handgun together with readily accessible ammunition capable of being discharged when he was not the holder of an authorization or license to possess the firearm ‑ 36 months;
Count 2: possession of a firearm, knowing that he was not the holder of a license or registration certificate ‑ 1 year, concurrent to Count 1;
Count 3: possession of a firearm, without being the holder of a license or a registration certificate ‑ 1 year, concurrent to Count 1;
Count 4: unlawful storage of a firearm ‑ 1 year, concurrent to Count 1;
Count 7: possession of marijuana for the purpose of trafficking ‑ 8 months, in addition to the pre-trial custody, consecutive to Count 1;
Count 8: possession of property, to wit $29,227.93, knowing that it was obtained by the commission of an offence ‑ 8 months, concurrent to Count 7.
Ancillary orders
[30] The following ancillary orders shall be made:
Pursuant to s. 491(1) of the Criminal Code, the firearm and ammunition that has been seized and detained in this case shall be forfeited to Her Majesty in right of Ontario and thereafter disposed of as directed by the Attorney General.
Pursuant to s. 16(1)(a) of the Controlled Drugs and Substances Act, the drugs seized and detained in this case shall be forfeited to Her Majesty in right of Canada and thereafter disposed of as directed by the Minister of Health.
Pursuant to s. 462.37 of the Criminal Code, the proceeds of crime, namely the $29,227.93, shall be forfeited to her Majesty in right of Canada to be disposed of as directed by the Attorney General or otherwise dealt with according to the law.
Pursuant to ss. 109(1)(b) and 109(3) of the Criminal Code, Mr. J.T. shall be prohibited from the possession of any firearm, cross-bow, restricted weapon, ammunition, and explosive substance for life.
[31] Finally, as Mr. J.T. has been found guilty of committing a "secondary designated offence," pursuant to s. 487.051(3) of the Criminal Code, there shall be a DNA order.
[32] Thank you to counsel for their assistance throughout this trial.
Croll J.
Released: December 12, 2014
COURT FILE NO.: CR-13-50000401-00
DATE: 20141212
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
J.T.
DECISION FOR SENTENCING
CROLL J.
Released: December 12, 2014